Participation Terms and Conditions

These terms and conditions ("Participation Terms and Conditions") are the general terms on which a Participant participates in a loan or loans made or to be made available to a borrower under the terms of a Facility Agreement (as defined below and specified in a Commercial Terms Schedule (as defined below)) ("Funded Participation").

The Commercial Terms Schedule and these Participation Terms and Conditions together (together the "Participation Documents") govern your rights and obligations in relation to the Funded Participation.

1. INTERPRETATION

1.1 In these Terms and Conditions words and expressions shall (unless otherwise expressly defined in these Terms and Conditions) have the meaning given to them in the Commercial Terms Schedule unless separately defined in these Participation Terms and Conditions and:

"Amendment" means any amendment, amendment and restatement or waiver of any term of the Finance Documents or any refinancing of the indebtedness of any Borrower under the Finance Documents in each case whether made in accordance with the terms of the Finance Documents or otherwise.

"Commercial Terms Schedule" means a commercial terms schedule relating to a Funded Participation and which incorporates these Commercial Terms and Conditions.

"Commitment" means the aggregate of the Subparco Lender's drawn and undrawn commitment from time to time under the Finance Documents which, as at the Participation Effective Date.

"Facility Letter" means the facility letter incorporating terms and conditions entered into between, amongst others, the Lenders and the Obligors as referred to in the Schedule.

"Finance Documents" has the meaning given to it in the Facility Letter.

"Obligor" means any Borrower and any other person designated as such under the Facility Letter.

"Participant's Proportion" means the proportion borne by the Participated Loan to the Commitment.

"Participant's Interest Rate" means the interest rate applicable to the Participated Loan as set out in the Schedule.

"Participant's Default Interest Rate" means the default interest rate applicable to the Participated Loan as set out in the Schedule.

"Participated Loan" means the portion of the Subparco Loan in respect of which the Participant is granted a participation under this Funded Participation (or the principal amount outstanding of that borrowing) as at the Participation Effective Date as set out in the Schedule.

"Participation" means the participation in the funding of the Participated Loan accepted by the Participant under the Funded Participation.

"Participation Effective Date" means the date of the Funded Participation as set out in the Schedule.

"Party" means a party to the Funded Participation.

"Portal" means the electronic platform for participating in loans operated by A.S.K. Partners Limited.

"Receiving Account" means the account of a Party designated as its Receiving Account as specified in the Schedule.

"Restructuring" means any rescheduling, restructuring or re-organisation of the indebtedness (or of any class of the indebtedness) of any Obligor following the Participation Effective Date which arises in relation to any actual or purported insolvency, payments difficulty, moratorium, exchange control or transfer restrictions, withholding of foreign currency payments or similar circumstance.

"Subparco Lender" means the Subparco Lender and its successors and assignees from time to time.

"Subparco Loan" means the principal amount of any borrowing made or to be made by any Borrower from the Subparco Lender under the Finance Documents (or the principal amount outstanding of that borrowing).

1.2 In the Funded Participation and these Terms and Conditions unless the contrary intention appears, a reference to:

  • (a) a Clause is a reference to a clause of these Terms and Conditions;
  • (b) the Schedule is a reference to the commercial terms schedule to which these Terms and Conditions are annexed; and
  • (c) a "Party" or any other person includes its successors in title, permitted assigns and permitted transferees.

1.3 Headings are for ease of reference only.

1.4 If there is any inconsistency between these Participation Terms and Conditions and the Schedule, the Schedule shall prevail.

1.5 References to any document shall be references to the same as amended, varied, supplemented, replaced and restated in any manner from time to time.

1.6 A provision of law is a reference to that provision as amended or re-enacted.

2. PARTICIPANT'S OBLIGATIONS

The Participant shall pay to the Subparco Lender on the Participation Effective Date, the Investment Amount to enable the Subparco Lender to fund the Participated Loan.

3. PAYMENTS

3.1 The Subparco Lender shall be entitled to receive, recover and retain all principal, interest and other money payable under the Finance Documents in relation to the Participated Loan.

3.2 The Subparco Lender shall, upon applying any amount actually received by it in respect of interest, default interest or principal on a Subparco Loan (but not by credit to a blocked account or not received in respect of the payment of costs and/or expenses), pay to the Participant within two Business Days:

  • (a) in respect of any amounts applied towards the repayment of the principal amount of a Subparco Loan, an amount equal to the Participant's Proportion of the amounts so applied by the Subparco Lender;
  • (b) in respect of amounts applied towards the interest which is not default interest accruing on a Subparco Loan (or default interest accruing on a Subparco Loan), an amount equal to the relevant Participant's Proportion of the amounts so applied by the Subparco Lender calculated on the basis of the Participant's Interest Rate; and
  • (c) in respect of amounts applied towards default interest accruing on a Subparco Loan (or default interest accruing on a Subparco Loan), an amount equal to the relevant Participant's Proportion of the amounts so applied by the Subparco Lender calculated on the basis of the Participant's Default Interest Rate,

in each case as calculated by the Subparco Lender. Any such calculation shall, in the absence of manifest error, be final and binding on the Participant.

3.3 For the avoidance of doubt, the Participant shall only be entitled to the Participant's Proportion of any interest or default interest actually received and applied by the Subparco Lender calculated on the basis of the Participant's Interest Rate and Participant's Default Interest Rate. This is notwithstanding the fact that the Participant's Proportion of the interest or default interest actually received and applied by the Subparco Lender may be more than the amount payable to the Participant when calculated on the basis of the Participant's Interest Rate and Participant's Default Interest Rate.

3.4 The Subparco Lender confirms that any monies payable to the Participant pursuant to clause 3.2 may, pending their payment to the Participant, only be invested by the Subparco Lender in cash or cash equivalents which have a maturity date falling, or which are redeemable at par together with accrued unpaid interest, not later than one Business Day prior to the next following date on which it is required to transfer such monies to the Participant. Any and all interest earned on such investments shall be paid onto the Participant.

4. PAYMENTS ADMINISTRATION

4.1 All payments or deposits by either Party to, or with, the other under the Funded Participation shall be made to the Receiving Account of that other Party.

4.2 All payments by the Subparco Lender under the Funded Participation shall be made net of any deduction or withholding required to be made from such payments by any law, regulation or practice.

4.3 If any such deduction or withholding is required to be made, the Subparco Lender shall pay the full amount required to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and then deliver to the Participant within thirty days after it has made such payment to the applicable authority, an original receipt (or copy thereof) issued by such authority evidencing the payment to such authority of all amounts required to be deducted or withheld in respect of such payment.

4.4 The Participant shall bear the risk of such deduction or withholding and the obligation of the Subparco Lender to pay an amount net of such deduction or withholding and to account to the relevant taxation or other authority for the amount of such deduction or withholding shall satisfy the Subparco Lender's obligation to make the original payment to the Participant (and, for the avoidance of doubt, any requirement to make increased payments in respect of deductions or withholdings shall not apply to payments made by the Subparco Lender under the Funded Participation).

4.5 The Subparco Lender shall not be responsible for any loss or liability arising out of its failure owing to causes outside its control to remit to the Participant any amount due to it.

5. INFORMATION

5.1 Whilst the Subparco Lender has undertaken due diligence on the Obligors and the transaction consummated or to be consummated by the Finance Documents to the extent it deems appropriate, the Participant acknowledges that it is placing no reliance upon the Subparco Lender in this regard.

5.2 The Subparco Lender shall, to the extent that it is lawfully able to do so without breaching any duty of confidentiality or other obligation owed to any person, provide the Participant with such information regarding the Funded Participation that the participant reasonably requests.

6. STATUS OF PARTICIPATION

6.1 The Participant:

  • (a) has no right, title or other interest in the Finance Document or in any monies to be received by the Subparco Lender under the Finance Document;
  • (b) has no direct contractual relationship with or rights against any Obligor or other party to the Finance Documents (except the Subparco Lender).

6.2 The Subparco Lender:

  • (a) is not the agent, fiduciary, trustee or custodian for the Participant;
  • (b) is not under an obligation to enquire as to the occurrence or otherwise of an event of default under the Finance Documents.
  • (c) is not required to exercise any rights of set-off it may have against any Obligor.
  • (d) may, without responsibility to the Participant:
    • (i) exercise or refrain from exercising any or all of its rights, powers and discretions arising under or in connection with the Finance Documents;
    • (ii) agree to any variation or waiver of the terms of the Finance Documents; and
    • (iii) perform any other acts under the Finance Documents as it in its discretion sees fit.

6.3 The nature of Participation is a limited recourse loan made by the Participant to the Subparco Lender. Accordingly:

  • (a) the relationship between the Subparco Lender and the Participant is that of debtor and creditor with the right of the Participant to receive monies from the Subparco Lender restricted to maximum amount equal to the Participated Proportion of any monies received by the Subparco Lender in respect of a Subparco Loan;
  • (b) in circumstances where the Subparco Lender reasonably determines that no further amounts are likely to be received from a Subparco Loan in which the Participant participates under the terms of this Funded Participation, the Subparco Lender, by notice in writing to the Participant but without any consent, sanction, authority or further confirmation from the Participant, release itself from all or any part of its liabilities as a debtor in respect of the Funded Participation; and
  • (c) the Participant will have no claim against the Subparco Lender for any loss suffered by the Subparco Lender as a result of repayments of the Subparco Loan (if any) being insufficient to repay the Funded Participation.

6.4 Without prejudice to clause 3.2, the Subparco Lender may, with the consent of the Participant, repay the Participant any part or the full amount of the Participation at any time. If the Subparco Lender elects to make such repayment with the consents of the Participant, any repayment of the principal amount of any Participation shall be made together with an amount equal to the interest applicable to such principal amount repaid and calculated on the basis of the Participant's Interest Rate.

6.5 The obligations of the Subparco Lender under the Funded Participation shall be subject to its obligations under the Finance Documents.

7. AMENDMENT AND BORROWER RESTRUCTURING

7.1 The Subparco Lender may participate in any agreement in connection with an Amendment or Restructuring and which relates to any principal of, interest on or fees in respect of, the Participated Loan and the Participant will bear the risk of any Amendment or Borrower Restructuring in relation to the Participation.

7.2 The Subparco Lender shall give to the Participant the benefit of each agreement referred to above on the same terms (with any necessary amendments to reflect the nature of that agreement) as the Funded Participation to the extent that payments actually received and applied by the Subparco Lender under that agreement are in the Subparco Lender's opinion (which shall be final and binding other than in the event of manifest error) attributable to the Participant's Participation under the terms of the Funded Participation.

7.3 If, in connection with any Amendment or Restructuring, the Subparco Lender agrees to increase its exposure (whether by way of additional advances or otherwise), the Subparco Lender shall not be obliged to account to the Participant under the Funded Participation until that increased exposure has been paid and satisfied unless the Participant participates in the increased exposure on the terms of the Funded Participation (with any necessary amendments to reflect the nature of that agreement).

8. PARTICIPANT'S ACKNOWLEDGMENTS

8.1 Without prejudice to Clause 9, the Subparco Lender notifies the Participant and the Participant acknowledges that:

  • (a) the Participant shall have no recourse to the Subparco Lender if any Obligor fails to comply with its obligations under the Finance Documents; and
  • (b) the Subparco Lender is under no obligation to support, and shall not be liable to reimburse or otherwise be responsible for, any losses directly or indirectly sustained or incurred by the Participant in connection with the Funded Participation for any reason whatsoever.
9. INDEMNITY

9.1 The Participant (the "Indemnifying Party") shall, forthwith on demand, indemnify the Subparco Lender (the "Indemnified Party") against any loss or liability (other than any loss or liability resulting from the gross negligence or wilful misconduct of the Indemnified Party) which the Indemnified Party incurs as a consequence of any breach by the Indemnifying Party of its obligations or representations under the Funded Participation.

10. ASSIGNMENT AND TRANSFER

10.1 Neither Party may assign, transfer or otherwise dispose of any of its rights under this Funded Participation, nor transfer by novation any of its rights and/or obligations under it, without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).

10.2 Other than where Parties are expressly permitted to transfer or assign their rights and obligations under this Funded Participation in accordance with clause 10.1, neither Party shall sell, transfer or otherwise dispose of or create any mortgage, charge, pledge, lien or other security interest in respect of this Funded Participation.

11. SET-OFF AND COUNTERCLAIM & REMEDIES

11.1 The rights and remedies provided in the Funded Participation are cumulative and not exclusive of any rights and remedies provided by law.

11.2 All payments by a Party under the Funded Participation shall be made without set-off or counterclaim.

12. NOTICES

12.1 Any communications to be made under or in connection with the Funded Participation shall be made in writing and, unless otherwise stated, may be made by email or by post.

12.2 The address and email address of the Subparco Lender and the Participant for any communication or document to be made under or in connection with the Funded Participation is that identified with its name in the Schedule or any substitute address, email address as the Subparco Lender or the Participant may notify to the other.

12.3 Any communication or document made or delivered by one person to another under or in connection with the Funded Participation will only be effective:

  • (a) if by way of email, at the time of transmission; or
  • (b) if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;

12.4 Any communication or document which becomes effective, in accordance with paragraph 12.3(a) above, after 5.00pm in the place of receipt shall be deemed only to become effective at 9.30am on the following business day.

13. CONFIDENTIALITY

The Participant undertakes to keep confidential all information it receives from the Subparco Lender under the Funded Participation.

14. GENERAL

14.1 If any provision in the Participation Documents is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

14.2 In the event that there is any conflict between the terms of these Participation Terms and Conditions and A.S.K. Partners Limited's general terms and conditions with you, the terms of these Participation Terms and Conditions shall prevail in respect of the Funded Participation.

14.3 Except as expressly provided in these Participation Terms and Conditions, a person who is not a party to the Participation Documents may not enforce any of their terms under the Contracts (Rights of Third Parties) Act 1999.

14.4 The Subparco Lender and Participant shall promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Participation Documents.

14.5 The Participation Documents apply to the exclusion of any other terms that the Participant seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

14.6 The Participation Documents may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of the Participation Documents.

15. GOVERNING LAW AND JURISDICTION

15.1 The Participation Documents and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

15.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Participation Documents or their subject matter or formation.