USERS GUIDE FORM OF INTERCREDITOR AGREEMENT FOR REAL ESTATE FINANCE TRANSACTIONS (SENIOR/MEZZANINE) 10 June 2014

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1 For the avoidance of doubt, this Users Guide, the REF Document and the Intercreditor Agreement are in a non-binding, recommended form. Their intention is to be used as a starting point for drafting only. Individual parties are free to depart from their terms and should always satisfy themselves of the regulatory implications of their use. USERS GUIDE TO FORM OF INTERCREDITOR AGREEMENT FOR REAL ESTATE FINANCE TRANSACTIONS (SENIOR/MEZZANINE) 10 June 2014 The Loan Market Association ("LMA") consents to the use and reproduction of this document by members of the Loan Market Association for the preparation and documentation of agreements relating to transactions or potential transactions in the loan markets. The LMA does not consent to the use, reproduction, distribution or communication to the public of this document for any other purpose, in any other manner or by any other person and expressly reserves all other rights. Loan Market Association. All rights reserved. LMA.UG.REF.ICA June 2014

2 CONTENTS 1. Important Notice Introduction Outline Of Key Provisions Of The Intercreditor Agreement... 7 LMA.UG.REF.ICA June 2014

3 1. IMPORTANT NOTICE This Users Guide has been prepared for the Loan Market Association ("LMA") in connection with the form of intercreditor agreement for real estate finance transactions (the "Intercreditor Agreement") published by the LMA. Whilst every care has been taken in the preparation of this Users Guide and the Intercreditor Agreement, no representation or warranty is given by the LMA or Allen & Overy LLP: as to the suitability of the Intercreditor Agreement for any particular transaction that the Intercreditor Agreement will cover any particular eventuality as to the accuracy or completeness of the contents of this Users Guide. This Users Guide provides limited guidance only on the terms of the Intercreditor Agreement. It is not intended to be a comprehensive analysis of the Intercreditor Agreement or to explain exactly how each provision operates. In particular, users of the Intercreditor Agreement should satisfy themselves as to the taxation, regulatory and accounting implications of its use and that the Intercreditor Agreement is appropriate to the terms of the commercial transaction. Neither the LMA nor Allen & Overy LLP is liable for any losses suffered by any person as a result of any contract made on the terms of the Intercreditor Agreement or which may arise from the presence of any errors or omissions in this Users Guide or the Intercreditor Agreement and no proceedings shall be taken by any person in relation to such losses. For the avoidance of doubt, this Users Guide and the Intercreditor Agreement are in a nonbinding, recommended form. Their intention is to be used as a starting point for drafting and negotiation only. Individual parties are free to depart from their terms and should always satisfy themselves of the regulatory implications of their use. LMA.UG.REF.ICA June 2014

4 2. INTRODUCTION The purpose of this Users Guide is to assist users of the Intercreditor Agreement. The Intercreditor Agreement seeks to govern the relationship between two classes of creditor providing finance to the same borrower group in the context of a real estate finance transaction. It does this by ranking the creditors' debt and their entitlements to the proceeds of any guarantees and security and by contractually restricting their behaviour: for example, by controlling when and by whom security might be enforced and when payments can be made by a borrower to a given class of creditor. 2.1 Evolution and Scope of the Intercreditor Agreement The Intercreditor Agreement project was begun in response to demand from the real estate finance market to provide a form of intercreditor agreement for use in conjunction with the LMA's recommended form of facility agreement for real estate finance multiproperty investment transactions (the "REF Document"). As with the REF Document itself, it was recognised that the nature of real estate finance transactions was such that it would be very difficult to produce a document which was in any way "standard". The starting point for the preparation of the Intercreditor Agreement was the LMA recommended form of intercreditor agreement for leveraged acquisition finance transactions (senior/mezzanine) (the Leveraged Intercreditor Agreement ). The Intercreditor Agreement was prepared on the basis of an assumed corporate, loan and guarantee, security and subordination structure that is depicted in the structure diagram set out at the end of this section 2 and is described in section 3. This structure is one of a number that are seen in the real estate finance market it is not intended to be a preferred or recommended structure. It was accepted that any document which was produced would need to be tailored to the particular transaction structure and the agreement reached between the creditor classes in each case. However, it was still felt that it would be helpful for market participants if a document was produced which was a good starting point for the draftsman and provided a common framework and language for those involved in these transactions. It is important, therefore, to recognise that, as with the REF Document itself, the Intercreditor Agreement is not a standard form to be followed slavishly for each deal but a document which will be used as a starting point by law firms drafting the credit documentation for real estate finance transactions. In order to be helpful, various provisions which may or may not be included in any particular transaction have been included in square brackets in order that a menu of clauses is available to the draftsman should those clauses be required. The non-inclusion of such square bracketed provisions should not be considered as a departure from the LMA form. LMA.UG.REF.ICA June 2014

5 A Working Party consisting of representatives from senior and mezzanine lenders (including in-house lawyers) and major City law firms was established to consider the drafting of the Intercreditor Agreement. It is important to note that a large number of provisions will need to be tailored to a transaction on a case-by-case basis and that, in each case, the position adopted is a matter to be commercially agreed between the different creditor classes. In those cases, the Intercreditor Agreement provides a sensible starting point only and does not attempt to set out a definitive position suitable for all transactions. 2.2 Format and Use of the Intercreditor Agreement (a) Assumptions The Intercreditor Agreement has been produced on the basis of various assumptions set out below, made in order to avoid overcomplicating the document. However, if any assumption is not correct in the context of a particular transaction, the Intercreditor Agreement may still represent a useful starting point. The corresponding Senior Facility Agreement is based on the REF Document (all the assumptions made in the separate Users Guide to the REF Document apply to the Intercreditor Agreement) but it should be recognised that the REF Document reflects a Senior Lender only transaction and would need to be adapted to reflect the existence of the Mezzanine Liabilities. The structure of the transaction is as described in the Users Guide to the REF Document, adapted by the description depicted in the structure diagram set out at the end of this section 2 and as described in section 3. There are, of course, a number of different structures that could be used for real estate finance transactions and for regulating the rights and obligations of Senior and Mezzanine Lenders and if the structures applying to the transaction in question are different to the structure described in the Users Guide to the REF Document, adapted by the structure diagram set out at the end of this section 2 and described in section 3, it is likely that changes will need to be made to the Intercreditor Agreement. The Intercreditor Agreement is governed by English law. Style As far as possible the Intercreditor Agreement adopts a "plain English" approach, with clauses broken down into shorter sub-paragraphs and exceptions listed in sub-paragraphs rather than as provisos. The Intercreditor Agreement is divided into Sections and Clauses. Each Clause is divided into sub-clauses, and sub-clauses may be further divided into separate paragraphs. The sequence of numbering is as follows: SECTION 1 HEADING LMA.UG.REF.ICA June 2014

6 Clause 1 HEADING, Clause 1.1 Heading, paragraphs (a),, (c), paragraphs,, (iii), paragraphs, (B), (C), paragraphs (1), (2), (3). Headings are given to each Section and Clause only. Cross references should refer to the Clause number and the heading of the Clause. Where additional information is required a gap [ ] is left. Where optional language or more than one option have been included it is identified as [option] or [option 1]/[option 2]. Footnotes are intended to assist drafting. (c) How to use the Intercreditor Agreement It is impossible to use the Intercreditor Agreement without amendment or additions (because of the inclusion of different options and the provisions that have been left blank). It will therefore be necessary to show clearly what amendments have been made, both during the course of negotiation and at the end of the transaction. The following approach can be adopted: when distributing the first draft to the syndicate of banks and the borrowers, the drafting law firm should provide copies of the draft marked to show changes from the Intercreditor Agreement including the deletion of the LMA logo and the copyright notice. Further comparisons should be provided as required by the Parties; and at the end of the transaction, the law firm responsible for the draft should provide the Parties with a conformed copy of the final document marked to show changes from the Intercreditor Agreement. This will help with administration of the facility and any secondary trading that may take place. There is no recommendation for how this comparison will be produced or how additions or deletions should be indicated. 2.3 Differences to the Leveraged Intercreditor Agreement The starting point for the Intercreditor Agreement was the Leveraged Intercreditor Agreement but there are material differences in particular there are certain options available to the parties in the Intercreditor Agreement that do not appear in the Leveraged Intercreditor Agreement, e.g.: LMA.UG.REF.ICA June 2014

7 (a) (c) Clause 5.7 (Cure Rights: Mezzanine Creditors) which, if included, restricts the enforcement rights of the Senior Creditors to allow the Mezzanine Creditors to remedy certain Events of Default under the Senior Facility Agreement; Clause 5.10 (Acquisition) which, if included, allows the Mezzanine Lenders to enforce separate Mezzanine Security to effect an acquisition of shares in the Mezzanine Borrower or Senior Shareholder (and related inter-company receivables) without triggering a change of control under the Senior Facility Agreement; and Clause 11.6 (Distressed Property Management Initiatives) which, if included, permits the Security Agent to authorise certain actions which may otherwise be restricted by the terms of the Mezzanine Finance Documents. There are also certain provisions of the Leveraged Intercreditor Agreement that have not been included in the Intercreditor Agreement, because the matters concerned are dealt with differently, or they are not sufficiently common in the real estate finance market. On any particular transaction however, if such matters need to be addressed, users may refer to and adapt the relevant provisions from the Leveraged Intercreditor Agreement. Examples of such matters are clauses dealing with: (a) (c) (d) Liabilities Acquisitions by Debtors or related entities; the stopping of payments to Mezzanine Creditors by way of a mezzanine stop notice regime; equalisation of recoveries as between Senior Lenders and Hedge Counterparties (which are, in real estate finance transactions, dealt with in the Senior Facility Agreement); and the facilitation of a refinancing of the Senior Facility Liabilities. LMA.UG.REF.ICA June 2014

8 3. INVESTOR Mezzanine Subordinated Debt MEZZANINE SHAREHOLDER Mezzanine Subordinated Debt Mezzanine Security Agent Security over all assets MEZZANINE BORROWER Mezzanine Facility Agreement Mezzanine Lenders Mezzanine Subordinated Debt Security over [all assets/shares and subordinated debt] SENIOR SHAREHOLDER Subordinated Debt Security over all assets COMPANY Subordinated Debt Senior Lenders Security Agent Security over all assets SENIOR BORROWERS Hedge Counterparties LMA.UG.REF.ICA June 2014

9 OUTLINE OF KEY PROVISIONS OF THE INTERCREDITOR AGREEMENT Please note that this section of the Users Guide is intended to summarise the key provisions of the Intercreditor Agreement and to act as an overview of its structure. By its nature it does not attempt to cover every aspect of all the Intercreditor Agreement's provisions in full. Where appropriate the below summary contains cross-references (in italicised text) to the corresponding clauses of the Intercreditor Agreement. Areas in square brackets denote that the relevant provision is in square brackets in the Intercreditor Agreement. 3.1 Assumed structure (a) Assumed corporate structure The Intercreditor Agreement assumes a corporate structure as follows: (iii) (iv) (v) the "Investor" owns the shares in the Mezzanine Shareholder; the "Mezzanine Shareholder" owns the shares in the Mezzanine Borrower; the "Mezzanine Borrower" owns the shares in the Senior Shareholder; the "Senior Shareholder" owns the shares in the Company; and the "Company" owns the shares in the Senior Borrowers. The [Investor, the] Mezzanine Shareholder, the Mezzanine Borrower, the Senior Shareholder, the Company and each Senior Borrower is a "Debtor". The Senior Shareholder, the Company and each Senior Borrower are also a "Common Debtor". [The Debtors are all required to be party to the Intercreditor Agreement.] Assumed lending and guarantee structure The Intercreditor Agreement assumes a lending and guarantee structure as follows: (iii) (iv) the Senior Lenders lend to the Senior Borrowers; the Mezzanine Lenders lend to the Mezzanine Borrower; the Company and each Senior Borrower guarantee the obligations of each Senior Borrower; the Company and each Senior Borrower guarantee the obligations of the Mezzanine Borrower. (c) Assumed security structure The Intercreditor Agreement assumes a security structure as follows: LMA.UG.REF.ICA June 2014

10 (iii) (iv) [the Mezzanine Shareholder grants security over [its assets/the shares in the Mezzanine Borrower and the debt owed by the Mezzanine Borrower to the Mezzanine Shareholder] in favour of the Mezzanine Security Agent for the Mezzanine Creditors;] [the Mezzanine Borrower grants security over its assets (including the shares in the Senior Shareholder, the debt owed by the Senior Shareholder to the Mezzanine Borrower and the bank account(s) of the Mezzanine Borrower) in favour of the Mezzanine Security Agent for the Mezzanine Creditors;] the Senior Shareholder grants security over [its assets/the shares in the Company and the debt owed by the Company to the Senior Shareholder] in favour of the Security Agent for the Senior Creditors and the Mezzanine Creditors; and the Company and each Senior Borrower grant security over its assets in favour of the Security Agent for the Senior Creditors and the Mezzanine Creditors. (d) Assumed subordination structure The Intercreditor Agreement assumes that the subordination of debt between the Senior Shareholder and the Company and between the Company and the Senior Borrower and between the Senior Borrowers is documented separately in the Subordination Agreement. It is emphasised that the assumed structure is one of a number seen in the real estate finance market and is not intended as a preferred or recommended structure. 3.2 Types Of Debt and Creditors (Clause 1 (Definitions and Interpretation)) The layers of debt to be regulated are as set out below (together the "Liabilities" held by the "Creditors"). (a) Senior Liabilities A single currency senior term facility (the "Senior Facility") provided by "Senior Lenders" (together with the arranger of the Senior Facility (the "Senior Arranger") and the agent under the Senior Facility (the "Senior Agent"), the "Senior Facility Creditors") and documented in the "Senior Facility Agreement". All amounts due under the Senior Facility Agreement to the Senior Facility Creditors are referred to as "Senior Facility Liabilities". The Hedge Counterparties are party to the Senior Facility Agreement. Arrangements to hedge interest rate liabilities in relation to the Senior Facility (the "Hedging Liabilities") provided by "Hedge Counterparties" are documented by "Hedging Agreements". (Hedge Counterparties are not LMA.UG.REF.ICA June 2014

11 required to also be Senior Lenders and framework documentation other than ISDA documentation is allowed for in the Intercreditor Agreement.) (The Senior Facility Creditors and the Hedge Counterparties are together referred to as the "Senior Creditors"). Mezzanine Liabilities A single currency mezzanine term facility (the "Mezzanine Facility") provided by "Mezzanine Lenders" (together with the arranger of the Mezzanine Facility (the "Mezzanine Arranger") and agent under the Mezzanine Facility (the "Mezzanine Agent"), the "Mezzanine Creditors") and documented in the "Mezzanine Facility Agreement". All amounts due under the Mezzanine Facility Agreement to the Mezzanine Creditors are referred to as "Mezzanine Liabilities". The Senior Creditors and the Mezzanine Creditors are together referred to as the Creditors. (c) Subordinated Liabilities Indebtedness owned by Common Debtors to each other is assumed to be subordinated pursuant to one or more Subordination Agreements in favour of the Security Agent. Indebtedness owed by any of the Senior Shareholder, the Mezzanine Borrower, the Mezzanine Shareholder to each other and to the Investor is assumed to be subordinated under the Mezzanine Finance Documents. (d) Hedging Liabilities The provisions of the Intercreditor Agreement assume, as regards the Hedging Liabilities, that: (iii) (iv) (v) only interest on the Senior Loans is subject to hedging under the Hedging Agreements; the key requirements of the Hedging Agreements are set out in the REF Document; there may be multiple Hedge Counterparties; there is no requirement for a Hedge Counterparty to also be a Senior Lender; and the Hedge Counterparties will benefit from the guarantee in the Senior Facility Agreement; LMA.UG.REF.ICA June 2014

12 (e) The Security Agent The Transaction Security is held by a security agent the ("Security Agent") on trust for the Creditors. 3.3 Creditor voting groups (Clause 1 (Definitions and Interpretation)) (a) Majority Senior Creditors: holders of [ ]% of the aggregate of: (iii) the Senior Facility; following a permitted termination or close out of any Hedging Liability, the settlement amount of that Hedging Liability to the extent that that settlement amount is due to the Hedge Counterparty and has not been paid by the relevant Debtor; and [(following discharge in full of the Senior Facility Liabilities only), ]the deemed settlement amount of the Hedging Liabilities (that have not been closed out or terminated) at any time. Therefore, a Hedge Counterparty will have a vote: (iv) (v) to the extent that the resulting settlement amount is due to the Hedge Counterparty as a result of a permitted termination or close-out of the corresponding Hedging Liability and has not been paid by the relevant Debtor; and to the extent of the deemed settlement amount of the Hedging Liabilities if they have not been closed out or terminated but depending on which option is chosen this may only apply following discharge in full of the Senior Facility Liabilities. Majority Senior Lenders: holders of [ ]% of the Senior Facility, as specified in the Senior Facility Agreement. (c) Majority Mezzanine Lenders: holders of [ ]% of the Mezzanine Facility, as specified in the Mezzanine Facility Agreement. (d) Instructing Group: at any time prior to discharge in full of the Senior Facility Liabilities and the Hedging Liabilities, the Majority Senior Creditors; and at any time after such discharge, the Majority Mezzanine Lenders. 3.4 Ranking as to Payment (Clause 2 (Ranking and Priority)) (a) First: Senior Facility Liabilities and Hedging Liabilities pari passu. Second: Mezzanine Liabilities. LMA.UG.REF.ICA June 2014

13 3.5 Ranking as to Transaction Security (Clause 2 (Ranking and Priority)) (a) First: Senior Facility Liabilities and Hedging Liabilities pari passu. Second: Mezzanine Liabilities. 3.6 Ranking as to Mezzanine Security (Clause 2 (Ranking and Priority) The Mezzanine Security is for the sole benefit of the Mezzanine Creditors. 3.7 Senior Facility Liabilities - Restrictions and Permissions (a) Payments to Senior Facility Creditors (Clause 3.1 (Payment of Senior Facility Liabilities)) No restrictions - any due payments allowed from time to time. (Users should note that this will allow any professional adviser fees incurred by the Senior Lenders and which are, under the Senior Facility, to be paid by the borrower group, to be paid without restriction.) Restrictions on waivers/amendments - Senior Facility Creditors (Clause 3.2 (Amendments and Waivers: Senior Facility Creditors) and Clause 3.3 (Restriction on amendments and waivers: Senior Facility Liabilities)) Restriction on size No increase in the size of the Senior Facility (as at the original date of closing [or, if less, as at the date of the waiver/amendment]) [which exceeds the Senior Headroom]. Terms of repayment No change to the terms of repayment or prepayment other than a change: (B) which is contemplated by the Senior Facility Agreement and associated documents; or the effect of which is to defer any scheduled repayment of the Senior Facility to a date not more than [ ] days after the [Senior Termination Date/date on which it was originally due]. (iii) [Restrictions on interest, fees and commissions No change to basis upon which interest, fees or commissions accrue or are calculated or payable other than a change which is: (B) contemplated by the Senior Facility Agreement and associated documents; in respect of a fee or commission payable to the Senior Agent; or (C) LMA.UG.REF.ICA June 2014

14 (1) a minor or administrative change; or (2) a correction of a manifest error, in each case not prejudicial to the Mezzanine Creditors. (iv) Restrictions on changes to specific clauses in Senior Facility Agreement Except as referred to in paragraph above, no change to specified clauses of the Senior Facility Agreement dealing with repayments, prepayments, the operation of certain bank accounts and partial payments other than a change which is: (B) a minor or administrative change; or a correction of a manifest error, in each case not prejudicial to the Mezzanine Creditors. (v) Restriction on additional/increased payments No change the effect of which is to make a Common Debtor liable to make additional or increased payments. (vi) Restriction on imposing more onerous obligations No change which: (B) would result in a Common Debtor being subject to more onerous obligations under representations, undertakings, financial covenants or events of default; and has not been made to the Mezzanine Facility, without the consent of the Majority Mezzanine Creditors. (c) Security and guarantees/indemnities - Senior Lenders (Clause 3.5 (Security: Senior Facility Creditors)) Senior Lenders may take security and/or any guarantee/indemnity from any Common Debtor in addition to: the security and/or any guarantee/indemnity the benefit of which is given to each other Creditor; and the guarantees/indemnities contained in the Senior Facility Agreement, the Intercreditor Agreement or the relevant mandate letter, provided that it is also offered to the Hedge Counterparties and the Mezzanine Lenders. LMA.UG.REF.ICA June 2014

15 3.8 Restrictions and Permissions - Hedge Counterparties (a) Payments to Hedge Counterparties (Clauses 4.2 (Payment of Hedging Liabilities) The Debtors may make payments in respect of the Hedging Liabilities then due in accordance with the Hedging Agreements and the Senior Facility Agreement. [Acquisition of Hedging Liabilities by members of the Group (Clause 4.3 (No acquisition of Hedging Liabilities)) Not permitted without consent of Majority Senior Lenders.] (c) Restrictions on waivers/amendments - Hedging Agreements (Clause 4.4 (Amendments and Waivers: Hedging Agreements)) Amendments and waivers permitted so long as they would not result in a breach of: the Intercreditor Agreement; or clause [8.3] (Hedging) of the Senior Facility Agreement. (d) Security and guarantees/indemnities - Hedge Counterparties (Clause 4.5 (Security: Hedge Counterparties)) Not permitted to take security and/or any guarantee/indemnity other than: (iii) (iv) the security and/or any guarantee/indemnity the benefit of which is given to each other Creditor; any guarantee/indemnity contained in the Senior Facility Agreement or the Intercreditor Agreement; any guarantee/indemnity contained in a Hedging Agreement and no greater in extent than those referred to in paragraphs or above; and the indemnities contained in an ISDA master agreement (or equivalent). (e) Enforcement Action - Hedge Counterparties (Clauses 4.6 (Restriction on Enforcement: Hedge Counterparties) Subject to clause [8.3] (Hedging) of the Senior Facility Agreement, not permitted to take enforcement action or terminate or close out the Hedging Liabilities prematurely. (f) Netting The Intercreditor Agreement allows, and does not interfere with, the operation of the netting of individual hedging transactions documented by Hedging Agreements under a single master agreement (to the extent envisaged by ISDA LMA.UG.REF.ICA June 2014

16 master agreements) or between separate master agreements which are both Hedging Agreements. (g) Senior Facility Agreement The Intercreditor Agreement will contain a mechanism under which a person may accede to the Intercreditor Agreement as a Hedge Counterparty if it also accedes to the Senior Facility Agreement. 3.9 Mezzanine Liabilities - Restrictions and Permissions (a) Payments to Mezzanine Creditors (Clauses 5.1 (Restriction on Payment: Mezzanine Liabilities)) and 5.2 (Permitted Payments: Mezzanine Liabilities)) Until the Senior Facility Liabilities and the Hedging Liabilities have been discharged in full, the only payments permitted without the consent of the Majority Senior Creditors are due payments of: (iii) (iv) (v) any sum other than principal; principal pursuant to illegality prepayment provisions; principal pursuant to the mandatory prepayment provisions of the Senior Facility Agreement and Mezzanine Facility Agreement; principal pursuant to cancellation and prepayment provisions triggered by an increase in sums payable under tax gross-up and/or increased costs provisions; and any sum that is not principal and is paid in accordance with the Senior Facility Agreement and the Mezzanine Facility Agreement, except that no such payments are allowed when a [Senior Default/Senior Material Default/Senior Payment Default] is continuing. (Whether this exception is necessary will depend on the terms of the Senior Facility Agreement and Mezzanine Facility Agreement which may already provide for the relevant exception to such payments). Users should consider whether payments under the illegality prepayment provisions, or the prepayment provisions triggered by an increase in sums payable under tax gross-up and/or increased costs, of the Mezzanine Facility should be permitted when a [Senior Default/Senior Material Default/Senior Payment Default] is continuing. Restrictions on waivers/amendments - Mezzanine Creditors (Clause 5.8 (Amendments and Waivers: Mezzanine Creditors)) Before the Senior Facility Liabilities and the Hedging Liabilities have been discharged in full, the following restrictions apply: LMA.UG.REF.ICA June 2014

17 no change to principal amount of Mezzanine Facility; no change to terms of repayment or prepayment other than a change: (B) which is contemplated by the Mezzanine Facility Agreement and associated documents; or the effect of which is solely to defer any scheduled repayment of the Mezzanine Facility; (iii) no change to basis on which interest, fees or commissions accrue other than a change: (B) (C) which is contemplated by the Mezzanine Facility Agreement and associated documents; [the effect of which is solely to convert cash pay interest to capitalised interest]; or which is: (1) a minor or administrative change; or (2) a correction of a manifest error, in each case not prejudicial to the Senior Creditors; (iv) except as referred to in paragraph above, no change to specified clauses of the Mezzanine Facility Agreement dealing with repayments, prepayments, the operation of certain bank accounts and partial payments other than a change which is: (B) a minor or administrative change; or a correction of a manifest error, in each case not prejudicial to the Mezzanine Creditors; (v) (vi) no other change the effect of which is to make a Common Debtor liable to make additional or increased payments; and no change which: (B) would result in a Common Debtor being subject to more onerous obligations under representations, undertakings, financial covenants or events of default; and has not been made to the Senior Facility, without the consent of the Majority Senior Creditors. LMA.UG.REF.ICA June 2014

18 (c) Security and guarantees/indemnities - Mezzanine Creditors (Clause 5.6 (Security: Mezzanine Creditors)) Not permitted to take security and/or any guarantee/indemnity from a Common Debtor other than: security and/or any guarantee/indemnity the benefit of which is given to each other Creditor; or the guarantees/indemnities contained in the Mezzanine Facility Agreement, the Intercreditor Agreement [or the relevant mandate letter], without the consent of the Majority Senior Creditors. (d) [Cure Rights (Clause 5.7 (Cure Rights: Mezzanine Creditors)) During the period of [ ] days after being notified of [a non-payment, breach of financial covenant or [ ] Event of Default under the Senior Facility Agreement]/[an Event of Default under the Senior Facility Agreement that is capable of remedy through a Mezzanine [Property Protection/Cure] Loan], the Mezzanine Lenders may elect to remedy that Event of Default [through the means of a Mezzanine [Property Protection/Cure] Loan] or such other means as the Majority Senior Lenders approve. The cure rights referred to in paragraph above are limited only specified Events of Default may be remedied and there may be restrictions on the number of occasions they may be remedied.] (e) Enforcement Action - Mezzanine Creditors (Clauses 5.8 (Restriction on Enforcement: Mezzanine Creditors) to 5.11 (Restriction on Enforcement against Debtors: Mezzanine Creditors)) Not permitted to take enforcement action whilst any of the Senior Facility Liabilities and Hedging Liabilities are outstanding [unless: (B) the Senior Facility Creditors have taken action under any of the acceleration provisions of the Senior Facility Agreement, in which case the Mezzanine Creditors may take the same action under the acceleration provisions of the Mezzanine Facility Agreement; [expiry of a period (a "Mezzanine Standstill Period") of: (1) [ ] days in the event of a non-payment of any principal, interest or fees under the Mezzanine Facility Agreement; (2) [ ] days in the event of any other non-payment (in a minimum amount of [ ]) under the Mezzanine Facility Agreement; LMA.UG.REF.ICA June 2014

19 (3) [ ] days in the event of a breach of any financial covenant under the Mezzanine Facility Agreement; and (4) [ ] days in the case of any other event of default under the Mezzanine Facility Agreement, and the relevant event of default under the Mezzanine Facility Agreement is continuing at the expiry of the Mezzanine Standstill Period and the aggregate of the principal amount of the Senior Liabilities and the amounts that would be payable to the Hedge Counterparties if the Hedging Agreements were terminated does not exceed [ ] per cent. of the market value of the Properties. The market value of the Properties is determined in accordance with the most recent valuation under the Senior Facility Agreement however there is no provision for the Mezzanine Agent to request the Senior Agent obtains a new valuation for this purpose;] (C) (D) (E) [if [a Mezzanine Standstill Period is continuing]/[a Mezzanine [Material] Event of Default is continuing][a Distress Event has occurred], the Mezzanine Creditors may take enforcement action to effect an Acquisition as described in paragraph below;] in respect of a Debtor following insolvency of that Debtor; or the Majority Senior Creditors give consent.] [The Mezzanine Creditors may, [at any time during a Mezzanine Standstill Period]/[at any time when a Mezzanine [Material] Event of Default is continuing]/[at any time after a Distress Event], effect an acquisition (an Acquisition ) of the shares in the Mezzanine Borrower or Senior Shareholder and the related debt owed by the Mezzanine Borrower to the Mezzanine Shareholder or by the Senior Shareholder to the Mezzanine Borrower (as applicable). (B) An Acquisition is conditional upon: (1) [the consent of the relevant Senior Creditors;] (2) compliance with "know your customer" requirements and applicable laws and regulations; and (3) the remedying of relevant Senior Defaults (or the relevant Senior Creditors being satisfied those Senior Defaults will be remedied after the Acquisition). (C) An Acquisition must be completed within [ ] days of the satisfaction of the conditions referred to in paragraph (B) above. LMA.UG.REF.ICA June 2014

20 (D) (E) An Acquisition shall not give rise to a change of control prepayment event under the Senior Facility Agreement but after the Acquisition that change of control prepayment event will be amended to reflect the Acquisition. [Upon completion of the Acquisition, the Mezzanine Creditors may cease to have certain rights under the Mezzanine Facility Agreement and the Intercreditor Agreement.] (iii) The Mezzanine Creditors may not take enforcement action against a Debtor (or its holding company) where: (B) the shares of that Debtor are part of the Transaction Security; and that part of the Transaction Security is being enforced, until the earlier of: (1) [ ] days after the date on which the Security Agent notifies the Mezzanine Agent of that enforcement; and (2) notification that that part of the Transaction Security is no longer being enforced. The above restriction does not apply: to the extent that the Security Agent is taking that enforcement action on the instructions of the Majority Mezzanine Lenders pursuant to clause 9.2 (Manner of enforcement) of the Intercreditor Agreement; and (B) to action taken pursuant to paragraph []/[(c)] of clause 5.9 (Permitted Enforcement) of the Intercreditor Agreement. (f) Mezzanine Lenders' Call Options [(Clauses 5.12 (Option to purchase: Mezzanine Lenders) and] 5.13 (Hedge Transfer: Mezzanine Lenders)) [Senior Facility [and Hedging Liabilities] The Mezzanine Lenders have a call option to purchase the Senior Facility [(together with the Hedging Liabilities (in full and on a deemed Early Termination Date basis))] in full and at par (plus costs and expenses and any amount that would have been due if that purchase was a repayment or prepayment of the Senior Facility by a Debtor) at any time [when a Senior [Material] Event of Default is continuing],][during [a Mezzanine Standstill Period]/[after a Distress Event]/[after the final termination date for the Senior Facility]]. Hedging Liabilities LMA.UG.REF.ICA June 2014

21 The Mezzanine Lenders have an additional call option to purchase the Hedging Liabilities (in full and on a deemed Early Termination Date basis) which is exercisable at any time after discharge in full of the Senior Facility Liabilities Turnover (Clause 7 (Turnover of Receipts)) Any receipt or recovery by a Creditor in respect of the Liabilities which is: (a) (c) (d) not permitted by the Intercreditor Agreement; made after any action has been taken under the acceleration provisions of the Senior Facility Agreement or the Mezzanine Facility Agreement or after any enforcement of any Transaction Security; the result of litigation against a Debtor; or made in respect of Liabilities of a Debtor as a result of, or after, the insolvency of that Debtor, to be turned over to the Security Agent for application in accordance with the waterfall described in clause 3.15 (Payment Waterfall) of this Users Guide Enforcement of Transaction Security Instructions to enforce the Transaction Security and subsequent instructions regarding the manner of that enforcement are treated separately. (a) Enforcement of Transaction Security (Clause 9.1 (Enforcement Instructions)) Instructions to commence enforcement given: by Majority Senior Creditors unless: (B) the Senior Facility Liabilities and the Hedging Liabilities have been discharged in full; or no enforcement or instructions to enforce by Majority Senior Creditors and the Majority Senior Creditors have not required the Group to dispose of any assets, in which case, by Majority Mezzanine Lenders to the extent that the Mezzanine Lenders are otherwise permitted to take enforcement action. Manner of Enforcement (Clause 9.2 (Manner of enforcement)) Instructions as to manner of enforcement given: by Majority Senior Creditors unless: the Senior Facility Liabilities and the Hedging Liabilities have been discharged in full; or LMA.UG.REF.ICA June 2014

22 (B) if the Majority Mezzanine Lenders gave instructions to enforce the Transaction Security under paragraph (a) above and the Majority Senior Creditors have not given instructions as to the manner of enforcement, in which case, by Majority Mezzanine Lenders, (in either case, the "Enforcing Group") Distressed Disposals (Clause 11 (Distressed Disposals, Appropriation [and Distressed Property Management Initiatives])) (a) Security Agent authorised to: release Transaction Security when disposals made in distressed circumstances ("Distressed Disposals") and, where that disposal is a disposal of shares of a Debtor, to have the power to release, dispose of or transfer obligations in respect of certain Liabilities and other liabilities[; or [consent to, sanction, authorise or confirm certain matters requiring consents under the Senior Facility Agreement at the request of the [Instructing Group] if the Transaction Security has become enforceable or in distressed circumstances]. The powers described in paragraph (a) above are controlled by requiring the Security Agent [to take reasonable care] to obtain a fair market [price]/[value] in the prevailing market conditions when making a Distressed Disposal. [This requirement is satisfied if: (iii) (iv) the Distressed Disposal is made pursuant to a court supervised/approved process; the Distressed Disposal is made at the direction of, or under the control of, an insolvency officer; [the Distressed Disposal is made pursuant to the exercise of a power of sale under the Transaction Security in accordance with applicable law;] the Distressed Disposal is made pursuant to: an auction or other competitive sales process [conducted with the advice of an independent [internationally recognised] investment bank, accountancy firm or other professional services firm with the requisite experience (a "Financial Adviser")] [(with procedures which do not expressly exclude the Mezzanine Creditors from participating as prospective buyers[, other than where the Financial Adviser advises that such participation could prejudice that process])]; or LMA.UG.REF.ICA June 2014

23 (B) any enforcement of the Transaction Security carried out by way of auction or other competitive sales process in accordance with applicable law; or (v) a Financial Adviser has delivered an opinion to the Security Agent that the proceeds received in connection with the Distressed Disposal are fair from a financial point of view taking into account all relevant circumstances [including, without limitation, the method of enforcement or disposal].] Users should note that these controls are intended as a starting point only and it is expected that they will be considered and negotiated in the context of the transaction in question. More restrictive controls include requiring one or more of the above valuation techniques to be followed and/or making the release of any Transaction Security or liabilities subject to any specified valuation technique being followed. (c) (d) Distressed Disposals may be made for non-cash consideration which is acceptable to the Security Agent. Instructions on Distressed Disposals (including the appointment of a Financial Adviser) are given: by the Enforcing Group if effected by way of enforcement of the Transaction Security; or otherwise by the Instructing Group Non-cash consideration (Clause 12 (Non-Cash Recoveries)) (a) If non-cash consideration is received by the Security Agent instructions in relation to the managing, realisation for cash and/or any distribution of that noncash consideration are given by the Instructing Group. (c) The cash value of non-cash consideration (and discharge of Liabilities upon a distribution of non-cash consideration to the Creditors) is determined by reference to a valuation provided by a Financial Adviser appointed on the instructions of the Instructing Group. Notwithstanding any instruction to the contrary, the Security Agent may immediately realise any non-cash consideration for cash if it has reasonable grounds for believing that its managing or distributing any non-cash consideration would have an adverse effect on it Claims against Report Providers (Clause 13.2 (Recoveries from Report Providers)) (a) Recoveries from actions against report providers to be either: (if no action under the acceleration provisions of the Senior Facility Agreement or the Mezzanine Facility Agreement or enforcement of the LMA.UG.REF.ICA June 2014

24 Transaction Security has been taken), paid to the Senior Agent for application in accordance with the Senior Facility Agreement; or (if action under the acceleration provisions of the Senior Facility Agreement or the Mezzanine Facility Agreement or enforcement of the Transaction Security has been taken), paid to the Security Agent for application in accordance with the waterfall described in clause 3.15 (Payment waterfall) of this Users Guide Payment waterfall (Clause 15 (Application of Proceeds)) Amounts received by Security Agent (from enforcement of Transaction Security or otherwise) to be applied towards: (a) (c) (d) (e) (f) first: sums owing to Security Agent; second: enforcement costs and expenses incurred by any Senior Facility Creditor, Hedge Counterparty or Mezzanine Creditor in connection with the Senior Facility, the Hedging Liabilities or the Mezzanine Facility; third: Senior Facility Liabilities and Hedging Liabilities in accordance with the Senior Facility Agreement (and associated documents); fourth: Mezzanine Liabilities in accordance with the Mezzanine Facility Agreement (and associated documents); fifth: to any person to whom payment is required to be made by law; and sixth: Debtors. LMA.UG.REF.ICA June 2014

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