Exhibit 10.6
Dated 5 April 2007
CREDIT AGREEMENT
between
HLWG TWO (GER) LLC
as Borrower
CAPMARK BANK EUROPE P.L.C.
as Arranger
and
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Original Lenders
and
CAPMARK BANK EUROPE P.L.C.
as Agent
and
CAPMARK BANK EUROPE P.L.C.
as Security Trustee
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS AND INTERPRETATION....................................... 3
2. THE FACILITY......................................................... 28
3. PURPOSE.............................................................. 28
4. CONDITIONS OF UTILISATION............................................ 29
5. UTILISATION.......................................................... 30
6. REPAYMENT............................................................ 30
7. PREPAYMENT AND CANCELLATION.......................................... 31
8. INTEREST............................................................. 35
9. INTEREST PERIODS..................................................... 36
10. FEES................................................................. 36
11. BANK ACCOUNTS........................................................ 37
12. TAX GROSS UP AND INDEMNITIES......................................... 46
13. INCREASED COSTS...................................................... 50
14. OTHER INDEMNITIES.................................................... 52
15. MITIGATION BY THE LENDERS............................................ 55
16. COSTS AND EXPENSES................................................... 58
17. REPRESENTATIONS...................................................... 58
18. INFORMATION UNDERTAKINGS............................................. 66
19. FINANCIAL COVENANTS.................................................. 70
20. GENERAL UNDERTAKINGS................................................. 71
21. PROPERTY UNDERTAKINGS................................................ 80
22. EVENTS OF DEFAULT.................................................... 87
23. CHANGES TO THE LENDERS............................................... 92
24. CHANGES TO THE OBLIGORS.............................................. 97
25. ROLE OF THE AGENT AND THE ARRANGER................................... 97
26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES........................... 103
27. SHARING AMONG THE FINANCE PARTIES.................................... 103
28. PAYMENT MECHANICS.................................................... 105
29. SET-OFF.............................................................. 107
30. NOTICES.............................................................. 108
31. CALCULATIONS AND CERTIFICATES........................................ 109
32. PARTIAL INVALIDITY................................................... 110
33. REMEDIES AND WAIVERS................................................. 110
34. AMENDMENTS AND WAIVERS............................................... 110
35. COUNTERPARTS......................................................... 111
36. GOVERNING LAW........................................................ 111
37. ENFORCEMENT.......................................................... 111
38. LOAN TRANCHES........................................................ 112
(i)
39. FURTHER ASSURANCE.................................................... 112
SCHEDULE 1 LENDERS AND THEIR COMMITMENTS................................. 113
SCHEDULE 2 CONDITIONS PRECEDENT.......................................... 114
SCHEDULE 3 UTILISATION REQUEST........................................... 120
SCHEDULE 4 MANDATORY COST FORMULA........................................ 122
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE.................................. 125
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE................................ 127
SCHEDULE 7 FORM OF CONFIRMATION LETTER/BESCHEINIGUNG..................... 128
SCHEDULE 8 PROPERTIES.................................................... 131
SCHEDULE 9 REPAYMENT SCHEDULE............................................ 133
(ii)
THIS AGREEMENT is made on the 5th day of April 2007.
BETWEEN:
(1) HLWG TWO (GER) LLC a company incorporated in Delaware with limited
liability and registration number 4290997 (the "BORROWER");
(2) CAPMARK BANK EUROPE P.L.C. (the "ARRANGER");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the "ORIGINAL
LENDERS");
(4) CAPMARK BANK EUROPE P.L.C. as agent of the other Finance Parties (the
"AGENT"); and
(5) CAPMARK BANK EUROPE P.L.C. as security trustee for the Finance Parties (the
"SECURITY TRUSTEE").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCOUNTS" means:
(a) each General Account;
(b) each Rent Account;
(c) each Sales Proceeds Account;
(d) the PropCo Expansion and Remediation Account;
(e) the PropCo Rent Reserve Account;
(f) the Holdbacks Account; and
(g) Rectification Account,
each as defined within Clause 11 (Bank Accounts) or (in the case
of the Rectification Account, in Clause 19.3 (Cure Payments), or
with the Agent's prior written consent any replacement account
thereof and "ACCOUNT" means any one of them as the context may
require.
"ACCOUNT BANK" means Bank of America N.A., ▇▇ ▇▇▇ ▇▇▇▇▇ ▇,
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, Sort Code: 6019 or any other
bank or financial institution appointed as account bank in
accordance with Clause 11 (Bank Accounts).
"ACCOUNT BANK MINIMUM RATING REQUIREMENTS" means the minimum
rating requirements set out in Clause 11.14.2.
"ACCOUNT PLEDGE AGREEMENT" means the PropCo Account Pledge
Agreement, Borrower Account Pledge Agreement and Seller 2 Account
Pledge Agreement.
"ACQUISITION COSTS" means all reasonable and proper fees, costs
and expenses owing by or on behalf of the Borrower to any
independent third party and incurred solely in connection with
the acquisition of PropCo being of the type customarily incurred
in acquisitions of this nature. For the purposes of this
definition, an independent third party excludes any Affiliate of
or Shareholders in the Borrower save with the prior consent of
the Agent.
"ADDITIONAL CHARGE" means a Land Charge in respect of an
Additional Property granted or to be granted by an Obligor or
PropCo in favour of the Security Trustee in the agreed form.
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4
(Mandatory Cost Formula).
"ADDITIONAL PROPERTY" means either:
(a) any property or properties which the Lenders may accept as
alternative security pursuant to Clauses 7.6 to 7.8;
(b) a property acquired pursuant to any Expansion made in
accordance with Clause 20.26 (Expansion); or
(c) any property acquired in accordance with Clause 20.27
(Additional Property)
as the context so admits.
"ADDITIONAL VALUATION" shall have the meaning given to that term
in Clause 7.8.
"AFFILIATE" means, in relation to any person, a Subsidiary of
that person or a Holding Company of that person or any other
Subsidiary of that Holding Company.
"AGREEMENT FOR LEASE" means an agreement to grant an Occupational
Lease.
"ALLOCATED LOAN AMOUNT" means in relation to a Property the
amount set opposite that Property in Schedule 8 (Properties).
"ARRANGEMENT FEE" means the arrangement fee detailed in the Fee
Letter;
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"AUTHORISATION" means an authorisation, consent, approval,
resolution, licence, exemption, filing, clearance, notarisation
or registration.
"AVAILABILITY PERIOD" means the period from and including the
date of this Agreement to and including the close of business in
London on the date thirty (30) days after the date of this
Agreement.
"BANK GUARANTEE" means a bank guarantee in a sum equivalent to
the Rent Reserve Amount issued by a bank with a rating equivalent
to the Account Bank Minimum Rating Requirements in favour of the
Security Trustee in form and substance satisfactory to the
Security Trustee.
"BORROWER GENERAL ACCOUNT" means the account designated as such
under the terms of this Agreement.
"BORROWER ACCOUNT PLEDGE AGREEMENT" means an account pledge
agreement granted by the Borrower in relation to each of the
Accounts held by it in favour of the Security Trustee.
"BORROWER PARTNERSHIP INTEREST PLEDGE AGREEMENT" means a first
ranking partnership interest pledge agreement dated prior to the
Utilisation Date over the partnership interests held by the
Borrower of 19.9 per cent. in PropCo and 94.9 per cent. held in
Seller 1 and made between (1) the Borrower and (2) the Security
Trustee.
"BORROWER RENT ACCOUNT" means the account designated as such
under the terms of this Agreement.
"BORROWER SALES PROCEEDS ACCOUNT" means the account designated as
such under the terms of this Agreement.
"BORROWER SHARE PLEDGE AGREEMENT" means a share pledge agreement
granted by the Borrower and Seller 2 in relation to the shares
held by each of them in GP PropCo granted in favour of the
Security Trustee;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which commercial banks and foreign exchange markets settle
payments and are open for general business (including dealing in
foreign exchange and foreign currency deposits) in London and
Frankfurt.
"CALL OPTION I" means "Call I" as defined in the Put and Call
Agreement set forth in Annex B recorded in the notarial deed of
the officiating notary public dated 27 and 28 February 2007 (Roll
of Deeds No's. MW-41, 42, 43, 45 and 46/2007), as amended from
time to time with the prior written approval of the Agent.
"CALL OPTION II" means "Call II" as defined in the Put and Call
Agreement set forth in Annex B recorded in the notarial deed of
the officiating notary public dated 27 and 28 February 2007 (Roll
of Deeds No's. MW-41, 42, 43, 45 and 46/2007), as amended from
time to time with the prior written approval of the Agent.
5
"CALL OPTION I EXERCISE PERIOD" means the period from and
including 1 January 2010 up to and including 31 December 2010;
"CALL OPTION II EXERCISE PERIOD" means the period no earlier than
five years and 15 days after the date of this Agreement and no
later than five years and 180 days after the date of this
Agreement;
"CALL OPTION" means either Call Option I or Call Option II as the
context may require.
"CENTRE OF MAIN INTERESTS" means, in relation to any Obligor or
Shareholders, its "centre of main interests" for the purposes of
Council Regulation (EC) No 1346/2000 of 29 May, 2000.
"CHANGE OF CONTROL" means a change of control whereby:
(a) the Shareholders cease to control directly the Borrower,
other than pursuant to a Permitted Change of Control; or
(b) any person or group of persons acting in concert gains
control directly of the Borrower, other than pursuant to a
Permitted Change of Control.
(c) The Borrower ceases to control directly Seller 1;
(d) The Borrower ceases to control directly GP Seller 1;
(e) GP Seller 1 ceases to the be the general partner of Seller
1;
(f) Seller 2 ceases to own at least 75 per cent. of the limited
partnership interests in PropCo other than as a result of
the exercise of the Put or Call Option;
(g) GP PropCo ceases to be the general partner of PropCo;
(h) Seller 2 ceases to control directly or indirectly OpCo other
than pursuant to a ▇▇▇▇▇▇▇ Change of Control;
(i) Borrower ceases to own at least 24.7399 per cent. of the
limited partnership interests in PropCo,
For the purposes of this definition:
a "CHANGE OF CONTROL" occurs if any person or group of
persons acting in concert gains control of the relevant
entity or ceases to control the relevant entity (acting
directly or indirectly through wholly owned Subsidiaries);
"CONTROL" means the power to direct the management and
policies of an entity, whether through the ownership of
voting capital, by contract or otherwise; and
6
"ACTING IN CONCERT" means acting together pursuant to an
agreement or understanding (whether formal or informal).
"CHARGED ASSETS" means the assets from time to time subject, or
expressed to be subject, to any Security created by or pursuant
to any Security Document or any part of those assets.
"COMMITMENT" means:
(a) in relation to the Original Lender, the amount set opposite
its name under the heading "Commitment" in Schedule 1
(Lenders and their Commitments); and
(b) in relation to any other Lender, the amount of any
Commitment transferred to it under this Agreement;
in each case, to the extent not cancelled, reduced or
transferred by it under this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form set out in Schedule 6 (Form of Compliance Certificate).
"DEFAULT" means an Event of Default or any event or circumstance
specified in Clause 22 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of
any of the foregoing) be an Event of Default.
"DISPOSAL" means any sale, lease, transfer or other disposal of
all or any part of a Property.
"DISPOSAL COSTS" means, in relation to a Disposal:
(a) all costs and expenses properly incurred by the relevant
Obligor, PropCo or ▇▇▇▇▇▇ in relation to a Disposal; and
(b) a provision (reasonably made by the relevant Obligor acting
in good faith) for any tax payable by the relevant Obligor,
PropCo or ▇▇▇▇▇▇ as a result of a Disposal.
"DISPOSAL PROCEEDS" means all sums paid or payable or any other
consideration given or to be given in money or money's worth for
a disposal of the relevant Obligor's, PropCo's or ▇▇▇▇▇▇'▇
interest in all or part of any Property including (without
limitation):
(a) all such sums and other consideration of a capital nature;
(b) all compensation and damages received for any use or
disturbance, blight or compulsory purchase; and
7
(c) the cash value of any apportionment of any Rental Income or
other sum given or made by any purchaser or other person
upon such disposal.
"DISTRIBUTION" means any payment (whether outright or by way of
loan), repayment, redemption, discharge by way of set-off,
counterclaim or otherwise or other distribution of any sort,
whether in cash or in kind, made by or on behalf of any Obligor
or PropCo, but only in respect of:
(a) dividends or return of capital or any other payment received
by a person in respect of its holding of any share capital
of any nature; or
(b) principal, interest or any other payment received by a
person (not being a Finance Party) in respect of any
Financial Indebtedness.
"EMBARGOED PERSON" means any person, entity or government subject
to trade restrictions under U.S. law, including but not limited
to, the International Emergency Economic Powers Act, 50 U.S.C.
1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Orders (as defined therein) or
regulations promulgated thereunder.
"ENVIRONMENT" means living organisms including the ecological
systems of which they form part and the following media:
(a) air (including air within natural or man-made structures,
whether above or below ground);
(b) water (including territorial, coastal and inland waters,
water under or within land and water in drains and sewers);
and
(c) land (including land under water).
"ENVIRONMENTAL LAW" means all statutes, instruments, regulations,
orders, administrative acts and ordinances (including but not
limited to European Union legislation, regulations, directives,
decisions and judgments applicable in the Federal Republic of
Germany) being in force from time to time and directly
enforceable in the Federal Republic of Germany applicable to the
Property relating to pollution, prevention thereof or protection
of human health or the conditions of the Environment or the use,
disposal, generation, storage, transportation, treatment,
dumping, release, deposit, burial or emission of any Hazardous
Substances.
"ENVIRONMENTAL LICENCE" means any Authorisation required at any
time under Environmental Law.
"ENVIRONMENTAL & STRUCTURAL REPORTS" means the reports prepared
by ERM GmbH and delivered as a condition precedent to Utilisation
pursuant to paragraph 5(d) of Schedule 2.
"EURO", "EURO" or "E" means the single currency of the
Participating Member States.
8
"EVENT OF DEFAULT" means any event or circumstance specified as
such in Clause 22 (Events of Default).
"EXPANSION" means any expansion or extension of a Property funded
by PropCo pursuant to the terms of the Principal Occupational
Lease carried out in accordance with Clause 20.26 (Expansion).
"EXPANSION AMOUNT" means the sum of E18,500,000.
"FACILITY" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"FACILITY AMOUNT" means an amount equal to 24.7399% of the lesser
of:
(a) E283,635,000;
(b) 78.1% of the Market Value of the Properties determined in
accordance with the Initial Valuation; and
(c) such amount as will result in Interest Cover of at least
145% as at the Utilisation Date.
"FACILITY OFFICE" means the office or offices notified by a
Lender to the Agent in writing on or before the date it becomes a
Lender (or, following that date, by not less than five Business
Days' written notice) as the office or offices through which it
will perform its obligations under this Agreement.
"FEE LETTER" means any letter or letters entered into or to be
entered into between the Arranger, the Agent and the Borrower
setting out any fees referred to in Clause 10 (Fees).
"FINANCE DOCUMENT" means:
(a) this Agreement;
(b) any Fee Letter;
(c) any Security Document;
(d) any Duty of Care Agreement;
(e) any Utilisation Request;
(f) any Transfer Certificate;
(g) any WPC Lender Finance Document; and
any other document designated as such by the Agent and the
Borrower in writing.
"FINANCE PARTY" means the Agent, the Arranger, the Security
Trustee or a Lender.
9
"FINANCIAL INDEBTEDNESS" means (without double counting) any
indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables
to the extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing;
(g) any derivative transaction (including, for the avoidance of
doubt, any cap) entered into in connection with protection
against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken
into account);
(h) the acquisition cost of any asset to the extent payable
before or after the time of acquisition and possession by
the party liable therefor when the advance or deferred
payment is arranged primarily as a method of raising finance
or of financing the acquisition of that asset;
(i) shares which are expressed to be redeemable;
(j) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or
any other instrument issued by a bank or financial
institution; and
(k) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a)
to (i) inclusive above.
"FINANCIAL REGULATOR" means the financial regulator of the
Central Bank of Ireland from time to time and any successor
replacement or other body with relevant or similar authority.
"FITCH" means Fitch Ratings Limited or any successor to its
rating business.
"FIXED RATE" means such 10 year swap rate as agreed between the
Agent and the Borrower prior to or on the Utilisation Date
expressed as a percentage per annum notified by the Agent to the
Borrower following receipt of the Utilisation Request (or any
other replacement fixed rate as notified by the Agent to the
Borrower from time to time).
10
"GAAP" means in relation to an entity, accounting principles,
concepts, bases and policies generally adopted and accepted in
the United States of America.
"GENERAL ACCOUNT" means the Borrower General Account and the
PropCo General Account and each of them.
"GERMAN TAX REPORT" means a report prepared by Susat GmbH in
relation to German taxation matters.
"GLOBAL ASSIGNMENT AGREEMENT" means a global assignment agreement
dated on or about the date hereof granted by the Borrower to the
Security Trustee over receivables and the global assignment
granted by PropCo to the Security Trustee over receivables.
"GP PROPCO" means Shovel Management GmbH.
"GP SELLER 1" means Hoe Management GmbH.
"HAZARDOUS SUBSTANCE" means any waste, pollutant, contaminant or
other substance (including any liquid, solid, gas, ion, living
organism or noise) that may be harmful to human health or other
life or the Environment or a nuisance to any person.
"HBR PROPERTY" means each of:
(a) ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇;
(▇) ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇; and
(c) Max-▇▇▇▇▇▇-StraBe / Westfalenring, 48565 Steinfurt.
"HEADLEASE" means the lease or leases (if any) in the Agreed Form
by which PropCo and/or ▇▇▇▇▇▇ holds an interest in all or any
part of a Property.
"HEDGING ARRANGEMENTS" means any interest rate swap, currency
swap, forward foreign exchange transaction, cap, floor, collar or
option transaction or any other treasury transaction or any
combination of them or any other transaction that, in the
reasonably opinion of the Agent, is necessary to hedge the risk
associated with the provision of the Facility to the Borrower.
"▇▇▇▇▇▇▇ CHANGE OF CONTROL" means a change of control as set
forth and described in Paragraph 21(m) of the Principal
Occupational Lease which has previously been approved in writing
by the Agent provided that no such consent of the Agent is
required in circumstances where PropCo is not required to give
consent pursuant to Paragraph 21 (m) of the Principal
Occupational Lease.
"HOLDBACK AMOUNT" means E51,956,531 being the sum agreed to
be held back by the Borrower as at the date of Utilisation in
accordance with the terms of the Interest Purchase Agreement or
the Principal Occupational Lease which will be deposited into the
Holdbacks Account.
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"HOLDBACKS ACCOUNT" means the account designated as such under
the terms of this Agreement.
"HOLDING COMPANY" means, in relation to a company or corporation,
any other company or corporation in respect of which it is a
Subsidiary (and, in the definition of "Related Party", means a
company in respect of which that other person is a Subsidiary as
such term is to be understood in such definition).
"INITIAL VALUATION" means the Valuation supplied to the Agent as
a condition precedent to this Agreement under Clause 4.1
(Conditions Precedent).
"INTEREST COVER" means, on any date, the amount (expressed as a
percentage) calculated in accordance with the following formula:
Where:
A-B
---
C
A - 24.7399 per cent. of the Projected Annual Rental;
B - 24.7399 per cent. of any Property Expenses to be incurred in
the next 12 month period; and
C - the Projected Annual Finance Costs.
"INTEREST COVER COVENANT" shall have the meaning set out in
Clause 19.2 (Interest Cover).
"INTEREST PAYMENT DATE" means:
(a) in relation to the Loan and subject to Clause 9.2 (Changes
to the Interest Payment Date, Termination Date and Interest
Period), the 18th day of January, April, July and October in
each year and the Termination Date and the first Interest
Payment Date shall be the 18th of July 2007; and
(b) in relation to an Unpaid Sum, the last day of an Interest
Period relevant to that Unpaid Sum determined in accordance
with Clause 8.3 (Default interest),
provided that, save in relation to the calculation of
Interest Periods, if any such day is not a Business Day, the
Interest Payment Date will be the next Business Day in that
Month (if there is one) or the preceding Business Day (if
there is not).
"INTEREST PERIOD" means, in relation to the Loan, each period
determined in accordance with Clause 9 (Interest Periods) and, in
relation to an Unpaid Sum, each period determined in accordance
with Clause 8.3 (Default interest).
"INTEREST PURCHASE AGREEMENT" means the Interest Purchase
Agreement set forth in Annex A recorded in the notarial deed of
the officiating notary public
12
dated 27 and 28 February 2007 (Roll of Deeds No's. MW-41, 42, 43,
45 and 46/2007) and all annexures referred to in it and any
documents supplemental to such agreement.
"LAND CHARGE" means a certificated first ranking land charge
(Grundschuld) over any Property in section III of the Land
Register given in favour of the Security Trustee in the Agreed
Form.
"LAND REGISTER" (Grundbuch) means the applicable official
register held by the Land Registry in which, inter alia, the
rights of ownership in, and encumbrances on, a plot of land are
registered.
"LAND REGISTRY" (Grundbuchamt) means the applicable public office
held by the local court (Amtsgericht) which is responsible for
the registration of rights and encumbrances in the relevant Land
Register in accordance with German law.
"LEASE DOCUMENT" means:
(a) an Agreement for Lease;
(b) an Occupational Lease; or
(c) any other document designated as such by the Agent and the
Borrower.
"LENDER" means:
(a) any Original Lender; and
(b) any bank, building society, financial institution, trust,
fund or other entity which has become a Party in accordance
with Clause 23 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance
with the terms of this Agreement.
"LOAN" means the Loan made or to be made under the Facility or
the principal amount outstanding for the time being of the Loan.
"LOAN TO VALUE" means the aggregate sum of the Loan as a
percentage of the Market Value of the Properties determined in
accordance with the most recent Valuation.
"LOAN TO VALUE COVENANT" shall have the meaning set out in Clause
19.1 (Loan to Value Covenant).
"MAJORITY LENDERS" means:
(a) if there are no Loans then outstanding, a Lender or Lenders
whose Commitments aggregate more than 662/3% of the
aggregate of the Total Commitments and the WPC Lender Total
Commitments (or, if the Total Commitments and the WPC Lender
Total Commitments have
13
been reduced to zero, aggregated more than 662/3 % of the
Total Commitments and the WPC Lender Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations
in the Loan and the WPC Loan then outstanding aggregate more
than 662/3% of the aggregate of all the Loan and the WPC
Loan then outstanding,
subject to the terms of any Finance Document, including
without limitation any intercreditor agreement entered into
on any transfer, sale, novation or securitisation of the
Loan, the terms of which shall prevail. For the purposes of
this definition, "Lender or Lenders" shall include the
Lenders as such term is defined under the WPC Lender
Facility Agreement.
"MANDATORY COST" means, in relation to the Original Lender the
percentage rate per annum from time to time determined by the
Original Lender, and notified to the Agent, as reflecting the
cost, loss or difference in return which would be suffered or
incurred by the Original Lender (as it shall from time to time
determine) as a result of it complying with the requirements of
the Financial Regulator and/or the requirements of the European
Central Bank (or any authority which replaces all or any of their
functions) and, in respect of any other Lender, means the
percentage rate per annum calculated by the Agent in accordance
with Schedule 4 (Mandatory Cost Formula).
"MARGIN" means 1.25% per annum.
"MARKET VALUE" has the meaning given to that term in the Royal
Institution of Chartered Surveyors Appraisal and Valuation Manual
(or its successor).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the business, property or financial condition of each
Obligor; or
(b) the ability of each Obligor or the Shareholders to perform
and comply with any of its payment obligations under any
Finance Document to which it is a party; or
(c) the validity, legality or enforceability of any Finance
Document or the rights and remedies of any Finance Party
under any of the Finance Documents.
"MINIMUM RELEASE AMOUNT" means, in relation to a Disposal, the
aggregate of:
(a) the applicable Release Pricing; and
(b) the Disposal Costs.
"MONEY LAUNDERING REGULATIONS" means any regulations applicable
to a Finance Party or a potential Finance Party, for the
prevention of money laundering and financial crime, including all
requirements of the Financial
14
Services Authority, guidance notes issued by the Joint Money
Laundering Steering Group, the Money Laundering Directive
91/308/EEC, the Irish Criminal Justice ▇▇▇ ▇▇▇▇ and the Irish
Criminal Justice (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ and the
German Money Laundering Act (Gesetz uber das Aufspuren und
Gewinnen aus schweren Straftaten (Geldwaschegesetz).
"MONTH" means a period starting on one day in a calendar month
and ending on the numerically corresponding day in the next
calendar month, except that:
(a) if the numerically corresponding day is not a Business Day,
that period shall end on the next Business Day in that
calendar month in which that period is to end if there is
one, or if there is not, on the immediately preceding
Business Day; and
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end
on the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc. or any successor
to its rating business.
"NET RENTAL INCOME" means Rental Income other than:
(a) any amount due to PropCo from any tenant under any Lease
Document or other occupier of all or any part of any
Property, by way of:
(i) contribution to (or reimbursement of) insurance
premiums or the cost of an insurance valuation;
(ii) service charge in respect of PropCo's costs under any
repairing or similar obligation, or in providing
services to a tenant of all or any part of any
Property; or
(iii) reimbursement of any other expenditure incurred by
PropCo on behalf of or in relation to any tenant of all
or any part of any Property;
(b) any contribution to a sinking fund paid by any tenant or
other occupier;
(c) any proceeds of insurance received in respect of the items
listed in paragraphs (a) and (b) above;
(d) any VAT or similar taxes payable on any of the items listed
in paragraphs (a), (b) and (c) above and paragraphs (a)-(k)
of the definition of Rental Income; and
for the purposes of calculating the Interest Cover but not
otherwise there shall also be excluded items (c), (d), (f), (g),
(h), (i) and (l) of the definition of Rental Income.
15
"OBLIGOR" means the Borrower.
"OCCUPATIONAL LEASE" means the Principal Occupational Lease and
any lease, sub-lease or licence or other right of occupation to
which all or any part of any Property may be subject from time to
time and any supplemental documents thereto.
"OPCO" means ▇▇▇▇▇▇▇ DIE PROFI-BAUMARKTE GMBH UND CO. KG, a
German limited partnership registered with the commercial
register maintained at the local court of Dortmund under HRA
13582.
"OVERVIEW REPORT ON TITLE" means the Appropriately Addressed
overview report on title or certificate of title relating to the
Properties, in form and substance satisfactory to the Agent,
addressed to the Finance Parties and their successors in title
and prepared by White & Case LLP, solicitors for the Agent.
"PARTICIPATING MEMBER STATE" means any member state of the
European Communities that adopts or has adopted the euro as its
lawful currency in accordance with legislation of the European
Community relating to Economic and Monetary Union.
"PARTNERSHIP INTEREST PLEDGE AGREEMENT" means each of:
(a) the Borrower Partnership Interest Pledge Agreement;
(b) the Seller 1 Partnership Interest Pledge Agreement; and
(c) the PropCo Partnership Interest Pledge Agreement.
"PARTY" means a party to this Agreement.
"PERMITTED CHANGE OF CONTROL" means (i) the sale or transfer of
the shares or any equity interests of any Shareholder or Borrower
to a Related Party or (ii) merger between a Shareholder or
Borrower and a Related Party provided that:
(a) there is no Event of Default outstanding or would result
from the proposed transfer or merger;
(b) there is no detrimental financial and tax effect on the
Finance Parties and that such transfer or merger will not
result in a Material Adverse Effect;
(c) any know your customer requirements are satisfied;
(d) all proper fees, costs and expenses incurred by the Finance
Parties in considering and approving the above are paid by
the Borrower;
(e) the lien and priority of the security interests created
under the Security Documents are unimpaired by such merger;
and
16
(f) in addition to the requirements above, with respect to a
transfer under (ii) only, (1) neither the Borrower nor the
Shareholder, as applicable, assumes any additional
liabilities as a result of such merger; and (2) the
obligations of the Borrower under the Finance Documents
continue in full force and effect notwithstanding such
merger.
"PERMITTED FINANCIAL INDEBTEDNESS" means:
(a) Financial Indebtedness incurred under a Finance Document;
(b) any other Financial Indebtedness of an Obligor to which the
Agent has given its prior written consent and which is fully
subordinated on terms satisfactory to the Agent;
(c) the Shareholder Loans and any Shareholder Loans provided to
fund the purchase of any Additional Property provided that
all such Shareholder Loans have been fully subordinated in
favour of the Security Trustee and Lenders and a
Subordination Agreement has been entered into;
(d) the Borrower shall be entitled to accede to the WPC Facility
Agreement as an additional borrower upon the exercise of
Call Option I ; and
(e) Financial Indebtedness that arises as a normal finance
credit in the ordinary course of the relevant person's
business and which is not more than 30 days due.
"PERMITTED SECURITY" means any Security granted in favour of WPC
Lender pursuant to the Seller 2 Facility Agreement that is fully
subordinated under the Subordination Agreement.
"PLANNING ACTS" means all applicable laws and regulations
governing or controlling the use or development of land and
property, including building permissions (Baugenehmigung).
"POWER OF ATTORNEY" means a power of attorney granting the Agent
power to exercise the Call Options in accordance with Clause
20.25.1
"PRINCIPAL OCCUPATIONAL LEASE" means the Lease Agreement set
forth in Annex C recorded in the notarial deed of the officiating
notary public dated 27 and 28 February 2007 (Roll of Deeds No's.
MW-41, 42, 43, 45 and 46/2007 and as amended from time to time
(with the prior written approval of the Agent) or any other lease
created out of such lease and any documents supplemental or
appended to such lease.
"PROJECTED ANNUAL FINANCE COSTS" means, for the next 12 month
period, the estimated aggregate amount determined by the Agent of
all interest, commitment commission and other finance costs
(excluding any repayments or prepayments of principal) which are
payable by the Borrower to the Finance Parties under the Finance
Documents excluding the WPC Lender Finance Documents during that
12 month period.
17
"PROJECTED ANNUAL RENTAL" means, for the next 12 month period,
the aggregate Net Rental Income receivable by PropCo in relation
to any Property during that Test Period assuming:
(a) a break clause under any Lease Document exercisable during
the relevant 12 month period will be deemed to be exercised
at the earliest date available to the relevant tenant;
(b) Net Rental Income will be ignored unless payable under an
unconditional and binding Lease Document;
(c) any Lease Document due to expire during the 12 month period
has not been renewed; and
(d) potential Net Rental Income increases as a result of rent
reviews during the relevant 12 month period will be ignored
other than to the extent of any fixed rental increases under
the relevant Lease Documents.
"PROPCO" means ▇▇▇▇▇▇▇ GmbH & Co VV KG a German limited
partnership registered with the commercial register maintained at
the local court of Dortmund under 13991 and its general partner.
"PROPCO ACCOUNT PLEDGE AGREEMENT" means an account pledge
agreement granted by PropCo in relation to each of the Accounts
held by it in favour of the Security Trustee.
"PROPCO COMPANIES" means PropCo and ▇▇▇▇▇▇.
"PROPCO EXPANSION AND REMEDIATION ACCOUNT" means the account
designated as such under the terms of this Agreement.
"PROPCO GENERAL ACCOUNT" means the account designated as such
under the terms of this Agreement.
"PROPCO PARTNERSHIP INTEREST PLEDGE AGREEMENT" means a first
ranking partnership interest pledge agreement dated prior to the
Utilisation Date over the partnership interests in ▇▇▇▇▇▇ held by
PropCo and made between (1) PropCo and (2) the Security Trustee.
"PROPCO RENT ACCOUNT" means the account designated as such under
the terms of this Agreement.
"PROPCO RENT RESERVE ACCOUNT" means the account designated as
such under the terms of this Agreement.
"PROPCO SALES PROCEEDS ACCOUNT" means the account designated as
such under the terms of this Agreement.
"PROPERTY" means each property described in Schedule 8
(Properties) but shall exclude any property disposed of by PropCo
or ▇▇▇▇▇▇ in accordance with Clause 20.6 (Disposals).
18
"PROPERTY EXPENSES" means any costs, expenses and outgoings of a
non-capital nature which are to be incurred or required to be
incurred or to be incurred by PropCo or ▇▇▇▇▇▇ in respect of all
or any part of a Property, such amounts not being recoverable
under any Lease Document.
"PRO RATA SHARE" means, on any date:
(a) the proportion which a Lender's Commitment bears to the
Total Commitments at such date; or
(b) if the Total Commitments have been cancelled, the proportion
which its Commitment bore to the Total Commitments
immediately before such cancellation.
"PURCHASE PRICE" means the consideration paid to the Seller
pursuant to the Interest Purchase Agreement less any agreed
apportionments in respect of Rental Income or Void Costs.
"PUT AND CALL AGREEMENT" means the irrevocable put and call
offers dated 28 February 2007 and made between Seller 2 and
Purchaser regarding limited partnership interests in PropCo and
Seller 1 and shares in GP PropCo and GP Seller 1 as may be
amended with the prior approval of the Agent.
"QUALIFYING LENDER" has the meaning given to it in Clause 12 (Tax
gross-up and indemnities).
"RECTIFICATION ACCOUNT" means an account opened by the Borrower
with the Account Bank in the name of the Borrower charged to the
Security Trustee. The Agent shall have sole signing rights in
relation to the Rectification Account at all times.
"REFERENCE BANKS" means, in relation to Mandatory Cost, the
principal London offices of Barclays Bank plc, Lloyds TSB Bank
plc and The Royal Bank of Scotland plc.
"RELATED FUNDING ARRANGEMENT" means, in relation to a Loan, any
agreement or arrangement entered into at any time (including,
without limitation, any swap or any internal treasury
arrangement) under which any Finance Party funds the Loan or
matches (in whole or in part and whether by way of agreement or
arrangement which is specifically tailored to the relevant Loan
or is one of or a component of one or more similar agreements or
arrangements tailored to a portfolio of loans (including the
Loan)) its right to receive interest on the Loan at a fixed rate
with an obligation to make a payment on that basis in exchange
for an obligation on a counterparty (which may be a separate or
internal division of such Finance Party) to pay interest at a
floating rate, or otherwise ▇▇▇▇▇▇ the interest rate risk in
funding or maintaining the relevant Loan.
"RELATED PARTY" means any entity:
(a) in respect of which a member of the WP ▇▇▇▇▇ Group has at
all times the power to direct the management and policies,
whether through the
19
ownership of voting capital, by contract or otherwise or
with which a member of the WP ▇▇▇▇▇ Group has (or is bound
by) an advisory or similar agreement pursuant to which that
member of the WP ▇▇▇▇▇ Group is the sole investment advisor
with respect to such entity; and
(b) which has (or each Holding Company of which has) at all
times a net worth of not less than E 40,000,000,
including, without limitation, Corporate Property Associates 14
Incorporated, Corporate Property Associates 15 Incorporated and
Corporate Property Associates 16 - Global Incorporated and any
Subsidiary of each such entity (provided that the requirements of
paragraph a) and b) of this definition are satisfied at all times
in relation to each such entity).
"RELEASE PRICING" means, in respect of a Disposal, the aggregate
of:
(a) 115 % of the Allocated Loan Amount for the Property the
subject of the Disposal (other than any HBR Property); or
(b) in the case of any HBR Property, 128% of the Allocated Loan
Amount for the Property,
(in each case such percentage being the "ALA"); and
(c) an amount calculated by the Agent as being payable pursuant
to Clause 7.5 (Restrictions) on a repayment of the Loan in
an amount equal to the ALA on the next Interest Payment
Date.
"RELEVANT INTERBANK MARKET" means the European interbank market.
"RELIANCE LETTERS" means letters from each of the report
providers referred to in Schedule 2 in a form acceptable to the
Agent.
"REMEDIATION AMOUNT" means E1,987,500 which shall be paid
into the Expansions Account in addition to the Expansion Amount.
"RENT ACCOUNT" means the Borrower Rent Account, Seller 2 Rent
Account and PropCo Rent Account and each of them.
"RENT RESERVE AMOUNT" means the Security Deposit (as defined in
the Principal Occupational Lease) which as at the date of this
Agreement will be the sum of E24,960,000 and thereafter as
adjusted in accordance with the provisions of paragraph 32 of the
Principal Occupational Lease.
"RENTAL INCOME" means on any day the aggregate of all amounts
payable to or for the benefit or account of PropCo arising from
or in connection with the letting, use or occupation of a
Property (or any part of a Property), including (without
limitation and without double counting):
(a) rents, licence fees and equivalent sums reserved or made
payable;
20
(b) sums received from any deposit held as security for the
performance of any tenant's obligations;
(c) any premium paid on the grant of any Occupational Lease;
(d) any other monies payable in respect of use and/or
occupation;
(e) proceeds of insurance in respect of loss of rent and
interest thereon;
(f) receipts from or the value of consideration given for the
surrender or variation of any letting;
(g) proceeds paid by way of reimbursement of expenses incurred
or on account of expenses to be incurred in the management,
maintenance and repair of, and the payment of insurance
premiums for, the Properties;
(h) proceeds paid for a breach of covenant under any
Occupational Lease and for expenses incurred in relation to
any such breach;
(i) any contribution to a sinking fund paid by an occupational
tenant;
(j) payments from a guarantor in respect of any of the items
listed in this definition;
(k) interest, damages or compensation in respect of any of the
items in this definition; and
(l) any VAT or similar taxes on any sum mentioned in this
definition.
"REPEATING REPRESENTATIONS" means each of the representations set
out in Clause 17 (Representations) other than the representations
set out in Clauses 17.8 (No filing or stamp taxes), 17.16.1
(Valuation) (in respect of the Initial Valuation only) and
17.17.3 (Transaction Documents).
"REPORT ON TITLE" means each Appropriately Addressed report on
title/report relating to the Properties and the Interest Purchase
Agreement, in form and substance satisfactory to the Agent, and
prepared by ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, lawyers for the Borrower.
"RESERVATIONS" means: (i) the principle that equitable remedies
are remedies which may be granted or refused at the discretion of
the court, (ii) the limitation of enforcement by laws relating to
bankruptcy, insolvency, liquidation, reorganisation, court
schemes, moratoria, administration and other laws generally
affecting the rights of the creditors, (iii) defences of set-off
or counterclaim and similar principles and (iv) qualifications
and reservation as to matters of law in any legal opinion
delivered to the Agent under Schedule 2 (Conditions Precedent).
"S&P" means Standard & Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or any successor to its rating business.
21
"SALES PROCEEDS ACCOUNT" means the PropCo Sales Proceeds Account,
the Seller 2 Sales Proceeds Account and the Borrower Sales
Proceeds Account and each of them.
"SECURED LIABILITIES" means all present and future obligations
and liabilities whether actual or contingent and whether owed
jointly or severally or in any other capacity whatsoever of the
Borrower and the Shareholders to the Finance Parties (or any of
them) under the Finance Documents.
"SECURITY" means any mortgage, standard security, pledge, lien,
hypothecation, title retention, charge, assignment by way of
security or other agreement or arrangement having the effect of
conferring security.
"SECURITY ASSIGNMENT OF CLAIMS UNDER LEASE AGREEMENTS"
(Sicherungsabtretung von Forderungen aus Mietvertragen) means a
security assignment of claims under lease agreements granted by
PropCo in favour of the Security Trustee.
"SECURITY ASSIGNMENT OF CLAIMS UNDER SALE AND PURCHASE
AGREEMENTS" (Sicherungsabtretung von Forderungen aus einem
Grundstuckskaufvertrag) means a security assignment of claims
under sale and purchase agreements granted by the Borrower in
favour of the Security Trustee.
"SECURITY ASSIGNMENT OF INSURANCE CLAIMS" (Sicherungsabtretung
von Versicherungsforderungen) means a security assignment of
insurance claims granted by PropCo and the Borrower in favour of
the Security Trustee;
"SECURITY DOCUMENT" means:
(a) each Land Charge;
(b) each Account Pledge Agreement;
(c) the Security Assignment of Claims under Sale and Interest
Purchase Agreements;
(d) the Security Assignment of Claims under Lease Agreements;
(e) the Security Assignment of Insurance Claims;
(f) each Share Pledge Agreement;
(g) each Partnership Interest Pledge Agreement;
(h) each Security Purpose Agreement;
(i) each Global Assignment Agreement;
(j) the Subordination Agreement;
(k) the Security Documents (as defined in the WPC Facility
Agreement) in relation to the WPC Facility Agreement;
22
(l) any other security document that may at any time be given as
security for any of the Secured Liabilities pursuant to or
in connection with any Finance Document; and
(m) any other document designated as such by the Agent and the
Borrower.
"SECURITY PURPOSE AGREEMENT" means each security purpose
agreement (Sicherungszweckvereinbarung) in the Agreed Form
granted by the PropCo Companies in favour of the Security Trustee
determining the security purpose of each Land Charge.
"SECURITY PROVIDER" means the entity granting Security pursuant
to each of the Security Documents.
"SELLER 1" means ▇▇▇▇▇ UV KG and its general partner.
"SELLER 2" means ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"SELLER 2 ACCOUNT PLEDGE AGREEMENT" means an account pledge
agreement granted by Seller 2 in relation to each of the Accounts
held by it in favour of the Security Trustee.
"SELLER 2 FACILITY AGREEMENT" means the Loan Agreement set forth
in Annex A recorded in the notarial deed of the officiating
notary public dated 28 February 2007 (Roll of Deeds No's. MW-41,
42, 43, 45 and 46/2007) and any documents supplemental to such
agreement.
"SELLER 2 LOAN" means the loan made available pursuant to the
Seller 2 Facility Agreement.
"SELLER 2 RENT ACCOUNT" means the account designated as such
under the terms of this Agreement which will be used by Seller 2
to pay interest due on the Seller 2 Loan.
"SELLER 2 SALES PROCEEDS ACCOUNT" means the account designated as
such under the terms of this Agreement.
"SELLERS" means Seller 1 and Seller 2.
"SHAREHOLDER" means HLWG Two Lender S.a ▇.▇., a Luxembourg
limited liability company, and H2 Lender WPC LLC, a Delaware
(U.S.A.) limited liability company, H2 LENDER (GER) QRS 14-105,
INC., H2 LENDER (GER) QRS 15-92, INC. and H2 LENDER (GER) QRS
16-101, INC., each a Delaware (U.S.A.) corporation.
"SHARE PLEDGE AGREEMENT" means each of:
(a) the Shareholder Share Pledge Agreement; and
(b) the Borrower Share Pledge Agreement.
23
"SHAREHOLDER SHARE PLEDGE AGREEMENT" means a share pledge
agreement granted by the Shareholders in relation to the shares
in the Borrower granted in favour of the Security Trustee.
"SOLD PROPCO INTERESTS" means the limited partnership interest
(equal to 19.9%) of Seller 1 in PropCo.
"SOLD SELLER INTERESTS" means the limited partnership interest
(equal to 94.9% of Seller 2 in Seller 1.
"▇▇▇▇▇▇" means ▇▇▇▇▇ ▇▇▇▇▇▇ GmbH & Co. KG a German limited
liability partnership registered with the commercial register
maintained at the local court of Berlin-Charlottenberg under HRA
22982 and its sole general partner ▇▇▇▇▇ ▇▇▇▇▇▇ Verwaltungs-GmbH.
"STRUCTURE CHART" means a chart in the Agreed Form showing the
legal and beneficial ownership of the Obligors, the Shareholders,
PropCo, ▇▇▇▇▇▇, Seller 1 and Seller 2 as at the date of this
Agreement as the same may be amended from time to time with the
consent of the Agent.
"SUBORDINATED CREDITORS" means H2 LENDER (GER) QRS 14-105, INC.,
H2 LENDER (GER) QRS 15-92, INC. and H2 LENDER (GER) QRS 16-101,
INC., and any other person that accedes to the Subordination
Agreement as a subordinated creditor.
"SUBORDINATION AGREEMENT" means the deed of subordination and
priority entered into or to be entered into by the Borrower, the
Agent, the Security Trustee and the Subordinated Creditors.
"SUBSIDIARY" means an entity of which a person has direct or
indirect control or owns directly or indirectly more than 24 per
cent. of the voting capital or similar right of ownership (except
where such term is used in the definition of "Related Party"
where it means an entity of which a person has direct or indirect
control or owns directly or indirectly more than 50 per cent. of
the voting capital or similar right of ownership) and control for
this purpose means the power to direct the management and the
policies of the entity whether through the ownership of voting
capital, by contract or otherwise.
"TAXES" means any tax, levy, impost, duty or other charge or
withholding of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any
delay in paying any of the same).
"TAX REPORT" means an Appropriately Addressed report satisfactory
to the Agent in respect of applicable Taxes in respect of the
transaction contemplated by the Transaction Documents addressed
to the Finance Parties and their successors in title (and such
other parties as the Agent shall require for the purposes of
warehousing or securitisation).
"TERM" means from and including the Utilisation Date to and
including the Termination Date.
24
"TERMINATION DATE" means subject to Clause 9.2 (Changes to the
Interest Payment Date and Interest Period) either the tenth
anniversary of the Utilisation Date or, if such date is not an
Interest Payment Date, the Interest Payment Date immediately
preceding such date.
"TOTAL COMMITMENTS" means the aggregate of the Commitments.
"TRANSACTION DOCUMENTS" means:
(a) the Finance Documents;
(b) the Lease Documents;
(c) the Interest Purchase Agreement and all annexures thereto;
(d) the Put and Call Agreement and all annexures thereto;
(e) the Subordination Agreement (as defined in the Interest
Purchase Agreement); and
(f) any other document designated as such by the Agent and the
Borrower.
"TRANSFER CERTIFICATE" means a certificate substantially in one
of the forms set out in Schedule 5 (Form of Transfer Certificate)
or any other form agreed between the Agent and the Borrower.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and
(b) the date on which the Agent executes the Transfer
Certificate.
"UNPAID SUM" means any sum due and payable but unpaid by the
Borrower under the Finance Documents.
"UTILISATION" means a utilisation of the Facility.
"UTILISATION DATE" means the date of a Utilisation, being the
date on which the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in the form
set out in Schedule 3 (Utilisation Request).
"VALUER" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇ or any other surveyor
or valuer with experience of carrying out valuations of
properties of a similar nature to the Properties as may be
appointed by the Agent.
"VALUATION" means an Appropriately Addressed valuation of the
Borrower's interest in the Properties by the Valuer in a form and
substance satisfactory to the Agent.
"VAT" means value added tax as provided for in the German
Umsatzsteuergesetz 1999 and any other tax of a similar nature.
25
"VOID COSTS" means the amounts (together with VAT or any similar
Taxes or charges thereon) of ground rent, rates, service charges,
insurance premiums, management fees (other than the fees of the
Asset Manager), repair and maintenance and any other outgoings
whatsoever with respect to the Property to the extent that the
same are not fully funded by the tenants under the Occupational
Leases.
"WARRANTIES HOLDBACK" means shall have the meaning ascribed to it
in the Interest Purchase Agreement and for the avoidance of doubt
shall be E5,000,000 at the Utilisation Date.
"▇▇▇▇▇" means BeW Kfz-Service GmbH & Co. KG and BeW Kfz-Service
Verwaltungs-GmbH .
"W.P. ▇▇▇▇▇ GROUP" means W.P. ▇▇▇▇▇ & Co. LLC or any entity
controlled by W.P. ▇▇▇▇▇ & Co. LLC or any of its Affiliates.
"WPC FACILITY AGREEMENT" means a Facility Agreement dated on or
around the date of this Agreement and made between, inter alia,
WPC Lender (1) the Arranger (2), the Original Lenders (3), the
Agent (4) and the Security Trustee (5).
"WPC LENDER" means HLWG TWO LENDER S.A ▇.▇. a Luxembourg private
limited liability company (societe a responsabilite limitee)
incorporated with the Luxembourg Register of Commerce and Company
under number B 124.626 having its registered office at ▇▇, ▇▇▇
▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
"WPC LENDER FINANCE DOCUMENT" means a Finance Document as defined
in the WPC Facility Agreement.
"WPC LENDER RENT ACCOUNT" means the Borrower Rent Account as such
term is defined in the WPC Lender Facility Agreement.
"WPC LENDER TOTAL COMMITMENTS" means the Total Commitments as
such term is defined in the WPC Lender Facility Agreement.
"WPC LOAN" means the loan made available pursuant to the WPC
Lender Facility Agreement.
1.2 CONSTRUCTION
1.2.1 Unless a contrary indication appears, any reference in this
Agreement to:
1.2.1.1 the "AGENT", the "ARRANGER", the "BORROWER", any "FINANCE PARTY",
any "LENDER", any "PARTY" or the "SHAREHOLDERS" shall be
construed so as to include its successors in title, permitted
assigns and permitted transferees;
1.2.1.2 "ASSETS" includes present and future properties, revenues and
rights of every description;
26
1.2.1.3 a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended, restated, replaced, supplemented or
novated;
1.2.1.4 "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
1.2.1.5 a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust
or partnership (whether or not having separate legal personality)
or two or more of the foregoing;
1.2.1.6 a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of
any governmental, intergovernmental or supranational body,
agency, department or regulatory, self-regulatory or other
authority or organisation;
1.2.1.7 the "PROPERTY" includes each and every part of it, including all
buildings, fixtures (including trade fixtures (but excluding any
tenant's fixtures) and fixed plant and machinery, furnishings,
fittings, equipment, decoration and other structures now or in
future on it and all easements and rights of whatsoever nature
attaching to it;
1.2.1.8 a document being "IN THE AGREED FORM" means that it is initialled
for the purposes of identification as such by the Borrower and
the Agent or by their respective legal advisers on their behalf
and where not so initialled, being in such form as the Agent
shall otherwise require;
1.2.1.9 a provision of law is a reference to that provision as amended or
re-enacted; and
1.2.1.10 a time of day is a reference to London time.
1.2.2 a document being "APPROPRIATELY ADDRESSED" means that such
document is addressed to and capable of being relied upon by the
Security Trustee (and Rating Agencies and Regulatory Authorities
on a non-reliance basis only) for itself and for and on behalf of
the Finance Parties (including their respective successors in
title and assigns) and to assignees, chargees or transferees of
any of those parties for the purposes of a warehousing or
securitisation of the Facility and any bond underwriters for the
purpose of a securitisation.
1.2.3 Section, Clause and Schedule headings are for ease of reference
only.
1.2.4 Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
1.2.5 A Default (other than an Event of Default) is "CONTINUING" if it
has not been remedied or waived and an Event of Default is
"CONTINUING" if it has not been waived.
27
1.2.6 Where under a Finance Document a Finance Party is required to act
reasonably, it is reasonable for (without limitation) that
Finance Party to act in a manner which, in the opinion of that
Finance Party, is reasonably appropriate to avoid an adverse
effect on the then current ratings of securities issued in
connection with any Securitisation.
1.3 THIRD PARTY RIGHTS
Unless expressly provided to the contrary in a Finance Document,
a person who is not a Party (other than a receiver, receiver or
manager or administrative receiver appointed under any Finance
Document) has no right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce or enjoy the benefit of any term of
that Finance Document.
1.4 DISPOSITION OF PROPERTY
The terms of the other Finance Documents and of any agreement,
document or side letter between the Parties are incorporated into
each Finance Document to the extent required for any purported
disposition of any Property or any part thereof and any other
relevant Charged Asset contained in any Finance Document to be a
valid disposition in accordance with German law.
2. THE FACILITY
2.1 THE FACILITY
Subject to the terms of this Agreement, the Lenders make
available to the Borrower a euro term loan facility in an
aggregate maximum amount not exceeding the Total Commitments.
2.2 FINANCE PARTIES RIGHTS AND OBLIGATIONS
2.2.1 The obligations of each Finance Party under the Finance Documents
are several. Failure by a Finance Party to perform its
obligations under the Finance Documents does not affect the
obligations of any other Party under the Finance Documents. No
Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
2.2.2 The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Finance Party from
the Borrower shall be a separate and independent debt.
3. PURPOSE
3.1 PURPOSE
The Borrower shall apply all amounts borrowed by it under the
Facility to partly finance the purchase of the Sold PropCo
Interests and the Sold Seller 1 Interests pursuant to the terms
of the Interest Purchase Agreement.
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3.2 MONITORING
No Finance Party is bound to monitor or verify the application of
any amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 CONDITIONS PRECEDENT
4.1.1 The obligations of each Finance Party to the Borrower under the
Finance Documents are subject to the condition precedent that the
Agent has notified the Lenders and the Borrower that it has
received (or that it is satisfied that, subject only to the
advance of the Facility, it or its advisors will receive) all of
the documents and evidence set out in Schedule 2 (Conditions
Precedent) in form and substance satisfactory to the Agent. The
Agent must give this notification to the Borrower and the Lenders
promptly upon being so satisfied.
4.1.2 The Agent may refuse to accept a Utilisation Request if the
Lender believes that the notification referred to at Clause 4.1.1
above will not be given on or before the Utilisation Date.
4.1.3 If on the proposed Utilisation Date the Agent has not issued the
notification referred to in Clause 4.1.1 above then:
(a) if all the Lenders agree the Loan shall still be made; and
(b) the proceeds of the Loan will be paid into the U.K. or
German client account of White & Case LLP to be held to the
order of the Lender until the Agent gives the notification
referred to in Clause 4.1.1 above.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders will only be obliged to comply with Clause 5.4
(Lenders' participation) if on the date of the Utilisation
Request and on the proposed Utilisation Date:
4.2.1 no Default is continuing or would result from the proposed Loan;
4.2.2 the Repeating Representations to be made by the Borrower are
correct and will be correct immediately after the Loan is made;
and
4.2.3 the Loan will not exceed the Facility Amount.
4.3 CONDITION SUBSEQUENT
The Agent shall receive all the documents and other evidence
listed in the Conditions Subsequent section of Schedule 2
(Conditions Subsequent Documents) in form and substance
satisfactory to the Agent (acting reasonably) and within the
timescales set out in that section of Schedule 2 and the Agent
shall notify the Borrowers promptly upon being so satisfied.
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5. UTILISATION
5.1 DELIVERY OF THE UTILISATION REQUEST
The Borrower may utilise the Facility by delivery to the Agent of
the duly completed Utilisation Request not later than 11.00 am
six Business Days before the proposed Utilisation Date.
5.2 COMPLETION OF THE UTILISATION REQUEST
The Utilisation Request is irrevocable and will not be regarded
as having been duly completed unless the proposed Utilisation
Date is a Business Day within the Availability Period.
5.3 NUMBER OF UTILISATIONS
5.3.1 The Borrower may only make one Utilisation.
5.3.2 Immediately following the Utilisation, any undrawn portion of the
Facility shall be automatically cancelled.
5.4 LENDERS' PARTICIPATION
5.4.1 If the conditions set out in this Agreement have been met, each
Lender shall make its participation in the Loan available by the
Utilisation Date through its Facility Office.
5.4.2 The amount of each Lender's participation in the Loan will be
equal to its Pro Rata Share.
5.4.3 The Agent shall notify each Lender of the amount of the Loan and
the amount of its participation in the Loan by 3.00 pm two
Business Days before the proposed Utilisation Date.
6. REPAYMENT
6.1 REPAYMENT OF LOAN
6.1.1 Subject to Clauses 6.1.2 and 6.2 below, each Borrower shall repay
the Loan in instalments in the amounts and on the dates set out
in Schedule 10 (the "REPAYMENT SCHEDULE"), each such instalment
being a "REPAYMENT INSTALMENT".
6.1.2 All outstanding amounts are to be repaid in full on or before the
Termination Date.
6.2 FINAL REPAYMENT
Notwithstanding any other provisions of this Agreement, on the
earlier of:
6.2.1 the Termination Date;
6.2.2 the sale, transfer, surrender or other disposal of all of the
Properties; or
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6.2.3 the refinancing of the Loan;
the Borrower shall pay to the Agent for distribution to the
Lenders the remaining balance of the Loan in full, together with
accrued interest and all other amounts payable under the Finance
Documents.
6.3 REBORROWING
No amount repaid under this Agreement may be re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 ILLEGALITY
If it becomes after the date of this Agreement unlawful in any
applicable jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund or
maintain its participation in the Loan:
7.1.1 that Lender shall promptly notify the Agent upon becoming aware
of that event;
7.1.2 upon the Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled; and
7.1.3 the Borrower shall prepay that Lender's participation in the Loan
made to the Borrower on the last day of the Interest Period for
the Loan occurring after the Agent has notified the Borrower or,
if earlier, the date specified by the Lender in the notice
delivered to the Agent (being no earlier than the last day of any
applicable grace period permitted by law).
7.2 MANDATORY PREPAYMENT ON CHANGE OF CONTROL
Subject to the provisions of Clause 7.9.10, if there is a Change
of Control without the prior written consent of the Majority
Lenders, other than a Permitted Change of Control:
7.2.1 the Borrower shall promptly notify the Agent upon becoming aware
of the event;
7.2.2 if the Majority Lenders so require the Agent shall by not less
than 5 Business Days notice to the Borrower cancel the Facility
and declare the Loan together with accrued interest, and all
other amounts accrued under the Finance Documents immediately due
and payable, whereupon the Facility will be cancelled and all
such outstanding amounts will become immediately due and payable;
and
7.2.3 If, and so long as, the Majority Lenders do not require
cancellation under Clause 7.2.2 then the Borrower shall
immediately supply the Agent with such documents or information
as the Agent shall require including, without limitation,
documents for know your customer and Money Laundering Regulations
and conditions subsequent in relation to each relevant person.
31
7.3 MANDATORY PREPAYMENT OF DISPOSAL PROCEEDS
Subject to the provisions of Clause 7.9.10, the Security Trustee
shall (and is irrevocably authorised by the Borrower to) on each
Interest Payment Date and on the Termination Date, apply the
balance standing to the credit of the Borrower Sales Proceeds
Account in prepayment in whole or part of the Loan together with
any amounts payable on such prepayment in accordance with Clause
7.9 (Restrictions).
7.4 VOLUNTARY PREPAYMENT OF LOAN
7.4.1 Subject to the provisions of Clause 7.9 (Restrictions), Clause
10.2 (Prepayment and Cancellation Fees) and to Clause 14 (Other
Indemnities), the Borrower may, if it gives the Agent not less
than 10 Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, prepay the whole or any part of
the Loan (but, if in part, being an amount that reduces the
amount of the Loan by a minimum amount of E10,000,000 and an
integral multiple of E1,000,000) provided that the Loan
shall not be prepaid in whole before all outstanding amounts
under the WPC Loan have been repaid or prepaid in full.
7.4.2 Prepayments shall be applied to repay the Loan to the extent that
it remains outstanding.
7.5 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE
LENDER
7.5.1 Subject to the provisions of Clause 7.9.10, if:
7.5.1.1 any sum payable to any Lender by the Borrower is required to be
increased under Clause 12.2.3 (Tax gross-up); or
7.5.1.2 any Lender claims indemnification from the Borrower under Clause
12.3 (Tax indemnity) or Clause 13.1 (Increased costs);
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues give the Agent notice of
cancellation of the Commitment of that Lender and its intention
to procure the repayment of that Lender's participation in the
Loan.
7.5.2 On receipt of a notice referred to in Clause 7.5.1 above, the
Commitment of that Lender shall immediately be reduced to zero.
7.5.3 On the last day of the next succeeding Interest Period which ends
after the Borrower has given notice under Clause 7.5.1 above (or,
if earlier, the date specified by the Borrower in that notice),
the Borrower shall repay that Lender's participation in the Loan,
together with accrued interest and all other Secured Liabilities
payable to that Lender.
7.6 SUBSTITUTION AND ADDITION TO SECURITY
If the Borrower wants any Property or Properties already charged
pursuant to the Security Documents (each a "RELEASE PROPERTY") to
be released and
32
substituted as security by an Additional Property or Additional
Properties it must obtain the prior written consent of the
Security Trustee (to such release and substitution) and satisfy
the conditions set out in Clauses 7.7 and 7.8 below. The consent
of the Security Trustee to such substitution shall not be
unreasonably withheld where the aggregate of the Market Value
(determined in accordance with the Initial Valuation) of:
7.6.1 the Properties already released from the Security Documents
during the preceding 12 month period; and
7.6.2 the Value of the Release Property,
does not exceed 15 per cent. of the Initial Valuation (provided
that such substitutions shall not be carried out in respect of
Properties having an aggregate Market Value (determined in
accordance with the Initial Valuation) of more than 35 per cent.
of the Initial Valuation during the Term) but in all other cases
such consent may be withheld or granted subject to such
conditions as the Security Trustee in its absolute discretion
decides.
7.7 SUBSTITUTION CONDITIONS PRECEDENT
The conditions precedent to any such release and/or substitution
as referred to in Clause 7.6 above are as follows:
7.7.1 no Default is subsisting;
7.7.2 the Borrower supplies such further information and details
concerning any offered Additional Property as the Security
Trustee may reasonable request;
7.7.3 the provisions of Clause 7.8 below are complied with;
7.7.4 such Additional Property is similar in nature and quality in all
material respect to the Property being released or substituted;
7.7.5 the Net Rental Income from such Additional Property shall not be
less than the Net Rental Income for the substitute Property;
7.7.6 the Market Value shall not be less than the Market Value
(determined in accordance with the Initial Valuation) of the
Release Property;
7.7.7 any such substitution will not cause the Borrower to be in breach
of its obligations under Clause 19.2 (Interest Cover).
7.8 SUBSTITUTION REQUIREMENTS
7.8.1 Prior to the release from the Security Documents of any Release
Property the Borrower shall deliver to the Security Trustee the
following:
7.8.1.1 a Valuation from the Valuer showing the value of the Additional
Property (the "ADDITIONAL PROPERTY VALUATION");
7.8.1.2 a duly executed Additional Charge;
33
7.8.1.3 such other documents or information as the Security Trustee
reasonably requires so that the conditions referred to in Clause
4 (Conditions of Utilisation) are satisfied (mutatis mutandis);
7.8.1.4 payment of the reasonable costs of the Valuer and the Security
Trustee's lawyers and other reasonable costs incurred by the
Security Trustee in connection with the release and/or
substitution.
7.8.2 Upon the completion of any Additional Charge (i) such shall be
included within the definition of "Security Documents" and
references in this Agreement to "Land Charge" shall be read and
construed respectively as references to the Land Charge and every
Additional Charge collectively and (ii) the Security Trustee
shall, at the request and cost of the Borrower, release the Land
Charge or Additional Charge (as the case may be) insofar as it
relates to the Release Property but no further or otherwise.
7.9 RESTRICTIONS
7.9.1 Any notice of cancellation or prepayment given by any Party under
this Clause 7 (Prepayment and Cancellation) shall be irrevocable
and, unless a contrary indication appears in this Agreement,
shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
7.9.2 Any prepayment under this Agreement shall be made together with:
7.9.2.1 accrued interest on the amount repaid or prepaid;
7.9.2.2 any fee payable under Clause 10 (Fees);
7.9.2.3 any amounts payable under Clause 14 (Other Indemnities);
7.9.2.4 any amount payable under Clause 16 (Costs and Expenses); and
7.9.2.5 if the Borrower prepays on a date which is not an Interest
Payment Date, the Borrower shall also pay to the Agent on the
date of such prepayment such amount of interest (including
Margin) (as determined by the Agent) as would have been payable
on the amount prepaid during the period from the date on which
such amount is prepaid to the next Interest Payment Date.
7.9.3 Any such Prepayment not on an Interest Payment Date, shall not
alter or require the Agent to terminate, vary or amend any
Hedging Arrangements (without prejudice to the Agent's
entitlement to do so in its discretion).
7.9.4 Where a Lender acquires or holds its Pro Rata Share in the Loan
otherwise than in connection with a securitisation or other
transaction having a similar effect, any sum intended to be a
prepayment shall be put on an interest bearing deposit account
charged in favour of the Security Trustee until the next Interest
Payment Date (after such prepayment) and any such interest earned
shall (unless an Event of Default is outstanding) be credited to
the Borrower on the next Interest Payment Date when the actual
prepayment is effected.
34
7.9.5 The Borrower may not reborrow any part of the Facility which is
prepaid.
7.9.6 The Borrower shall not repay or prepay all or any part of the
Loan or cancel all or any part of the Total Commitments except at
the times and in the manner expressly provided for in this
Agreement.
7.9.7 No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
7.9.8 Any prepayment of the Loan will be applied:
7.9.8.1 against either the remaining Repayment Instalments payable
pursuant to Clause 6.1.1 (Repayment of Loan) or any balance
payable pursuant to Clause 6.1.2 (Repayment of Loan); and
7.9.9 If the Agent receives a notice under this Clause 7 it shall
promptly forward a copy of that notice to either the Borrower or
the affected Lender, as appropriate.
7.9.10 The Loan shall not be prepaid in whole (other than pursuant to
Clause 7.1 (Illegality)) without the written consent of the Agent
before all outstanding amounts under the WPC Loan have been
repaid or prepaid in full. Furthermore, there shall be no
voluntary prepayments under this Agreement without the written
consent of the Agent before all outstanding amounts under the WPC
Loan have been repaid or prepaid in full.
8. INTEREST
8.1 CALCULATION OF INTEREST
The rate of interest on the Loan for each Interest Period is the
percentage rate per annum determined by the Agent to be the
aggregate of:
8.1.1 the Margin;
8.1.2 the Fixed Rate; and
8.1.3 the Mandatory Cost, if any.
8.2 PAYMENT OF INTEREST
The Borrower shall pay accrued interest on the Loan in arrears on
each Interest Payment Date.
8.3 DEFAULT INTEREST
8.3.1 If the Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment
(both before and after judgment) at a rate which, subject to
Clause 8.3.2 below, is 2% per annum higher than the rate which
would have been payable if the overdue amount had, during the
period of non-payment, constituted the Loan in the currency of
the overdue
35
amount for successive Interest Periods, each of a duration
selected by the Agent. Any interest accruing under this Clause
8.3 shall be immediately payable by the Borrower on demand by the
Agent.
8.3.2 If any overdue amount consists of all or part of the Loan which
became due on a day which was not the last day of an Interest
Period relating to the Loan:
8.3.2.1 the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest
Period relating to the Loan; and
8.3.2.2 the rate of interest applying to the overdue amount during that
first Interest Period shall be 2% higher than the rate which
would have applied if the overdue amount had not become due.
8.3.3 Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain
immediately due and payable.
8.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the Borrower of
the determination of a rate of interest under this Agreement.
9. INTEREST PERIODS
9.1 INTEREST PERIODS
9.1.1 The first Interest Period for the Loan shall start on and include
the first Utilisation Date and shall end on the day immediately
preceding the first Interest Payment Date.
9.1.2 Each subsequent Interest Period shall start on and include, an
Interest Payment Date and end on the day preceding the next
following Interest Payment Date.
9.2 CHANGES TO THE INTEREST PAYMENT DATE, TERMINATION DATE AND
INTEREST PERIOD
9.2.1 The Agent may alter the Interest Payment Date, the Termination
Date and the Interest Period relating to the Loan on one occasion
only to any other day (being not earlier than the existing
Interest Payment Date or Termination Date (as the case may be)
less two days and no later than the existing Interest Payment
Date or Termination Date (as the case may be) plus two days) at
any time upon giving 10 Business Days prior written notice to the
Borrowers, and such change shall take effect on and from the
Interest Payment Date following expiry of such notice.
10. FEES
10.1 FEE LETTER
10.1.1 The Borrower shall pay to the Arranger or to the Agent (as the
case may be) the fees in the amounts and at the times agreed in
any Fee Letter.
36
10.2 PREPAYMENT AND CANCELLATION FEES
The Borrower must pay to the Agent a fee in the amounts agreed in
the Fee Letter on the date of prepayment of any part of the Loan
and on the date of cancellation of any part of the Total
Commitments, including repayment or prepayment as a result of the
exercise by any Finance Party of any rights under the Finance
Documents following the occurrence of any Event of Default but
excluding any prepayment or cancellation made under Clause 7.1
(Mandatory prepayment - illegality) or Clause 7.5 (Right of
repayment and cancellation in relation to a single Lender).
11. BANK ACCOUNTS
The undertakings in this Clause 11 remain in force from the date
of this Agreement for so long as any amount is outstanding under
the Finance Documents or any Commitment is in force.
11.1 DESIGNATION OF ACCOUNTS
11.1.1 BORROWER ACCOUNTS
The Borrower shall on or prior to the Utilisation Date open and
maintain the following bank accounts with the designated branch
of the Account Bank with the Account Bank Minimum Rating
Requirements in the name of the Borrower:
11.1.1.1 a current account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "GENERAL ACCOUNT";
11.1.1.2 a deposit account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "BORROWER RENT ACCOUNT";
11.1.1.3 a deposit account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "BORROWER SALES PROCEEDS ACCOUNT";
11.1.2 SELLER 2 ACCOUNTS
The Borrower shall procure that on or prior to the Utilisation
Date Seller 2 opens and maintains the following bank accounts
with the designated branch of the Account Bank with the Account
Bank Minimum Rating Requirements in the name of Seller 2:
11.1.2.1 a deposit account Sort Code 440 400 37 Account No: 373 019 900
designated the "SELLER 2 RENT ACCOUNT"; and
11.1.2.2 a deposit account Sort Code 440 400 37 Account No: 373 020 700
designated the "SELLER 2 SALES PROCEEDS ACCOUNT"
11.1.3 PROPCO ACCOUNTS
The Borrower shall procure that on or prior to the Utilisation
Date PropCo opens and maintains the following bank accounts with
the designated branch
37
of the Account Bank with the Account Bank Minimum Rating
Requirements in the name of PropCo :
11.1.3.1 a deposit account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "PROPCO RENT ACCOUNT";
11.1.3.2 a deposit account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "PROPCO SALES PROCEEDS ACCOUNT";
11.1.3.3 a deposit account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "HOLDBACKS ACCOUNT";
11.1.3.4 a deposit account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "PROPCO RENT RESERVE ACCOUNT";
11.1.3.5 a deposit account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "PROPCO EXPANSION AND REMEDIATION ACCOUNT";
11.1.3.6 a current account Sort Code 6019 Account No: ▇▇▇▇▇▇▇▇ designated
the "PROPCO GENERAL ACCOUNT";
11.2 NO OTHER ACCOUNTS
The Borrower shall not, and the borrower shall procure that
PropCo and ▇▇▇▇▇▇ shall not, without the prior consent of the
Agent, maintain any bank account other than the accounts set out
in this Clause.
11.3 WITHDRAWALS FROM THE GENERAL ACCOUNTS
11.3.1 If no Event of Default is continuing, the Borrower may withdraw
any amounts standing to the credit of the General Account which
may be used for such purposes as solely determined by the
Borrower.
11.3.2 If no Event of Default is continuing, PropCo may withdraw any
amounts standing to the credit of the PropCo General Account
which may be used for the payment of any amounts payable in
relation to tax or other administrative liabilities as determined
by the Borrower.
11.4 RENT ACCOUNTS
11.4.1 PROPCO RENT ACCOUNT
11.4.1.1 The Borrower shall ensure that all Rental Income and any other
sums payable to PropCo in connection with all or any part of the
Property are promptly and directly paid into the PropCo Rent
Account.
11.4.1.2 Immediately following receipt of the Rental Income into the
PropCo Rent Account (and in any event, at least three Business
Days prior to the next Interest Payment Date) the Security
Trustee shall (and is irrevocably authorised by the Borrower to)
instruct the Account Bank to withdraw the balance of all monies
standing to the credit of the PropCo Rent Account and pay:
38
11.4.1.2.1 an amount not exceeding E150,000 per annum into the PropCo
General Account in or towards satisfaction of general
administrative expenses of PropCo provided evidence of how such
amounts have been utilised are provided to the Agent with the
information to be provided pursuant to Clause 18.8 (Property
Information);
11.4.1.2.2 an amount equal to 75.2601 per cent. of the balance into the
Seller 2 Rent Account; and
11.4.1.2.3 an amount equal to 24.7399 per cent. of the balance into the
Borrower Rent Account.
11.4.2 BORROWER RENT ACCOUNT
On each Interest Payment Date the Security Trustee shall (and is
irrevocably authorised by the Borrower to) instruct the Account
Bank to withdraw from the Borrower Rent Account such amount as
may be necessary for application on that date in or towards the
following items and, if the credit balance in the Borrower Rent
Account is insufficient to pay all those items, in the following
order:
11.4.2.1 FIRST, payment pro rata of any unpaid fees, costs and expenses
(not being amounts referred to in Clause 11.4.2.2 below) of the
Finance Parties under the Finance Documents;
11.4.2.2 SECOND, payment pro rata of Fixed Rate Break Costs payable under
Clause 14.4 (Fixed Rate Break Costs and Break Gains);
11.4.2.3 THIRD, payment pro rata of any accrued interest or commission due
but unpaid under this Agreement;
11.4.2.4 FOURTH, payment of any amount due but unpaid under Clause 6.1
(Repayment of Loan);
11.4.2.5 FIFTH, payment of any amount due but unpaid under the WPC Lender
Facility Agreement after application of the monies standing to
the credit of the WPC Lender Rent Account on the relevant
Interest Payment Date; and
11.4.2.6 SIXTH, (provided that the Borrower is in compliance with the
Interest Cover covenant on such Interest Payment Date) in payment
of any surplus to the General Account;
provided that the Security Trustee shall not be obliged to make
such withdrawal if a Default is outstanding or would occur on the
proposed date for the making of a withdrawal.
11.4.3 The Finance Parties may, in their absolute discretion, vary the
order of payment set out in Clauses 11.4.2.1 to 11.4.2.6 above.
11.4.4 If at any time the Borrower demonstrates to the Agent's
reasonable satisfaction that at that time there are sufficient
monies standing in the Borrower Rent Account to satisfy the
requirements of Clauses 11.4.2.1 to
39
11.4.2.5 on the next Interest Payment Date, the Agent shall
withdraw such amount as the Borrower shall reasonably request and
deposit it in to the Borrower General Account provided that the
Borrower has first satisfied the reporting requirements contained
in Clause 18.8 (Property Information) in respect of the
immediately preceding Interest Period.
11.5 SALES PROCEEDS ACCOUNTS
11.5.1 The Borrower shall ensure that any Disposal Proceeds payable to
▇▇▇▇▇▇ or PropCo shall, immediately following receipt of those
Disposal Proceeds by ▇▇▇▇▇▇ or PropCo be credited to the PropCo
Sales Proceeds Account.
11.5.2 Immediately following receipt of any Disposal Proceeds into the
PropCo Sales Proceeds Account the Security Trustee shall (and is
irrevocably authorised by the Borrower to) instruct the Account
Bank to withdraw the balance of all monies standing to the credit
of the PropCo Sales Proceeds Account and pay:
11.5.2.1 an amount equal to 75.2601 per cent. of the balance into the
Seller 2 Sales Proceeds Account; and
11.5.2.2 an amount equal to 24.7399 per cent. of the balance into the
Borrower Sales Proceeds Account.
11.5.3 On each Interest Payment Date the Security Trustee shall (and is
irrevocably authorised by the Borrower to) instruct the Account
Bank to apply all amounts (if any) standing to the credit of the
Borrower Sales Proceeds Account by way of prepayment of the Loan
(and any amounts payable on such prepayment pursuant to Clause
7.9 (Restrictions).
11.6 HOLDBACKS ACCOUNT
11.6.1 The Borrower shall ensure that it deposits the Holdback Amount
into the Holdbacks Account on the date of Utilisation.
11.6.2 It is acknowledged that in accordance with the terms of the
Interest Purchase Agreement, Seller 2 is entitled to the interest
accrued in the Holdbacks Account. As such, the Security Trustee
will be obliged to withdraw any interest accrued from time to
time (but not more than once every six months) at the written
request of the Borrower so that such interest can be paid over to
Seller 2.
11.6.3 (Without Prejudice to Clause 11.6.2 above) the funds on deposit
in the Holdbacks Account shall be withdrawn by the Security
Trustee for payment to Seller 2 pursuant to the terms of the
Interest Purchase Agreement or Principal Occupational Lease, as
applicable, at the written request of the Borrower provided:
11.6.3.1 that there is no Event of Default; and
11.6.3.2 the Borrower has provided to the Agent such documentation and
certifications in a form reasonably satisfactory to the Agent to
substantiate the fact that the amounts for which they were held
in the Holdbacks Account have been
40
satisfied or Seller 2 provides a bank guarantee on first demand
to the Security Trustee issued by a bank with a credit rating of
at least the Account Bank Minimum Rating Requirements in an
amount equal to the amount standing in the Holdbacks Account at
that time and in a form reasonably acceptable to the Agent. If
the credit rating of the bank providing the bank guarantee is at
any time down graded and does not at any time have the Account
Bank Minimum Rating Requirements then the Borrower shall at the
request of the Agent procure that a new bank guarantee with a
bank acceptable to the Security Trustee who shall have a rating
of at least the Account Bank Minimum Rating Requirements is
procured within 10 Business Days of such request.
11.6.4 If an Event of Default is continuing:
11.6.4.1 the Security Trustee is not obliged to withdraw any amount from
the Holdbacks Account; and
11.6.4.2 the Security Trustee may withdraw any or all of the amounts from
the Holdbacks Account (save for the Warranties Holdback which may
only be withdrawn in accordance with Clause 11.6.5) and such
money shall be applied in prepayment of the Loan in accordance
with Clause 11.5 as if such amount were Disposal Proceeds.
11.6.5 It is agreed that the E3,000,000 of the Warranties Holdback
shall remain in the Holdbacks Account for 12 months from the
Utilisation Date (unless called upon to satisfy a warranty or
indemnity claim pursuant to the Interest Purchase Agreement
whereby the Security Trustee will be provided with full details
of such claim before releasing any monies). If no claim as been
made on the Warranties Holdback within the said 12 months, the
said E3,000,000 shall be paid out to Seller 2 unless there
has been an event of default (as defined in the Principal
Occupational Lease) during such 12 month period in which case the
money shall be released at the end of such 12 month period to the
Borrower General Account. The remaining E2,000,000 of the
Warranties Holdback shall remain in the Holdbacks Account for a
further 36 months i.e. after the expiry of the first 12 months
from the Utilisation Date (unless called upon to satisfy a
warranty or indemnity claim pursuant to the Interest Purchase
Agreement whereby the Security Trustee will be provided with full
details of such claim before releasing any monies). At the end of
the said 36 month period, the balance of the Warranties Holdback
held in the Holdbacks Account shall be paid out to Seller 2
unless there has been an event of default (as defined in the
Principal Occupation Lease) during such 36 month period in which
case the money shall be released at the end of such period to the
Borrower's general account.
11.7 PROPCO RENT RESERVE ACCOUNT
11.7.1 The Borrower shall ensure that PropCo deposits on the date of
this Agreement into the Rent Reserve Account the Rent Reserve
Amount.
11.7.2 The Borrower shall be permitted to replace the Rent Reserve
Amount with a Bank Guarantee provided that the form and substance
of the Bank Guarantee
41
has previously been approved in writing by the Security Trustee
and that any Bank Guarantee is renewed at least 30 days prior to
any expiration of it.
11.7.3 If an event of default (as defined in the Principal Occupational
Lease) is continuing under the Principal Occupational Lease, the
Security Trustee shall withdraw any amount from the PropCo Rent
Reserve Account and/or call on the Bank Guarantee and apply that
amount for any purpose for which money in the Rent Reserve
Account is held (save to the extent that the monies have already
been paid out pursuant to Clauses 11.7.4 and/or 11.7.5 below
following a prior written request from the Borrower) including,
for the avoidance of doubt, the payment of money into the PropCo
Rent Account to cover any shortfall or non-payment of Rental
Income.
11.7.4 Provided that there is no continuing Event of Default, at any
time that there is an event of default (as defined in the
Principal Occupational Lease) which is continuing under the
Principal Occupational Lease the Borrower may request in writing
that the Security Trustee shall withdraw an amount or amounts up
to a maximum 10 per cent. of the Rent Reserve Amount (in
aggregate) in payment of costs incurred by the Borrower in
marketing the Property (or any part) and/or in payment of any
inducement to enter into a Lease Document.
11.7.5 Provided that there is no continuing Event of Default, the
Borrower may request a further amount be withdrawn (in excess of
the amounts referred to in Clause 11.7.4) to be used for
marketing of the Property (or any part) and/or in payment of any
inducement to enter into a Lease Document and the Security
Trustee shall only withdraw such amounts with the consent of the
Agent (such consent not to be unreasonably withheld).
11.7.6 It is acknowledged that the Rent Reserve Amount may be adjusted
from time to time in accordance with the provisions of paragraph
32 of the Principal Occupational Lease Provided Always that the
Rent Reserve Amount and/or Bank Guarantee in aggregate shall not
at any time be less than a sum equivalent to three months of the
Basic Rent (as defined in the Principal Occupational Lease).
Accordingly:
11.7.6.1 if the Rent Reserve Amount and/or Bank Guarantee needs to be
increased the Borrower shall ensure that PropCo enforces OpCo's
obligation to increase such Rent Reserve Amount and/or, as
applicable, increase the Bank Guarantee to ensure that the Bank
Guarantee never falls below an amount equivalent to the then
applicable level of the Rent Reserve Amount; or,
11.7.6.2 if the Rent Reserve Amount is to be reduced and provided that
there is no ongoing event of default of the Principal
Occupational Lease, then the Security Trustee shall release the
required amount to OpCo or accept a replacement Bank Guarantee
for the such reduced amount upon the written request of the
Borrower.
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11.8 PROPCO EXPANSION AND REMEDIATION ACCOUNT
11.8.1 The Borrower shall ensure that it deposits or procures that
PropCo deposits on the date of this Agreement into the PropCo
Expansion and Remediation Account the Expansion Amount
11.8.2 It is acknowledged that in accordance with the terms of the
Principal Occupational Lease, Seller 2 is entitled to the
interest accrued in the PropCo Expansion and Remediation Account.
As such, the Security Trustee will be obliged to withdraw any
interest accrued from time to time (but not more than once every
six months) at the written request of the Borrower so that such
interest can be paid over to Seller 2.
11.8.3 Funds on deposit in the PropCo Expansion and Remediation Account
shall be withdrawn by the Security Trustee for the payment of the
costs incurred by PropCo pursuant to any Expansion. The Security
Trustee will be obliged to withdraw funds on deposit in the
PropCo Expansion and Remediation Account at the request of the
Borrower provided:
11.8.3.1 no Event of Default is continuing under the Principal
Occupational Lease;
11.8.3.2 such Expansion is in accordance with Clause 20.26 (Expansion);
and
11.8.3.3 the Borrower has provided to the Agent such documentation and
certifications in a form satisfactory to the Agent to
substantiate the requirement for the disbursement or Seller 2
provides a bank guarantee on first demand to the Security Trustee
issued by a bank with a credit rating of at least the Account
Bank Minimum Rating Requirements in an amount equal to the
relevant disbursement and in a form reasonably acceptable to the
Agent. If the credit rating of the bank providing the bank
guarantee is at any time down graded and does not at any time
have the Account Bank Minimum Rating Requirements then the
Borrower shall at the request of the Agent procure that a new
bank guarantee with at least the said credit rating is procured
within 10 Business Days.
11.8.4 If an Event of Default is continuing under the Principal
Occupational Lease:
11.8.4.1 the Security Trustee is not obliged to withdraw any amount from
the PropCo Expansion and Remediation Account; and
11.8.5 the Security Trustee may withdraw any amount from the PropCo
Expansion and Remediation Account and apply that amount for any
purpose for which the money may be applied including, for the
avoidance of doubt, the payment of money into the PropCo Rent
Account.
11.8.6 In the event that OpCo does not complete one or more of the
Required Expansions (as such term is defined in the Principal
Occupational Lease) in accordance with Clauses 13(c) and 13(d) of
the Principal Occupational Lease, any monies remaining in the
PropCo Expansion and Remediation Account following application
pursuant to the provisions of Clause 13(d) of the Principal
Occupational Lease (at the direction of the Agent in accordance
with
43
Clause 20.26 (Expansions)) shall be released from the PropCo
Expansion and Remediation Account to the PropCo Sales Proceeds
Account to be applied in prepayment of the Loan in accordance
with Clause 11.5 as if such amount were Disposal Proceeds.
11.9 SIGNING RIGHTS
11.9.1 The Security Trustee shall have sole signing rights in relation
to:
11.9.1.1 each Rent Account;
11.9.1.2 each Sales Proceeds Account;
11.9.1.3 the Holdbacks Account;
11.9.1.4 the PropCo Rent Reserve Account;
11.9.1.5 the PropCo Expansion and Remediation Account;
11.9.2 Subject to Clause 11.9.3 below, the Borrower shall have signing
rights in relation to the General Account.
11.9.3 At any time when a Default is continuing, the Security Trustee
may (and is irrevocably authorised by the Borrower to) operate
the General Account and instruct the Account Bank to withdraw
from, and apply amounts standing to the credit of the General
Account in or towards any amounts due under the Finance
Documents.
11.10 CURRENCY OF ACCOUNT
Each Account shall be denominated in euro. If the Borrower or the
Agent receives any monies for crediting to an Account in a
currency other than euro, it will promptly convert those monies
into euro (at the then prevailing rate of exchange quoted by the
Agent) before depositing the proceeds into the relevant Account.
11.11 MISCELLANEOUS ACCOUNTS PROVISIONS
11.11.1 The Borrower shall ensure that no Account goes into overdraft.
11.11.2 The Borrower shall procure that statements in respect of all
debits and credits to each Account are provided to the Agent or
its agent not less than quarterly and within five days of each
Interest Payment Date or such other time as the Agent may require
upon written request to the Borrower. In addition the Borrower
shall:
11.11.2.1 provide the Agent within three Business Days of any request by
the Agent the following information in relation to any payment
received in an Account:
11.11.2.1.1 date of payment/receipt;
11.11.2.1.2 payer;
44
11.11.2.1.3 purpose of/for payment/receipt; and
11.11.2.2 pay any amount, received or recovered otherwise than by credit to
the appropriate Account, to the relevant Account or to the Agent
immediately after such receipt or recovery and in like funds as
such receipt or recovery and shall in the meantime hold the same
subject to the Security created by the Security Documents.
11.11.3 The Borrower shall not enter into any arrangement with the
Account Bank under which money or the benefit of any Account may
be applied or set-off.
11.11.4 On the Termination Date or on the Facility becoming immediately
due and payable under this Agreement, the monies standing to the
credit of each Account other than any account held by Seller 1
and Seller 2 or the PropCo Rent Reserve Account or PropCo
Expansion and Remediation Account (unless an event of default
under the Principal Occupational Lease is outstanding) may be
applied by the Borrower or the Security Trustee in or towards
payment of the Secured Liabilities.
11.11.5 The Security Trustee may, if an Event of Default is continuing,
authorise withdrawal at any time from the Accounts to pay any
amount due and payable to a Finance Party under the Finance
Documents.
11.11.6 The Security Trustee may delegate its powers of withdrawal under
this Clause 12 to any insolvency administrator
(Insolvenzverwalter), administrative receiver, receiver and/or
manager.
11.11.7 All Accounts which are with the Account Bank shall be interest
bearing at a rate which is in accordance with the terms and
conditions from time to time relating to that Account.
11.12 LIMITATION OF LIABILITY
No Finance Party shall be responsible to the Borrower for any
non-payment of any liability of the Borrower which could be paid
out of moneys standing to the credit of an Account (other than in
respect of the Security Trustees' obligation pursuant to Clause
11.4 in relation to the Rent Account). No Finance Party shall be
liable to the Borrower for any withdrawal wrongly made if made in
good faith in the absence of fraud, gross negligence or wilful
misconduct on the part of its employees or agents.
11.13 BORROWER'S PAYMENT OBLIGATIONS
This Clause 11 does not limit or affect the Borrower's
obligations to pay the Secured Liabilities or to make voluntary
or mandatory payments under the Finance Documents.
11.14 CHANGE OF BANK ACCOUNTS
11.14.1 If the Agent so requires or the Borrower so requests (and the
Agent consents), an Account shall be moved to another bank,
subject to such bank meeting the Account Bank Minimum Rating
Requirements.
45
11.14.2 The short term debt instruments in issue by each Account Bank
must have a rating of A-1+ (or better) by S&P, F1+ (or better) by
Fitch and P-1 (or better) by ▇▇▇▇▇'▇. If the short term debt
instruments in issue by an Account Bank cease to have such a
rating, the Agent may require that the relevant Account(s) be
moved to another bank of its choice that satisfies such
requirement as soon as possible and in any event within 20
Business Days of the Borrower becoming aware of the downgrade of
the required rating.
11.14.3 The Borrower shall do all such things as the Agent requests to
facilitate any such change of Account(s) and the Borrower shall
create Security in favour of the Security Trustee and the other
Finance Parties over the balance standing to the credit of such
Account(s) in form and substance satisfactory to the Security
Trustee.
11.14.4 In addition to the other provisions of this Clause 11.14, a
change of Account shall only become effective upon the proposed
new bank agreeing with the Agent and the Borrower, in a manner
satisfactory to the Agent to fulfil the role of the Account Bank
as set out in this Clause 11.
12. TAX GROSS UP AND INDEMNITIES
12.1 DEFINITIONS
12.1.1 In this Agreement:
"EXEMPT LENDER" means, in relation to the Borrower, a Lender
which is able (otherwise than by reason of being a Treaty Lender)
under the domestic law of the jurisdiction of the source of the
interest, to receive interest to receive interest free of any
withholding or deduction for or on account of tax imposed by such
jurisdiction.
"PROTECTED PARTY" means a Finance Party which is or will be
subject to any liability, or required to make any payment, for or
on account of Tax in relation to a sum received or receivable (or
any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
"QUALIFYING LENDER" means a Lender which on the date a payment of
interest is made under a Finance Document is beneficially
entitled to interest payable to that Lender in respect of an
advance under a Finance Document and is on that date:
(a) an Exempt Lender; or
(b) a Treaty Lender.
"TAX CONFIRMATION" means a confirmation by a Lender that the
person beneficially entitled to interest payable to that Lender
in respect of an advance under a Finance Document is a Qualifying
Lender.
"TAX DEDUCTION" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
46
"TAX PAYMENT" means an increased payment made by the Borrower to
a Finance Party under Clause 12.2 (Tax gross-up) or a payment
under Clause 12.3 (Tax indemnity).
"TREATY LENDER" means a Lender which:
(a) is a resident of a Treaty State for the purposes of the
Treaty;
(b) does not carry on a business in the jurisdiction of the
source of the interest through a permanent establishment
with which that Lender's participation in the Loan is
effectively connected.
"TREATY STATE" means a jurisdiction having a double taxation
agreement (a "TREATY") with the jurisdiction of the source of the
interest which makes provision for full exemption from tax
imposed by the jurisdiction of the source of the interest.
12.1.2 Unless a contrary indication appears, in this Clause 12 a
reference to "DETERMINES" or "DETERMINED" means a determination
made in the absolute discretion of the person making the
determination.
12.2 TAX GROSS-UP
12.2.1 Any payments to be made under or in connection with any Finance
Document shall be made without any Tax Deduction, unless a Tax
Deduction is required by law.
12.2.2 The Borrower shall promptly upon becoming aware that it must make
a Tax Deduction (or that there is any change in the rate or the
basis of a Tax Deduction) notify the Agent accordingly.
Similarly, a Lender shall notify the Agent on becoming so aware
in respect of a payment payable to that Lender. If the Agent
receives such notification from a Lender it shall notify the
Borrower.
12.2.3 If a Tax Deduction is required by law to be made by the Borrower,
the amount of the payment due from the Borrower shall be
increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due
if no Tax Deduction had been required.
12.2.4 The Borrower is not required to make an increased payment to a
Lender under Clause 12.2.3 above for a Tax Deduction in respect
of tax imposed by the jurisdiction of the source of the interest
(excluding, however, Tax Deductions imposed by the United States)
from a payment of interest on the Loan, if on the date on which
the payment falls due:
12.2.4.1 the payment could have been made to the relevant Lender without a
Tax Deduction if it was a Qualifying Lender, but on that date
that Lender is not or has ceased to be a Qualifying Lender other
than as a result of any change after the date it became a Lender
under this Agreement in (or in the interpretation,
administration, or application of) any law or Treaty, or any
published practice or concession of any relevant taxing authority
which is applicable to the Borrower; or
47
12.2.4.2 German tax authority has imposed on the Borrower an obligation to
make a withholding on account of tax according to Section 50a
paragraph 7 of the German Income Tax Act (Einkommensteuergesetz);
or
12.2.4.3 the relevant Lender is a Treaty Lender and the Borrower is able
to demonstrate that the payment could have been made to the
Lender without the Tax Deduction had that Lender complied with
its obligations under Clause 12.2.7 below.
12.2.5 If the Borrower is required to make a Tax Deduction, the Borrower
shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in
the minimum amount required by law.
12.2.6 Within 30 days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower
shall deliver to the Agent for the Finance Party entitled to the
payment evidence satisfactory to that Finance Party (acting
reasonably) that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing
authority.
12.2.7 A Treaty Lender and the Borrower when making a payment to which
that Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for the Borrower to obtain
authorisation to make that payment without a Tax Deduction. Any
non co-operation by the Borrower under this Clause shall
invalidate the application of Clause 12.2.4.3 above.
12.2.8 Each Original Lender warrants and represents to the Borrower on
the date of this Agreement that, except with respect to Taxes
imposed by the United States it is a Qualifying Lender. Each
Original Lender shall promptly notify the Borrower if it ceases
to be a Qualifying Lender. Any Lender other than an Original
Lender shall give a Tax Confirmation to the Borrower on the day
it becomes a Lender.
12.2.9 Upon the request of the Borrower, the Lender shall provide
certification to the Borrower on Internal Revenues Service Form
W-8BEN or Form W-8IMY of its status as a non-U.S. person in
respect of any backup withholding tax imposed by the United
States under Section 3406 of the Internal Revenue Code of 1986,
as amended.
12.3 TAX INDEMNITY
12.3.1 The Borrower shall (within five Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be
or has been (directly or indirectly) suffered for or on account
of Tax by that Protected Party in respect of a Finance Document.
48
12.3.2 Clause 12.3.1 above shall not apply:
12.3.2.1 with respect to any Tax assessed on a Finance Party:
12.3.2.1.1 under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as resident
for tax purposes; or
12.3.2.1.2 under the law of the jurisdiction in which that Finance Party's
Facility Office or permanent establishment is located or
otherwise subject to non-resident tax liability in respect of
amounts received or receivable in that jurisdiction;
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be
received or receivable) by that Finance Party; or
12.3.2.2 to the extent a loss, liability or cost:
12.3.2.2.1 is compensated for by an increased payment under Clause 12.2 (Tax
gross-up);
12.3.2.2.2 is compensated for by Clause 13.1 (Increased Cost) (or would have
been compensated for under Clause 13.1 (Increased Cost) but was
not so compensated solely because one of the exclusions in Clause
13.3 (Exceptions) applied);
12.3.2.2.3 is attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation; or
12.3.2.2.4 would have been compensated for by an increased payment under
Clause 12.2 (Tax gross-up) but was not so compensated solely
because one of the exclusions in Clause 12.2.4 of Clause 12.2
(Tax gross-up) applied.
12.3.3 A Protected Party making, or intending to make a claim under
Clause 12.3.1 above shall promptly notify the Agent of the event
which will give, or has given, rise to the claim, following which
the Agent shall notify the Borrower.
12.3.4 A Protected Party shall, on receiving a payment from the Borrower
under this Clause 12.3, notify the Agent.
12.4 REFUND
If the Borrower makes a Tax Payment and the relevant Finance
Party determines, in its sole discretion, that:
12.4.1 a refund is attributable to that Tax Payment or any part of it;
and
12.4.2 that Finance Party has obtained, utilised and retained that
refund;
the Finance Party shall pay an amount to the Borrower which that
Finance Party determines, in its sole discretion, will leave it
(after that payment) in the
49
same after-Tax position as it would have been in had the Tax
Payment not been made by the Borrower.
12.5 STAMP TAXES
The Borrower shall pay and, within five Business Days of demand,
indemnify each Finance Party against any cost, loss or liability
that Finance Party incurs in relation to all stamp duty, notary
fees, registration and other similar Taxes and fees payable in
respect of any Finance Document other than stamp duty payable in
respect of an assignment or transfer pursuant to Clause 23.1
(Assignments and transfers by the Lenders).
12.6 VALUE ADDED TAX
12.6.1 All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. Subject to Clause 12.6.2 below, if VAT is
chargeable on any supply made by any Finance Party to any Party
in connection with a Finance Document, that Party shall pay to
the Finance Party in addition to and at the same time as paying
the consideration an amount equal to the amount of the VAT (and
such Finance Party shall promptly provide an appropriate VAT
invoice to such Party).
12.6.2 Where a Finance Document requires any Party to reimburse a
Finance Party for any costs or expenses, that Party shall also at
the same time pay and indemnify the Finance Party against all VAT
incurred by the Finance Party in respect of the costs or expenses
to the extent that the Finance Party reasonably determines that
neither it nor any other member of any group of which it is a
member for VAT purposes is not entitled to credit or repayment of
the VAT.
12.6.3 If VAT is chargeable on any supply made by any Finance Party (the
"SUPPLIED") to any other Finance Party (the "RECIPIENT") under a
Finance Document, and any Party (the "RELEVANT PARTY") is
required by the terms of any Finance Document to pay an amount
equal to the consideration for such supply to the Supplier
(rather than being required to reimburse the Recipient in respect
of that consideration), such Party shall also pay to the Supplier
(in addition to and at the same time as paying such amount) an
amount equal to the amount of such VAT. The Recipient will
promptly pay to the Relevant Party an amount equal to any credit
or repayment from the relevant tax authority which it reasonably
determines relates to the VAT chargeable on that supply.
13. INCREASED COSTS
13.1 INCREASED COSTS
13.1.1 Subject to Clause 13.3 (Exceptions) the Borrower shall, within
five Business Days of a demand by the Agent, pay for the account
of a Finance Party the amount of any Increased Costs incurred by
that Finance Party or any of its Affiliates as a result of (i)
the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (ii)
compliance with any law or regulation made after the date of this
Agreement.
50
13.1.2 In this Agreement "INCREASED COSTS" means:
13.1.2.1 a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
13.1.2.2 an additional or increased cost; or
13.1.2.3 a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing
its obligations under any Finance Document.
13.2 INCREASED COST CLAIMS
13.2.1 A Finance Party intending to make a claim pursuant to Clause 13.1
(Increased costs) shall notify the Agent of the event giving rise
to the claim, following which the Agent shall promptly notify the
Borrower.
13.2.2 Each Finance Party shall, as soon as practicable after a demand
by the Agent, provide a certificate confirming the amount of its
Increased Costs together with such information as the Borrower
may reasonably require to allow the computation of the amount
that it is or would be payable under this Clause to be verified.
13.2.3 No Finance Party shall be entitled to recover any increased cost
under this Clause 13.2 if it has not made a demand in respect of
the same within 6 months of the date such Increased Costs have
occurred.
13.3 EXCEPTIONS
13.3.1 Clause 13.1 (Increased costs) does not apply to the extent any
Increased Cost is:
13.3.1.1 attributable to a Tax Deduction required by law to be made by the
Borrower;
13.3.1.2 compensated for by Clause 12.3 (Tax indemnity) (or would have
been compensated for under Clause 12.3 (Tax indemnity) but was
not so compensated solely because one of the exclusions in Clause
12.3.2 (Tax indemnity) applied);
13.3.1.3 compensated for by the payment of the Mandatory Cost;
13.3.1.4 would have been compensated for by an increased payment under
Clause 12.2 (Tax gross-up) but was not so compensated solely
because one of the exclusions in Clause 12.2.4 of Clause 12.2
(Tax gross-up) applied; or
13.3.1.5 attributable to the wilful breach by the relevant Finance Party
or its Affiliates of any law or regulation.
51
In this Clause 13.3, a reference to a "TAX DEDUCTION" has the
same meaning given to the term in Clause 12.1 (Definitions).
13.4 NON-DISCLOSURE
Nothing in this Clause 13 (Increased Costs) will require a
Finance Party to disclose any information which it regards as
confidential or commercially sensitive.
14. OTHER INDEMNITIES
14.1 CURRENCY INDEMNITY
14.1.1 If any sum due from the Borrower under the Finance Documents (a
"SUM"), or any order, judgment or award given or made in relation
to a Sum, has to be converted from the currency (the "FIRST
CURRENCY") in which that Sum is payable into another currency
(the "SECOND CURRENCY") for the purpose of:
14.1.1.1 making or filing a claim or proof against the Borrower;
14.1.1.2 obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings;
the Borrower shall as an independent obligation, within five
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising out
of or as a result of the conversion including any discrepancy
between (i) the rate of exchange used to convert that Sum from
the First Currency into the Second Currency and (ii) the rate or
rates of exchange available to that person at the time of its
receipt of that Sum.
14.1.2 The Borrower waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
14.2 OTHER INDEMNITIES
14.2.1 The Borrower shall , within five Business Days of demand,
indemnify each Finance Party against (or pay to any Finance Party
for the account of any of its Affiliates) any cost, loss or
liability incurred or sustained or to be incurred or sustained by
that Finance Party or any of its Affiliates as a result of:
14.2.1.1 the occurrence of a Default or the operation of Clause 22.21
(Acceleration);
14.2.1.2 a failure by the Borrower to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 27 (Sharing among
the Finance Parties);
14.2.1.3 the Loan (or any part thereof) not being advanced after a
Utilisation Request has been delivered for the Loan (or the
relevant part) as a result of (i) the Borrower failing to satisfy
the conditions precedent listed in Schedule 2 for such
Utilisation or (ii) the Borrower declining to accept the Loan or
otherwise claiming that it no longer requires the Loan for
whatever reason;
52
14.2.1.4 the Loan (or part thereof) not being prepaid in accordance with a
notice of prepayment given by the Borrower; or
14.2.1.5 any prepayment, accelerated payment or any other repayment of the
Loan (or part of the Loan) other than pursuant to Clause 6.1
(Repayment of Loan) otherwise than on an Interest Payment Date.
14.2.1.6 the receipt or recovery by a Finance Party of all or any part of
the Loan, any interest or an Unpaid Sum otherwise than on an
Interest Payment Date.
14.2.2 For the avoidance of doubt, the liability of the Borrower in each
case shall include, without limitation, any servicer's fees and
any loss or expense sustained or incurred by a Finance Party
and/or its Affiliate in liquidating or employing or redeploying
deposits or funds acquired, borrowed, contracted for or utilised
to fund, effect or maintain the Loan or any part thereof or any
amount repaid or prepaid (including, without limitation, any loss
or expense sustained or incurred or to be sustained or incurred
because the rate obtainable by the Finance Party and/or its
Affiliate or the redeployment of funds repaid or prepaid is less
than the cost to the Finance Party and/or its Affiliate of
funding the amount so repaid or prepaid).
14.3 INDEMNITY TO THE FINANCE PARTIES
The Borrower shall promptly indemnify each Finance Party against
any cost, loss expense or liability incurred by that Finance
Party as a result of:
14.3.1 investigating any event which it believes is a Default; or
14.3.2 acting or relying on any notice, request or instruction which it
believes to be genuine, correct and appropriately authorised.
14.4 FIXED RATE BREAK COSTS AND BREAK GAINS
14.4.1 The Borrower expressly acknowledges that one of more of the
Finance Parties or their Affiliates may enter (or may have
already entered) into one or more Related Funding Arrangements in
connection with or by reference to all or part of its
participation in a Loan with the intention of matching or
correlating its obligations under those arrangements with the
obligations of the Borrower under such Loan or may have taken a
position generally with respect to interest rates which is partly
dependent on the Borrower making payments in relation to such
Loan strictly in accordance with the terms which apply to such
Loan.
53
14.4.2 Without prejudice to the generality of Clause 14.2 (Other
Indemnities) if one of the events listed in Clause 14.2.1.1 to
14.2.1.6 above occurs or a Related Funding Arrangement is
cancelled or terminated in whole or in part the Borrower shall,
forthwith on demand by the Agent, pay to the Agent (for the
account of the Finance Parties or their Affiliates) an amount
equal to any loss or expense:
14.4.2.1 arising from the unwinding, cancellation, termination or
variation of, or utilising for different purposes of, all or any
part of any Related Funding Arrangement.
14.4.2.2 on the basis of the cost to the Finance Party or its Affiliate of
unwinding, varying, cancelling or terminating any Related Funding
Arrangement or any part thereof; or
14.4.2.3 which would arise if all or any part of any Related Funding
Arrangement were unwound, cancelled, terminated, varied or
utilised for a different purpose (even though the same are not
actually unwound, cancelled, terminated, varied or utilised for a
different purpose; or
14.4.2.4 which would arise if interest rate (or other hedging) contracts
were purchased (whether or not such contracts are actually
purchased) which replace the income stream which would have
flowed from the relevant Loan under this Agreement.
14.4.3 The certificate of a Finance Party as to the amount of any loss
or expense incurred by it or its Affiliate shall be prima facie
evidence as to the amount payable by the Borrower under this
Clause 14.
14.4.4 Clause 14.4.2 above shall not apply to early termination or
cancellation arising by reason of:
14.4.4.1 the occurrence of an event of default under the Related Funding
Arrangement happening in relation to such Finance Party and/or
its Affiliate (other than where caused as a result of non-payment
of any amount due from the Borrower under this Agreement); or
14.4.4.2 the voluntary termination or cancellation of the Related Funding
Arrangement by such Finance Party and/or its Affiliate (unless
such voluntary termination or cancellation has been made
following the occurrence of one of the events listed in Clauses
14.2.1.1 to 14.2.1.6 above.
14.4.5 If a Related Funding Arrangement is cancelled or terminated and
such cancellation or termination produces an amount payable to a
Finance Party and/or its Affiliate (as determined by the relevant
Finance Party) (a "Break Gain"), the relevant Finance Party shall
pay the Break Gain to the Borrower unless a Default is
outstanding, in which case the Break Gain shall be used to prepay
(on behalf of the Borrower) the Loan in accordance with Clause 7
(Prepayment and Cancellation).
54
14.5 ENVIRONMENTAL INDEMNITY
Each Borrower shall, promptly on demand by a Finance Party,
indemnify that Finance Party from and against any payments,
losses or damages incurred by that Finance Party (together with
any costs of defending (successfully or otherwise) any claim)
arising from or based on Environmental Law which relates to a
Property or the provision of the Facility to the Borrowers.
14.6 INDEMNITY TO THE SECURITY TRUSTEE
14.6.1 The Borrowers shall promptly indemnify the Security Trustee
against any cost, loss or liability incurred by the Security
Trustee as a result of:
14.6.1.1 the taking, holding, protection and/or enforcement of the
Security created under the Security Documents;
14.6.1.2 the exercise of any of the rights, powers, discretions and/or
remedies vested in the Security Trustee by the Finance Documents
or by the law; and/or
14.6.1.3 any default by a Borrower and/or any Shareholders in the
performance of any of the obligations expressed to be assumed by
it in the Finance Documents.
14.6.2 The Security Trustee may, in priority to any payment to the other
Finance Parties, indemnify itself out of the Charged Assets in
respect of, and pay and retain, all sums necessary to give effect
to the indemnity in Clause 14.6.1 above.
15. MITIGATION BY THE LENDERS
15.1 MITIGATION
15.1.1 Each Finance Party shall take such reasonable steps as such
Finance Party determines to be available to it, to mitigate any
circumstances which arise and which would result in any amount
becoming payable under or pursuant to, or cancelled pursuant to,
any of Clause 7.1 (Illegality), Clause 12 (Tax gross-up and
indemnities), Clause 13 (Increased costs) or paragraph 3 of
Schedule 4 (Mandatory Cost formula) including (but not limited
to) transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office.
15.1.2 Clause 15.1.1 above does not in any way limit the obligations of
the Borrower under the Finance Documents.
15.2 LIMITATION OF LIABILITY
15.2.1 The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 15.1 (Mitigation).
15.2.2 A Finance Party is not obliged to take any steps under Clause
15.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
55
15.3 CONFIRMATION REGARDING SECURITY
15.3.1 In this Clause 15.3:
"DECREE" means the general letter rulings of the German Federal
Ministry of Finance, dated 15 July 2004, docket ▇▇ ▇▇ A 2 - S
2742a - 20/04, and dated 22 July 2005, docket nr. IV B 7 - S
2742a - 31/05 (each and jointly a Decree) regarding the
interpretation of sec. 8 a of the German Corporate Income Tax Act
(Korperschaftsteuergesetz)
"LONG TERM INTEREST BEARING DEPOSIT" means any interest bearing
financial asset with a term or maturity of at least twelve months
as defined in more detail in marginal notes 20 and 37
(Textziffern) of the Decree dated 15 July 2004 in conjunction
with the general administration guidelines on the Trade Tax Act
(Gewerbesteuerrichtlinien). Long Term Interest Bearing Deposits
include (without limitation) bank accounts which record a `zero'
or negative balance for less than 8 days per financial year, bank
accounts which record a 'zero' or negative balance for more than
7 days per financial year, but only due to a structuring which is
considered to bean abuse of legal structuring for tax purposes as
defined by sec. 42 German General Tax Code ('Abgabenordnung'),
and intra group receivables (including without limitation
Shareholder loans).
15.3.2 Each Original Lender hereby confirms that the Facility made
available to the Borrower is only secured by the Security under
the Security Documents.
15.3.3 As soon as practical after the signing of this Agreement each
Lender shall confirm to the Borrower by letter substantially in
the form as attached as Schedule 7 (Confirmation Letter, together
with the confirmation given in Clause 15.3.2 above, the
"CONFIRMATIONS") which Security have been granted to the Lenders
in relation to the Facility including a reference to any
restrictions regarding Long Term Interest Bearing Deposits. Each
Lender shall send an updated Confirmation Letter if and when the
Security in regard of the Facility are amended or changed or at
the reasonable request of the Borrower at any other point in
time.
15.3.4 The Confirmations are provided solely to assist the Borrower in
demonstrating the absence of any back to back financing to the
German tax authorities. No Finance Party is responsible for the
tax affairs or position of the Borrower or for achieving any
particular tax treatment of the Borrower and the Shareholders and
the Borrower may not make any claim against a Finance Party in
respect of or in connection with the Confirmations.
15.3.5 The parties acknowledge that the interpretation of the term
"recourse" (Ruckgriff) and the concept of back to back financing
as understood and applied by the German tax authorities in the
context of the German thin capitalisation regime (sec. ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇) is still somewhat unclear. To the
extent the German tax authorities require the Borrower to
provide, in addition to the Confirmations, further evidence or
information the Lender shall support the Borrower in this regard.
Each Lender shall, subject to receipt of adequate substitute
security, as determined by the
56
Lender in its sole discretion, release or restrict its security
interest or issue further confirmation letters or certificates or
otherwise provide information to the Borrower or the German tax
authorities, including, without limitation, in relation to the
existence or non-existence of any Long Term Interest Bearing
Receivables maintained by any of the Borrower's shareholders or
related parties (as defined by sec. 1 para 2. of the German
Foreign Relations Tax Act, AuBensteuergesetz) thereof with
any Finance Parties.
15.3.6 The Confirmations shall not constitute the provision by a Finance
Party of any legal or tax advice to any other party in respect of
the application of the German thin capitalization rules (Section
8a of the German Corporate Income Tax Act (KStG) and any
administrative guidance issued in respect thereof) or otherwise
in respect of this Agreement.
15.3.7 If and to the extent any right under any Security is directly or
indirectly created over any receivable of the Borrower or any
Shareholder or Affiliate of any Borrower or any Shareholder and
that receivable is or becomes a Long Term Interest Bearing
Deposit, the Lenders agree with the Borrower and each Shareholder
and Related Person that such Security Right over such Long Term
Interest Bearing Deposit shall not secure any payment obligation
under any Finance Document. This restriction shall not apply with
regard to (i) any Security Right granted by the Borrower to the
extent such Security Right secures its own borrowings, and (ii)
the land charges (Grundschulden) and the submissions to immediate
foreclosure in rem (dingliche Zwangsvollstreckungsunterwerfungen
in das Grundstuck) granted by any of the Borrower or Shareholders
to any of the Finance Parties in respect of any Property.
Guarantees which are provided for the obligations of the Borrower
by a Shareholder or a Related Person are restricted such that no
Finance Party may execute a claim into the Long Term Interest
Bearing Deposits of a Shareholder.
15.3.8 In respect of Long Term Interest Bearing Deposits the relevant
Shareholder shall not be subject to any restriction to transfer,
assign, sell, withdraw or to terminate the underlying agreement
relating to such Long Term Interest Bearing Deposits or otherwise
to dispose of (verfugen) such Long Term Interest Bearing
Deposits. Any such restriction imposed on the Borrower shall
automatically be terminated at the time the liability of the
Borrower towards the Finance Parties under this Agreement,
excluding, however any obligations or liabilities of the other
Borrowers, which the Borrower has assumed under the Finance
Documents by way of guarantee or other legal instrument, has been
fully repaid and such restriction shall be exclusively limited to
securing the aforementioned liability. For the avoidance of doubt
this Clause 15.3.8. shall override all other provisions in this
agreement including without limitation Clauses 20.4 (Negative
Pledge), 20.5 (Transaction Similar To Security) and 20.6
(Disposals).
57
16. COSTS AND EXPENSES
16.1 TRANSACTION EXPENSES
The Borrower shall promptly on demand pay the Agent, the Security
Trustee and the Arranger the amount of all costs and expenses
(including legal fees, surveyors fees, environmental consultancy
fees, registration and other out of pocket expenses) reasonably
incurred by any of them in connection with the negotiation,
preparation, printing, execution of:
16.1.1 this Agreement, the other Finance Documents and any other
documents referred to in this Agreement; and
16.1.2 any other Finance Documents executed after the date of this
Agreement.
16.2 AMENDMENT COSTS
If (a) the Borrower requests an amendment, waiver or consent or
(b) an amendment is required pursuant to Clause 28.9 (Change of
currency), the Borrower shall, within five Business Days of
demand, reimburse the Agent and the Security Trustee for the
amount of all costs and expenses (including legal fees)
reasonably incurred by the Agent and/or the Security Trustee in
responding to, evaluating, negotiating or complying with that
request or requirement.
16.3 ENFORCEMENT COSTS
The Borrower shall, within five Business Days of demand, pay to
each Finance Party the amount of all costs and expenses
(including legal and servicer's fees) incurred by that Finance
Party in connection with the enforcement of, or the preservation
of any rights under, any Finance Document.
16.4 SECURITY TRUSTEE EXPENSES
The Borrower shall, within five Business Days of demand, pay the
Security Trustee the amount of all costs and expenses (including
legal fees) reasonably incurred by it in connection with the
administration or release of any Security created pursuant to any
Security Document.
16.5 VALUATION EXPENSES
The Borrower shall, within five Business Days of demand by the
Agent, pay the costs of any Valuation under Clause 18.7
(Valuations Update) save for any Valuation under Clause
18.7.1.2.2 (Valuations Update) if it indicates that no Default
has occurred.
17. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in
this Clause 17 to each Finance Party on the date of this
Agreement.
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17.1 STATUS
17.1.1 The Borrower is a limited liability company, duly formed and
validly existing under the laws of Delaware.
17.1.2 PropCo is a limited partnership (Kommanditgesellschaft), duly
formed and validly existing under the laws of the Federal
Republic of Germany.
17.1.3 ▇▇▇▇▇▇ is a limited partnership (Kommanditgesellschaft), duly
formed and validly existing under the laws of the Federal
Republic of Germany.
17.1.4 Each of the Shareholders are corporations, duly incorporated and
validly existing under the laws of Delaware.
17.1.5 Each Obligor, the PropCo Companies and each Shareholder:
17.1.5.1 has the power to own its assets and carry on its business as it
is being conducted; and
17.1.5.2 possesses the capacity to ▇▇▇ and be sued in its own name;
17.1.5.3 will not be entitled to claim immunity from suit, execution,
attachment or other legal process in any proceedings taken in its
jurisdiction of incorporation in relation to any Finance Document
to which it is a party.
17.2 BINDING OBLIGATIONS
Subject to the Reservations, the obligations expressed to be
assumed by each Obligor, PropCo, the Shareholders, Seller 1 and
Seller 2 and the Subordinated Creditors in each Transaction
Document to which it is a party are legal, valid, binding and
enforceable.
17.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by each Obligor, PropCo, the
Shareholders, Seller 1, Seller 2 and the Subordinated Creditors
of, and the transactions contemplated by, the Finance Documents
to which it is a party do not and will not:
17.3.1 contravene any law or regulation applicable to it or any order of
any governmental or other official authority, body or agency or
any judgment, order or decree of any Court having jurisdiction
over it;
17.3.2 contravene or conflict with its constitutional documents
(Gesellschaftsvertrag);
17.3.3 conflict with or result in any breach of any of the terms of, or
constitute a default under, any agreement or other instrument to
which it is a party or any licence or other authorisation to
which it is subject or which is binding upon it or any of its
assets; or
59
17.3.4 (except as provided in any Security Document) result in the
existence of, or oblige it to create, any Security over any of
its assets.
17.4 POWER AND AUTHORITY
Each Obligor, PropCo, the Shareholders, Seller 1 and the
Subordinated Creditors has the power to enter into, perform and
deliver, and has taken all necessary corporate, shareholder and
other action to authorise its entry into, performance and
delivery of, the Transaction Documents to which it is a party and
the transactions contemplated by those Transaction Documents.
17.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required:
17.5.1 to enable any Obligor, PropCo, the Shareholders, Seller 1, Seller
2 and the Subordinated Creditors lawfully to carry out its
objects and to enter into, exercise its rights and comply with
its obligations in the Transaction Documents to which it is a
party;
17.5.2 for the proper conduct of each Obligor's, PropCo's and ▇▇▇▇▇▇'▇
business, trade and ordinary activities;
17.5.3 to make the Transaction Documents to which any Obligor, PropCo,
the Shareholders, Seller 1, Seller 2 and the Subordinated
Creditors is a party admissible in evidence in its jurisdiction
of incorporation; and
17.5.4 to enable any Obligor, PropCo, ▇▇▇▇▇▇, the Shareholders, Seller
1, Seller 2 and the Subordinated Creditors to create the Security
to be created by it pursuant to any Security Document and to
ensure that such Security has the priority and ranking it is
expressed to have,
have been obtained or effected and are in full force and effect
and no Obligor nor the Shareholders are aware of any
circumstances that are likely to result in any of the same being
revoked, superseded or varied.
17.6 GOVERNING LAW AND ENFORCEMENT
17.6.1 The choice of governing law of the Transaction Documents will be
recognised and enforced in the jurisdiction of incorporation of
each Obligor, PropCo, ▇▇▇▇▇▇, Seller 1, Seller 2, the
Shareholders and the Subordinated Creditors.
17.6.2 Any judgment obtained in England in relation to a Transaction
Document will be recognised and enforced in the jurisdiction of
incorporation of each Obligor, PropCo, the Shareholders, Seller 1
and Seller 2 and the Subordinated Creditors.
17.7 DEDUCTION OF TAX
With respect to U.S. Taxes and with respect to all other
jurisdictions where the Lenders are Qualifying Lenders, no
Obligor is required under the law of its jurisdiction of
incorporation, or by reason of the application of Clause 12.2.9,
60
to make any deduction for or on account of Tax or for any other
purpose from any payment it may make under any Finance Document.
17.8 NO FILING OR STAMP TAXES OR TRADE TAXES
Under the law of its jurisdiction of incorporation or that of any
Obligor, the Shareholders or the Subordinated Creditors it is not
necessary that the Finance Documents be filed, recorded or
enrolled with any court or other authority in that jurisdiction
or that any stamp, registration or similar tax be paid by such
Obligor on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents other than in
the case of a Security Document, the requirements specified at
the end of Clause 17.5 (Validity and admissibility in evidence).
17.9 NO U.S. TAX ELECTION
No person has filed any election pursuant to U.S. Treasury
Regulations Section 301.7701-3 to treat the Borrower as a
corporation for U.S. tax purposes.
17.10 NO DEFAULT
17.10.1 No Default is continuing or might reasonably be expected to
result from the making of the Utilisation.
17.10.2 No Obligor, PropCo or ▇▇▇▇▇▇ is (nor would be with any of the
giving of notice, the lapse of time, the determination of
materiality, or the satisfaction of any other condition) in
breach of or in default under any deed, instrument or agreement
to which it is a party or which is binding on it or any of its
revenues or assets and no person has disputed, repudiated or
disclaimed any liability thereunder or indicated that it does not
consider itself bound by or does not intend to comply with any of
the provisions of the same where such breach or default might
have a Material Adverse Effect.
17.11 NO MISLEADING INFORMATION
17.11.1 All material factual information provided by any Obligor, PropCo
or ▇▇▇▇▇▇ or on its behalf to the Finance Parties in connection
with the Finance Documents and the transactions contemplated by
them is complete, true and accurate in all material respects.
17.11.2 No Obligor, PropCo or ▇▇▇▇▇▇ has withheld or omitted any
information which would make the information referred to in
Clause 17.11.1 above untrue or misleading in any respect and
nothing has occurred since the date any such information was
provided which has not been disclosed to the Finance Parties
which would render any such information untrue or misleading in
any material respect.
17.11.3 All assumptions made in the German Tax Report are true and
accurate and in relation to those assumptions relating to matters
not yet implemented, such matters will be implemented in
accordance with the relevant assumptions.
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17.12 RANKING
17.12.1 Subject to the requirements specified at the end of Clause 17.5
(Validity and admissibility of evidence), each Security Document
creates (or, once entered into, will create) in favour of the
Security Trustee for the benefit of the Finance Parties, the
Security which it is expressed to create with the ranking and
priority it is expressed to have.
17.12.2 Without limiting Clause 17.12.1 above, the payment obligations of
any Obligor under the Finance Documents shall rank in priority to
the claims of all its other present and future unsecured and
unsubordinated creditors, except for obligations mandatorily
preferred by law and not by contract.
17.13 LITIGATION
Except as otherwise set forth and fairly and fully disclosed in
the Report on Title, no action, litigation, arbitration or
administrative proceedings has been commenced, or is pending or
as far as any Obligor is aware is threatened, against it, PropCo,
Seller 1 or Seller 2 which, if adversely determined, might
reasonably be expected to have a Material Adverse Effect and nor
is there subsisting any unsatisfied judgment or award given
against any of them by any court, arbitrator or other body which
might reasonably be expected to have a Material Adverse Effect.
17.14 INSURANCES
All insurances required to be in place have been placed, are in
full force and effect and so far as it is aware no event or
circumstance has occurred nor has there been any omission to
disclose a fact which in any such case could entitle any insurer
to avoid or otherwise reduce its liability under or in respect of
any such insurances to less than the amount provided in the
relevant policy.
17.15 TITLE
17.15.1 Other than as disclosed in the Report on Title, PropCo Companies
will on and from the Utilisation Date be the full and exclusive
owner (alleiniger Grundstuckseigentumer), lessee under the
leaseholds (alleiniger Erbbauberechtigter) or sub-lessee under
the sub-leasehold (alleiniger Unter-Erbbauberechtigter) of each
Property specified in Schedule 8) (Property) and have good and
marketable title to each Property (uneingeschrankter
Alleineigentumer, Alleinerbbauberechtiger oder
Alleinuntererbbauberechtigter), free from Security (other than
pursuant to the Finance Documents) and restrictions and onerous
covenants, and all deeds and documents necessary to show good and
marketable title to each of the Properties are in the possession
of, or held at the Land Registry to the order of, the Security
Trustee.
17.15.2 Except as set forth in the Report on Title, each Security
Provider is the legal and beneficial owner of, and has good and
marketable title to the assets subject to the Security created by
it pursuant to any Security Document, free from all Security
(except the Security created pursuant to, or expressly permitted
by,
62
the Finance Documents and any Permitted Security) and it has not
sold, transferred or otherwise disposed of the benefit of or
agreed to sell, transfer or otherwise dispose of the benefit of
its (or any part of its) rights, title and interest in and to the
Charged Assets.
17.15.3 Except as set forth in the Report on Title there subsists no
breach of any law or regulation which affects or might affect the
value of all or any part of any Property in any material respect.
17.15.4 Except as set forth in the Report on Title no facility necessary
for the enjoyment and use of all or any part of any Property is
enjoyed on terms entitling any person to terminate or curtails
its use.
17.15.5 Except as set forth in the Report on Title no Obligor, PropCo or
▇▇▇▇▇▇ has received notice of any material adverse claim by any
person in respect of the ownership of any Property or any
interest in it, nor has any acknowledgement been given to any
person in respect of any Property.
17.16 VALUATION AND REPORT ON TITLE
17.16.1 All information supplied by any Obligor, PropCo or ▇▇▇▇▇▇ or on
its behalf to:
17.16.1.1 the Valuer for the purposes of the Initial Valuation or the most
recent Valuation (whichever is the later);
17.16.1.2 the lawyers for the Borrower for the purpose of preparing the
Report on Title;
17.16.1.3 the lawyers of the Lender for the purposes of preparing the
Overview Report on Title; and
17.16.1.4 the accountants of the Borrower for the purposes of preparing the
German Tax Report,
was, in each case, true, complete and accurate in all material
respects at the date it was supplied and no information was
omitted by it on the date on which any such information was
supplied which if disclosed may reasonably be expected materially
and adversely to affect the decision of any Lender considering
whether or not to provide finance to the Borrower.
17.16.2 Nothing has occurred which has not been disclosed to the Finance
Parties between the date or the dates the information was
supplied under Clause 17.16.1 above in relation to the Initial
Valuation or, as applicable, the most recent Valuation, and the
Report on Title between the date such information was provided
and the Utilisation Date which renders the information untrue or
misleading in any material respect; and
17.16.3 no information has been withheld by any Obligor, PropCo or ▇▇▇▇▇▇
which may be material to the Initial Valuation or, as applicable,
the most recent Valuation, and the Report on Title.
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17.17 TRANSACTION DOCUMENTS
17.17.1 No circumstances exist whereby any of the Transaction Documents
to which any Obligor, PropCo, the Shareholders or the
Subordinated Creditors is a party would be or be rendered or
adjudged to be void, unenforceable or capable of rescission or
revocation.
17.17.2 It is not aware that any counterparty to a Transaction Document
to which it is a party is in breach of any of its material
obligations under that Transaction Document.
17.17.3 There is no material dispute between any parties to the
Transaction Documents in relation to the Transaction Documents
and there have been no material amendments to any Transaction
Documents which have not been notified to the Agent prior to the
date of this Agreement.
17.18 ENVIRONMENTAL LAWS AND LICENCES
Each Obligor, PropCo and ▇▇▇▇▇▇ has in all material respects:
17.18.1.1 complied with all Environmental Laws to which it may be subject;
17.18.1.2 obtained all Environmental Licences required in connection with
its business; and
17.18.1.3 complied with the terms of those Environmental Licences.
17.19 ENVIRONMENTAL RELEASES
17.19.1 Except as disclosed in the Environmental & Structural Reports, no
Property is contaminated with any Hazardous Substance in breach
of Environmental Law or any Environmental Licence; and
17.19.2 Except as disclosed in the Environmental & Structural Reports, to
the best of the Borrower's knowledge, no discharge, release,
leaching, migration or escape of any Hazardous Substance into the
Environment has occurred or is occurring on, under or from the
Property in breach of Environmental Law or any Environmental
Licence.
17.20 SOLVENCY
17.20.1 No Obligor, PropCo, ▇▇▇▇▇▇, the Shareholders, Seller 1 nor (to
the best of the Borrowers knowledge and belief) Seller 2 is
insolvent or unable to pay its debts (including subordinated and
contingent debts), nor could it be deemed by a court to be unable
to pay its debts nor will it become so in consequence of entering
into any Finance Document and/or performing any transaction
contemplated by any Finance Document.
17.20.2 No Obligor, PropCo, the Shareholders, Seller 1 nor Seller 2 has
taken any action nor have any other steps been taken or legal
proceedings been started or threatened for its winding-up,
termination, dissolution, reorganisation, liquidation,
administration, enforcement or any security over its assets or
for
64
the appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of it or of any or all of
its assets or revenues.
17.20.3 Nothing analogous to any of the circumstances or events referred
to in Clauses 17.20.1 and 17.20.2 above has occurred in relation
to an Obligor, PropCo, ▇▇▇▇▇▇ nor the Shareholders under the laws
of any applicable jurisdiction.
17.21 NO OTHER BUSINESS
17.21.1 Except as set forth in the Report on Title (and, in relation to
Propco only, excluding any period the Utilisation Date) no
Obligor, PropCo or ▇▇▇▇▇▇ has traded or carried on any business
since its date of incorporation or formation except for the
acquisition, ownership and management of its interests in all or
any part of the Properties.
17.21.2 No Obligor, PropCo or ▇▇▇▇▇▇ is party to any material agreement
as at the date of this Agreement other than those permitted under
Clause 20.13 (Other Contracts).
17.22 OWNERSHIP
The Structure Chart is true, complete and up to date save for
changes notified to the Agent in accordance with Clause 20.16
(Control) (and in respect of which the provisions of Clause 20.16
(Control) have been complied with).
17.23 FINANCIAL STATEMENTS
17.23.1 Each Obligor's, PropCo's and ▇▇▇▇▇▇'▇ financial statements most
recently delivered to the Agent pursuant to Clause 18.1
(Financial Statements) have, where relevant, been prepared in
accordance with GAAP and give a true and fair view of its
financial condition as at the date on which they were drawn up
and for the period then ended.
17.23.2 All liabilities (contingent or otherwise) which should have been
fully disclosed or reserved against in such financial statements
were so disclosed or reserved against therein.
17.23.3 Each of the latest schedules and other information required to be
delivered under Clause 18.8 (Property Information) shows
accurately the income and expenditure of the Borrower during the
period to which they relate.
17.24 PATRIOT ACT REQUIREMENTS
17.24.1 No Obligor or any of its Affiliates are aware of or have notice
(whether written or otherwise) that any of the funds or other
assets of any Obligor or any of its Affiliates constitute
property of, or are beneficially owned, directly or indirectly,
by an Embargoed Person.
17.24.2 None of the funds or other assets of any Obligor or any of its
Subsidiaries constitute property of, or are beneficially owned,
directly or indirectly, by an Embargoed Person.
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17.24.3 No Embargoed Person has 15% or more of any interest of any nature
whatsoever in the Borrower or any of it's Affiliates.
17.24.4 None of the funds of the Borrower have been derived from any
unlawful activity of any Affiliate with the result that
investment by Capmark Bank Europe plc is prohibited by applicable
law or the Facility is in violation of applicable law.
17.25 REPETITION
The Repeating Representations are deemed to be made by the
Borrower by reference to the facts and circumstances then
existing:
17.25.1 in respect of the representations set out in Clauses 17.1
(Status) to 17.23 (Financial Statements) (inclusive) on the date
of the Utilisation Request and on the first day of each Interest
Period; and
17.25.2 in respect of the representations set out in Clause 17.24
(Patriot Act Requirements) on each day during the Term.
17.26 VAT
No Obligor, PropCo or ▇▇▇▇▇▇ is a member of a VAT Group.
18. INFORMATION UNDERTAKINGS
The undertakings in this Clause 18 remain in force from the date
of this Agreement for so long as any amount is outstanding under
the Finance Documents or any Commitment is in force.
18.1 FINANCIAL STATEMENTS
The Borrower shall supply to the Agent in sufficient copies for
all the Lenders:
18.1.1 as soon as the same become available, but in any event within 120
days after the end of each of its financial years its and
PropCo's audited consolidated financial statements for that
financial year; and:
18.1.2 as soon as the same become available, but in any event within 60
days after the end of each financial quarter its and PropCo's
financial statements for that quarter.
18.2 COMPLIANCE CERTIFICATE
18.2.1 The Borrower shall supply to the Agent, with each set of
financial statements delivered pursuant to Clause 18.1 (Financial
statements), a Compliance Certificate setting out (in sufficient
detail to be clear) computations as to compliance with Clause 19
(Financial covenants) as at the date as at which those financial
statements were drawn up.
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18.2.2 Each Compliance Certificate shall be signed by a director of the
Borrower without personal liability.
18.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
18.3.1 Each set of financial statements delivered by the Borrower
pursuant to Clause 18.1 (Financial statements) shall be certified
by a director of the relevant company without personal liability
as fairly representing its financial condition and operations as
at the date as at which those financial statements were drawn up.
18.3.2 The Borrower shall ensure that, where appropriate, each set of
financial statements delivered pursuant to Clause 18.1 (Financial
statements) is prepared using GAAP.
18.4 INFORMATION: MISCELLANEOUS
The Borrower shall supply to the Agent (in sufficient copies for
all the Lenders, if the Agent so requests):
18.4.1 all documents dispatched by any Obligor, PropCo, ▇▇▇▇▇▇ or the
Shareholders to its members or shareholders (or any class of
them) or to its creditors generally at the same time as they are
dispatched;
18.4.2 promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, threatened or pending against an Obligor, PropCo, ▇▇▇▇▇▇
or the Shareholders;
18.4.3 promptly, such further information regarding the financial
condition, business and operations of each Obligor, PropCo,
▇▇▇▇▇▇ or the Shareholders as any Finance Party (through the
Agent) may (acting reasonably) request.
18.5 NOTIFICATION OF DEFAULT
18.5.1 The Borrower shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence.
18.5.2 Promptly upon a request by the Agent, the Borrower shall supply
to the Agent a certificate signed by a director (without personal
liability) on its behalf certifying that no Default is continuing
(or if a Default is continuing, specifying the Default and the
steps, if any, being taken to remedy it).
18.6 USE OF WEBSITES
18.6.1 The Borrower may satisfy its obligations under this Agreement to
deliver any information in relation to those Lenders who accept
this method of communication by posting this information onto an
electronic website designated by the Borrower and the Agent (the
"Designated Website") if:
18.6.1.1 the Agent expressly agrees (after consultation with each of the
Lenders) that it will accept communication of the information by
this method;
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18.6.1.2 each of the Borrower and the Agent are aware of the address of
and any relevant password specifications for the Designated
Website;
18.6.1.3 the information is in a format previously agreed between the
Borrower and the Agent; and
18.6.1.4 subject to any relevant password specifications, the information
on the Designated Website is capable of being downloaded.
18.6.2 If any Lender does not agree to the delivery of information
electronically then the Agent shall notify the Borrower
accordingly and the Borrower shall supply the information to the
Agent (in sufficient copies for each relevant Lender) in paper
form. In any event the Borrower shall supply the Agent with at
least one copy in paper form of any information required to be
provided by it.
18.6.3 The Agent shall supply each relevant Lender with the address of
and any relevant password specifications for the Designated
Website following designation of that website by the Borrower and
the Agent.
18.6.4 The Borrower shall promptly upon becoming aware of its occurrence
notify the Agent if:
18.6.4.1 the Designated Website cannot be accessed or information on the
Designated Website cannot be downloaded, in each case, due to
technical failure;
18.6.4.2 the relevant password specifications for the Designated Website
change;
18.6.4.3 any new information which is required to be provided under this
Agreement is posted onto the Designated Website;
18.6.4.4 any existing information which has been provided under this
Agreement and posted onto the Designated Website is amended; or
18.6.4.5 the Borrower becomes aware that the Designated Website or any
information posted onto the Designated Website is or has been
infected by any electronic virus or similar software.
18.6.5 If the Borrower notifies the Agent under Clause 18.6.4.1 or
Clause 18.6.4.5 above, all information to be provided by the
Borrower under this Agreement after the date of that notice shall
be supplied in paper form unless and until the Agent and the
relevant Lenders are satisfied that the circumstances giving rise
to the notification are no longer continuing.
18.6.6 Any Lender may request, through the Agent, one paper copy of any
information required to be provided under this Agreement which is
posted onto the Designated Website. The Borrower shall comply
with any such request within ten Business Days.
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18.7 VALUATIONS UPDATE
18.7.1 The Agent may request a Valuation at the cost and expense of the
Borrower:
18.7.1.1 once during each 60 Month period of the Term; or
18.7.1.2 at any time if:
18.7.1.2.1 a Default is continuing; or
18.7.1.2.2 if it believes that upon delivery of such requested Valuation, a
Default is likely to occur provided that if following delivery of
such Valuation no Default is evidenced by such Valuation then
such Valuation shall be for the account of Lenders.
18.7.2 The Agent may call for a Valuation at any other time at the cost
of the Lenders.
18.7.3 The Borrower shall ensure that the Valuer has all such assistance
as the Agent may (acting reasonably) require to carry out any
such Valuation including (subject to the rights of the
occupational tenants) allowing the Valuer free access to any
Properties or the Valuer giving prior notice that the Valuation
is to be carried out.
18.7.4 The Borrower shall promptly supply to the Agent a copy (with
sufficient copies for the Lenders) of any valuation of the
Headlease or any Property (or any part thereof) carried out by
the Valuer.
18.8 PROPERTY INFORMATION
The Borrower shall or shall procure that PropCo shall:
18.8.1 at least ten Business Days before each Interest Payment Date
provide to the Agent (in sufficient copies for all of the
Lenders) the following information (in form and substance
satisfactory to the Agent) in respect of each Property and as at
the last day of the previous Month:
18.8.1.1 a tenancy schedule listing for each unit of letting true and
accurate details of the unit address, the names of the existing
occupational tenants or licensees, the lease expiry date, the
next rent review date, the annual rent, the amount of Property
Expenses attributable to such unit, amount of any rent arrears
and comment on any current tenancy activity; and
18.8.1.2 a commentary on any proposed capital expenditure to be made by
PropCo or ▇▇▇▇▇▇ with respect to each Property and any issues
which could reasonably be expected to be material to the Finance
Parties or which might otherwise have a Material Adverse Effect;
18.8.2 together with the information referred to in Clause 18.8.1 above,
a Compliance Certificate setting out (in sufficient detail to be
clear) computations as to compliance with Clause 19 (Financial
Covenants) on the relevant date;
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18.8.3 give notice to the Agent of any insolvency, bankruptcy,
receivership, administration or liquidation affecting any tenant
or licensee under any Lease Document promptly upon becoming aware
of any such event;
18.8.4 notify the Agent of any potential purchaser of all or any part of
any Property;
18.8.5 provide copies of any management accounts and management cash
flows produced by or for the Borrower; and
18.8.6 promptly provide to the Agent such other information about all or
any part of the Properties, as the Agent may reasonably request
from time to time.
19. FINANCIAL COVENANTS
19.1 LOAN TO VALUE COVENANT
The Borrower undertakes and covenants that at all times from and
including the Utilisation Date the aggregate sum of the Loan
shall not at any time exceed 90% of 24.7399 per cent. of the
Market Value of the Properties determined in accordance with the
most recent Valuation.
19.2 INTEREST COVER
19.2.1 The Borrower shall ensure that the Interest Cover is at least
120% at all times.
19.2.2 The Borrower shall confirm in writing to the Agent the level of
the Interest Cover 10 Business Days prior to each Interest
Payment Date.
19.3 CURE PAYMENT
19.3.1 If the Borrowers are at any time in breach of the Interest Cover
or Loan to Value Covenant (provided the Loan to Value is no
greater than 95%) set out in Clause 19.1 and 19.2 respectively,
the Borrower may rectify such breach by (within five Business
Days of the date of the breach) either:
19.3.1.1 prepaying the Loan in whole or in part; and/or
19.3.1.2 placing to the credit of the Rectification Account such amount as
the Agent determines is necessary to bring the Borrower within
compliance with any relevant Financial Covenant pursuant to
Clauses 19.1 or 19.2 (as the case may be) and in particular be at
least 120% of the Project Annual Finance Costs as at that date,
each a "CURE PAYMENT" Provided Always that if a Cure Payment has
been made in accordance with this Clause an Event of Default will
not be called due to any other event caused as a direct result of
non-payment of rent under the Principal Occupational Lease.
19.3.2 The Borrower may not make Cure Payments in respect of more than
two consecutive Interest Periods or six Interest Periods in
aggregate.
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19.3.3 Any amount standing to the credit of the Rectification Account
which the Agent agrees is not required to maintain compliance by
the Borrower with any Financial Covenant may be withdrawn by the
Borrower from the Rectification Account.
20. GENERAL UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the date
of this Agreement for so long as any amount is outstanding under
the Finance Documents or any Commitment is in force.
20.1 AUTHORISATIONS
The Borrower shall (and shall procure that each Obligor, PropCo,
▇▇▇▇▇▇, Seller 1 and Seller 2 shall) promptly:
20.1.1 obtain, comply with and do all that is necessary to maintain in
full force and effect; and
20.1.2 supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its
obligations under the Transaction Documents and to ensure the
legality, validity, enforceability or admissibility in evidence
in its jurisdiction of incorporation and in England and Wales of
each Transaction Document.
20.2 COMPLIANCE WITH LAWS
The Borrower shall (and shall procure that each Obligor, PropCo,
▇▇▇▇▇▇, Seller 1 and Seller 2 shall) comply in all respects with
all laws to which it may be subject.
20.3 PARI PASSU RANKING
The Borrower shall ensure that its payment obligations under the
Finance Documents rank at least pari passu with all its other
present and future unsecured payment obligations, except for
obligations mandatorily preferred by law applying to persons of
its legal status generally.
20.4 NEGATIVE PLEDGE
20.4.1 Subject to Clause 20.4.2 below, the Borrower shall procure that
each of PropCo, ▇▇▇▇▇▇, Seller 1 and Seller 2 shall not create or
permit to subsist any Security over any of its undertaking,
revenues or assets without the prior written consent of the
Agent.
20.4.2 Clause 20.4.1 above does not apply to:
20.4.2.1 any lien or hypothecation arising by operation of law in the
ordinary course of business, in each case securing amounts not
more than 30 days overdue;
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20.4.2.2 any Security arising out of retention of title provisions in a
supplier's standard conditions of supply of goods where the goods
in question are supplied on credit and are required in the
ordinary course of business; or
20.4.2.3 any Security created pursuant to any of the Security Documents or
any Permitted Security.
20.5 TRANSACTIONS SIMILAR TO SECURITY
The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall):
20.5.1 sell, transfer or otherwise dispose of any of its assets on terms
whereby they are or may be leased to or re-acquired by an
Obligor;
20.5.2 sell, transfer or otherwise dispose of any of its receivables on
recourse terms;
20.5.3 enter into any arrangement under which money or the benefit of a
bank or other account may be applied, set-off or made subject to
a combination of accounts; or
20.5.4 enter into any other preferential arrangement having a similar
effect.
20.6 DISPOSALS
20.6.1 Subject to Clause 20.6.2 below the Borrower shall not (and shall
procure that no Obligor, PropCo or ▇▇▇▇▇▇ shall) enter into a
single transaction or a series of transactions (whether related
or not) and whether voluntary or involuntary to sell, transfer,
surrender all or any part of any lease or otherwise dispose of
all or any part of any Property or any other asset.
20.6.2 Clause 20.6.1 above does not apply to any disposal:
20.6.2.1 made with the consent of the Majority Lenders;
20.6.2.2 made in accordance with Clause 7.6 (Substitution and Addition to
Security);
20.6.2.3 of cash by way of a payment out of an Account in accordance with
the terms of this Agreement;
20.6.2.4 which is otherwise made in accordance with Clause 20.6.3 below
and the other provisions of this Agreement.
20.6.3 A Property or the shares in ▇▇▇▇▇▇ may be disposed of in whole
(but not in part) if the Agent is satisfied that:
20.6.3.1 no Default is outstanding or would occur as a result of the
Disposal;
20.6.3.2 the Disposal Proceeds are or will be equal to or in excess of the
Minimum Release Amount in respect of that Property and the Agent
is satisfied (acting reasonably) that an amount at least equal to
the Release Pricing will be (and is)
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paid directly into the Sales Proceeds Account immediately on
closing of the transaction the subject of the Disposal;
20.6.3.3 the sale and purchase agreement relating to the disposal of the
Property is unconditional in its terms and provides for
contractual completion within 3 months of the date of such
agreement;
20.6.3.4 the consideration for the Disposal is cash payable in full at
completion; and
20.6.3.5 the Interest Cover (determined in accordance with Clause 19.2
(Interest Cover)) following the relevant Disposal will be no less
than 125%.
20.6.3.6 The Borrower shall ensure that Propco does not dispose of any
Property or assets in circumstances where following such Disposal
and a corresponding Mandantory Prepayment pursuant to Clause 7.3
would result in the Loan at any time exceeding the amount
standing to the credit of the Holdbacks Account.
20.7 MERGERS
The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall) enter into or otherwise become involved in (i)
any transaction contemplated in the German Transformation Act
(Umwandlungsgesetz), in each case whether implemented pursuant to
the German Transformation Act or otherwise, and (ii) any
amalgamation, demerger, merger or corporate reconstruction or any
joint venture, consortium or similar arrangement with any person.
20.8 MAINTENANCE OF STATUS, ETC.
The Borrower shall (and shall ensure that each Obligor, PropCo
and ▇▇▇▇▇▇ shall) ensure it has the right and is duly qualified
to conduct any part of its business as it is conducted from time
to time in all applicable jurisdictions.
20.9 FINANCIAL INDEBTEDNESS
The Borrower will not (and will ensure that no Obligor, PropCo or
▇▇▇▇▇▇ will) without the prior written consent of the Agent:
20.9.1 permit any Financial Indebtedness to be outstanding to it by, or
to make any other form of credit available to, any person;
20.9.2 incur or have outstanding any indebtedness to any Affiliate;
20.9.3 incur or have outstanding any Financial Indebtedness to any other
person; or
20.9.4 pay or discharge (including, without limitation, by way of
set-off or combination of accounts), or grant any guarantee,
indemnity, bond, letter of credit or similar assurance against
financial loss in support of, any indebtedness owed by it or any
other person,
other than Permitted Financial Indebtedness.
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20.10 ACQUISITIONS
20.10.1 The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall):
20.10.1.1 invest in or acquire any share in or any security or obligation
issued by any person, or any interest therein or in the capital
of any person, or make any capital contribution to any person; or
20.10.1.2 invest in or acquire any business or going concern; or
20.10.1.3 acquire any assets other than in the ordinary course of business.
20.10.2 Clause 20.10.1 shall not apply to any acquisition of property or
assets (a) pursuant to any Expansion or substitution made
pursuant to Clause 7.6 or (b) pursuant to the terms of the Put
and Call Agreement.
20.11 CHANGE OF BUSINESS
20.11.1 The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall) carry on any business other than the
acquisition, ownership and management of its interests in the
Properties.
20.11.2 The Borrower shall not have any Subsidiary other than GP PropCo ,
GP Seller 1 or Seller 1.
20.11.3 PropCo shall not have any Subsidiary (other than ▇▇▇▇▇▇ and
▇▇▇▇▇) or own any interest in any other entity (save as disclosed
in the relevant Report on Title.
20.11.4 ▇▇▇▇▇▇ shall not have any Subsidiary.
20.11.5 For the avoidance of doubt the Borrower shall not engage in the
conduct of any trade or business in the United States of America.
20.12 TAXES
The Borrower shall (and shall procure that each Obligor, PropCo
and ▇▇▇▇▇▇ shall):
20.12.1 ensure that all Taxes (including, without limitation, all Real
Estate Transfer Tax) and governmental charges payable by, or
assessed upon it, are paid and discharged when due except to the
extent that they are contested in good faith and by appropriate
means and an adequate reserve (as determined by the Agent) has
been set aside with respect to the unpaid Tax;
20.12.2 to the fullest extent it is able to do so, apply for any
available Tax credits, losses, reliefs or allowances; and
20.12.3 not surrender or dispose of any Tax credit, loss, relief or
allowance to any person other than with the consent of the Agent
(such consent not to be unreasonably withheld or delayed).
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20.12.4 The Borrower shall not permit any person to file any election
pursuant to U.S. Treasury Regulations Section 301.7701-3 to treat
the Borrower as a corporation for U.S. tax purposes.
20.13 OTHER CONTRACTS
The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall) enter into any contracts other than:
20.13.1 the Transaction Documents and contracts referred to in those
documents; and
20.13.2 any other contracts connected with the acquisition, letting and
management of all or any part of any Properties permitted by this
Agreement.
20.14 VAT
20.14.1 The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall) form or be a member of any VAT group.
20.14.2 The Borrower shall provide the Agent with a copy of its, PropCo's
and ▇▇▇▇▇▇'▇ VAT registration certificates as soon as reasonably
practicable upon receipt thereof.
20.15 DISTRIBUTIONS
20.15.1 Subject to Clause 20.15.2 below, the Borrower shall not (and
shall procure that no Obligor, PropCo or ▇▇▇▇▇▇ shall) declare,
pay or make any Distribution.
20.15.2 If no Event of Default is outstanding, the Borrower may declare,
pay or make any Distribution from amounts standing to the credit
of the General Account.
20.16 CONTROL
20.16.1 The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall):
20.16.1.1 cause or permit its ownership structure or control to be changed
from that existing at the date of the Agreement and as set out in
the Structure Chart without first notifying the Agent of the
proposed change and providing to the Agent such information and
other identification as the Agent may require to ensure
continuing compliance with Money Laundering Regulations following
the change;
20.16.1.2 issue any further shares or units which in each case carry voting
rights or alter any rights attaching to its share capital or
units as at the date of this Agreement; or
20.16.1.3 repay, redeem, repurchase, defease or retire any of its share
capital or units (or resolve to do so) or provide financial
assistance for any such purpose.
20.16.2 Clause 20.16.1 shall not apply to any Permitted Change of
Control.
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20.17 FILING AND STAMP TAXES
The Borrower shall or shall procure that within five Business
Days all stamp duty and tax, notary fees, Real Estate Transfer
Tax, registration and other similar Taxes and fees, if any, to
which any of the Finance Documents or any transaction
contemplated by any of the Finance Documents or any title to or
interests in, the Properties may be subject or give rise are
paid.
20.18 ADEQUATE CAPITAL
The Borrower shall (and shall ensure that each Obligor, PropCo
and ▇▇▇▇▇▇ shall) maintain adequate capital for the normal
obligations reasonably foreseeable for its business.
20.19 EMPLOYEES
The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall) have any employees or any pension fund.
20.20 SEPARATENESS
The Borrower shall (and shall ensure that each Obligor, PropCo
and ▇▇▇▇▇▇ shall) ensure that:
20.20.1 its assets are not pledged for the benefit of any other entity;
20.20.2 its liabilities are paid out of its own funds;
20.20.3 its books and records are kept separate from those of any other
person or entity;
20.20.4 its bank accounts and debts represented thereby are kept separate
from those of any other person or entity;
20.20.5 its assets or revenues are not co-mingled with those of any other
person or entity;
20.20.6 its own business is conducted in its own name;
20.20.7 its overhead for shared office space is fairly and reasonably
allocated;
20.20.8 its financial statements in relation to its financial affairs are
maintained separately from those of other entities (provided that
the Borrower may consolidate its financials with any Shareholder
provided separate financial statements for Borrower are also
provided to the Agent in accordance with the provisions of this
Agreement, and ▇▇▇▇▇▇ may consolidate its financials with
PropCo);
20.20.9 all corporate formalities in respect of its affairs are observed;
20.20.10 all relationships with its Affiliates are maintained on
arms-length terms;
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20.20.11 separate stationary, invoices and cheque-books are used;
20.20.12 it holds itself out as a separate entity; and
20.20.13 any known misunderstanding regarding its separate identity is
corrected as soon as possible.
20.21 CENTRE OF MAIN INTERESTS
The Borrower shall (and shall procure that each Obligor, PropCo
and ▇▇▇▇▇▇ shall) ensure that its Centre of Main Interests (to
the extent applicable) is in the jurisdiction of its
incorporation.
20.22 HEADLEASES
The Borrower shall procure that PropCo and ▇▇▇▇▇▇ will in
relation to any Headlease under which PropCo or ▇▇▇▇▇▇ derives
its estate or interest in all or any part of the Properties:
20.22.1 observe and perform in all material respects all covenants,
stipulations and obligations on the lessee under that Headlease;
20.22.2 diligently enforce all covenants on the part of the lessor under
that Headlease;
20.22.3 not, without the prior written consent of the Agent (such consent
not to be unreasonably withheld or delayed):
20.22.3.1 waive, release or vary any obligation under, or the terms of; or
20.22.3.2 exercise any option or power to break, determine or extend;
in each case, that Headlease;
20.22.4 not do or permit anything under that Headlease whereby the same
may be forfeited;
20.22.5 not agree any change in the rent payable under that Headlease
without the prior written consent of the Agent (such consent not
to be unreasonably withheld or delayed); and
20.22.6 promptly notify the Agent of any matter or event under or by
reason of which that Headlease has or may become subject to
determination or to the exercise of any right or re-entry or
forfeiture.
20.23 FINANCIAL YEAR END
No Obligor or any of the PropCo Companies shall change the date
of its financial year end without the prior written consent of
the Agent except that, following exercise of Call Option I,
PropCo shall be permitted to change the date of its financial
year end to 31 December.
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20.24 MONEY LAUNDERING REGULATIONS
The Borrower shall (and shall ensure that each Obligor, PropCo,
▇▇▇▇▇▇, Seller 1 and Seller 2 shall) promptly provide such
information and identification or other evidence in respect of it
as the Agent may from time to time require to ensure compliance
with Money Laundering Regulations.
20.25 EXERCISE OF CALL OPTIONS
20.25.1 If either:
20.25.1.1 Call Option I is not exercised by the Borrower by 30 November
2010; or
20.25.1.2 Call Option I has been exercised (either by the Borrower or the
Agent) and Call Option II is not exercised by the date one month
prior to expiry of the Call Option II Exercise Period;
then the Agent shall have the option to exercise the relevant
Call Option on behalf of and in the name of the Borrower.
20.25.2 The Borrower shall enter into the Power of Attorney granting the
Agent power to exercise the Call Options in accordance with
Clause 20.25.1.
20.25.3 If Call Option I is exercised, the Borrower will immediately
accede to the WPC Lender Facility Agreement as an Additional
Borrower (as defined in the WPC Lender Facility Agreement), enter
into the Accession Agreement (as defined in the WPC Lender
Facility Agreement) and generally comply with the provisions of
the Put and Call Agreement (in so far as it relates to Call
Option I) and the terms of Clause 24 of the WPC Lender Facility
Agreement.
20.25.4 If Call Option II is exercised, the entity that acquires (which
for the avoidance of doubt will be a Related Party) the relevant
interests relating to Call Option II will immediately accede to
the WPC Lender Facility Agreement as an Additional Borrower (as
defined in the WPC Lender Facility Agreement), enter into the
Accession Agreement (as defined in the WPC Lender Facility
Agreement) and generally comply with the provisions of the Put
and Call Agreement (in so far as it relates to Call Option II)
and the terms of Clause 24 of the WPC Lender Facility Agreement.
20.26 EXPANSION
20.26.1 PropCo may permit OpCo to enter into any Expansion with the prior
written consent of the Agent, such consent not to be unreasonably
withheld, provided that:
20.26.1.1 no Event of Default under the Principal Occupational Lease is
outstanding at the date of the relevant Expansion;
20.26.1.2 such Expansion is in accordance with the terms of the Principal
Occupational Lease;
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20.26.1.3 the Borrower pays the Security Trustee's lawyers and other
reasonable costs incurred by the Security Trustee in connection
with the Expansion;
20.26.1.4 if any Additional Property is acquired by PropCo in relation to
any Expansion:
20.26.1.4.1 on completion of the acquisition of each Additional Property the
Borrower will procure that PropCo delivers to the Security
Trustee a duly executed Additional Charge over the relevant
Additional Property together with such of the Conditions
Precedent listed in Schedule 2 as the Agent requires in relation
to such Additional Property or Expansion in an Agreed Form;
20.26.1.4.2 the Borrower supplies such further information and details
concerning any potential Additional Property as the Security
Trustee may reasonably request;
20.26.2 Upon the completion of any Additional Charge pursuant to Clause
20.26.1.4.1, (i) such Additional Charge shall be included within
the definition of "Security Documents" and references in this
Agreement to "Land Charge" shall be read and construed
respectively as references to the Land Charge and every
Additional Charge collectively.
20.27 ADDITIONAL PROPERTY
20.27.1 The Borrower shall be permitted to allow PropCo to acquire an
Additional Property with the consent of the Agent, such consent
not to be unreasonably withheld provided:
20.27.1.1 no Event of Default is continuing under the Principal
Occupational Lease;
20.27.1.2 the Borrower pays the Security Trustee's lawyers and other
reasonable costs incurred by the Security Trustee in connection
with the Expansion
20.27.1.2.1 on completion of the acquisition of each Additional Property the
Borrower will procure that PropCo delivers to the Security
Trustee a duly executed Additional Charge over the relevant
Additional Property together with such of the Conditions
Precedent listed in Schedule 2 as the Agent requires in relation
to such Additional Property or Expansion in an Agreed Form;
20.27.1.2.2 the Borrower supplies such further information and details
concerning any potential Additional Property as the Security
Trustee may reasonably request; and
20.27.1.3 upon the completion of any Additional Charge pursuant to Clause
20.27.1.2.1, (i) such Additional Charge shall be included within
the definition of "Security Documents" and references in this
Agreement to "Land Charge" shall be read and construed
respectively as references to the Land Charge and every
Additional Charge collectively.
20.28 LITIGATION
The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall) engage in any action, litigation, arbitration or
administrative proceedings without the prior written consent of
the Agent, other than in
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relation to any action taken in order to comply with the
obligations contained in Clause 21.6.2.2.
20.29 TRANSACTION DOCUMENTS
The Borrower shall not (and shall procure that no Obligor,
PropCo, ▇▇▇▇▇▇, Seller 1 or Seller 2 shall) amend, waive or vary
any of the Transaction Documents with out the consent of the
Agent.
20.30 ▇▇▇▇▇
The Borrower shall use reasonable endeavours to ensure that ▇▇▇▇▇
is dissolved or PropCo's interest in ▇▇▇▇▇ is transferred to a
third party not connected with PropCo as soon as reasonably
possible following the Utilisation Date.
21. PROPERTY UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date
of this Agreement for so long as any amount is outstanding under
the Finance Documents or any Commitment is in force.
21.1 REPAIR
The Borrower will ensure and procure that:
21.1.1 each Property is kept in good and substantial repair and
condition and when necessary procure that all machinery and
equipment forming part of each Property is replaced by items of
similar quality and value;
21.1.2 any wants of repair in each Property are made good promptly after
receiving a request from the Agent to do so; and
21.1.3 all steps necessary to make good any want of repair in each
Property identified in any Valuation are taken promptly after
receipt of a request by the Agent to do so and that the Agent is
notified as soon as such steps have been implemented fully.
21.2 ALTERATIONS
21.2.1 Subject to Clause 21.2.2 below and save in circumstances where
PropCo is required by the terms of the relevant Occupational
Lease to grant its consent the Borrower shall not (and shall
procure that PropCo shall not) at any time, without the prior
written consent of the Agent:
21.2.1.1 carry out or permit any demolition, reconstruction or rebuilding
of or any material structural alteration to or change in the use
of any Property; or
21.2.1.2 sever, unfix or remove any of the fixtures at any Property
belonging to or in use by PropCo, OpCo or any tenant.
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21.2.2 Clause 21.2.1.2 above shall not apply for the purpose of
effecting necessary repairs to any fixtures at any Property or of
replacing them with new or improved models or substitutes or in
the case of any tenant's fixtures and fittings.
21.2.3 Clause 21.2.1.2 shall not apply to any alterations carried out
pursuant to any Expansion.
21.3 PLANNING
21.3.1 The Borrower shall (and shall procure that PropCo and ▇▇▇▇▇▇
will) comply with any conditions attached to any planning
permissions relating to or affecting all or any part of each
Property.
21.3.2 Except in connection with Expansions, the Borrower shall not (and
shall procure that PropCo will not) make any application for
planning permission or implement any planning permission obtained
or enter or agree to enter into any agreement or undertaking
under the Planning Acts or any other similar act or acts without
the prior written consent of the Agent.
21.4 NOTICES
21.4.1 The Borrower shall (and shall procure that each Obligor, PropCo
and ▇▇▇▇▇▇ will) promptly give full particulars (and if requested
a copy of any written particulars received by the Borrower any
Obligor, PropCo or ▇▇▇▇▇▇) to the Agent of any notice, order,
directive, designation, resolution or proposal having application
to all or any part of any Property or to the area in which it is
situate served upon it by any planning authority or other public
body or authority under or by virtue of the Planning Acts or any
other statutory power or powers conferred by any other law; and
21.4.2 to the extent that any such notice, order, directive,
designation, resolution or proposal (or non-compliance with the
same) is in the reasonable opinion of the Agent likely adversely
to affect the value of all or any part of any Property, the Agent
may require the Borrower to take all expedient steps to procure
compliance (in the event of the relevant Obligor, PropCo or
▇▇▇▇▇▇ failing itself to take steps promptly to do so after
receipt of a notice from the Agent requiring it to do so) with
any such notice or order and may at the cost of the Borrower make
such objection or objections or representations against or in
respect of any proposal for such a notice or order as the Agent
considers expedient.
21.4.3 Any compensation received by the Borrower, any Obligor, PropCo or
▇▇▇▇▇▇ as a result of any notice or order shall be applied in
repayment of the Secured Liabilities.
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21.5 TITLE
The Borrower shall (and shall procure that PropCo and ▇▇▇▇▇▇
shall):
21.5.1 observe and perform all restrictive and other covenants,
stipulations and obligations now or at any time affecting each
Property insofar as the same are subsisting and are capable of
being enforced;
21.5.2 duly and diligently enforce all restrictive or other covenants,
stipulations and obligations benefiting each Property and not
waive, release or vary (or agree to do so) the obligations of any
other party thereto; and
21.5.3 grant the Agent or the Security Trustee (for the Lenders), or its
lawyers on request all facilities reasonably within its power to
enable the Security Trustee (for the Finance Parties), or its
lawyers (at the expense of the Finance Parties whilst no Default
is continuing and at the expense of the Borrower whilst a Default
is continuing) to:
21.5.3.1 carry out investigations of title (Grundbucheinsicht) to each
Property; and
21.5.3.2 make such enquiries in relation to any part of a Property as a
prudent mortgagee would be reasonably expected to carry out.
21.6 OCCUPATIONAL LEASES
21.6.1 Save as required by the terms of a Lease Document, the Borrower
shall not (and shall ensure that no Obligor, PropCo or ▇▇▇▇▇▇
shall) without the prior consent of the Agent (such consent not
to be unreasonably withheld or delayed):
21.6.1.1 enter into or grant or agree to grant any Lease Document in
respect of all or any part of any Property;
21.6.1.2 grant any new contractual licence or right to occupy any part of
any Property;
21.6.1.3 accept or consent to any surrender, assignment, assignation or
sub-letting of or forfeit any tenant's interest under any Lease
Document;
21.6.1.4 agree to any rent reviews or lease renewals in respect of any
Occupational Lease;
21.6.1.5 agree to any variation or amendment in respect of any Lease
Document;
21.6.1.6 exercise any option or power to break, determine, vary or extend
any Lease Document now or at any time relating to or affecting
all or any part of any Property;
21.6.1.7 waive any breach of nor reduce, charge or suspend any sum payable
under any Lease Document nor enter into any restrictive or
onerous obligation affecting all or any part of any Property;
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21.6.1.8 discharge or release or agree so to do any other party from its
obligations and liabilities under any Lease Document;
21.6.2 The Borrower shall procure that:
21.6.2.1 PropCo complies with all material covenants and obligations of
PropCo under any Lease Document; and
21.6.2.2 PropCo promptly enforces all the material covenants and
obligations of any tenant under a Lease Document which shall
include but shall not be limited to the covenants and obligations
of the tenant to carry out repairs and defray any capital
expenditure in accordance with such Lease Document.
21.6.3 The Borrower shall procure that if there is an Event of Default
outstanding PropCo will, at the request of the Agent,
split/bifurcate the Principal Occupational Lease into two or more
Occupational Leases (as per the request of the Agent) as
permitted by paragraph 38(o) of the terms of the Principal
Occupational Lease.
21.7 PAY RATES, CHARGES AND TAXES
The Borrower shall (and shall procure that each Obligor, PropCo
and ▇▇▇▇▇▇ shall) punctually pay or cause to be paid when due and
indemnify the Agent on demand (and as a separate obligation any
receiver or receivers appointed by it) against all existing and
future rates, taxes, duties, fees, renewal fees, charges,
assessments, impositions and outgoings whatsoever whether imposed
by deed or by statute or otherwise and whether in the nature of
capital or revenue and even though of a wholly novel character
which now or at any time during the continuance of the Security
constituted by or pursuant to any Finance Document are payable in
respect of each Property or any part thereof.
21.8 ENTRY AND POWER TO REMEDY BREACHES
21.8.1 If, at any time, the Borrower or any Obligor fails, or is
considered by the Agent (acting reasonably) to have failed to
have performed, any obligation under this Clause 21 the Agent may
(without any obligation to do so) after notification to the
Borrower and subject to the terms of the Occupational Leases
enter upon all or any part of any Property with or without agents
appointed by it, architects, contractors, workmen and others as
it may determine and execute such works and take such steps as
may, in the reasonable opinion of the Agent, be required to
remedy or rectify any such failure and do or take any action on
or in relation to all or any part of any Property as may in the
reasonable opinion of the Agent be required to remedy or rectify
such failure.
21.8.2 The proper fees, costs and expenses incurred by the Agent for
such works and taking such steps will be reimbursed by the
Borrower to the Agent on demand.
21.8.3 The exercise by the Agent of its powers under Clause 21.8.1 above
will not render any Finance Party liable to account as mortgagee
in possession.
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21.9 MANAGING AGENTS
21.9.1 The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall) appoint any managing agent for the management of
the Property or otherwise without the prior consent of and on
terms approved by the Agent.
21.10 INSURANCES
21.10.1 The Borrower shall effect or procure to be effected:
21.10.1.1 insurance of each Property (including underground service
extensions) and the plant and machinery on each Property
including fixtures (but not tenants fixtures and fittings) and
improvements on a full reinstatement basis (which must be
index-linked and reviewed annually), including, without
limitation, site clearance, professional fees, VAT, subsidence
and not less than three years' loss of rent on all occupational
tenancies and licences of any Property;
21.10.1.2 third party and public liability insurances;
21.10.1.3 insurance against acts of terrorism; and
21.10.1.4 such insurances as a reasonable person in the same business as
the Borrower would effect;
all such insurances to be for a period of not less than one year
as at the Utilisation Date in amount and in form acceptable to
the Agent and with an insurance company or underwriters which
comply with the provisions of Clause 21.10.10.
21.10.2 The Borrower shall procure that the Security Trustee is named as
co-insured on all insurance policies required under Clause
21.10.1.1 above and shall ensure that each relevant insurer will
issue a certificate of third party interest in the insurance
policy (Sicherungsbestatigung/Sicherungsschein) in favour of the
Security Trustee containing the provisions set out in Clause
21.10.3.
21.10.3 Each policy required under Clause 21.10.1.1 above shall contain:
21.10.3.1 a standard mortgagee Clause whereby the insurance shall not be
vitiated or avoided as against the Security Trustee in the event
or as a result of any misrepresentation, act or neglect or
failure to make disclosure on the part of any Obligor, tenant or
other insured party, or any circumstances beyond the control of a
Obligor, tenant or other insured party;
21.10.3.2 a waiver of all insurers' rights of subrogation against any
Finance Party; and
21.10.3.3 terms providing that it shall not be amended, modified, changed,
cancelled or invalidated so far as the Security Trustee is
concerned without the insurer first giving to the Security
Trustee not less than (i) 14 days' written notice in respect of
any failure to pay any premium due and (ii) 30 days written
notice for any other reason.
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21.10.4 The Borrower shall procure that there be given to the Agent such
information in connection with the insurances and originals of
the policies as the Agent may require and will promptly notify
the Agent upon becoming aware of renewals made and variations,
modifications, changes or cancellations of policies made or, to
its knowledge, threatened or pending.
21.10.5 The Borrower shall not (and shall procure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall) do or permit anything to be done which may make
void or voidable any insurance policy in connection with any part
of any Property.
21.10.6 The Borrower shall pay or shall procure prompt payment in full of
all premiums (and shall promptly provide evidence of the same to
the Agent) and all other things necessary to keep all of the
insurance policies in force.
21.10.7 If the Borrower fails to comply with any of the provisions of
Clause 21.10.6 above, the Agent shall immediately be entitled
(but not obliged) to effect or renew the insurances concerned at
the expense of the Borrower.
21.10.8 The proceeds of loss of rent insurance shall be paid into the
Rent Account in accordance with Clause 11.4.
21.10.9 The Borrower shall apply or procure the application of all monies
received or receivable by it under any insurance maintained by it
or PropCo or ▇▇▇▇▇▇ in accordance with Clause 21.10.1 above
towards replacing, restoring or reinstating the relevant
Property. To the extent the relevant insurance policy and/or, the
Lease Documents do not restrict the proceeds of insurance being
used to prepay the Loan, the proceeds of insurance shall be used,
at the option of the Agent, to prepay the Loan.
21.10.10 The Borrower shall ensure that all insurance policies (whether
primary or excess policies) required under Clause 21.10.1 above
in relation to a particular risk, are placed with insurers that
have a long term unsecured, unsubordinated and unguaranteed debt
instrument rating of A or better by Fitch, A2 or better by
▇▇▇▇▇'▇ and A or better by Standard & Poors (or such other rating
as the Agent may agree in writing) for the aggregate amount
insured under such insurance policies (the "INSURANCE RATINGS
REQUIREMENTS").
21.10.11 If the long term unsecured, unsubordinated and unguaranteed debt
instrument ratings of an insurer required pursuant to Clause
21.10.10 is downgraded so that it no longer meets the Insurance
Ratings Requirements, the Borrower shall (and shall procure that
the relevant Obligor, PropCo or ▇▇▇▇▇▇ shall) diligently put in
place replacement insurance which meets the Insurance Ratings
Requirements and is otherwise acceptable to the Agent by the
earlier of the renewal date for the relevant insurance policy and
the date falling one month after knowledge of the downgrade.
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21.11 ENVIRONMENTAL UNDERTAKINGS
The Borrower shall (and shall procure that each Obligor, PropCo
and ▇▇▇▇▇▇ shall):
21.11.1 in all respects comply with all applicable Environmental Laws to
which it may be subject;
21.11.2 obtain all Environmental Licences required in connection with its
business; and
21.11.3 comply with all terms of all those Environmental Licences.
21.12 ENVIRONMENTAL CLAIMS
21.12.1 The Borrower shall (and shall procure that each Obligor, PropCo
and ▇▇▇▇▇▇ shall) promptly notify the Agent in writing of any
claim, notice or other communication received by it in respect of
any actual or alleged breach of or liability under applicable
Environmental Law.
21.12.2 The Borrower shall indemnify each Finance Party and its officers,
employees and agents against any loss, cost, expense or liability
suffered or incurred by any of them as a consequence of any
actual environmental claim or any breach of Environmental Law
(including the costs and expenses of any party indemnified
pursuant to this Clause 21.12.2 in defending itself against any
environmental claim made against it) to the extent that the loss
or liability incurred by that party would not have arisen if this
Agreement or any of the other Finance Documents had not been
entered into.
21.13 COMPULSORY PURCHASE
The Borrower shall not and shall ensure that no Obligor, PropCo
or ▇▇▇▇▇▇ shall enter into any negotiations with any competent
authorities with regard to the compulsory acquisition of all or
any part of any Property or consent to the compulsory acquisition
of all or any part of any Property unless in either case it is
required to do so and except, in either case, with the consent of
the Security Trustee and, if so requested by the Security
Trustee, shall permit the Security Trustee or its representatives
to conduct such negotiations or give such consent on its behalf.
21.14 LAND REGISTER EXCERPTS
The Borrower shall procure that the Agent receives certified
excerpts of the Land Register in relation to any Property
promptly upon registration of each Land Charge at the Land
Registry.
21.15 COMPLIANCE WITH REPORTS
The Borrower shall and shall procure that PropCo shall comply
with all recommendations made pursuant to the Environmental &
Structural Reports.
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22. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 22 is
an Event of Default.
22.1 NON-PAYMENT
The Borrower does not pay on the due date any amount payable
pursuant to a Finance Document at the place at and in the
currency in which it is expressed to be payable unless:
22.1.1 its failure to pay is caused by administrative or technical error
after proper instructions from the relevant payee; and
22.1.2 payment is made within three Business Days of its due date;
22.2 MATERIAL DEFAULTS
Any Obligor fails duly to perform or comply with any undertaking
or other obligation owed or assumed by it under, 11 (Bank
Accounts) (unless failure by the relevant Obligor to perform or
comply with that Clause is caused solely by the default on the
part of the Security Trustee in applying proceeds standing to the
credit of the relevant Bank Account in accordance with this
Agreement) 18.8 (Valuations), 20.4 (Negative pledge), 20.6
(Disposals), 20.9 (Financial Indebtedness), 20.14 (VAT Group),
20.15 (Distributions), 21.6 (Occupational Leases) and 21.10
(Insurances) (other than those obligations referred to in Clause
22.1 (Non- payment)).
No Event of Default under Clause 22.2 above will occur if the
failure to comply is, in the opinion of the Agent, capable of
remedy and is remedied within five Business Days of the earlier
of (i) the Agent giving notice to the Borrower of the failure in
question; or (ii) the Borrower or the relevant person becoming
aware of the failure to comply.
22.3 OTHER DEFAULTS
22.3.1.1 Subject to the ability to make Cure Payments in accordance with
Clause 19.3 (Cure Payments), the Borrower does not comply with
any term of Clause 19.1 (Loan to Value) or Clause 19.2 (Interest
Cover).
22.3.2 Any of the Borrower, the Obligors, PropCo or ▇▇▇▇▇▇ not comply
with any provision of the Finance Documents to which it is a
party (other than those referred to in Clause 22.1 (Non-payment)
and Clause 22.2 (Material Defaults)).
22.3.3 No Event of Default under Clause 22.3.2 above will occur if the
failure to comply is, in the opinion of the Agent, capable of
remedy and is remedied within ten Business Days of the earlier of
(i) the Agent giving notice to the Borrower of the failure in
question; or (ii) the Borrower or the relevant person becoming
aware of the failure to comply.
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22.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by the
Borrower, or any Obligor, PropCo or ▇▇▇▇▇▇ in any Finance
Document to which it is a party or any other document delivered
by or on behalf of the Borrower or any Obligor, PropCo or ▇▇▇▇▇▇
under or in connection with any Finance Document to which it is a
party is or proves to have been incorrect or misleading in any
material adverse respect when made or deemed to be made.
22.5 CROSS DEFAULT
22.5.1 Any Financial Indebtedness of any Obligor, PropCo or ▇▇▇▇▇▇ is
not paid when due nor within any originally applicable grace
period.
22.5.2 Any Financial Indebtedness of any Obligor, PropCo or ▇▇▇▇▇▇ is
declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however
described).
22.5.3 Any commitment for any Financial Indebtedness of any Obligor,
PropCo or ▇▇▇▇▇▇ is cancelled or suspended by a creditor of any
Obligor, PropCo or ▇▇▇▇▇▇ as a result of an event of default
(however described).
22.5.4 Any creditor of any Obligor, PropCo or ▇▇▇▇▇▇ becomes entitled to
declare any Financial Indebtedness of that Obligor, PropCo or
▇▇▇▇▇▇ due and payable prior to its specified maturity as a
result of an event of default (however described).
22.5.5 Any Security (other than under a Finance Document) securing any
Financial Indebtedness over any of the revenues or assets of any
Obligor, PropCo or ▇▇▇▇▇▇ becomes enforceable.
22.6 ATTACHMENT OR DISTRESS
If a creditor attaches or takes possession of, or a distress,
execution, diligence, sequestration or other process is levied or
enforced upon or sued out against, any material part of the
undertakings, assets, rights or revenues of any Obligor, PropCo
or ▇▇▇▇▇▇ and such process is not discharged within ten Business
Days.
22.7 INABILITY TO PAY DEBTS
Any of the following occurs in respect of the Borrower, an
Obligor, PropCo or ▇▇▇▇▇▇:
22.7.1 it is unable or admits inability to pay its debts as they fall
due, suspends making payments on any of its debts or, by reason
of actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
22.7.2 in respect of each Obligor incorporated under the laws of
Germany, PropCo or ▇▇▇▇▇▇ (a "GERMAN OBLIGOR"), it is unable to
pay its debts as they fall due (Zahlungsunfahigkeit), commences
negotiations with any one or more of its
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creditors with a view to the general readjustment or rescheduling
of its indebtedness or makes a general assignment for the benefit
of or a composition with its creditors or, for any of the reasons
set out in Sections 17-19 of the German Insolvenzordnung any
German Obligor files for insolvency (Antrag auf Eroffnung eines
Insolvenzverfahrens) or such filing is threatened or the board of
directors (Geschaftsfuhrung) of any German Obligor is required by
law to file for insolvency or the competent court takes any of
the actions set out in Section 21 of the German Insolvenzordnung
or institutes insolvency proceedings against any German Obligor
(Eroffnung des Insolvnezverfahrens) or any event occurs or any
proceedings are commenced with respect to any other Obligor
which, under the laws of any jurisdiction to which it is subject
or in which it has assets, has a similar or analogous effect.
22.7.3 the value of the assets of any Obligor that is not incorporated
under the laws of Germany is less than its liabilities;
22.7.4 a moratorium is declared in respect of any indebtedness of any
Obligor not incorporated under the laws of Germany; and
22.7.5 it proposes or enters into any composition or other arrangement
for the benefit of its creditors generally or any class of
creditors.
22.8 INSOLVENCY PROCEEDINGS
22.8.1 Subject to Clause 22.8.2 below, any of the following occurs in
respect of the Borrower, any Obligor, PropCo or ▇▇▇▇▇▇:
22.8.1.1 any step is taken with a view to a moratorium or a composition,
assignment or similar arrangement with any of its creditors or
for a general reconstruction or rescheduling of its debts or for
any process giving protection against creditors generally;
22.8.1.2 a meeting of its shareholders or directors or other officers is
convened for the purpose of considering any resolution for or
with a view to its winding-up, dissolution or administration or
any such resolution is passed;
22.8.1.3 any person takes any action or any legal proceedings are started
or other steps taken (including the presentation of a petition,
the making of an application or the filing of any documents with
a court or registrar) for its winding-up, administration or
dissolution;
22.8.1.4 an order for its winding-up, dissolution or administration is
made;
22.8.1.5 its shareholders or directors or other officers request the
appointment of, or give notice of their intention to appoint, a
liquidator, provisional liquidator, trustee, receiver,
administrator, administrative receiver, manager or similar
officer;
22.8.1.6 a liquidator, provisional liquidator, trustee, receiver,
administrator, administrative receiver, manager or similar
officer is appointed in respect of it or the whole or any part of
its undertakings, assets, rights or revenues;
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22.8.1.7 there occurs in any country or territory in relation to any
Obligor or any part of its assets or business, any step or
procedure or event, which, in the opinion of the Majority
Lenders, appears to be analogous to or correspond with any of the
events referred to in Clause 22.6 (Attachment or distress),
Clause 22.7 (Inability to pay debts) or Clause 22.8.1.1 to
22.8.1.6 of this Clause inclusive.
22.8.2 Clause 22.8.1 above does not apply to a solvent winding up or
dissolution on terms previously approved in writing by the Agent
or to a petition for winding up presented by a creditor which is
being contested in good faith and with due diligence and is
discharged within fourteen (14) days.
22.9 OWNERSHIP AND CONTROL OF THE BORROWER
The Shareholders cease to own directly the entire issued share
capital in the Borrower except in the case of a Permitted Change
of Control or unless otherwise agreed to by the Agent in
accordance with the terms of this Agreement.
22.10 SECURITY
Any Security Document is not in full force and effect or any
Security Document does not create in favour of the Security
Trustee for the benefit of the Finance Parties the Security which
it is expressed to create with the ranking and priority it is
expressed to have.
22.11 UNLAWFULNESS
It is or becomes unlawful for any Obligor, PropCo or ▇▇▇▇▇▇ or
any Subordinated Creditor to perform or comply with any of its
obligations under the Finance Documents.
22.12 REPUDIATION
Any Obligor, PropCo, ▇▇▇▇▇▇ or Subordinated Creditor repudiates a
Finance Document.
22.13 CESSATION OF BUSINESS
Any Obligor, Subordinated Creditor, PropCo or ▇▇▇▇▇▇ suspends or
ceases to carry on all or a material part of its business or
shall suspend all or a substantial part of its operations.
22.14 AUDITORS' QUALIFICATION
If the auditors qualify their report on the financial statements
provided in accordance with Clause 18.1 (Financial statements)
unless in the reasonable opinion of the Agent such qualification
is not material in the context of the Finance Documents.
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22.15 COMPULSORY PURCHASE
Any Property is compulsorily purchased or an interest in PropCo
is otherwise nationalised or otherwise expropriated which, in the
reasonable opinion of the Majority Lenders is likely to have a
Material Adverse Effect.
22.16 MAJOR DAMAGE
A Property is destroyed or damaged to an extent such that, taking
into account the proceeds of insurance effected under Clause
21.10 (Insurances) and the timing of the receipt of those
proceeds, in the reasonable opinion of the Majority Lenders, that
destruction or damage is likely to have a Material Adverse
Effect.
22.17 HEADLEASE
Any Headlease is forfeited for any reason or the landlord for the
time being thereunder commences forfeiture proceedings.
22.18 WPC FACILITY AGREEMENT DEFAULT
Any Event of Default occurs (as defined in the WPC Facility
Agreement) in relation to the WPC Facility Agreement.
22.19 PRINCIPAL OCCUPATIONAL LEASE
The Principal Occupational Lease is forfeited for any reason or
PropCo commences forfeiture proceedings without the prior written
consent of the Agent (such consent to be in the absolute
discretion of the Agent).
22.20 MATERIAL ADVERSE CHANGE
Any event occurs or circumstances arise which may in the
reasonable opinion of the Agent acting on the instructions of the
Majority Lenders have a Material Adverse Effect.
22.21 ACCELERATION
On and at any time after the occurrence of an Event of Default
the Agent may, and shall if so directed by the Majority Lenders,
by notice to the Borrower:
22.21.1 cancel the Total Commitments whereupon they shall immediately be
cancelled;
22.21.2 declare that all or part of the Loan, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
22.21.3 declare that all or part of the Loan be payable on demand,
whereupon it shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
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23. CHANGES TO THE LENDERS
23.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
23.1.1 Subject to this Clause 23, a Lender (the "EXISTING LENDER") may
assign, transfer or novate all or any of its Commitment and/or
any of its rights and/or obligations under the Finance Documents
without restriction to any other person (the "NEW LENDER"),
including in connection with or in contemplation of a
securitisation or a transaction having a similar effect.
23.1.2 An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Finance Parties as it would have
been under if it was an Original Lender.
23.1.3 A transfer will only be effective if the procedure set out in
Clause 23.4 (Procedure for transfer) is complied with.
23.2 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or
transfer takes effect, pay to the Agent (for its own account) a
fee of E2500.
23.3 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
23.3.1 Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
23.3.1.1 the legality, validity, effectiveness, adequacy or enforceability
of the Finance Documents or any other documents;
23.3.1.2 the financial condition of the Borrower or any of its Affiliates;
23.3.1.3 the performance and observance by the Borrower, the Shareholders
or the Subordinated Creditors of their respective obligations
under the Finance Documents or any other documents; or
23.3.1.4 the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document or any other document;
and any representations or warranties implied by law are
excluded.
23.3.2 Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
23.3.2.1 has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of each of the Borrower, the Shareholders and the
Subordinated Creditors and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing
Lender in connection with any Finance Document; and
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23.3.2.2 will continue to make its own independent appraisal of the
creditworthiness of each of the Borrower and the Shareholders and
its related entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in force.
23.3.3 Nothing in any Finance Document obliges an Existing Lender to:
23.3.3.1 accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 23; or
23.3.3.2 support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by the Borrower, the
Shareholders or the Subordinated Creditors of their respective
obligations under the Finance Documents or otherwise.
23.4 PROCEDURE FOR TRANSFER
23.4.1 A transfer is effected in accordance with Clause 23.4.2 below
when the Agent executes an otherwise duly completed Transfer
Certificate delivered to it by the Existing Lender and the New
Lender. The Agent shall after receipt by it of a duly completed
Transfer Certificate appearing on its face to comply with the
terms of this Agreement and delivered in accordance with the
terms of this Agreement, execute that Transfer Certificate.
23.4.2 ON THE TRANSFER DATE:
To the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and obligations
under the Finance Documents the Borrower and the Existing Lender
shall be released from further obligations towards one another
under the Finance Documents and their respective rights against
one another shall be cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
23.4.2.1 the Borrower and the New Lender shall assume obligations towards
one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as
the Borrower and the New Lender have assumed and/or acquired the
same in place of the Borrower and the Existing Lender;
23.4.2.2 the Agent, the Arranger, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New
Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that
extent the Agent, the Arranger and the Existing Lender shall each
be released from further obligations to each other under this
Agreement; and
23.4.2.3 the New Lender shall become a Party as a "LENDER".
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23.5 SECURITISATION
If a Lender determines at any time to sell, transfer or assign
all or part of its interest in the Loan and/or any of the Finance
Documents and any or all servicing rights with respect thereto,
or to grant participation therein (the "PARTICIPATIONS") or issue
other securities (such sale and/or issuance, the
"SECURITISATION") evidencing a beneficial interest in a rated or
unrated public offering or private placement (the "SECURITIES"),
the Lender may forward to each purchaser, transferee, assignee,
servicer, participant, investor or their respective successors in
such Participations and/or Securities (collectively, the
"INVESTOR") or any rating agency rating such Securities and each
prospective Investor, all documents and information which the
Lender now has or may hereafter acquire relating to the Loan, the
Borrower, the Shareholders, the Subordinated Creditors and the
Property (including, without limitation, all financial
statements), which shall have been furnished by the Borrower as
the Lender determines reasonably necessary or desirable. The
Borrower shall and shall procure that the Shareholders shall in
all cases at the cost of the Arranger cooperate with the Lender
in connection with any Securitisation or Participation or any
such Securities created and, upon the Lender's reasonable request
and cost, meet with any rating agency for due diligence purposes.
The Borrower shall and shall procure that the Shareholders shall
in all cases at the cost of the Arranger furnish and shall
consent to the Lender furnishing to such Investors or such
prospective Investors or any rating agency any and all
information concerning the Properties, the Occupational Leases,
the Headleases and/or the financial condition of the Borrower,
the Shareholders or the Subordinated Creditors as may be
reasonably requested by the Lender, any Investor or any
prospective Investor or rating agency in connection with any
Securitisation or Participation. The Borrower shall and shall
procure that the Shareholders shall in all cases at the cost of
the Arranger (a) cooperate with the Lender in making any
necessary reasonable modification to the Finance Documents that
the Lender proposes in connection with such Securitisation
provided that such modifications are not material and do not
relate to the fees or overall amount of interest payable in
respect of the Facility and (b) enter into such further
documentation or agreements (including but not limited to further
Finance Documents, intercreditor agreements, priority
arrangements or transfers) in connection with such Securitisation
as the Lender may reasonably request Provided Always for the
avoidance of doubt the Lender will not change by virtue of this
clause the Termination Date or the percentages set out in the
Repayment Schedule.
23.6 APPOINTMENT BY THE AGENT OF A LOAN SERVICER
23.6.1 The Agent may, at its own cost, appoint any person or persons to
act as a loan servicer with power and authority to act as the
representative of the Agent in connection with the Finance
Documents subject to any limitation as notified by the Agent to
the Borrower. The Agent shall notify the Borrower of the identity
and contact details of any servicer and of any change in the
identity or contact details of a servicer.
23.6.2 A servicer may have authority to sub-contract or otherwise
delegate all or some of its authority and power.
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23.6.3 The Borrower acknowledges the authority and power of each
servicer and of any person to whom any such authority or power is
sub-contracted or delegated. Unless otherwise notified by the
Agent, the Borrower shall be entitled to act on any instruction
or notice reasonably believed to be issued by or on behalf of a
servicer as issued by or on behalf of the Agent and without
prejudice to any defect in the appointment or authority of such
servicer.
23.7 SYNDICATION
The Borrower shall assist the Agent and the Arranger in effecting
syndication. Such assistance will include:
23.7.1 the provision of such information by it and the Shareholders as
may be reasonably required by the Agent and the Arranger in
connection with the syndication;
23.7.2 making available its senior management for the purposes of making
presentations to, hosting site visits and/or holding meetings
with proposed new Lenders and as agreed to by the Agent and the
Arranger (in consultation with the Borrower); and
23.7.3 agreeing (at the cost of the Agent and/or the Arranger) to make
such minor amendments to the Finance Documents as may be
reasonably requested by the proposed new Lenders and as agreed to
by the Agent and the Arranger (in consultation with the Borrower)
and/or entering into such further documentation or agreements
(including but not limited to further Finance Documents,
intercreditor agreements, priority arrangements or transfers) in
connection with such syndication as the Lender may reasonably
request.
23.8 WAREHOUSING
23.8.1 Notwithstanding the other provisions of this Clause 23, a Finance
Party may, at any time without the consent of, or consulting
with, or notifying, the Borrower or any Security Provider charge,
mortgage or assign all or any of its rights and benefits under
the Finance Documents or charge, mortgage or transfer all or any
of its rights, benefits and obligations under the Finance
Documents or enter into contractual relations by way of
sub-participation or otherwise in each case to or with any
Qualifying Lender from whom a Finance Party obtains funding in
connection with the Facility (the "Warehousing Partner") provided
that the cost to the Borrower in relation to interest and
principal is not increased as an immediate and direct consequence
thereof.
23.8.2 A Finance Party may disclose to any Warehousing Partner such
information about the Borrower, the Shareholders, the
Subordinated Creditors, any related persons, the business of such
persons or the Properties as the Finance Party shall consider
appropriate.
23.9 DISCLOSURE OF INFORMATION
23.9.1 The Agent or any other Lender may disclose any information about
the Borrower, the Shareholders, the Subordinated Creditors, all
or any part of the
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Property, the Facility and the Finance Documents as the Agent or
that Lender shall consider necessary or desirable to some or all
of the following:
23.9.1.1 any of its Affiliates or any other person to (or through) whom a
Lender assigns or transfers (or may potentially assign or
transfer) all or any of its rights and obligations under the
Finance Documents;
23.9.1.2 any of its Affiliates or any other person with (or through) whom
a Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, the Finance
Documents or the Borrower;
23.9.1.3 any other investors or potential investors (including any
investors, sub-participants, lenders or other parties in relation
to a securitisation) in any of its rights and obligations under
the Finance Documents;
23.9.1.4 any rating agency engaged in connection with any of the
foregoing;
23.9.1.5 any mortgagee or lender of the foregoing; or
23.9.1.6 any person to whom, and to the extent that, information is
required to be disclosed by any applicable law or regulation.
23.9.2 There shall be no publicity of the Finance Documents or any term
of the Finance Documents without the consent of the Borrower and
the Arranger but any such agreed publicity shall be at the cost
of the Borrower.
23.10 PARALLEL DEBT
For the purposes of taking and ensuring the continuing validity
of security ("PARALLEL DEBT SECURITY") under those Security
Documents subject to the laws of (or to the extent affecting
assets situated in) Germany and such other jurisdictions as the
Arranger and the Borrower (each acting reasonably) agree,
notwithstanding any contrary provision in the Finance Documents:
23.10.1 the Borrower undertakes (such undertakings, the "PARALLEL
OBLIGATIONS") to pay to the Security Trustee amounts equal to all
present and future amounts (the "ORIGINAL OBLIGATIONS") owing by
it to a Lender under the Finance Documents;
23.10.2 the Security Trustee shall have its own independent right to
demand and receive payment of the Parallel Obligations;
23.10.3 the Parallel Obligations shall not limit or affect the existence
of the Original Obligations for which any Lender shall have an
independent right to demand payment;
23.10.4 notwithstanding Clauses 23.10.2 and 23.10.3, payment by any of
the Borrower of its Parallel Obligations shall to the same extent
decrease and be a good discharge of the corresponding Original
Obligations owing to the relevant Lender and payment by the
Borrower of its Original Obligations to the
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relevant Lender shall to the same extent decrease and be a good
discharge of the Parallel Obligations owing by it to the Security
Trustee;
23.10.5 the Parallel Obligations are owed to the Security Trustee in its
own name on behalf of itself and not as agent or representative
of any other person nor as trustee and the security created
pursuant to the Security Documents shall secure the Parallel
Obligations so owing;
23.10.6 without limiting or affecting the Security Trustee's right to
protect, preserve or enforce its rights under any Security
Document, the Security Trustee undertakes to each Lender not to
exercise its rights in respect of the Parallel Obligations
without the consent of the relevant Lender; and
23.10.7 the Security Trustee undertakes to pay to the Lenders any amount
collected or received by it in payment or partial payment of the
Parallel Obligations and shall distribute any amount so received
to the Lenders in accordance with the terms of the Finance
Documents as if such amounts had been received in respect of the
Original Obligations.
24. CHANGES TO THE OBLIGORS
24.1 NO ASSIGNMENT
The Borrower may not assign any of its rights or transfer any of
its rights or obligations under the Finance Documents.
25. ROLE OF THE AGENT AND THE ARRANGER
25.1 APPOINTMENT OF THE AGENT AND THE SECURITY TRUSTEE
25.1.1 Each other Finance Party appoints the Agent to act as its agent
under and in connection with the Finance Documents.
25.1.2 Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given to
it under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and
discretions.
25.1.3 Each other Finance Party appoints the Security Trustee to act as
its trustee in connection with the Security Documents.
25.1.4 Each other Finance Party authorises the Security Trustee to
exercise the rights, powers, authorities and discretions
specifically given to the Security Trustee under or in connection
with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
25.2 DUTIES OF THE AGENT
25.2.1 The Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Agent for that
Party by any other Party.
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25.2.2 Except where a Finance Document specifically provides otherwise,
the Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to another
Party.
25.2.3 If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Finance
Parties.
25.2.4 If the Agent is aware of the non-payment of any principal,
interest, commitment fee or other fee payable to a Finance Party
(other than the Agent or the Arranger) under this Agreement it
shall promptly notify the other Finance Parties.
25.2.5 The duties of the Agent under the Finance Documents are solely
mechanical and administrative in nature.
25.3 ROLE OF THE ARRANGER
Except as specifically provided in the Finance Documents, the
Arranger has no obligations of any kind to any other Party under
or in connection with any Finance Document.
25.4 ROLE OF THE SECURITY TRUSTEE
25.4.1 The Security Trustee shall hold the benefit of the Security
Documents on trust for the Finance Parties.
25.4.2 If the Security Trustee receives notice from a Party referring to
this Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify the
Lenders.
25.4.3 The Security Trustee does not have any duties except those
expressly set out in the Finance Documents.
25.5 NO FIDUCIARY DUTIES
25.5.1 Nothing in this Agreement constitutes the Agent or the Arranger
as a trustee or fiduciary of any other person.
25.5.2 Neither the Agent, the Security Trustee nor the Arranger shall be
bound to account to any Lender for any sum or the profit element
of any sum received by it for its own account.
25.6 BUSINESS WITH THE BORROWER OR ITS AFFILIATES
The Agent, the Security Trustee and the Arranger may accept
deposits from, lend money to and generally engage in any kind of
banking or other business with the Borrower or any of its
Affiliates.
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25.7 RIGHTS AND DISCRETIONS OF THE AGENT AND THE SECURITY TRUSTEE
25.7.1 The Agent and the Security Trustee may rely on:
25.7.1.1 any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
25.7.1.2 any statement made by a director, authorised signatory or
employee of any person regarding any matters which may reasonably
be assumed to be within his knowledge or within his power to
verify.
25.7.2 Each of the Agent and the Security Trustee may assume (unless it
has received notice to the contrary in its capacity as agent for
the Lenders), that:
25.7.2.1 no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 22.1 (Non-payment)); and
25.7.2.2 any right, power, authority or discretion vested in any Party or
the Majority Lenders has not been exercised.
25.7.2.3 Each of the Agent and the Security Trustee may engage, pay for
and rely on the advice or services of any lawyers, accountants,
surveyors or other experts.
25.7.2.4 Each of the Agent and the Security Trustee may act in relation to
the Finance Documents through its personnel and agents.
25.7.2.5 Each of the Agent and the Security Trustee may disclose to any
other Party any information it has received as agent under this
Agreement.
25.7.2.6 Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent, the Security Trustee nor the
Arranger is obliged to do or omit to do anything if it would or
might in its opinion constitute a breach of any law or a breach
of a fiduciary duty or duty of confidentiality.
25.8 MAJORITY LENDERS' INSTRUCTIONS
25.8.1 Unless a contrary indication appears in a Finance Document, the
Agent shall (i) exercise any right, power, authority or
discretion vested in it as Agent in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising any
right, power, authority or discretion vested in it as Agent) and
(ii) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with an
instruction of the Majority Lenders.
25.8.2 Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Finance Parties.
25.8.3 The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
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25.8.4 In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from
taking action) as it considers to be in the best interest of the
Lenders.
25.8.5 The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document.
25.9 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent, the Security Trustee nor the Arranger:
25.9.1 is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Security Trustee, the Arranger, the Borrower, the
Shareholders, the Subordinated Creditors or any other person
given in or in connection with any Finance Document or
information memorandum; or
25.9.2 is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or executed
in anticipation of or in connection with any Finance Document.
25.10 EXCLUSION OF LIABILITY
25.10.1 Without limiting Clause 25.10.2 below, neither the Agent nor the
Security Trustee will be liable for any action taken by it under
or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct.
25.10.2 No Party (other than the Agent) may take any proceedings against
any officer, employee or agent of the Agent in respect of any
claim it might have against the Agent or in respect of any act or
omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or
agent of the Agent may rely on this Clause.
25.10.3 Neither the Agent nor the Security Trustee will be liable for any
delay (or any related consequences) in crediting an account with
an amount required under the Finance Documents to be paid by the
Agent if the Agent has taken appropriate steps to comply with the
regulations or operating procedures of any recognised clearing or
settlement system used by the Agent for that purpose.
25.11 LENDERS' INDEMNITY TO THE AGENT AND THE SECURITY TRUSTEE
Each Lender shall (in proportion to its share of the Total
Commitments or, if the Total Commitments are then zero, to its
share of the Total Commitments immediately prior to their
reduction to zero) indemnify the Agent or the Security Trustee,
within three Business Days of demand, against any cost, loss or
liability incurred by the Agent or the Security Trustee
(otherwise than by reason of its gross negligence or wilful
misconduct) in acting as Agent or the
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Security Trustee under the Finance Documents (unless it has been
reimbursed by the Borrower pursuant to a Finance Document).
25.12 RESIGNATION OF THE AGENT AND THE SECURITY TRUSTEE
25.12.1 The Agent or the Security Trustee may resign and appoint one of
its Affiliates as successor by giving notice to the other Finance
Parties and the Borrower.
25.12.2 Alternatively the Agent or the Security Trustee may resign by
giving notice to the other Finance Parties and the Borrower, in
which case the Majority Lenders (after consultation with the
Borrower) may appoint a successor Agent or Security Trustee.
25.12.3 If the Majority Lenders have not appointed a successor Agent or
Security Trustee in accordance with Clause 25.12.2 above within
30 days after notice of resignation was given, the Agent or the
Security Trustee (after consultation with the Borrower) may
appoint a successor Agent or Security Trustee.
25.12.4 The retiring Agent or the Security Trustee shall, at its own
cost, make available to its successor such documents and records
and provide such assistance as its successor may reasonably
request for the purposes of performing its functions as Agent or
Security Trustee under the Finance Documents.
25.12.5 The resignation notice of the Agent or the Security Trustee shall
only take effect upon the appointment of a successor.
25.12.6 Upon the appointment of a successor, the retiring Agent or the
Security Trustee shall be discharged from any further obligation
in respect of the Finance Documents but shall remain entitled to
the benefit of this Clause 25. Its successor and each of the
other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an
original Party.
25.12.7 After consultation with the Borrower, the Majority Lenders may,
by notice to the Agent or the Security Trustee require it to
resign in accordance with Clause 25.2 above. In this event, the
Agent or the Security Trustee shall resign in accordance with
Clause 25.2 above.
25.13 CONFIDENTIALITY
25.13.1 The Agent (in acting as agent for the Lenders), and the Security
Trustee (in acting as security trustee for the Finance Parties)
shall be regarded as acting through its respective agency or
security trustee division which shall be treated as a separate
entity from any other of its divisions or departments.
25.13.2 If information is received by another division or department of
the Agent, or, as the case may be, Security Trustee, it may be
treated as confidential to that division or department and the
Agent, or, as the case may be, Security Trustee, shall not be
deemed to have notice of it.
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25.14 RELATIONSHIP WITH THE LENDERS
25.14.1 The Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office
unless it has received not less than five Business Days prior
notice from that Lender to the contrary in accordance with the
terms of this Agreement.
25.14.2 Each Lender shall supply the Agent with any information required
by the Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formula).
25.15 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of the Borrower for
information supplied by it or on its behalf in connection with
any Finance Document, each Lender confirms to the Agent, the
Security Trustee and the Arranger that it has been, and will
continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited
to:
25.15.1 the financial condition, status and nature of the Borrower, the
Shareholders and the Subordinated Creditors;
25.15.2 the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and any other agreement, Security,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document;
25.15.3 whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets
under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, Security, arrangement or document entered into, made
or executed in anticipation of, under or in connection with any
Finance Document; and
25.15.4 the adequacy, accuracy and/or completeness of any information
provided by the Agent, any Party or by any other person under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
Security, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document.
25.16 REFERENCE BANKS
If a Reference Bank which is a Lender (or, if a Reference Bank is
not a Lender, but is an Affiliate of a Lender, the Lender of
which it is an Affiliate) ceases to be a Lender, the Agent shall
appoint another Lender or an Affiliate of a Lender to replace
that Reference Bank.
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25.17 MANAGEMENT TIME
Any amount payable to the Agent under Clause 15.2.1 (Indemnity to
the Agent), Clause 16 (Costs and expenses) and Clause 25.11
(Lenders' indemnity to the Agent) shall include the cost of
utilising the Agent's management time or other resources and will
be calculated on the basis of such reasonable daily or hourly
rates as the Agent may notify to the Borrower and the Lenders,
and is in addition to any fee paid or payable to the Agent under
Clause 10 (Fees).
25.18 DEDUCTION FROM AMOUNTS DUE AND PAYABLE
If any Party owes an amount to the Agent or the Security Trustee
under the Finance Documents the Agent or the Security Trustee (as
the case may be) may, after giving notice to that Party, deduct
an amount not exceeding that amount from any payment to that
Party which the Agent or the Security Trustee would otherwise be
obliged to make under the Finance Documents and apply the amount
deducted in or towards satisfaction of the amount due and
payable. For the purposes of the Finance Documents that Party
shall be regarded as having received any amount so deducted.
26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
26.1.1 interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
26.1.2 oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
26.1.3 oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
27. SHARING AMONG THE FINANCE PARTIES
27.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or
recovers any amount from the Borrower other than in accordance
with Clause 28 (Payment mechanics) and applies that amount to a
payment due under the Finance Documents then:
27.1.1 the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery, to the Agent;
27.1.2 the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery been received or made by the
Agent and distributed in accordance with Clause 28 (Payment
mechanics), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or
distribution; and
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27.1.3 the Recovering Finance Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with
Clause 28.5 (Partial payments).
27.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid
by the Borrower and distribute it between the Finance Parties
(other than the Recovering Finance Party) in accordance with
Clause 28.5 (Partial payments).
27.3 RECOVERING FINANCE PARTY'S RIGHTS
27.3.1 On a distribution by the Agent under Clause 27.2 (Redistribution
of payments), the Recovering Finance Party will be subrogated to
the rights of the Finance Parties which have shared in the
redistribution.
27.3.2 If and to the extent that the Recovering Finance Party is not
able to rely on its rights under Clause 27.3.1 above, the
Borrower shall be liable to the Recovering Finance Party for a
debt equal to the Sharing Payment which is immediately due and
payable.
27.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a
Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:
27.4.1 each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 27.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay);
and
27.4.2 that Recovering Finance Party's rights of subrogation in respect
of any reimbursement shall be cancelled and the Borrower will be
liable to the reimbursing Finance Party for the amount so
reimbursed.
27.5 EXCEPTIONS
27.5.1 This Clause 27 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to
this Clause, have a valid and enforceable claim against the
Borrower.
27.5.2 A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
27.5.2.1 it notified that other Finance Party of the legal or arbitration
proceedings; and
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27.5.2.2 that other Finance Party had an opportunity to participate in
those legal or arbitration proceedings but did not do so as soon
as practicable having received notice and did not take separate
legal or arbitration proceedings.
28. PAYMENT MECHANICS
28.1 PAYMENTS TO THE AGENT
28.1.1 On each date on which the Borrower or a Lender is required to
make a payment under a Finance Document, the Borrower (subject to
Clause 28.10 (Payments to the Security Trustee)) or Lender shall
make the same available to the Agent (unless a contrary
indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Agent as
being customary at the time for settlement of transactions in the
relevant currency in the place of payment.
28.1.2 Payment shall be made to the Agent to its account at such office
or bank in Dublin (or such other place) as the Agent may notify
to the Borrower or the Lenders.
28.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents
for another Party shall, subject to Clause 28.3 (Distributions to
Borrower) and Clause 28.4 (Clawback) and Clause 28.10 (Payments
to the Security Trustee) be made available by the Agent as soon
as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a
Lender, for the account of its Facility Office), to such account
as that Party may notify to the Agent by not less than five
Business Days' notice with a bank in the principal financial
centre of the country of that currency.
28.3 DISTRIBUTIONS TO OBLIGOR
The Agent and the Security Trustee may (with the consent of the
Borrower or in accordance with Clause 29 (Set-off)) apply any
amount received by it for the Borrower in or towards payment (on
the date and in the currency and funds of receipt) of any amount
due from the Borrower under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
28.4 CLAWBACK
28.4.1 Where a sum is to be paid to the Agent or the Security Trustee
under the Finance Documents for another Party, the Agent or, as
the case may be, the Security Trustee, is not obliged to pay that
sum to that other Party (or to enter into or perform any related
exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.
28.4.2 If the Agent or the Security Trustee pays an amount to another
Party and it proves to be the case that the Agent had not
actually received that amount, then the Party to whom that amount
(or the proceeds of any related exchange contract) was paid shall
on demand refund the same to the Agent or, as the
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case may be, the Security Trustee, together with interest on that
amount from the date of payment to the date of receipt by the
Agent, or, as the case may be, the Security Trustee, calculated
by it to reflect its cost of funds.
28.5 PARTIAL PAYMENTS
28.5.1 If the Agent, or, as the case may be the Security Trustee,
receives a payment that is insufficient to discharge all the
amounts then due and payable by the Borrower under the Finance
Documents, the Agent, or, as the case may be the Security
Trustee, shall apply that payment towards the obligations of the
Borrower under the Finance Documents in the following order:
28.5.1.1 FIRST, payment pro rata of any unpaid fees, costs and expenses
(not being amounts referred to in Clause 28.5.1.2 of the Finance
Parties under the Finance Documents;
28.5.1.2 SECOND, payment pro rata of Fixed Rate Break Costs payable under
Clause 15.4 (Fixed Rate Break Costs and Break Gains);
28.5.1.3 THIRD, payment of any accrued interest or commission due but
unpaid under this Agreement; and
28.5.1.4 FOURTH, any balance to be used to repay principal.
28.5.2 The Borrower waives any right to make an appropriation in respect
of a partial payment.
28.6 NO SET-OFF BY BORROWER
All payments to be made by the Borrower under the Finance
Documents shall be calculated and be made without (and free and
clear of any deduction for) set-off or counterclaim.
28.7 BUSINESS DAYS
28.7.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
28.7.2 During any extension of the due date for payment of any principal
or Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
28.8 CURRENCY OF ACCOUNT
28.8.1 Subject to Clauses 28.8.2 and 28.8.3 below, euro is the currency
of account and payment for any sum due from the Borrower under
any Finance Document.
28.8.2 Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
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28.8.3 Any amount expressed to be payable in a currency other than euro
shall be paid in that other currency.
28.9 CHANGE OF CURRENCY
28.9.1 Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
28.9.1.1 any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent (after
consultation with the Borrower); and
28.9.1.2 any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency unit
into the other, rounded up or down by the Agent.
28.9.2 If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.
28.10 PAYMENTS TO THE SECURITY TRUSTEE
Notwithstanding any other provision of any Finance Document at
any time after any Security created by or pursuant to any
Security Document becomes enforceable, the Security Trustee may
require:
28.10.1 the Borrower to pay all sums due under any Finance Document; or
28.10.2 the Agent to pay all sums received or recovered from the Borrower
under any Finance Document;
in each case as the Security Trustee may direct for application
in accordance with the terms of the Security Documents.
29. SET-OFF
A Finance Party may set off any matured obligation due from the
Borrower under the Finance Documents (to the extent beneficially
owned by that Finance Party) against any obligation (whether or
not matured) owed by that Finance Party to the Borrower,
regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the
purpose of the set-off.
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30. NOTICES
30.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the
Finance Documents shall be made in writing and, unless otherwise
stated, may be made by fax or letter.
30.2 ADDRESSES
The address and fax number (and the department or officer, if
any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered
under or in connection with the Finance Documents is that
identified with its name in the section entitled "Signatories"
below or, in each case, any substitute address, fax number or
department or officer as the Party may notify to the Agent (or
the Agent may notify to the other Parties, if a change is made by
the Agent) by not less than five Business Days' notice.
30.3 DELIVERY
30.3.1 Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will
only be effective:
30.3.1.1 if by way of fax, when received in legible form; or
30.3.1.2 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;
and, if a particular department or officer is specified as part
of its address details provided under Clause 30.2 (Addresses), if
addressed to that department or officer.
30.3.2 Any communication or document to be made or delivered to the
Agent or the Security Trustee will be effective only when
actually received by it and then only if it is expressly marked
for the attention of the department or officer identified with
its name in the section entitled "Signatories" below (or any
substitute department or officer as the Agent or the Security
Trustee shall specify for this purpose).
30.3.3 All notices from or to the Borrower shall be sent through the
Agent.
30.3.4 Any communication or document delivered to the Agent or the
Security Trustee (or any of their respective agents) in
accordance with this Clause 30.3 (Delivery) shall, where a
response is required, receive a response within 10 Business Days
(provided that, for the avoidance of doubt, failure to comply
with this Clause shall not be deemed to imply that the Agent or
Security Trustee (as the case may be) consents to the request
being made).
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30.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address, fax number
or change of address or fax number pursuant to Clause 30.2
(Addresses) or changing its own address or fax number, the Agent
shall notify the other Parties.
30.5 ELECTRONIC COMMUNICATION
30.5.1 Any communication to be made between the Agent and a Lender under
or in connection with the Finance Documents may be made by
electronic mail or other electronic means, if the Agent and the
relevant Lender:
30.5.1.1 agree that, unless and until notified to the contrary, this is to
be an accepted form of communication;
30.5.1.2 notify each other in writing of their electronic mail address
and/or any other information required to enable the sending and
receipt of information by that means; and
30.5.1.3 notify each other of any change to their address or any other
such information supplied by them.
30.5.2 Any electronic communication made between the Agent and a Lender
will be effective only when actually received in readable form
and in the case of any electronic communication made by a Lender
to the Agent only if it is addressed in such a manner as the
Agent shall specify for this purpose.
30.6 ENGLISH LANGUAGE
30.6.1 Any notice given under or in connection with any Finance Document
must be in English.
30.6.2 All other documents provided under or in connection with any
Finance Document must be:
30.6.2.1 in English; or
30.6.2.2 if not in English, and if so required by the Agent, accompanied
by a certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional,
statutory or other official document.
31. CALCULATIONS AND CERTIFICATES
31.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the
accounts maintained by a Finance Party are prima facie evidence
of the matters to which they relate.
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31.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate
or amount under any Finance Document is, in the absence of
manifest error, conclusive evidence of the matters to which it
relates.
31.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document
will accrue from day to day and is calculated on the basis of the
actual number of days elapsed and a year of 360 days or, in any
case where the practice in the Relevant Interbank Market differs,
in accordance with that market practice.
32. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or
becomes illegal, invalid or unenforceable in any respect under
any law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions nor the legality,
validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part
of any Finance Party, any right or remedy under the Finance
Documents shall operate as a waiver, nor shall any single or
partial exercise of any right or remedy prevent any further or
other exercise or the exercise of any other right or remedy. The
rights and remedies provided in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.
34. AMENDMENTS AND WAIVERS
34.1 REQUIRED CONSENTS
34.1.1 Subject to Clause 34.2 (Exceptions) any term of the Finance
Documents (other than a Fee Letter) may be amended or waived only
with the consent of the Majority Lenders and the Borrower and any
such amendment or waiver will be binding on all Parties.
34.1.2 The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
34.2 EXCEPTIONS
34.2.1 An amendment or waiver that has the effect of changing or which
relates to:
34.2.1.1 the definition of "Majority Lenders" in Clause 1.1 (Definitions);
34.2.1.2 an extension to the date of payment of any amount under the
Finance Documents;
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34.2.1.3 a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fees or commission payable;
34.2.1.4 an increase in or an extension of any Commitment;
34.2.1.5 a change to the Borrower or the Shareholders;
34.2.1.6 a change to the terms of Clause 11.4.3 (Rent Account) or Clause
28.5 (Partial Payments);
34.2.1.7 any provision which expressly requires the consent of all the
Lenders; or
34.2.1.8 Clause 2.2 (Finance Parties and obligations), Clause 23 (Changes
to the Lenders) or this Clause 34;
shall not be made without the prior consent of all the Lenders.
34.2.2 An amendment or waiver which relates to the rights or obligations
of the Agent, the Security Trustee, the Arranger or the Hedging
Counterparty may not be effected without the consent of the
Agent, the Security Trustee, the Arranger or the Hedging
Counterparty.
35. COUNTERPARTS
Each Finance Document may be executed in any number of
counterparts, and this has the same effect as if the signatures
on the counterparts were on a single copy of the Finance
Document.
36. GOVERNING LAW
This Agreement is governed by English law.
37. ENFORCEMENT
37.1 JURISDICTION OF ENGLISH COURTS
37.1.1 The Borrower agrees that the courts of England have jurisdiction
to settle any dispute arising out of or in connection with this
Agreement and each of the Finance Documents (including a dispute
regarding the existence, validity or termination of this
Agreement) (a "DISPUTE") and irrevocably submits to the
non-exclusive jurisdiction of such courts.
37.1.2 The Borrower waives any objections which they may now or
hereafter have to the English courts being nominated as the forum
to hear and determine any such Dispute and agree not to claim
that any such court is not a convenient or appropriate forum.
37.1.3 This Clause 37.1 is for the benefit of the Finance Parties only.
As a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.
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37.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, the Borrower:
37.2.1 irrevocably appoints ReedSmith ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as its agent for
service of process in relation to any proceedings before the
English courts in connection with any Finance Document and will
immediately appoint a new agent for service of process on terms
satisfactory to the Agent (acting reasonably) should the above
agent resign or otherwise cease to be the agent for process
hereunder or cease to maintain a registered office in England;
and
37.2.2 agrees that failure by a process agent to notify the Borrower of
the process will not invalidate the proceedings concerned.
38. LOAN TRANCHES
The Agent may at any time require that the Loan be divided into
two or more tranches, of which the aggregate weighted average
interest rate shall, as of any sale or securitisation of the
Loan, equal the interest rate on the Loan on the date immediately
prior to such tranching, but each of which may have a different
interest rate and a different amortisation profile PROVIDED
always that the impact of such division shall not result in any
additional financial obligation to the Borrower over the Term.
39. FURTHER ASSURANCE
The parties hereto shall on being reasonably requested to do so
by the Agent now or at any time while this Agreement is still in
force do or perform all such further acts and things and/or
execute and deliver such further deeds, documents or instruments
(or procure that the same are executed and delivered) in a manner
and form reasonably satisfactory to the Majority Lenders for
implementing or giving full effect to the provisions of this
Agreement and the Security Documents.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE
BEGINNING OF THIS AGREEMENT.
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SCHEDULE 1
LENDERS AND THEIR COMMITMENTS
NAME AND FACILITY OFFICE COMMITMENT
------------------------ -----------
Capmark Ab No.2 Limited E70,171,015
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
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SCHEDULE 2
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. AUTHORISATIONS
(a) To the extent not already received, a copy of the constitutional
documents of the Borrower.
(b) A copy of a resolution of the shareholders-meeting of the Borrower and
the investment committee resolutions for subordinated creditors of the
Borrower:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including, if
relevant, the Utilisation Request) to be signed and/or despatched
by it under or in connection with the Finance Documents to which
it is a party.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(d) Assistant Secretary's Certificate - Delaware Constitutional Documents.
(e) Certificate of the Borrower (signed by an authorised signatory of the
Borrower) confirming that borrowing the Total Commitments would not
cause any borrowing or similar limit binding on it to be exceeded.
(f) A certificate of an authorised signatory of the Borrower certifying
that the original of each copy document relating to it specified in
paragraphs (a) and (b) above is correct, complete and in full force
and effect as at a date no earlier than the date of this Agreement and
that each copy is a true and complete copy of the original.
(g) Appointment of a "Notary" satisfactory to the Agent including (but not
limited to) satisfactory professional indemnity insurance cover,
satisfaction that the Notary has been placed in sufficient funds to
enable the payment of all fees connected with the notarisation and
registration and an undertaking from the Notary to regularly update
the Agent as to the status of the registration of the security.
(h) Evidence that the agent of the Borrower and each Obligor under the
Finance Documents for service of process in England and Wales and
Germany (in
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relation to the German law governed Security Documents) has been
appointed and has accepted its appointment.
2. LEGAL OPINIONS
(a) An English legal opinion of White & Case LLP, solicitors of the
Arranger and the Agent, in relation to the validity and enforceability
of the Finance Documents and in relation to the capacity and authority
of each of the English parties thereto to enter into the Finance
Documents to which they are a party.
(b) A German legal opinion of White & Case LLP, legal advisers to the
Arranger and the Agent in Germany, in relation to the capacity and
authority of each of the German parties thereto to enter into the
Finance Documents to which they are a party.
(c) A legal opinion of ReedSmith ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, solicitors of the
Borrowers in relation to the capacity and authority of each Obligor to
enter into the Transaction Documents to which it is a party.
(d) A Luxembourg legal opinion of VandenBulke Avocats, legal advisers to
the Arranger and the Agent in Luxembourg, in relation to the validity
and enforceability of the Luxembourg law Finance Documents.
(e) A Luxembourg legal opinion of Loyens ▇▇▇▇▇▇▇, legal advisers to the
Borrower in Luxembourg, in relation to the capacity and authority of
each of the Luxembourg parties thereto to enter into the Finance
Documents to which they are a party.
(f) A legal opinion of Mr ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, legal advisers to PropCo in
relation to the capacity and authority of PropCo to enter into the
Transaction Documents to which it is a party.
3. OTHER DOCUMENTS AND EVIDENCE
(a) Pro forma financial statements and up to date balance sheets of PropCo
as at Closing, i.e. as expected post close position to be.
(b) Pro forma financial statements and up to date balance sheets of ▇▇▇▇▇▇
as at Closing, i.e. as expected post close position to be.
4. SENIOR FINANCE DOCUMENTS
(a) The following documents duly signed or executed by the parties to
them:
(i) this Agreement;
(ii) each Land Charge;
(iii) each Account Pledge Agreement;
(iv) each Security Purpose Agreement;
115
(v) each Global Assignment Agreement;
(vi) each Share Pledge Agreement;
(vii) each Interest Pledge Agreement;
(viii) the Subordination Agreement;
(ix) the Utilisation Request;
(xii) the Power of Attorney.
(xiii) the Fee Letter.
(b) All necessary notices to be issued pursuant to the Security Documents.
(c) Receipt of acknowledgements in respect of the notices referred to in
paragraph (b) above in substantially the form set out in the Security
Documents or agreement to provide the same.
5. VALUATION AND SURVEY
(a) Satisfactory Initial Valuation addressed to the Finance Parties
showing:
(i) a minimum Market Value of the Properties of at least
E363,100,000; and
(ii) an insurance valuation for reinstatement purposes.
(b) Confirmation from the Valuer that the Report on Title does not affect
the Initial Valuation.
(c) Building survey report addressed to the Finance Parties and successors
in title prepared by a firm approved by the Lender.
(d) Environmental & Structural Reports from ERM GmbH addressed to the
Finance Parties and successors in title.
6. INSURANCE
(a) The original insurance policy document providing evidence of the
insurance in force with respect to each Property in accordance with
this Agreement (together with the related premium receipts if
applicable) and confirmation in writing from the relevant insurance
broker that the insurance policy accords with the terms of Clause
17.13 (Insurances).
(b) Evidence of professional indemnity cover satisfactory to the Agent
from each report and valuation provider referred to in this Schedule
2.
7. PROPERTIES
(a) Excerpt from the Land Registry of recent date with respect to any
Property, certified by the Land Registry or a Notary.
116
(b) A Notarial confirmation that the Land Charge will be registered as a
first priority ranking security over any Property in division III of
the Land Register.
(c) Confirmation from HH that relevant expenses are in their attorney
trust account in the amount to be agreed by the Agent relating to the
Notary Public payment of all court costs associated with the
registration of the Land Charge.
(d) Evidence in respect of the Notary Public that all of his services
rendered in connection with the Interest Purchase Agreement and this
Agreement are covered by a professional liability insurance policy
providing cover in respect of each claim up to an amount to be agreed
by the Agent.
(e) The Overview Report on Title.
(f) Notarial confirmation that all relevant consents to the relevant Land
Charges have been delivered.
(g) All Authorisations necessary for the charging of the Properties to the
Security Trustee (if any).
(h) Copies of all notices to tenants necessary as a consequence or entry
into the Security Documents.
(i) Confirmation that the Agent has carried out a satisfactory inspection
of each Property.
(j) Certified copy of the Purchase Agreement.
(k) Historical operating information for the Properties.
8. TAX
(a) A copy of PropCo's VAT Registration or a copy of PropCo's application
for a VAT Registration.
(b) The German Tax Report.
(c) The Luxembourg Tax Report.
(d) The Delaware Tax Report.
9. THE ACCOUNTS
(a) Evidence of the establishment of the Accounts.
(b) A duly signed bank mandate for each Account.
10. COSTS AND EXPENSES
(a) Sources and uses detailing all payments to be made from the equity
contribution and the Loan including, without limitation, notary fees,
costs and expenses, RETT, Land Registry fees, receiving bank charges,
valuation, legal,
117
structural, commercial and bank fees (all inclusive of VAT where
applicable) and detailing for cash payment the relevant account
details.
(b) Evidence that the purchase price paid for the Property is an amount
notified to the Agent prior to the date of this Agreement (excluding
Acquisition Costs).
11. MISCELLANEOUS
(a) The Structure Chart.
(b) A certified copy of each loan agreement between any Obligor and each
Subordinated Creditor.
(c) Payment of the outstanding Arrangement Fees and any other outstanding
fees, costs and expenses payable by the Borrower under the Finance
Documents.
(d) Payment of all reasonable third party fees and any other costs and
expenses incurred by the Lender and its advisers.
(e) Evidence satisfactory to the Agent of the identity of at least two
directors of each Obligor and their names and addresses and such other
evidence as the Agent and the Security Trustee may require to satisfy
the Money Laundering Obligations.
(f) Confirmation from the Notary Public in respect of any Property that
the registration of the priority notice in the Land Register has been
registered and is complete and, all relevant consents to the transfer
of any Property has been received, there is a waiver of all
pre-emption rights of the municipality and all conditions precedent to
the Interest Purchase Agreement and related documents have been
satisfied.
(g) Evidence of payment of equity (or inter-company loans) required to
cover balance of purchase price and all other items identified in the
Services and Uses.
(h) Legal Due Diligence Report from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇ LLP addressed to
the Finance Parties and successors in title in a form approved by the
Agent.
(i) A certified copy of the Principal Occupational Lease.
(j) A certified copy of the Seller 2 Facility Agreement.
(k) Closing certificate required from Seller 1 and Seller 2 to the
Purchaser under the Interest Purchaser Agreement.
(l) Letter of direction from Seller 1 (which directs PropCo to pay its
portion of the Rent direct to ▇▇▇▇▇ and Purchaser according to its
relevant limited partnership interests in Seller 1).
(m) Reliance Letters.
(n) Evidence that the Commerzbank bank account of PropCo has been closed.
118
(o) A solvency certificate from Seller 2 confirming that he is solvent as
at the Utilisation Date
(p) A copy of any other authorisation or other document, opinion or
assurance which the Agent considers to be necessary as a result of
matters arising from the conditions precedent listed above in
connection with the entry into and performance of, and the
transactions contemplated by, any Finance Document or for the validity
and enforceability of any Finance Document, including a Partner
resolution form for PropCo authorising the transaction and a
formalities certificate attaching commercial register entries.
CONDITION SUBSEQUENT DOCUMENTS
1. (a) The deletion of the right of first refusal in relation to the Property
at ▇▇▇▇▇▇▇▇▇▇▇ and confirmation that this has been deleted at the
▇▇▇▇▇▇▇▇▇▇▇ land registry so that the Land Charge in favour of the
Security Trustee does not take subject to it
(b) Update of the Environmental & Structural Reports to ensure that the
measurements of the Properties are consistent with the Initial
Valuation within 5 Business Days of the date of this Agreement
(c) A certificate dated on the day of closing of an authorised signatory
of the WPC Lender certifying that the original of each copy document
relating to it specified in paragraphs (a) and (b) above is correct,
complete and in full force and effect as at a date no earlier than the
date of the WPC Lender Facility Agreement and that each copy is a true
and complete copy of the original.
(d) Receipt of final cover note in respect of Terrorism Insurance Cover
together with the policy number.
119
SCHEDULE 4
MANDATORY COST FORMULA
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"ADDITIONAL COST RATE") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in the Loan made
from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C (B-D) + EX - 0.01 per cent., per annum
------------------------
100 - (A+C)
(b) in relation to a Loan in any currency other than sterling:
E0.01 per cent., per annum
-----
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate
of interest specified in Clause 8.3 (Default interest)) payable for
the relevant Interest Period on the Loan.
122
C is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per
L1,000,000.
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) "FEES RULES" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance
of deposits;
(c) "FEE TARIFFS" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or
zero rated fee required pursuant to the Fees Rules but taking into
account any applicable discount rate); and
(d) "TARIFF BASE" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5% will be included in the formula as 5 and
not as 0.05). A negative result obtained by subtracting D from B shall be
taken as zero. The resulting figures shall be rounded to four decimal
places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Agent, the rate of charge payable by that Reference Bank to the
Financial Services Authority pursuant to the Fees Rules in respect of the
relevant financial year of the Financial Services Authority (calculated for
this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in
pounds per L1,000,000 of the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on or prior
to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may require for such purpose.
123
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a Lender
notifies the Agent to the contrary, each Lender's obligations in relation
to cash ratio deposits and Special Deposits are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility Office
in the same jurisdiction as its Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by any
Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true
and correct in all respects.
11. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
13. The Agent may from time to time, after consultation with the Borrower and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
124
SCHEDULE 8
PROPERTIES
ALLOCATED LOAN AMOUNT
(24.7399% OF THE FOLLOWING AMOUNTS)
PROPERTY (EUR)
---------------------------------------- -----------------------------------
1. Gewerbegebiet Am Rehhahn 7,850,910
16356 Ahrensfelde-▇▇▇▇▇▇▇▇
2. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ 5,417,128
3. Alt ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ 14,607,476
4. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ 11,854,874
5. Riemker StraBe 4
44809 Bochum-Hofstede 8,871,528
6. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ 2,940,000
7. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ 7,420,910
8. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 5,495,637
9. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ 16,329,892
10. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇ 4,480,000
11. ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4,632,037
12. NeustraBe / Ecke VoerderstraBe
58256 Ennepetal 6,123,710
13. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ 9,813,637
14. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ 13,425,056
15. Im ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ 2,826,328
16. Spandauer StraBe109
14612 Falkensee 21,982,548
17. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ 9,735,128
18. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇
▇▇▇▇▇ ▇▇▇▇▇ 5,888,182
19. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇ 2,669,309
131
20. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ 4,160,982
21. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 4,867,564
22. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇ 7,458,364
23. Veltener StraBe
16761 Hennigsdorf 7,030,336
24. Hallesche StraBe 214
04159 Leipzig 6,280,728
25. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 11,854,874
26. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 2,512,291
27. ▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 12,875,492
28. Honnenwerth
58706 Menden 7,536,873
29. Dusseldorfer StraBe 181-187
40822 Mettmann 7,772,401
30. In der Helme
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ 5,495,637
31. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 3,454,400
32. ▇▇▇▇▇▇▇▇ / ▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇ Potsdam 12,796,983
33. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 4,475,019
34. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ 5,731,164
35. Max-▇▇▇▇▇▇-StraBe / Westfalenring
48565 Steinfurt 3,150,000
36. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ 5,652,655
37. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ 8,164,946
132
SCHEDULE 9
REPAYMENT SCHEDULE
AMOUNT OF REPAYMENT INSTALMENT CALCULATED AS A
NO. INTEREST PAYMENT DATES % OF THE LOAN OUTSTANDING ON UTILISATION DATE
--- ---------------------------------------- ----------------------------------------------
1 18 July 2007 --
2 18 October 2007 --
3 18 January 2008 --
4 18 April 2008 --
5 18 July 2008 0%
6 18 October 2008 0%
7 18 January 2009 0%
8 18 April 2009 0.25%
9 18 July 2009 0.25%
10 18 October 2009 0.25%
11 18 January 2010 0.25%
12 18 April 2010 0.25%
13 18 July 2010 0.25%
14 18 October 2010 0.25%
15 18 January 2011 0.25%
16 18 April 2011 0.375%
17 18 July 2011 0.375%
18 18 October 2011 0.375%
19 18 January 2012 0.375%
20 18 April 2012 0.375%
21 18 July 2012 0.375%
22 18 October 2012 0.375%
133
23 18 January 2013 0.375%
24 18 April 2013 0.5%
25 18 July 2013 0.5%
26 18 October 2013 0.5%
27 18 January 2014 0.5%
28 18 April 2014 0.5%
29 18 July 2014 0.5%
30 18 October 2014 0.5%
31 18 January 2015 0.5%
32 18 April 2015 0.5%
33 18 July 2015 0.5%
34 18 October 2015 0.5%
35 18 January 2016 0.5%
36 18 April 2016 0.5%
37 18 July 2016 0.5%
38 18 October 2016 0.5%
39 18 January 2017 0.5%
134
SIGNATORIES
THE BORROWER
HLWG TWO (GER) LLC
a Delaware limited liability company
BY: H2 INVESTOR (GER) QRS 16-100, INC.,
Its managing director
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: MANAGING DIRECTOR
135
THE ARRANGER
CAPMARK BANK EUROPE P.L.C.
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇
Fax No: ▇▇▇▇ (▇) ▇▇▇ ▇▇▇▇
Attention: General Counsel
By:
THE ORIGINAL LENDER(S)
CAPMARK AB NO.2 LIMITED
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇
Fax No: ▇▇▇▇ (▇) ▇▇▇ ▇▇▇▇
Attention: General Counsel
By:
THE AGENT
CAPMARK BANK EUROPE P.L.C.
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attention: General Counsel
Fax No: ▇▇▇▇ (▇) ▇▇▇ ▇▇▇▇
with a copy to:
Address: Capmark UK Limited
Norfolk House
▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇
Attention: UK Lending
Fax No: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
By:
THE SECURITY TRUSTEE
CAPMARK BANK EUROPE P.L.C.
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attention: General Counsel
Fax No: ▇▇▇▇ (▇) ▇▇▇ ▇▇▇▇
with a copy to:
Address: Capmark UK Limited
Norfolk House
▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇
Attention: UK Lending
Fax No: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
By:
137