Exhibit 10.3
Dated 3 June 2008
Between
SOCIETE GENERALE
as Arranger, Facility Agent, Security Agent and Original Lender
WGN (GER) LLC
as Borrower
UP TO EUR 23,200,000
FACILITIES AGREEMENT
RELATING TO THE ACQUISITION OF PROPERTIES IN
NAGOLD AND WALDASCHAFF, GERMANY
CONTENTS
CLAUSE PAGE
- ------ ----
1. Definitions and Interpretation....................................... 1
2. The Facilities....................................................... 24
3. Purpose.............................................................. 24
4. Conditions of Utilisation............................................ 25
5. Utilisation.......................................................... 26
6. Parallel Debt........................................................ 28
7. Repayment............................................................ 29
8. Prepayment and Cancellation.......................................... 31
9. Interest............................................................. 36
10. Interest Periods..................................................... 37
11. Changes to the calculation of interest............................... 38
12. Fees................................................................. 40
13. Tax Gross Up and Indemnities......................................... 40
14. Increased Costs...................................................... 45
15. Other Indemnities.................................................... 46
16. Mitigation........................................................... 48
17. Costs and Expenses................................................... 49
18. Representations...................................................... 50
19. Information Undertakings............................................. 57
20. Tenant Covenant...................................................... 60
21. Control Accounts..................................................... 60
22. General Undertakings................................................. 66
23. Property Undertakings................................................ 76
24. Capex Undertakings................................................... 85
25. Events of Default.................................................... 86
26. Changes to Finance Parties........................................... 92
27. Changes to the Borrower.............................................. 96
28. Role of the Facility Agent, the Security Agent, the Arranger and the
Servicer........................................... 97
29. Conduct of business by the Finance Parties........................... 107
30. Sharing among the Finance Parties.................................... 107
31. Payment Mechanics.................................................... 109
32. Set-off.............................................................. 111
33. Notices.............................................................. 112
34. Confidentiality and Publicity........................................ 113
35. Calculations and Certificates........................................ 113
36. Partial invalidity................................................... 113
37. Remedies and Waivers................................................. 114
38. Amendments and Waivers............................................... 114
39. Counterparts......................................................... 115
40. Governing Law........................................................ 115
41. Enforcement.......................................................... 115
SCHEDULE 1 Original Lender...............................................
SCHEDULE 2 Conditions Precedent..........................................
SCHEDULE 3 Utilisation Request...........................................
SCHEDULE 4 Mandatory Cost Formula........................................
SCHEDULE 5 Timetable.....................................................
SCHEDULE 6 Annual Management Report......................................
SCHEDULE 7 Form of Transfer Certificate..................................
SCHEDULE 8 Form of Financial Covenants Compliance Certificate............
SCHEDULE 9 Reservations..................................................
SCHEDULE 10 Form of Fixed Rate Notice....................................
1
THIS AGREEMENT is dated 3 June 2008 and is made
BETWEEN:
(1) WGN (GER) LLC, a Delaware limited liability company formed in and validly
existing under the laws of Delaware, having its registered offices at c/o
Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington,
Delaware 19808 and its principal office at c/o W.P. Carey & Co. LLC, 50
Rockefeller Plaza, 2nd Floor, New York, New York 10020, U.S.A. (the
"BORROWER");
(2) SOCIETE GENERALE, a credit institution, incorporated in and validly
existing under the laws of France as a societe anonyme, registered with the
Registre du commerce et des societes of Paris under number 552 120 222,
having its registered office at 29, boulevard Haussmann, 75009 Paris,
France as the mandated arranger of this Facility (the "ARRANGER");
(3) SOCIETE GENERALE as facility agent for the Finance Parties (the "FACILITY
AGENT");
(4) SOCIETE GENERALE (ACTING THROUGH ITS FRANKFURT BRANCH HAVING ITS PLACE OF
BUSINESS NEUE MAINZER STRASSE 46-50, 60311 FRANKFURT, GERMANY) as security
agent for the Finance Parties (the "SECURITY AGENT"); and
(5) THE PERSON SET OUT IN SCHEDULE 1 (ORIGINAL LENDER) (the "ORIGINAL LENDER").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In each Finance Document (as defined below):
"ACCOUNT BANK" means any of Societe Generale (acting through its Frankfurt
branch), Bank of America or such other bank (acting through a German
branch) with a short term credit rating of at least A-1+ from Standard &
Poor's Rating Services, a division of The McGaw Hill Companies Inc., P1
(short term) and Aa3 (long-term) from Moody's Investors Service, Inc. and
F1+ (short term) from Fitch Ratings Ltd..
"ACCOUNT PLEDGE AGREEMENT" means each of the first ranking pledges
(Pfandrechte) over the Control Account between the Borrower as pledgor and
the Arranger, Facility Agent, Security Agent and Original Lender as
original pledgees.
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"ACQUISITION FACILITY AVAILABILITY PERIOD" means the period starting from
the opening of business in Frankfurt am Main, Germany, on the Signing Date
to close of business in Frankfurt am Main, Germany, on 30 June 2008.
"ACQUISITION COMMITMENT" means
(a) in relation to an Original Lender, the amount set opposite its name
under the heading "Acquisition Commitment" in Schedule 1 (Original
Lender) and the amount of any other Acquisition Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Acquisition
Commitment transferred to it under this Agreement,
to the extent not cancelled, increased, reduced or transferred by it under
this Agreement.
"ACQUISITION FACILITY" means the up to EUR 19,700,000 term loan facility
made available under this Agreement as described in Clause 2 (The
Facilities).
"ACQUISITION FIXED RATE" means, in respect of an Acquisition Loan the fixed
rate notified by the Facility Agent to the Borrower pursuant to the Fixed
Rate Notice from the date of this Agreement until (and including) the
Ultimate Final Repayment Date which rate shall be determined based on the
seven (7) year Euroswap excluding the Margin.
"ACQUISITION FIXED RATE NOTICE" means the letter dated on or about the date
of this Agreement in substantially the form as set out in Schedule 9 (Form
of Fixed Rate Notice) sent by the Facility Agent to the Borrower and
acknowledged by the Borrower in writing and by which the Facility Agent
notifies the Borrower of the fixed interest rate applicable to the
Acquisition Loan.
"ACQUISITION LOAN" means a loan made or to be made under the Acquisition
Facility or the principal amount outstanding for the time being of that
Loan.
"ACQUISITION PROCEEDS" means the proceeds of a claim of the Borrower
against any of the Sellers or any of its Affiliates (or any employee,
office or adviser) in relation to the Sale and Purchase Agreement, other
than where the Facility Agent is satisfied (acting in its reasonable
discretion) that the proceeds of that claim will be applied within six (6)
months of receipt in meeting or rectifying the liability, loss or defect in
respect of which they are recovered (including, without limitation,
reinstating, replacing or repairing the Properties).
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4 (Mandatory
Cost Formula).
"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.
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"ALL-IN-ACQUISITION COSTS" means the aggregate amount of the purchase price
due and payable under the Sale and Purchase Agreement plus the expected
costs and expenses arising under and in connection with the purchase of the
Properties which in aggregate is expected to approximately EUR 38,600,000
exclusive of VAT on Transaction Costs.
"ANNUAL MANAGEMENT REPORT" means an annual management report containing a
current rent roll and a confirmation of whether, in the opinion of the
Borrower, any Material Adverse Effect then exists, all substantially in the
form set out in Schedule 6 (Annual Management Report).
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABLE COMMITMENT" means a Lender's Commitment minus
(a) the amount of its participation in any outstanding Loans; and
(b) in relation to any proposed Utilisation, the amount of its
participation in any Loans that are due to be made on or before the
proposed Utilisation Date (other than the proposed Utilisation).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (including Mandatory Costs (if any) and the aggregate
amount of Margin in respect of the Acquisition Facility and the Capex
Facility) until the next Interest Payment Date immediately following
the date of receipt of such repayment which a Lender should have
received for the period from the date of receipt of all or any part of
its participation in the Loan or Unpaid Sum to the next Interest
Payment Date immediately following the date of receipt of such
repayment in respect of the Loans or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on such immediately following
Interest Payment Date
exceeds:
(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the European Interbank Market for a
period starting on the Business Day following receipt or recovery and
ending on the next Interest Payment Date immediately following the
date of receipt of such amount.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are open for general business in Frankfurt am Main, Germany, and Paris,
France.
"BUSINESS PLAN" means the business plan for the ownership, financing,
letting, management, refurbishment and sale of the Properties (including
annual budgets) prepared by the
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Borrower dated 29 May 2008 satisfactory to and approved in writing by the
Facility Agent and initialled for identification purposes by the Facility
Agent and the Borrower.
"CAPEX COMMITMENT" means
(a) in relation to an Original Lender, the amount set opposite its name
under the heading "Capex Commitment" in Schedule 1 (Original Lender)
and the amount of any other Capex Commitment transferred to it under
this Agreement; and
(b) in relation to any other Lender, the amount of any Capex Commitment
transferred to it under this Agreement,
to the extent not cancelled, increased, reduced or transferred by it in
accordance with this Agreement.
"CAPEX COSTS" means the expenditure of capital nature incurred or to be
incurred (as the context requires) by the Borrower in respect of the Nagold
Property as set out and defined in the Wagon Automotive Nagold Lease
Agreement related to the Nagold Property in an amount of up to EUR
7,000,000.
"CAPEX DOCUMENT" means each or any document or agreement made between the
Borrower and any other person in relation to Works together with any other
document designated as such by the Facility Agent under this Agreement.
"CAPEX FACILITY" means the up to EUR 3,500,000 term loan facility made
available under this Agreement as described in Clause 2 (The Facilities).
"CAPEX FACILITY AVAILABILITY PERIOD" means the period starting from the
opening of business in Frankfurt am Main, Germany, on the Signing Date
until the earlier of (i) the close of business in Frankfurt am Main,
Germany, on 30 June 2011 and (ii) the Works Completion Date.
"CAPEX FIXED RATE" means, in respect of a Capex Loan, the fixed rate
notified by the Facility Agent to the Borrower pursuant to the Fixed Rate
Notice from the earlier of (i) the close of business in Frankfurt am Main,
Germany, on 30 June 2011 and (ii) the Works Completion Date, until the
Ultimate Final Repayment Date, in each case excluding the Margin.
"CAPEX FIXED RATE NOTICE" means the letter in substantially the form as set
out in Schedule 9 (Form of Fixed Rate Notice) sent by the Facility Agent to
the Borrower and acknowledged by the Borrower in writing and by which the
Facility Agent notifies the Borrower of the fixed interest rate applicable
to the Capex Loan.
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"CAPEX INITIAL INTEREST PAYMENT DATE" means the earliest of 30 March, 30
June, 30 September and 30 December immediately following date of the first
Utilisation under the Capex Facility.
"CAPEX LOAN" means a loan made or to be made under the Capex Facility or
the principal amount outstanding for the time being of that Loan.
"COMMITMENT" means an Acquisition Commitment or a Capex Commitment.
"CONSTRUCTION CLAIM" means any claim, proceeding or investigation by any
person in respect of any Construction Law.
"CONSTRUCTION LAW" means any applicable law, which relates to the
construction of real estate.
"CONSTRUCTION PERMIT" means any Authorisation and the filing of any
notification, report or assessment required under any Construction Law for
the operation of the business of the Borrower conducted on or from the
Properties.
"CONTACT DETAIL LETTER" means the letter from the Facility Agent, dated on
or about the date of this Agreement, addressed to and acknowledged by the
Borrower setting out the details of the addresses of each party to a
Finance Document.
"CONTROL ACCOUNT" means the Proceeds Account and any account designated as
a Control Account as agreed between the Facility Agent and the Borrower.
"DEFAULT" means an Event of Default or a Potential Event of Default.
"DELEGATE" means any delegate, agent, attorney or co-Security Agent
appointed by the Security Agent.
"DISPOSAL" means the disposal of
(a) a Borrower's interest in the whole or part of any Property; or
(b) the disposal of any shares in the Borrower.
"DISPOSAL COSTS" means in relation to a Disposal, any direct third party
costs and expenses (including any amount which represents applicable VAT
and stamp duty land tax and/or stamp duty payable) reasonably and properly
incurred by the Borrower or a Shareholder in connection with that Disposal
approved in writing by the Facility Agent.
"DISPOSAL PROCEEDS" means all sums paid or payable or any other
consideration given or to be given in money or money's worth for the
disposal of the Borrower's interest in all or part of the Properties or any
of the Shareholders' disposal of its Shares held in the Borrower including
(without limitation or double counting):
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(a) all such sums and other consideration;
(b) all compensation and damages received for any use or disturbance
(enteignungsgleicher Eingriff) or compulsory purchase;
(c) the cash value of any apportionment of any Rental Income or other sum
given or made to any purchaser or other person upon such a disposal;
(d) the sum of any deposit paid upon exchange of contracts;
(e) in the case of disposal of Shares in the Borrower an amount equal to
any indebtedness owed by any Shareholder or its Subsidiaries required
to be repaid in connection with or as a direct or indirect result of
such disposal; and
(f) any amount in respect of or which represents VAT chargeable in respect
of any sum referred to in paragraphs (a) to (e) above.
"DUE DILIGENCE REPORTS" means the due diligence reports of Ernst & Young,
Paul Hastings LLP, Environ, Knight Frank and Colliers in relation to the
Properties prepared on behalf of the Borrower.
"EARLY MATURITY" means that an Early Maturity Event has occurred and an
Early Maturity Notice has been sent by the Lender to the Borrower.
"EARLY MATURITY EVENT" means any event or circumstance specified as such in
Clause 8.3 (Early Maturity Event) after the giving of notice and/or the
making of any determination under the Finance Documents.
"EARLY MATURITY NOTICE" means a notice which the Facility Agent is entitled
to send to the Borrower after occurrence of an Early Maturity Event
according to Clause 8.3 (Early Maturity Event).
"EARLY REPAYMENT DATE" means the 28 June 2013.
"EBITDA" means ebitda as defined in clause 14.10 of the Lease Agreements
and as published in the audited annual report of Wagon PLC.
"EBITDA MARGIN" means the ratio of EBITDA on revenue or net sales as
defined and published in the audited annual report of Wagon PLC.
"ENGLISH SECURITY ASSIGNMENT AGREEMENT" means the assignment of any rights
and claims arising out of and in connection with the Rental Guarantees
entered into between the Borrower and the Security Agent.
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any
person in respect of any Environmental Law.
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"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction which
relates to the pollution or protection of the environment or harm to or the
protection of human health or the health of animals or plants.
"ENVIRONMENTAL PERMIT" means any Authorisation and the filing of any
notification, report or assessment required under any Environmental Law for
the operation of the business of the Borrower conducted on or from the
Properties owned or used by the Borrower.
"ENVIRONMENTAL REPORTS" means a 8 May 2008 Phase I Environmental Review of
the Wagon Automotive Nagold GmbH facility located at Lise-Meitner-Strasse
10, Nagold, Germany prepared by ENVIRON, a January 2008 Phase I
Environmental Site Assessment Review of the Wagon Automotive GmbH site
located at Fabrikstrasse 6, 63857 Waldaschaff, Germany prepared by ENVIRON
and a May 2008 Draft Phase II Soil, Soil Gas and Groundwater Investigation
Report prepared by ENVIRON.
"EURIBOR" means, in relation to a Loan or Unpaid Sum on which interest for
a given period is to accrue:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the Interest Period of a Loan or
Unpaid Sum) the arithmetic mean of the rates (rounded upwards to four
(4) decimal places) as supplied to the Facility Agent at its request
quoted by the Reference Banks to leading banks in the European
Interbank Market;
as of the Specified Time on the Quotation Date for the offering of deposits
in euro for a period comparable to the Interest Period of that Loan or
Unpaid Sum.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 25 (Events of Default) after the expiry of applicable grace periods,
and/or the giving of notice.
"EXISTING FUNDS" means Corporate Property Associates 14 Incorporated,
Corporate Property Associates 15 Incorporated, Corporate Property
Associates 16 - Global Incorporated and Corporate Property Associates 17 -
Global Incorporated.
"EXTENSION FEE" means the amount of EUR 100,000 to be paid ten (10)
Business Days prior to the 30 March 2013.
"FACILITY" means the Acquisition Facility or the Capex Facility.
"FACILITY OFFICE" means the office or offices notified by a Lender to the
Facility Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five (5) Business Days' written
notice) as the office or offices through which it shall perform its
obligations under this Agreement.
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"FEE LETTER" means any letter or letters between the Arranger, the Facility
Agent, the Security Agent and the Borrower setting out any of the fees
referred to in Clause 12(Fees).
"FINAL REPAYMENT DATE" means
(a) in case of Early Maturity, the Early Repayment Date; or
(b) the Ultimate Final Repayment Date.
"FINANCE DOCUMENT" means each of:
(a) this Agreement;
(b) the Security Documents;
(c) the Mandate Letter;
(d) the Contact Detail Letter;
(e) each Transfer Certificate;
(f) each Fee Letter;
(g) each Utilisation Request; and
(h) any document designated as such by the Facility Agent and the
Borrower.
"FINANCE PARTY" means each of the Facility Agent, the Arranger, the
Security Agent and the Lenders.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit facility
or dematerialised equivalent;
(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 generally accepted accounting
principles applicable to the Borrower, 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);
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(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 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) 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
(i) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (h) above.
"FIXED RATE BREAKAGE AMOUNT" means any cost incurred by or any amount
received by a Lender in respect of any arrangements entered into by such
Lender with any counterparty (which may be a separate or internal entity or
division of the Lender) for the purpose of fixing or enabling a Lender to
fix the rate of interest payable on a Loan occurring as a result of the
Borrower paying any sum due under a Loan or any part of it (or any other
Secured Obligations) on any date other than its scheduled date for payment.
Such Fixed Rate Breakage Amount shall equal the sum of the termination
value, determined as of such date of early repayment, of a
floating-to-fixed rate swap agreement between a fixed rate payer and a
floating rate payer, such swap agreement to have:
(a) a notional amount of the amount of Loan pre-paid,
(b) a start date being,
(i) in case of an Acquisition Loan, the Initial Utilisation Date and
an end date being the Ultimate Final Repayment Date; and
(ii) in case of a Capex Loan, the date on which the Capex Fixed Rate
is determined and an end date being the Ultimate Final Repayment
Date;
(c) a floating rate component equal to the three (3) month Euribor;
(d) a fixed rate component equal to the applicable Fixed Rate, and
(e) payment dates on the same dates as Interest Payment Dates.
This value shall be determined by the Facility Agent in accordance with
normal market practice.
"FIXED RATE" means either the Acquisition Fixed Rate or the Capex Fixed
Rate.
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"FULL OCCUPANCY" means that at least 90 % of the lettable space of the
Properties are leased to the Tenants, any Affiliates of Wagon PLC or any
tenants satisfactory to the Facility Agent.
"GERMANY" means the Federal Republic of Germany.
"GLOBAL ASSIGNMENT AGREEMENT" means the security assignment
(Sicherungsabtretung) between the Borrower as assignor and the Security
Agent as assignee of all of its present and future rights, including,
without limitation, under or in connection with the Sale and Purchase
Agreement, any future sale and purchase agreement, inter-company
receivables, each Lease relating to the Properties, claims under or in
connection with any Insurances (excluding third party liability insurances
(Haftpflichtversicherungen)) and any report delivered to the Borrower under
and in connection with the Properties.
"HOLDING COMPANY" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
"INITIAL INTEREST PAYMENT DATE" means the earliest of 30 March, 30 June, 30
September and 30 December immediately following the Initial Utilisation
Date under the Facilities.
"INITIAL UTILISATION" means the first Utilisation under this Agreement
which is to utilise the Acquisition Facility.
"INITIAL UTILISATION DATE" means the date on which the initial Utilisation
is made.
"INITIAL VALUATION" means the full Market Valuation by Knight Frank dated 8
May 2008 in respect of the Nagold Property and dated 15 April 2008 in
respect of the Waldaschaff Property and addressed to the Finance Parties
(or, if not addressed to the Finance Parties, including satisfactory
reliance language for the benefit of the Finance Parties, or accompanied by
a respective reliance letter) evidencing a valuation in respect of the
Properties, confirming a Market Value of not less than EUR 34,560,000 and a
vacant possession value of EUR 22,090,000.
"INSURANCE POLICY" means any policy of insurance or assurance in which the
Borrower may at any time have an interest entered into in accordance with
Clause 23.6(Insurance).
"INSURANCE PROCEEDS" means the proceeds of a claim of the Borrower (after
deducting costs and expenses in relation thereto) under any Insurance
Policy (other than loss of rent insurance) other than where the Facility
Agent is satisfied (acting in its reasonable discretion) that the proceeds
of that claim will be applied within six (6) months in accordance with the
Lease Agreements of receipt in replacement, restoration or reinstatement of
the Properties.
"INTEREST PAYMENT DATE" means:
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(a) in relation to any Loan, the Initial Interest Payment Date and
thereafter the earliest applicable of 30 March, 30 June, 30 September
and 30 December in each year (or, if not a Business Day, the next
Business Day in the same month (if there is one) or the immediately
preceding Business Day (if there is not)); and
(b) in relation to any Unpaid Sum, the last day of an Interest Period
relevant to that Unpaid Sum.
"INTEREST PERIOD" means in relation to a Loan, each period determined in
accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 9.3 (Default
Interest).
"JUNIOR CREDITOR" means a person who is or becomes a junior creditor under
(and as defined in) a Subordination Agreement.
"LAND CHARGE" means in relation to the Properties,
(a) the aggregate certificated land charge (Gesamtbriefgrundschuld) plus
an ancillary charge (Nebenleistung) of 10 per cent and interest of 16
per cent. p.a. from the day of the grant of the consent for
registration in the land register) dated on or about 3 June 2008,
notarial deed of the notary Dr. Peter Schmitz, Koln, deed no.
___________/2008, granted by the Sellers for the benefit of the
Security Agent for the full amount of the Facilities being EUR
23.200,000; including
(b) the submission to immediate enforcement (Unterwerfung unter die
sofortige Zwangsvollstreckung) pursuant to Sections 794 para. 1 no. 5,
800 of the German Code of Civil Procedure (Zivilprozessordnung) in an
amount equal to 100 per cent. of the relevant amount as defined in
subparagraph (a) above; and
(c) also including an acknowledgement of an abstract debt (abstraktes
Schuldversprechen) in the same amount and submission to immediate
enforcement with respect to the whole of the Borrwer's assets
(Unterwerfung unter die sofortige Zwangsvollstreckung in das gesamte
Vermogen) by the Borrower.
"LANDLORD" means the Borrower.
"LEASE" means any present or future lease, underlease, sub-lease, licence,
tenancy or right to occupy all or any part of the Properties and any
agreement for the grant of any of the foregoing.
"LEASE AGREEMENTS" means
(a) the Wagon Automotive Lease Agreement; and
(b) the Wagon Automotive Nagold Lease Agreement; and
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"LEASE AGREEMENT" means any of them.
"LEASE OBLIGATIONS COVENANT" means a breach by any of the Tenants of any
obligation under any Lease as set out in clause 15.1 of the respective
Lease Agreement, after the expiration of the applicable notice and / or
cure period provided under such clause 15.1 of the respective Lease
Agreement excluding any amendments, waiver or other cure rights granted
without the prior written consent of the Facility Agent.
"LENDER" means:
(a) any Original Lender; and
(b) any person which has become a Party as a Lender in accordance with
Clause 26 (Changes to Finance Parties).
which, in each case, has not ceased to be a Party in accordance with the
terms of this Agreement.
"LOAN" means any loan made or to be made under any Facility or the
principal amount outstanding for the time being of any loan.
"LOAN TO VALUE RATIO" means the loan to value ratio determined in
accordance with Clause 22.3 (Loan to value) and as set out in each
certificate to be provided by the Borrower pursuant to Clause 19.2
(Requirements as to financial statements).
"MAJORITY LENDERS" means:
(a) if there is no Loan then outstanding, a Lender or Lenders whose
Commitments aggregate more than 66 2/3% of the Total Commitments (or,
if the Total Commitments have been reduced to zero, aggregated more
than 66 2/3% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loan then outstanding aggregate more than 66 2/3% of the Loan then
outstanding.
"MANDATE LETTER" means the mandate letter attached to the term sheet dated
29 April 2008, entered into between Societe Generale and the Borrower in
respect of the terms applicable to the financing of the Properties.
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with Schedule 4 (Mandatory Cost Formula).
"MARGIN" means 160 b.p. per annum.
"MARKET VALUATION" means any valuation in form and substance satisfactory
to the Facility Agent, prepared by and issued by the Valuer in accordance
with RICS principles and
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addressed to the Finance Parties (or, if not addressed to the Finance
Parties, including satisfactory reliance language for the benefit of the
Finance Parties, or accompanied by a respective reliance letter), valuing
the Properties (for the avoidance of doubt, the valuation must be carried
out on a discounted cash flow basis and net of any Transaction Costs and
taxes) and includes a market value and vacant possession value. All Market
Valuation shall be desktop valuations except for the Market Valuation which
shall be engaged by the Borrower pursuant to Clause 23.5 (c) (Market
Valuations) on 30 March 2013 and which is a full Market Valuation.
"MARKET VALUE" means the market value (net of transaction taxes) of the
Properties, as determined in a Market Valuation.
"MATERIAL ADVERSE EFFECT" means any present or future event or
circumstances which could, in the opinion of the Facility Agent (acting on
behalf of the Majority Lenders) acting in accordance with the principles of
a prudent merchant (Sorgfalt eines ordentlichen Kaufmanns):
(a) impair the ability of the Borrower (in respect of the Finance
Documents) or any of the Shareholders (in respect of the Pledge
Agreement and the Subordination Agreement) to perform and comply with
its obligations under the Finance Documents;
(b) have a material adverse effect on the business, operations or
financial condition of the Borrower or any of the Shareholders; or
(c) have a material adverse effect on the validity or enforceability of
the Finance Documents or the rights or remedies of the Finance Parties
under the Finance Documents.
"MATERIAL LEASE DEFAULT" means an Event of Default under clauses 15.1.1,
15.1.2, 15.1.3, 15.1.4, 15.1.5 or 15.1.7 of the Wagon Automotive Nagold
Lease Agreement and clause 15.1 of the Wagon Automotive Lease Agreement.
"MONTH" means a period starting on one (1) day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (b) below) 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;
(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; and
14
(c) if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in the
calendar month in which that Interest Period is to end.
The above rules shall only apply to the last Month of any period.
"NAGOLD PROPERTY" means the property registered in the land register of
Nagold at the local court (Amtsgericht) of Stuttgart, as follows: folio
(Blatt) 8802, plots (Flure) 2000/12, 2000/13, 2000/14, 2000/15, 2000/16,
2000/17, 2000/18, 2006/6, 1811/27, 1811/28, 1811/12 and 2000/78.
"NET DEBT" means net debt as defined in clause 14.10 of the Lease
Agreements and as published in the audited annual report of Wagon PLC.
"NET DISPOSAL PROCEEDS" means, upon the disposal of any interest in any of
the Properties or all Shares in the Borrower, the Disposal Proceeds derived
by the Borrower or any of the Shareholders, as the case may be, by such
disposal after deducting any reasonable direct Transaction Costs and
transaction expenses incurred by the Borrower or the respective
Shareholder, as the case may be, (including any VAT thereon) in connection
with such disposal.
"NET RENTAL INCOME" means Rental Income in respect of the Properties after
deducting (without double counting) all Service Charge Expenses and any sum
representing any VAT chargeable in respect of Rental Income.
"ORIGINAL FINANCIAL STATEMENTS" means
(a) in relation to the Borrower, its pro forma opening balance sheet
(Eroffnungsbilanzen) showing the anticipated balance sheet of the
Borrower as of the Initial Utilisation Date; and
(b) in relation to each Shareholder.
"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.
"PARTY" means a party to this Agreement or to any other Finance Document.
"PERMITTED DISPOSAL" has the meaning given to such term in Clause
22.5(b)(ii) (Disposals).
"PLANNING CLAIM" means any claim, proceeding or investigation by any person
in respect of any Planning Law.
15
"PLANNING LAW" means any applicable law in any jurisdiction which regulates
or relates to planning, zoning, the authorisation of development or works
or the use to which land or premises are put.
"PLANNING PERMIT" means any Authorisation and the filing of any
notification, report or assessment required under any Planning Law for the
operation of the business of the Borrower conducted on or from the property
owned or used by the Borrower.
"PLEDGE AGREEMENT" means the first ranking pledge over the membership
interests in the Borrower between the Shareholders as pledgors and the
Security Agent, as original pledgee.
"POTENTIAL EVENT OF DEFAULT" means any event or circumstance specified in
Clause 25 (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.
"PREPAYMENT FEE" means a fee due and payable in case of voluntary repayment
or prepayment as set out in a Fee Letter.
"PROCEEDS ACCOUNT" means the account maintained by the Borrower in
accordance with Clause 21.1 (Designation of Control Account) and includes
its interest in any replacement account or sub-division or sub-account of
that account.
"PROPERTIES" means the
(a) Nagold Property; or
(b) Waldaschaff Property.
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined, two (2) TARGET Days before the first day of that
period unless market practice differs in the European Interbank Market in
which case the Quotation Date shall be determined by the Facility Agent in
accordance with market practice in the European Interbank Market (and if
quotations would normally be given by leading banks in the European
Interbank Market on more than one (1) day, the Quotation Date shall be the
last of those days).
"REFERENCE BANKS" means in relation to EURIBOR, Societe Generale or
Deutsche Bank AG Frankfurt am Main, or such other banks as may be appointed
by the Facility Agent in consultation with the Borrower.
"RENTAL GUARANTEES" means
16
(a) the guarantee, dated on or about 3 June 2008, issued by Wagon PLC for
the benefit of the Borrower in respect of the lease obligations of
Wagon Automotive GmbH under the Wagon Automotive Lease Agreement; and
(b) the guarantee, dated on or about 3 June 2008, issued by Wagon PLC for
the benefit of the Borrower in respect of the lease obligations of
Wagon Automotive Nagold GmbH under the Wagon Automotive Nagold Lease
Agreement; and
"RENTAL GUARANTEE" means any of them.
"RENTAL INCOME" means all sums paid or payable to or for the benefit of the
Borrower arising from the letting, use or occupation of all or any part of
the Properties, including, without limitation and without double counting:
(a) rents, licence fees and equivalent sums reserved or made payable;
(b) sums received from any deposit held as security for performance of any
tenant's obligations (i.e., the proceeds of any security deposits to
which the Borrower is entitled, but excluding any security deposits
under any leases);
(c) proceeds of insurance in respect of loss of rent or interest on rent;
(d) proceeds resulting from or received in connection with any sub-lease
of any of the Properties;
(d) receipts from or the value of consideration given for the grant,
surrender or variation of any Lease;
(e) proceeds paid for a breach of covenant or dilapidations under any
Lease and for expenses incurred in relation to any such breach;
(f) any payment from a guarantor or other surety in respect of any of the
items listed in this definition, in particular in respect of any of
the Rental Guarantees;
(g) interest, damages or compensation in respect of any of the items in
the definition; and
(h) any amount which represents VAT chargeable in respect of any such sum
and any VAT Recoveries.
"REPAYMENT DATE" means each of the dates as specified in Clause 7.1
(Repayment of Loans) including the Final Repayment Date or, as the case may
be, the Ultimate Final Repayment Date (or, if any of the dates specified in
Clause 7.1 (Repayment of Loans) is not a Business Day, the next Business
Day in the same month (if there is one) or the immediately preceding
Business Day (if there is not)).
17
"REPEATED REPRESENTATIONS" means each of the Representations referred to in
Clause 18.26 (Repetition).
"REPORT ON TITLE" means the legal due diligence reports prepared by Reed
Smith LLP in relation to the Properties dated on or about 3 June 2008.
"RESERVATIONS" means the reservations set out in Schedule 9 (Reservations).
"SALE AND PURCHASE AGREEMENT" means the agreement between Wagon Automotive
GmbH, Wagon Automotive Nagold GmbH and the Borrower, dated on or about 3
June 2008, notarial deed of the notary Dr. Peter Schmitz, Koln], deed no.
608/2008.
"SCREEN RATE" means the percentage rate per annum determined by the Banking
Federation of the European Union for the relevant period, displayed on the
appropriate page of the Reuters screen. If the agreed page is replaced or
service ceases to be available, the Facility Agent may specify another page
or service displaying the appropriate rate after consultation with the
Borrower.
"SECURED OBLIGATIONS" means all present and future obligations and
liabilities (whether actual or contingent, whether owed jointly, severally
or in any other capacity whatsoever and whether originally incurred by the
Borrower, any of the Shareholders or by any Junior Creditor) of the
Borrower and the Shareholders to the Finance Parties (or any of them) under
or in connection with each of the Finance Documents (including, for
clarification purposes, any claims arising from the insolvency
administrator's discretion to perform obligations in agreements according
to Section 103 German Insolvency Act (Insolvenzordnung) and the parallel
obligations pursuant to Clause 6 (Parallel Debt) of this Agreement) as
amended, increased, extended, varied, novated or changed in any other way
in accordance with the Finance Documents. The Secured Obligations shall
include any obligation based on unjust enrichment (ungerechtfertigte
Bereicherung) or tort (Delikt).
"SECURITISATION" means any securitisation or transaction of broadly
equivalent economic effect relating to, or using as a reference, the whole
or part of the Loans (whether alone or in conjunction with other loans)
through the issue of notes on the capital markets.
"SECURITY" means a mortgage, charge, pledge, lien, assignment, any transfer
by way of security or other security interest securing any obligation of
any person or any other agreement or arrangement having a similar effect.
"SECURITY DOCUMENTS" means each of the:
(a) Land Charge;
(b) Security Purpose Agreement;
(c) Global Assignment Agreement;
18
(d) English Security Assignment Agreement;
(e) Account Pledge Agreement;
(f) Pledge Agreement;
(g) Subordination Agreement; and
(h) any document designated as such in writing by the Facility Agent and
the Borrower.
"SECURITY PURPOSE AGREEMENT" means the security purpose declaration
(Sicherungszweckerklarung) of the Borrower made in relation to the Land
Charge.
"SELLERS" means
(a) Wagon Automotive GmbH; and
(b) Wagon Automotive Nagold GmbH; and
"SELLER" means any of them.
"SERVICE CHARGE EXPENSES" (umlagefahige Betriebskosten) means any expense
or liability incurred by a tenant under a Lease by way of direct payments
to the Landlord by a tenant for insurance premium, the cost of insurance
valuation, any service or administration charge or any other operating
expenses (Betriebskosten) (including the expenses defined in section 2 of
the German Regulation on the Specification of Operating Expenses
(Verordnung uber die Aufstellung von Betriebskosten)) and any amendment to
or replacement thereof including VAT payable on such amounts.
"SERVICER" means Societe Generale (and/or any of its wholly owned
subsidiaries) or any well reputed servicing institution to whom Societe
Generale could transfer the servicing of the Facility.
"SHARE" means any stock, share debenture, membership interest or other
security.
"SHAREHOLDERS" means
(a) WGN 15 Member (GER) QRS 15-99 Inc., incorporated under the laws of
Delaware, U.S.A., c/o Corporation Service Company, 2711 Centerville
Road, Suit 400, Wilmington, Delaware 19808 and its principal office at
c/o W.P. Carey & Co. LLC, 50 Rockefeller Plaza, 2nd Floor, New York,
New York 10020, U.S.A.; and
(b) Conduit B.V., incorporated under the laws of the Netherlands, having
its registered office at c/o Claude Debussylaan 24, 1082 MD Amsterdam,
The Netherlands, registered with the Trade Register of the Dutch
Chamber of Commerce for
19
Amsterdam under the number 34282733 and having a share capital of EUR
90,000,000.
"SIGNING DATE" means the date of the signing of this Agreement by all
parties to it.
"SPECIFIED TIME means a time determined in accordance with Schedule 5
(Timetable).
"SUBORDINATION AGREEMENT" means any subordination agreement entered or to
be entered into between, the Borrower as debtor, the Shareholders as
original junior creditors (if applicable), others (if any) as Junior
Creditor and the Security Agent.
"SUBSIDIARY" means a subsidiary within the meaning of sections 15 of the
German Stock Corporation Act (Aktiengesetz).
"TARGET" means Trans-European Automated Realtime Gross Settlement Express
Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in euro.
"TAX" means any present and future 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 AUTHORITY" means any government, state or municipality or any local,
state, federal or other authority, body or official anywhere in the world
exercising a fiscal, revenue, customs or excise function.
"TENANT COVENANT" means the undertaking of the Borrower pursuant to Clause
20 (Tenant Covenant).
"TENANTS" means
(a) Wagon Automotive GmbH; and
(b) Wagon Automotive Nagold GmbH; and
"TENANT" means any of them.
"TOTAL COMMITMENTS" means the aggregate of the Commitments being EUR
23,200,000 at the Signing Date.
"TRANSACTION COSTS" means any costs of the Borrower directly incurred in
connection with the acquisition of the Properties, including legal fees,
notarial costs and registration fees, not to exceed an aggregate amount of
approximately EUR 4,000,000.
20
"TRANSACTION DOCUMENT" means each of
(a) the Finance Documents;
(b) each Lease Agreement;
(c) each Rental Guarantee;
(d) each Sale and Purchase Agreement;
(e) the partnership agreement of the Borrower; and
(f) any other document designated as such by the facility Agent and the
Borrower.
"TRANSACTION SECURITY" means the Security created or expressed to be
created in favour of the Security Agent or the Finance Parties pursuant to
the Security Documents.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 7 (Form of Transfer Certificate) or any other form
satisfactory to the Facility Agent.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer date specified in a Transfer Certificate; and
(b) the date on which the Facility Agent executes the Transfer
Certificate.
"ULTIMATE FINAL REPAYMENT DATE" means the date of the seventh anniversary
of the Initial Utilisation Date.
"UNPAID SUM" means any sum due and payable but unpaid by the Borrower or
any Shareholder under the Finance Documents.
"UTILISATION" means an utilisation of a Facility.
"UTILISATION DATE" means the date of the 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 Knight Frank or any other reputable independent firm of
chartered surveyors of international standing appointed by the Facility
Agent or by the Borrower with the consent of the Facility Agent (such
consent not to be unreasonably withheld or delayed) to make a Market
Valuation.
21
"VAT" means value added tax as provided for in the German Value Added Tax
Act (Umsatzsteuergesetz), or any tax of a similar nature whether charged in
Germany or elsewhere.
"VAT RECOVERIES" means all sums (including, for the avoidance of doubt, any
sums or part of sums which represents interest, repayment, supplement or
compensation ) received from the relevant Tax Authority by or on behalf of
the Borrower in respect of VAT incurred or deemed to be incurred by the
Borrower in connection with the Properties.
"WAGON AUTOMOTIVE GMBH" means the limited liability company (Gesellschaft
mit beschrankter Haftung), incorporated in and validly existing under the
laws of the Germany, having its registered office at Fabrikstrasse 6, 63857
Waldaschaff, Germany, registered in the register Aschaffenburg under number
HRB 7374.
"WAGON AUTOMOTIVE LEASE AGREEMENT" means the lease agreement in respect of
the Properties, dated on or about 3 June 2008, entered into between Wagon
Automotive GmbH and the Borrower.
"WAGON AUTOMOTIVE NAGOLD GMBH" means the limited liability company
(Gesellschaft mit beschrankter Haftung), incorporated in and validly
existing under the laws of the Germany, having its registered office at
Lise-Meitner-Strasse 10, 72202 Nagold, Germany, registered in the register
Stuttgart under number HRB 34010.
"WAGON AUTOMOTIVE NAGOLD LEASE AGREEMENT" means the lease agreement in
respect of the Properties, dated on or about 3 June 2008, entered into
between Wagon Automotive Nagold GmbH and the Borrower.
"WAGON PLC" means Wagon plc, a public limited liability company
incorporated under the laws of England, having its registered office at
3500 Parkside, Birmingham Business Park, Birmingham B37 7YG, United
Kingdom, registered under the number 150042.
"WALDASCHAFF PROPERTY" means the property registered in the land register
of Waldaschaff at the local court (Amtsgericht) of Aschaffenburg, as
follows: folio (Blatt) 7957, plots (Flure) 2026, 2067, 2068, 2069, 2070,
2071, 2072, 2073, 2074, 2075, 2076, 2077, 2078, 2079, 2080, 2093, 2100,
2101, 2102, 2103, 2104, 2105, 2106, 2107, 2107, 15, 1700/55, 6392 and
2087/1.
"WORKS" means all or any works carried out or to be carried out by the
Borrower or Wagon PLC in relation to Capex Costs in accordance with any of
the Wagon Automotive Nagold Lease Agreement until the Works Completion
Date.
"WORKS COMPLETION DATE" means the Interest Payment Date immediately
following the date on which the Facility Agent receives a notice sent by
the Borrower pursuant to Clause 8.4 (Voluntary Cancellation) by which the
Borrower informs the Facility Agent that
22
it cancels any or all of the Capex Commitment and on which the Capex Fixed
Rate is determined.
"W.P. CAREY GROUP" means
(a) W.P. Carey & Co. LLC; or
(b) the Existing Funds; or
(c) any real estate investment fund comparable to the Existing Funds and
advised in a similar manner by W.P. Carey & Co. LLC or any of its
Subsidiaries; or
(d) any entity which is collectively 100 per cent. directly or indirectly
owned by one or more of W.P Carey & Co. LLC, the Existing Funds and /
or any real estate investment fund described in lit. (c) above.
1.2 CONSTRUCTION
(a) Unless a contrary indication appears, any reference in a Finance
Document to:
(i) "ASSETS" includes present and future properties, revenues and
rights of every description;
(ii) a "DISPOSAL" includes any transfer, assignment, sale, lease
(except for Leases), assignment, sale, participation
(Unterbeteiligung / Stille Beteiligung) or other transfer of
economic ownership (wirtschaftliches Eigentum), compulsory
acquisition, compulsory sale or other disposal, or the grant or
creation of any interest derived out, of any asset;
(iii) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated, supplemented, extended,
replaced or restated;
(iv) any "PARTY" shall be construed so as to include its successors in
title, permitted assigns and permitted transferees and, in case
of the Security Agent, any person for the time being appointed as
Security Agent in accordance with this Agreement;
(v) "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;
(vi) "LAND REGISTRY" means in respect of any property, the official
competent German land registry (Grundbuchamt) for the
registration of rights and encumbrances in the relevant land
register (Grundbuch) or any other official
23
registry in a jurisdiction other than Germany exercising a
similar registration function in respect of that real property;
(vii) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust,
partnership, consortium, joint venture or any other
unincorporated association or body or other entity (whether or
not having separate legal personality) or two or more of the
foregoing;
(viii) a "REGULATION" includes any regulation, rule, treaty, 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;
(ix) a provision of law is a reference to that provision as amended or
re-enacted; and
(x) a time of day is a reference to Frankfurt am Main, Germany, time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) 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.
(d) 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.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"EUR", "E" and "EURO" means the single currency unit of the
Participating Member States.
1.4 LANGUAGE
This Agreement is made in the English language. For the avoidance of doubt,
the English language version of this Agreement shall prevail over any
translation of this Agreement. However, where a German translation of a
word or phrase appears in the text of this Agreement, the German
translation of such word or phrase shall prevail.
1.5 DETERMINATION OF DEFAULT
(a) The Facility Agent shall make a determination as to whether or not a
Default is continuing for the purposes of any Finance Document as soon
as reasonably practicable after being requested by the Borrower to
make such a determination.
24
(b) In determining whether a Default is continuing, the Facility Agent may
request and rely on a certificate issued by the Borrower as
determinative, in the absence of express knowledge to the contrary, of
the absence of any Default.
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement the Lenders agree to make available
to the Borrower
(a) a euro term loan facility in an aggregate amount equal to the
Acquisition Commitment; and
(b) a euro term loan facility in an aggregate amount equal to the Capex
Commitment.
2.2 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance Documents are
several (keine Gesamtschuld). 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.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent (keine
Gesamtglaubigerschaft) rights and any debt arising under the Finance
Documents to a Finance Party from the Borrower shall be a separate and
independent debt.
(c) A Finance Party may not, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance Documents.
3. PURPOSE
3.1 PURPOSE
The Borrower shall apply all amounts borrowed by it under
(a) the Acquisition Facility in or towards
(i) the partial payment of the aggregate purchase price in relation
to the Properties due and payable under the Sale and Purchase
Agreement; and /or
(ii) the payment of fees and other costs payable pursuant to the
Finance Documents;
and
25
(b) the Capex Facility in or towards the financing of 51 per cent. of the
Capex Costs.
and not otherwise.
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
The obligations of each Finance Party to the Borrower under the Finance
Documents, are subject (aufschiebend bedingt) to the Facility Agent having
received all of the applicable documents and other evidence listed
(a) in relation to the Initial Utilisation related to a Loan under the
Acquistion Facility and the Capex Facility in Part I and Part II of
Schedule 2 (Conditions precedent); and
(b) in relation to any subsequent Utilisation related to a Loan under the
Acquisition Facility and the Capex Facility, in Part II and Part III
of Schedule 2 (Conditions precedent);
in each case in form and substance satisfactory to the Facility Agent
unless waived by the Facility Agent on such terms as the Lenders consider
fit. The Facility Agent shall notify the Borrower and the Lenders upon
being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders shall only be obliged to comply with Clause 5.5 (Lenders'
participation) if on the date of each Utilisation Request and on each
Utilisation Date:
(a) no Default is continuing or would result from the proposed Loan with
respect to the Acquisition Facility and no Material Lease Default is
continuing or would result from the proposed or existing Loan with
respect to the Capex Facility;
(b) the Facility Agent has been satisfied pursuant to Clause 4.1
(Conditions precedent); and
(c) the Repeated Representations to be made by the Borrower are true in
all material respects.
26
4.3 MAXIMUM NUMBER OF UTILISATIONS
(a) Not more than one (1) Utilisation may be made by the Borrower under
the Acquisition Facility.
(b) Not more than fourteen (14) Utilisations may be made by the Borrower
under the Capex Facility.
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Borrower may utilise each of the Facilities by delivery to the Facility
Agent of a duly completed Utilisation Request not later than the Specified
Time.
5.2 COMPLETION OF A UTILISATION REQUEST UNDER THE ACQUISITION FACILITY
The Utilisation Request under the Acquisition Facility is irrevocable and
shall not be regarded as having been duly completed unless:
(a) the proposed Utilisation Date is a Business Day within the Acquisition
Facility Availability Period; and
(b) the currency and amount of the Utilisation comply with Clause 5.4
(Currency and amount).
5.3 COMPLETION OF A UTILISATION REQUEST UNDER THE CAPEX FACILITY
Each Utilisation Request under the Capex Facility is irrevocable and shall
not be regarded as having been duly completed unless:
(a) the proposed Utilisation Date is a Business Day within the Capex
Facility Availability Period and is the last Business Day of that
respective calendar month;
(b) the Initial Utilisation under the Acquisition Facility has been made;
(c) the currency and amount of the Utilisation comply with Clause 5.4
(Currency and amount);
(d) no other Utilisation Request has been made and/or submitted in the
current calendar month; and
(e) it specifies the Works to be undertaken; and
(f) it specifies or provides an estimate of, in each case to the
reasonable satisfaction of the Facility Agent the amount of the costs
to be paid (excluding VAT).
27
The Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation the aggregate Capex Loans outstanding would exceed EUR
3,500,000.
5.4 CURRENCY AND AMOUNT
(a) The currency specified in each Utilisation Request must be euro.
(b) The amount of the proposed Loan under the Acquisition Facility must be
an amount which is not more than the lowest of:
(i) EUR 19,700,000;
(ii) 57 per cent of the Market Value placed on the Borrower's
interests in the Properties by the Initial Valuation; and
(iii) 51 per cent of the aggregate All-In-Acquisition Costs incurred
and payable by the Borrower in relation to the Properties by the
date of the proposed Utilisation.
(c) The amount of the aggregated Capex Loan must be of an amount which is
not more than EUR 3,500,000.
(d) Each Utilisation Request under the Capex Facility must be of an amount
which is not more than 51 per cent of the applicable Capex Costs and
which is a minimum amount of EUR 250,000.
5.5 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Loan available by the Utilisation
Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan shall be equal
to the proportion borne by its Available Commitment to the Total
Commitments immediately prior to making the Loan.
(c) The Facility Agent shall notify each Lender of amount of each Loan and
the amount of its participation in that Loan by the Specified Time.
(d) On or prior to 10.00 a.m. on the Utilisation Date, the Borrower shall
unconditionally pay, or cause to be paid, in immediately available
funds into an escrow account held by Reed Smith LLP with an
account-holding bank in Munich, Germany, the aggregate amount in euro
equal to the aggregate outstanding purchase price for the Properties
under the Sale and Purchase Agreement together with any amount
representing VAT chargeable in respect thereof which is payable in
respect of the
28
Properties in addition to the purchase price after taking into account
the retentions specified in the Utilisation Request less the amount of
the Acquisition Loan.
(e) On or prior to 10.00 a.m. on each Utilisation Date in relation to the
Capex Facility, the Borrower shall unconditionally pay, or cause to be
paid, in immediately available funds into an escrow account held by
Reed Smith LLP with an account-holding bank in Munich, Germany the
amount in euro required to, together with the proceeds from the Loan
requested under the relevant Utilisation Request, cover the expenses
required for the Works accomplished or to be accomplished under the
Capex Plan as evidenced by invoices presented.
(f) On the Utilisation Date of a Capex Loan related to the Capex Facility,
the proceeds of that Loan shall be paid into one or more accounts
designated by the Borrower.
(g) On the Utilisation Date, the Facility Agent shall, subject to
paragraphs (a), (b) and (c) above, pay the proceeds of the Loan
related to the Acquisition Facility (less any retentions) directly to
the Sellers or the notary as full and final payment of the outstanding
purchase price for the Properties.
6. PARALLEL DEBT
(a) Notwithstanding any other provision in any Finance Document to the
contrary, the Borrower hereby undertakes, by way of an abstract
acknowledgement of debt (abstraktes Schuldanerkenntnis) and as an
independent payment obligation, to pay to the Security Agent, as
creditor in its own right and not as representative of the other
Finance Parties, sums equal to and in the currency of all its
obligations to the Finance Parties under or in connection with the
Finance Documents from time to time (the "PARALLEL DEBT") as and when
any of such amount falls due for payment under the relevant Finance
Document PROVIDED THAT this shall not, at any time, result in the
Borrower incurring an aggregate obligation to the Finance Parties
which is greater than its obligations (excluding the obligations under
the Parallel Debt to the Finance Parties under the Finance Documents.
(b) The Security Agent shall have an independent right to demand payment
of the Parallel Debt.
(c) Any amount due and payable by the Borrower to the Security Agent under
the Parallel Debt shall be decreased to the extent that the Finance
Parties have received (and are able to retain) a payment in full of
the corresponding amount owed under the other provisions of the
Finance Documents and any amount due and payable by the Borrower to
the Finance Parties under those provisions shall be decreased to the
extent that the Security Agent has received (and is able to retain)
payment in full of the corresponding amount under the Parallel Debt.
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(d) The rights of the Finance Parties to receive payment of amounts
payable by the Borrower under the Finance Documents are several and
are separate and independent from, and without prejudice to, the
rights of the Security Agent to receive payment under the Parallel
Debt.
(e) Notwithstanding the foregoing, any payment under the Finance Documents
shall be made to the relevant Finance Party as set out in the
respective Finance Document, unless expressly stated otherwise in that
Finance Document (save for this Clause 6 (Parallel Debt)) or unless
the relevant Finance Party directs such payment to be made to the
Security Agent.
(f) Subject to paragraph (c) above, nothing in this Clause 6 (Parallel
Debt) shall in any way negate, affect or increase the obligations of
the Borrower to the Finance Parties under the Finance Documents in
respect of the liabilities under this Agreement.
7. REPAYMENT
7.1 REPAYMENT OF LOANS
(a) The Borrower shall repay the Loans made to it in instalments by
repaying on each Repayment Date an amount which reduces the amount of
all outstanding Loans under the Facilities on a pro rata basis by an
amount equal to the relevant fraction of the amount being the
aggregate sum of the Acquisition Loan as of the Signing Date and the
Capex Loans as of the date on which the Capex Fixed Rate is determined
as set out in the table below:
REPAYMENT DATE 0.25 % OF THE FOLLOWING FRACTION
- ----------------- --------------------------------
30 September 2008 2.85%
30 December 2008 2.85%
30 March 2009 2.85%
30 June 2009 2.85%
30 September 2009 3.00%
30 December 2009 3.00%
30 March 2010 3.00%
30 June 2010 3.00%
30 September 2010 3.14%
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30 December 2010 3.14%
30 March 2011 3.14%
30 June 2011 3.14%
30 September 2011 3.29%
30 December 2011 3.29%
30 March 2012 3.29%
30 June 2012 3.29%
30 September 2012 3.43%
30 December 2012 3.43%
30 March 2013 3.43%
30 June 2013 3.43%
30 September 2013 3.58%
30 December 2013 3.58%
30 March 2014 3.58%
30 June 2014 3.58%
30 September 2014 3.72%
30 December 2014 3.72%
30 March 2015 3.72%
30 June 2015 3.72%
(b) On the Ultimate Final Repayment Date and subject to Clause 8.3 (Early
Maturity Event), the Borrower shall pay and discharge all Secured
Obligations in full.
7.2 REBORROWING
The Borrower may not reborrow any part of the Facilities which is repaid.
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8. PREPAYMENT AND CANCELLATION
8.1 ILLEGALITY
If it is or becomes 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 (unless such illegality is solely
attributable to the wilful breach (Vorsatz) of such Lender):
(a) that Lender shall promptly notify the Facility Agent upon becoming
aware of that event;
(b) upon the Facility Agent notifying the Borrower, the Commitment of that
Lender shall be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the Loan on
the next Interest Payment Date for the Loan immediately occurring
after the Facility Agent has notified the Borrower or, if earlier, the
date specified by the Lender in the notice delivered to the Facility
Agent (being no earlier than the last day of any applicable grace
period permitted by law).
8.2 CHANGE OF CONTROL
(a) Subject to Clause 22.5 (Disposals), if the Shareholders cease to
control the Borrower or the Borrower is not part of the W.P. Carey
Group any longer or any person or group of persons acting in concert
gains control of the Borrower:
(i) the Borrower shall, and the Borrower shall ensure that the
Shareholder shall, promptly notify the Facility Agent upon
becoming aware of that event;
(ii) if the Majority Lenders so determine, no Lender shall be obliged
to fund a Utilisation;
(iii) if the Majority Lenders so require, the Facility Agent shall, by
not less than five (5) Business Days' notice to the Borrower,
cancel the Total Commitments and declare all outstanding Loans
together with accrued interest, and all other amounts accrued
under the Finance Documents immediately due and payable,
whereupon the Facilities shall be cancelled and all such
outstanding amounts shall become immediately due and payable.
(b) For the purpose of paragraph (a) above, "CONTROL" means:
(i) the power (whether by any ownership of shares, proxy, contract,
agency or otherwise) to:
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(1) cast, or control the casting of, more than one-half of the
maximum number of votes that might be cast at a general
meeting of the Borrower or
(2) appoint or remove all, or the majority, of the directors or
other equivalent officers of the Borrower; or
(3) give directions with respect to the operating and financial
policies of the Borrower with which the director or other
equivalent officers of the Borrower are obliged to comply;
or
(ii) the holding (directly or indirectly) of less than one hundred
(100) per cent. of the issued share capital or membership rights
of or in the Borrower.
(c) For the purpose of paragraph (a) above, "ACTING IN CONCERT" means a
group of persons who, pursuant to an agreement or understanding
(whether formal or informal), actively co-operate, through the
acquisition by any of them, either directly or indirectly, of shares
in the Borrower, to obtain or consolidate control of the Borrower.
(d) Notwithstanding anything to the contrary in this Clause 8.2, a change
of control shall, subject to the fulfilment of the "Know your
customer" checks to the satisfaction of the Facility Agent, be
permitted if control is transferred to another member of the W.P.
Carey Group and Clauses 8.2. (a)(ii) and 8.2 (a) (iii) shall not apply
to such a change of control.
8.3 EARLY MATURITY EVENT
(a) The Facility Agent (acting on behalf of the Lenders) will be entitled
to declare the Early Maturity on the 30 March 2013 upon occurrence of
any of the following Early Maturity Events:
(i) any breach of the Lease Obligations Covenant on any Interest
Payment Date within the time period starting on (including) 30
June 2012 and ending on (including) 30 March 2013;
(ii) the Loan to Value Ratio exceeds 50 % based on the latest full
Market Valuation;
(iii) any Event of Default which has occurred between the (including)
30 June 2012 and (including) 30 March 2013, or any Default which
is continuing on 30 March 2013; or
(iv) non-payment by the Borrower of the Extension Fee until the 30
March 2013;
33
(b) The Borrower shall supply to the Facility Agent no later than ten (10)
Business Days before the 30 March 2013 a certificate signed by a
manager or an authorised signatory for and on behalf of the Borrower
certifying that no Early Maturity Event has occurred during the
preceding one (1) year and in the form of Schedule 8 (Financial
Covenants Compliance Certificate) computations establishing (if that
is the case) that the Borrower is in compliance with the covenants set
out in Clause 8.3.
(c) If the Facility Agent (acting on behalf of the Lenders) declares the
Early Maturity, all Secured Obligations become due and payable and any
Extension Fee paid by the Borrower shall be applied toward repayment
of the Loan.
8.4 VOLUNTARY CANCELLATION
Subject to Clause 8.8 (Restrictions), the Borrower may, if it gives the
Facility Agent not less than ten (10) Business Days' (or such shorter
period as the Majority Lenders may agree) prior notice, cancel the whole or
any of the available Capex Facility subject to
(a) the provision of evidence satisfactory to the Facility Agent that the
Works have been completed, or
(b) the provision of evidence satisfactory to the Facility Agent
evidencing that the Works will not be constructed or commencement of
Works will be postponed so that the Works will not be completed prior
to 30 June 2011 provided that, to the satisfaction of the Facility
Agent, there will be sufficient free cash flow available or equity
contributed (or such Works will be paid for by a Tenant) to finance
such Works after 30 June 2011.
Any cancellation under this Clause 8.4 shall reduce the Capex Commitment of
the Lenders rateably.
8.5 VOLUNTARY PREPAYMENT OF LOAN
Subject to Clause 8.8 (Restrictions) the Borrower may, if it gives the
Facility Agent not less than five (5) Business Days' prior written 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 EUR 1,000,000 or
a multiple thereof or as agreed with the Facility Agent).
8.6 MANDATORY PREPAYMENTS
The Borrower shall ensure that, subject to Clause 8.8 (Restrictions),
(a) following any Disposal, other than a disposal pursuant to Clause 22.5
(b) (3) (Disposals) and a Permitted Disposal pursuant to Clause 22.5
(b)(ii)(2) (Disposals), an amount equal to the aggregate Net Disposal
Proceeds;
34
(b) an amount equal to the aggregate amount of all Acquisition Proceeds
received during the current or preceding Interest Period; and
(c) if applicable and received by the Borrower and to the extent not
necessary to restore any or all of the Properties (determined after
such restoration has been completed), an amount equal to the Insurance
Proceeds received during the current or preceding Interest Period, as
the case may be,
are applied on the next Interest Payment Date in accordance with Clause
21.4 (b) (i)-(vii) (Proceeds Account) including, for the avoidance of
doubt, the Secured Obligations which shall become due and payable in an
amount equal to the amount prepaid, the payment of any Break Costs pursuant
to Clause 11.4 (Break Costs), the Prepayment Fee and of any Fixed Rate
Breakage Amount pursuant to Clause 15.5 (Fixed Rate Breakage Amount
Indemnity). Pending application in prepayment the Borrower shall procure
that such amount be placed on the Proceeds Account.
8.7 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by the Borrower is required to be
increased under paragraph 13.2(c) of Clause 13.2 (Tax gross-up);
or
(ii) any Lender claims indemnification from the Borrower under Clause
13.4 (Tax indemnity) or Clause 14.1 (Increased costs); or
(iii) any Lender notifies the Facility Agent of its Additional Cost
Rate under paragraph 3 of Schedule 4 (Mandatory Cost Formula);
the Borrower may, whilst (in the case of paragraphs (i) and (ii)
above) the circumstance giving rise to the requirement or
indemnification continues or (in case of paragraph (iii) above) that
Additional Cost Rate is greater than zero, give the Facility 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.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Borrower
has given notice under paragraph (a) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall repay
that Lender's participation in the Loan.
35
8.8 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 8 (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.
(b) Any prepayment under this Agreement shall be made together
(i) with accrued interest (including Margin and Mandatory Cost, (if
any)) on the amount prepaid up to and including the date of
prepayment;
(ii) any Prepayment Fee;
(iii) any Break Costs pursuant to Clause 11.4 (Break Costs);
(iv) any indemnity or any payment any Fixed Rate Breakage Amount
pursuant to Clause 15.5 (Fixed Rate Breakage Amount Indemnity);
and
(v) such other Secured Obligations which are then due and payable
and, subject to any Break Costs, without premium or penalty.
(c) Any prepayment under Clause 8.2 (Change of Control), Clause 8.3 (Early
Maturity), Clause 8.4 (Voluntary prepayment of Loan) or Clause 8.6
(Mandatory Prepayments) shall satisfy the Secured Obligations in
inverse order of maturity. The Borrower may select towards which
Facility any prepayment is credited.
(d) The Borrower may not re-borrow any part of the Facilities which is
prepaid.
(e) The Borrower shall not repay or prepay all or any part of the Loan or
cancel all or any part of the Commitments except at the times and in
the manner expressly provided for in this Agreement.
(f) No amount of the Total Commitment cancelled under this Agreement may
be subsequently reinstated.
(g) If the Facility Agent receives a notice under this Clause 8 it shall
without undue delay (unverzuglich) forward a copy of that notice to
either the Borrower or the affected Lender, as appropriate.
36
9. INTEREST
9.1 CALCULATION OF INTEREST
(a) The rate of interest on the Acquisition Loan for the Interest Period
is the percentage rate per annum which is the aggregate of the
applicable until (and including) the Final Repayment Date
(i) Margin;
(ii) Acquisition Fixed Rate; and
(iii) the Mandatory Cost (if any).
(b) The rate of interest on any Capex Loan for an Interest Period is the
percentage rate per annum which is the aggregate of the applicable
(i) until the earlier of (i) the day on which all Capex Commitments
are fully drawn and (ii) (including) the last day of the Capex
Facility Availability Period
(1) Margin
(2) three (3) month EURIBOR; and
(3) the Mandatory Cost (if any);
and
(ii) from the earlier of (i) the day on which all Capex Commitments
are fully drawn and (ii) (excluding) the last day of the Capex
Facility Availability Period until (and including) the last day
of the Final Repayment Date
(1) Margin;
(2) Capex Fixed Rate; and
(3) the Mandatory Cost (if any).
9.2 PAYMENT OF INTEREST
Subject to the terms of this Agreement the Borrower shall pay accrued
interest in respect of each Loan on each Interest Payment Date.
37
9.3 DEFAULT INTEREST AND LUMP SUM DAMAGES
(a) If the Borrower fails to pay any amount payable by it under a Finance
Document (other than interest) on its due date, interest shall accrue
on the Unpaid Sum from the due date up to the date of actual payment
(both before and after judgement) at a rate which, subject to
paragraph (b) below, is two (2) per cent per annum higher than the
aggregate of the Margin and the Fixed Rate or the Margin and EURIBOR
(as applicable) which would have been payable if the Unpaid Sum had,
during the period of non-payment, constituted the Loan concerned in
the currency of the Unpaid Sum for successive Interest Periods. Any
interest accruing under this Clause 9.3 shall be immediately payable
by the Borrower on the next Interest Payment Date.
(b) If any Unpaid Sum consists of all or part of a Loan which became due
on a day which was not the last day of an Interest Period relating to
that Loan:
(i) the first Interest Period for that Unpaid Sum shall have a
duration equal to the unexpired portion of the current Interest
Period relating to that Loan; and
(ii) the rate of interest applying to the Unpaid Sum during that first
Interest Period shall be two (2) per cent per annum higher than
the rate which would have applied if the Unpaid Sum had not
become due.
(c) If the Borrower fails to pay any amount of interest under a Finance
Document on its due date, the Borrower shall pay lump sum damages to
the Facility Agent for the account of the Lender in an amount to be
determined by the Facility Agent as being, in respect of the period
from the due date of payment until receipt by the Facility Agent of
the relevant amount, the equivalent of interest at a rate determined
in accordance with paragraph (a) above applied to the relevant Unpaid
Sum.
(d) In circumstances described in paragraph (c) above, the Borrower shall
be entitled to evidence that the damage actually suffered by a Finance
Party is lower than the amounts determined in accordance therewith.
The Facility Agent shall, in its reasonable discretion, provide the
Borrower with the information necessary for evidencing the calculation
of the damage suffered by that Finance Party.
9.4 NOTIFICATION OF RATES OF INTEREST
The Facility Agent shall without undue delay (unverzuglich) notify the
Lenders and the Borrower of the determination of a rate of interest under
this Agreement.
10. INTEREST PERIODS
10.1 INTEREST PERIOD OF THE ACQUISITION FACILITY
(a) The Acquisition Loan has one Interest Period only.
38
(b) The duration of the Interest Period for the Acquisition Loan shall
start on the Utilisation Date for that Loan and end on the Ultimate
Final Repayment Date.
10.2 INTEREST PERIOD OF THE CAPEX FACILITY
(a) The period for which the Capex Loan is outstanding shall be divided
into successive Interest Periods.
(b) The duration of the first Interest Period for a Capex Loan shall start
on the Utilisation Date for that Loan and end on the day immediately
preceding the Capex Initial Interest Payment Date.
(c) The duration of each subsequent Interest Period shall, save as
otherwise provided in this Agreement, start on each Interest Payment
Date (commencing on the respective Capex Initial Interest Payment
Date) and end on the day on which all Capex Commitments are fully
drawn or on (and including) the last day of the Capex Facility
Availability Period.
(d) After the day on which all Capex Commitments are fully drawn or after
(and excluding) the last day of the Capex Facility Availability Period
the Loans related to the Capex Facility shall have only one Interest
Period only. The duration of this Interest Period for the Capex Loans
to which the Capex Fixed Rate is applicable shall start on the earlier
of (i) the day following the day on which all Capex Commitments are
fully drawn and (ii) after (and excluding) the last day of the Capex
Facility Availability Period and end on the Final Repayment Date.
(e) If two (2) or more Capex Loans have an Interest Period beginning and
ending on the same dates, those Capex Loans will be consolidated into,
and treated as, a single Loan on the last day of the Interest Period
10.3 CHANGES TO INTEREST PERIODS
(a) The Facility Agent and the Borrower may enter into such other
arrangements as they may agree for the determination and adjustment of
Interest Periods.
(b) If the Facility Agent makes any change to an Interest Period referred
to in this Clause 10.3 (Changes to Interest Periods), it shall without
undue delay (unverzuglich) notify the Lenders.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (Market disruption), if EURIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified
39
Time on the Quotation Day, the applicable EURIBOR shall be determined on
the basis of the quotations of the remaining Reference Banks.
11.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Capex Loan for
any Interest Period, then the rate of interest on each Lender's share
of that Capex Loan for the Interest Period shall be the percentage
rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Facility Agent by that Lender as soon as
practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding its
participation in that Capex Loan from whatever source it may
reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the CapexLoan.
(b) In this Agreement, "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of
the Reference Banks supplies a rate to the Facility Agent to
determine EURIBOR for euro for the relevant Interest Period; or
(ii) before close of business in London on the Quotation Day for the
relevant Interest Period, the Facility Agent receives
notifications from a Lender or Lenders that the cost to it or
them of obtaining matching deposits in the European Interbank
Market would be in excess of EURIBOR.
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Facility Agent so
requires, the Facility Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty days) with a view
to agreeing a substitute basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior written consent of all the Lenders and the Borrower, be
binding on all Finance Parties.
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11.4 BREAK COSTS
(a) The Borrower shall, within three (3) Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs attributable
to all or any part of a Loan or Unpaid Sum being paid by the Borrower
on a day other than the last day of an Interest Period for that Loan
or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by
the Facility Agent, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they accrue.
12. FEES
12.1 UPFRONT FEE
The Borrower shall pay to the Arranger an upfront fee in the amount and at
the time agreed in a Fee Letter.
12.2 COMMITMENT FEE
(a) The Borrower shall pay to the Facility Agent (for the account of each
Lender) a fee in euro at a rate of 50 per cent. p.a. of the Margin of
that Lender's Available Commitment for the relevant Availability
Period commencing after the date on which the Initial Utilisation
occurs.
(b) The accrued commitment fee is payable in arrears on each Interest
Payment Date for each successive period of three (3) Months which ends
during the Availability Period, on the last day of the relevant
Availability Period and, if cancelled in full, on the cancelled amount
of the relevant Lender's Commitment at the time the cancellation is
effective.
12.3 AGENCY FEE
The Borrower shall pay to the Facility Agent an agency fee in the amount
and at the time agreed in a Fee Letter.
12.4 PREPAYMENT FEE
The amount of the Prepayment Fee is subject to a separate Fee Letter under
English law.
13. TAX GROSS UP AND INDEMNITIES
13.1 DEFINITIONS
In this Clause 13:
41
"PROTECTED PARTY" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment 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 is beneficially entitled to
interest payable to that Lender in respect of any Finance Document and
which is:
(a) a Lender which has its head office in Germany or is acting through a
Facility Office qualifying as a permanent establishment or permanent
representative in Germany for Tax purposes of Germany; or
(b) an Original Lender; or
(c) a Treaty Lender; or
(d) a Lender which is entitled to receive interest payments without any
deduction of German or U.S. Tax at any time when it becomes a Lender.
"TAX CREDIT" means a credit against, relief or remission for, or repayment
of, any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document. An imposition on a Borrower by the
German tax authorities pursuant to section 50a (7) German Income Tax Act
shall not be considered as a Tax Deduction if it is imposed with respect to
a Lender other than a Qualifying Lender.
"TAX PAYMENT" means either the increase in a payment made by the Borrower
to a Finance Party under Clause 13.2 (Tax gross-up) or a payment under
Clause 13.4 (Tax indemnity).
"TREATY LENDER" means a Lender which is entitled to a payment of interest
under a double taxation agreement in force in the U.S.A. or Germany without
any Tax Deduction (subject to the completion of any necessary procedural
formalities).
13.2 TAX GROSS-UP
(a) The Borrower shall make all payments to be made by it under or in
connection with any Finance Document without any Tax Deduction, unless
a Tax Deduction is required by law.
(b) 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 Facility Agent accordingly. Similarly, a
Lender shall promptly notify the Facility Agent on becoming so aware
in respect of a payment payable to that Lender. If the Facility Agent
receives such notification from a Lender it shall promptly notify the
Borrower.
42
(c) If a Tax Deduction is required by law to be made by the Borrower the
amount of the payment due from the Borrower shall subject to paragraph
(d) below 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.
(d) If:
(i) on the date that payment is due the relevant Lender is not or has
ceased to be a Qualifying Lender other than as a result of any
change after the date of this Agreement or, in case of a Lender
which has become a Party to this Agreement after the date of this
Agreement, the date on which it became a Lender, in (or in the
interpretation, administration, or application of) any law or
treaty, or any generally applying published practice or
concession of any relevant Tax Authority; or
(ii) the Borrower making the payment is able to demonstrate that the
payment could have been made to the Lender without the Tax
Deduction had the Lender complied with its obligations under
Clause 13.3 (Tax filings),
then the Borrower shall not be required to make an increased payment
to the relevant Lender under paragraph (c) above with respect to a Tax
Deduction under German law.
(e) If the Borrower is required to make a Tax Deduction, it 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.
(f) Within thirty (30) days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the Borrower
making that Tax Deduction shall deliver to the Facility Agent for the
Finance Party entitled to the payment an original receipt (or
certified copy thereof) evidencing to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate payment
paid to the relevant Tax Authority.
13.3 TAX FILINGS
(a) A Lender shall complete as soon as practicable without undue delay
(unverzuglich) any procedural formalities which it is able to complete
and which are necessary for the Borrower to be able to make a payment
to such Lender without a Tax Deduction (or with a reduced rate of Tax
Deduction).
(b) Each Lender and the Borrower shall co-operate in completing any
procedural formalities necessary for the Borrower to obtain
authorisation to make payments to
43
or for the account of that Lender without Tax Deduction (or with
a reduced rate of Tax Deduction).
13.4 TAX INDEMNITY
(a) The Borrower shall (within five (5) Business Days of demand by the
Facility Agent) pay (or procure payment) to a Protected Party an
amount equal to the loss, liability or cost which that Protected Party
determines has been (directly or indirectly) suffered for or on
account of Tax by that Protected Party in respect of a Finance
Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any Tax assessed on a Finance Party:
(1) under the law of the jurisdiction in which that Protected
Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or
(2) under the law of the jurisdiction in which that Finance
Party's Facility Office is located or permanent
establishment is located
if that Tax is imposed on or calculated by reference to the
income received or receivable by that Finance Party; and
(ii) to the extent a loss, liability or cost:
(1) is compensated for by an increased payment under Clause 13.2
(Tax gross-up); or
(2) would have been compensated for by an increased payment
under Clause 13.2 (Tax gross-up) but was not so compensated
solely because one of the exclusions in paragraph 13.2(d) of
Clause 13.2 (Tax gross-up) applied.
(iii) To the extent a Tax is assessed on a Finance Party on the
grounds of German Tax provisions governing the imposition of tax
on interest secured by German real estate provided the relevant
Finance Party it is not a Qualifying Lender.
(c) A Protected Party making, or intending to make, a claim pursuant to
paragraph (a) above shall promptly notify the Facility Agent of the
event which will give, or has given, rise to the claim, following
which the Facility Agent shall notify the Borrower.
44
(d) A Protected Party shall, on receiving a payment from the Borrower
under this Clause 13.4, notify the Facility Agent.
13.5 TAX CREDIT
If the Borrower makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable either to an increased payment of which
that Tax Payment forms part of or to that Tax Payment; and
(b) that Finance Party has obtained, utilised and fully retained that Tax
Credit in whole or in part on an affiliated group basis,
the Finance Party shall pay an amount to the Borrower which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to
be made by the Borrower.
13.6 VAT
(a) 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. 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 that Finance Party (upon provision of a proper VAT invoice at the
time specified in such invoice) in addition to the consideration for
that supply an amount equal to the amount of the VAT.
(b) 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 that Finance Party against all VAT incurred by
the Finance Party in respect of the costs or expenses to the extent
that the Finance Party determines that it is not entitled to credit or
repayment from the relevant Tax Authority in respect of the VAT.
(c) Where pursuant to the terms of this Agreement one Finance Party makes
a supply to another Finance Party, and VAT is chargeable on such
supply, each Party paying the consideration for such supply shall also
pay (in addition to and at the same time as paying the consideration
for that supply upon provision of a proper VAT invoice) an amount
equal to the amount of the VAT if the supply is not subject to the
reverse charge mechanism.
13.7 STAMP TAXES
The Borrower covenants to pay and, within five (5) Business Days of demand,
indemnify each Finance Party against any cost, loss or liability each
Finance Party may incur in relation to any stamp duty land tax, stamp duty,
registration or other similar Taxes payable in respect of any Finance
Document.
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14. INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.3 (Exceptions), the Borrower shall, within five
(5) Business Days after receipt of a written demand by the Facility
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;
after the Signing Date.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facilities or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) 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.
14.2 INCREASED COSTS CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 14.1
(Increased Costs) shall notify the Facility Agent of the event giving
rise to the claim, following which the Facility Agent shall promptly
notify the Borrower.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Facility Agent, provide a certificate confirming the amount of its
Increased Costs and setting out the calculation in reasonable detail.
14.3 EXCEPTIONS
(a) Clause 14.1 (Increased Costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made by the
Borrower;
(ii) compensated for by Clause 13.4 (Tax indemnity) (or would have
been compensated for under Clause 13.4 (Tax indemnity) but was
not so
46
compensated solely because one of the exclusions in paragraph
13.4(b) of Clause 13.4 (Tax indemnity) applied);
(iii) compensated for by the payment of Mandatory Cost; or
(iv) attributable to the wilful breach (Vorsatz) or gross negligence
(grobe Fahrlassigkeit) by the relevant Finance Party or its
Affiliates of any law or regulation;
(b) In this Clause 14.3 (Exceptions), a reference to a "TAX DEDUCTION" has
the same meaning given to the term in Clause 13.1 (Definitions).
(c) No Finance Party shall be entitled to recover any increased cost under
this Clause 14.2 if such Finance Party has not made a demand in
respect of the same within six (6) Months of the date on which such
Finance Party has received notice of such event or circumstances which
gave rise to such Increased Costs.
15. OTHER INDEMNITIES
15.1 CURRENCY INDEMNITY
(a) If any sum due from the Borrower under the Finance Documents (a
"SUM"), or any order, judgement 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:
(i) making or filing a claim or proof against the Borrower;
(ii) obtaining or enforcing an order, judgement or award in relation
to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within three (3)
Business Days of demand, indemnify each Finance Party to whom that Sum
is due against any reasonable cost, loss or liability arising out of
or as a result of the conversion including any discrepancy between (A)
the rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(b) 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.
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15.2 OTHER INDEMNITIES
The Borrower shall within three (3) Business Days of receipt of written
demand, indemnify each Finance Party against any cost, loss or liability
including any Fixed Rate Breakage Amount incurred by that Finance Party as
a result of:
(a) the occurrence of any Default;
(b) a failure by the Borrower or any of the Shareholders to pay any amount
due under a Finance Document on its due date, including without
limitation, any cost, loss or liability arising as a result of Clause
30 (Sharing among the Finance Parties);
(c) funding or continuing to fund, or making arrangements to fund or
continue to fund, its participation in the Loan requested by the
Borrower in a Utilisation Request but not made by reason of the
operation of any one or more of the provisions of this Agreement
(other than by reason of default or negligence by that Lender alone);
or
(d) the Loan (or part of the Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.
15.3 INDEMNITY TO THE FACILITY AGENT
The Borrower shall without undue delay (unverzuglich) indemnify the
Facility Agent against any cost, loss or liability reasonably incurred by
the Facility Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default; or
(b) acting or relying on any notice, request or instruction which it
believes to be genuine, correct and appropriately authorised by the
Finance Parties.
15.4 INDEMNITY TO THE SECURITY AGENT
The Borrower shall without undue delay (unverzuglich) indemnify the
Security Agent and every Delegate against any cost, loss or liability
incurred by any of them as a result of:
(a) the taking, holding, protection or enforcement of the Transaction
Security; or
(b) the exercise of any of the rights, powers, discretions and remedies
vested in the Security Agent and every Delegate by the Transaction
Security; and
(c) any default by the Borrower or any Shareholder in the performance of
any of the obligations expressed to be assumed by it in any of the
Finance Documents.
48
The Security Agent may, in priority to any payment to the Finance Parties,
indemnify itself out of the Transaction Security in respect of, and pay and
retain all sums necessary to give effect to the indemnity in this Clause
15.4 (Indemnity to the Security Agent).
15.5 FIXED RATE BREAKAGE AMOUNT INDEMNITY
(a) The Borrower irrevocably agrees to indemnify within three (3) Business
Days of demand each Lender in respect of any Fixed Rate Breakage
Amount due by a Lender resulting from an early prepayment pursuant to
Clause 8.1 (Illegality), Clause 8.2 (Change of Control), Clause 8.3
(Early Maturity Event), Clause 8.5 (Voluntary prepayment of Loan),
Clause 8.6 (Mandatory Prepayments) and Clause 8.7 (Right of repayment
and cancellation in relation to a single Lender).
(b) Provided that no Event of Default is continuing, the Lender shall pay
to the Borrower within three (3) Business Days of demand any Fixed
Rate Breakage Amount received by such Lender (if any and net of any
third party costs or expenses incurred by the Lender as a result of
that early termination) resulting from an early prepayment pursuant to
Clause 8.3 (Early Maturity Event), Clause 8.5 (Voluntary prepayment of
Loan), Clause 8.6 (Mandatory Prepayments) and Clause 8.7 (Right of
repayment and cancellation in relation to a single Lender).
16. MITIGATION
16.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Borrower, take all
reasonable steps 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 8.1 (Illegality), Clause 13 (Tax
gross-up and indemnities), Clause 14 (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.
(b) Paragraph (a) above does not in any way limit the obligations of the
Borrower or the Shareholders under the Finance Documents.
16.2 LIMITATION OF LIABILITY
(a) 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 16.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 16.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
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17. COSTS AND EXPENSES
17.1 TRANSACTION EXPENSES
The Borrower shall promptly on demand pay the Arranger, the Security Agent
and the Facility Agent the amount of all costs and expenses (including, but
not limited to, reasonable legal fees of the Arranger's counsel as agreed
between the Borrower and the Facility Agent, land registry fees, mortgage
registration fees and notarial fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing, execution,
syndication and perfection of:
(a) this Agreement and any other documents referred to in this Agreement;
and the Transaction Security; and
(b) any other Finance Documents executed after the date of this Agreement.
17.2 AMENDMENT COSTS
If:
(a) the Borrower requests an amendment, waiver or consent; or
(b) an amendment is required pursuant to Clause 31.10 (Change of
currency),
the Borrower shall, within three (3) Business Days of demand, reimburse the
Facility Agent for the amount of all costs and expenses (including, but not
limited to, reasonable legal fees) reasonably incurred by the Facility
Agent or the Finance Parties in responding to, evaluating, negotiating or
complying with that request or requirement.
17.3 MARKET VALUATION COSTS
The Borrower shall, within ten (10) Business Days of demand, pay to the
Facility Agent the cost of any Market Valuation or, structural survey or
environmental report carried out in accordance with and subject to Clause
23.5 (Market Valuations), unless directly paid by the Borrower.
17.4 ENFORCEMENT COSTS
The Borrower shall, within ten (10) Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including, but not
limited to, legal fees) reasonably incurred by it in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document and the Transaction Security and any proceedings instituted by or
against the Facility Agent and the Security Agent as a consequence of
taking or holding the Transaction Security or enforcing these rights.
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18. REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 18 (Representations) by way of an independent guarantee
(Selbstandiges Garantieversprechen) to each Finance Party. All
representations and certifications provided to the Facility Agent from time
to time under this Clause 18 (Representations) or otherwise pursuant to
this Agreement shall be given without personal recourse to the individual
director or manager of the Borrower unless such breach is attributable to a
wilful misconduct (Vorsatz).
18.1 STATUS
(a) It is a limited liability company duly formed and validly existing
under the laws of the State of Delaware, U.S.A..
(b) It has the power to own its assets and carry on its business as it is
being conducted.
18.2 BINDING OBLIGATIONS
(a) Subject to the Reservations and subject to due notarisation and
registration of the Land Charge, each of the obligations expressed to
be assumed by it in each Finance Document, are legal, valid, binding
and enforceable obligations.
(b) The obligations expressed to be assumed by it in each Security
Document validly create first ranking Security of the type described,
and over the assets to which it is expressed to apply, in the relevant
Security Document and accurately evidences that Security.
18.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and shall not:
(a) conflict with:
(i) any law or regulation applicable to it;
(ii) its constitutional documents; or
(iii) any agreement or instrument binding upon it or any of its
assets;
(b) result in the existence of, or oblige it to create, any Security over
its assets other than as permitted under Clause 22.4 (Negative
pledge).
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18.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a Party and the transactions
contemplated by those Finance Documents.
18.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or desirable:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a Party;
and
(b) to make the Finance Documents to which it is a Party admissible in
evidence in its jurisdiction of incorporation, save that a
registration may be ordered and a registration tax may become payable
if and at the time when the Finance Documents will be exhibited in any
court proceedings in Delaware or before any other official authority
in Delaware;
have been obtained or effected and are in full force and effect.
18.6 GOVERNING LAW AND ENFORCEMENT
(a) Subject to the Reservations, where German law is the choice of the
governing law of any Finance Document, such choice of German law shall
be recognised and enforced in its jurisdiction of incorporation.
(b) Subject to the Reservations, where Delaware law is the choice of the
governing law of any Finance Document, such choice of Delaware law
shall be recognised and enforced in its jurisdiction of incorporation.
(c) Subject to the Reservations, any judgement obtained in Germany in
relation to a Finance Document shall be recognised and enforced in its
jurisdiction of incorporation.
(d) Subject to the Reservations, any judgement obtained in Delaware in
relation to a Finance Document shall be recognised and enforced in its
jurisdiction of incorporation.
18.7 DEDUCTION OF TAX / INTEREST BARRIER RULES
(a) It is not required under German, French, Delaware or U.S. law or
elsewhere to make any deduction or withholding for or on account of
Tax from any payment it may make under any Finance Document.
52
(b) No tenant under any Lease is required under any law to make any
deduction or withholding for or on account of Tax from any Rental
Income.
(c) In 2009 only an annual amount of up to EUR 185,000.00 of the
Borrower's interest expenses will not be deductible for German
corporate income tax purposes. In 2010 and the following years, only
an annual amount of up to EUR 85,000.00 of the Borrower's interest
expenses will not be deductible for German corporate income tax
purposes. In 2009 and any following year the remaining interest
expenses of the Borrower in the relevant taxable period will be fully
deductible for corporate income tax purposes in Germany.
18.8 NO FILING OR STAMP TAXES
Other than with respect to the land charge, it is not necessary that the
Finance Documents be filed, recorded or enrolled with any court or other
authority in any relevant jurisdiction or that any stamp duty, stamp duty
land tax, registration or similar tax be paid on or in relation to the
Finance Documents or the transactions contemplated by the Finance
Documents.
18.9 NO DEFAULT
(a) No Event of Default is continuing or might reasonably be expected to
result from the making of the Utilisation.
(b) To Borrower's best knowledge having made due enquiries no other event
or circumstance is continuing which constitutes (or
with the giving of notice, lapse of time, or the fulfilment of any other
application or condition or any combination of the foregoing, would
constitute) a default under any other agreement or instrument which is
binding on it or to which its assets are subject which would reasonably be
expected to result in a Material Adverse Effect.
18.10 NO MISLEADING INFORMATION
(a) Any factual information provided by or authorised by and delivered on
behalf of the Borrower to:
(i) the Finance Parties in relation to the Transaction Documents;
(ii) the Valuer for the purposes of the most recent Market Valuation;
and
(iii) any providers of any of the Due Diligence Reports or the Report
on Title;
is in each case, true, complete and accurate in all material respects
as at the date it was given and is not misleading in any material
respect.
(b) Any opinions, forecasts and projections made by or on behalf of the
Borrower or the Shareholders and provided to the Finance Parties have
been prepared as at their date,
53
on the basis of recent historical information and on the assumptions
believed by the Borrower or the Shareholders to be fair and
reasonable.
(c) The Borrower has not knowingly withheld any information 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 or the value of the Property given in
the most recent Market Valuation.
(d) Nothing has occurred since the date such information was provided by
or authorised by and delivered on behalf of the Borrower which renders
the information originally contained in it untrue or misleading in any
material respect.
18.11 FINANCIAL STATEMENTS
The Original Financial Statements fairly represent, to the Borrower's best
knowledge, the Borrower's good faith projection of its and the
Shareholders' financial condition immediately following the Utilisation
Date unless expressly disclosed to the Facility Agent in writing to the
contrary before the date of this Agreement.
18.12 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.
18.13 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceeding of or before any
court, arbitral body or agency has been started or, to Borrower's best
knowledge, threatened against it which:
(a) may reasonably be expected to restrain its entry into, the exercise of
its rights under, or the performance, enforcement of or compliance
with any of its obligations under, the Finance Documents; or
(b) is reasonably likely to be adversely determined, and if adversely
determined, would reasonably be expected to have a Material Adverse
Effect.
18.14 ENVIRONMENTAL COMPLIANCE
The Borrower or Tenant has performed and complied in all material respects
with any Environmental Law and Environmental Permits and all other material
covenants, conditions, restrictions or agreements directly or indirectly
concerned with any contamination, pollution or waste or the release or
discharge of any toxic or hazardous substance in connection with any
Property where failure to do so might reasonably be expected to result in a
Material
54
Adverse Effect. Except as disclosed in the Environmental Reports, there is
no material environmental risk on the Properties that could require
immediate action.
18.15 ENVIRONMENTAL CLAIMS
Except as disclosed in the Environmental Reports, no Environmental Claim
has been commenced or (to the best of the Borrower's knowledge and belief)
is threatened against the Borrower or any of the Tenants.
18.16 CONSTRUCTION AND PLANNING COMPLIANCE
To Borrower's best knowledge, having made due enquiries, the Borrower and
the Tenants have performed and complied with in all material respects of
any Construction Law and Planning Law, Construction Permits and Planning
Permits (to the extent applicable to the Properties and where non
compliance might have a Material Adverse Effect).
18.17 CONSTRUCTION AND PLANNING CLAIMS
No Construction Claim and Planning Claim has been commenced or (to the best
of the Borrower's knowledge and belief) is threatened against the Borrower
or any of the Tenants.
18.18 NO OTHER BUSINESS AND ASSETS
(a) The Borrower has not traded or carried on any business since its
formation other than conducting the business of acquiring, managing,
letting and owning the Properties and related activities consistent
with the Finance Documents.
(b) The Borrower does not own any asset other than the respective
Properties or assets necessary for the operation of its Business Plan.
(c) The Borrower does not have and has never had any employees.
(d) The Borrower does not own directly or indirectly, legally or
beneficially, any investments in any unlimited company, partnership or
other entity with unlimited liability.
(e) The Borrower has not any liabilities (whether actual or contingent)
other than under the Transaction Documents, any Transaction Costs or
arising as a result of its ownership and/or occupation of the
Properties.
18.19 TAXATION AND OTHER LIABILITIES
(a) It has duly and punctually paid and discharged all Taxes imposed upon
it or its assets within the time period allowed without incurring
interest or penalties (save to the extent that (i) payment is being
contested in good faith, (ii) it has maintained
55
adequate reserves for the payment of such Taxes and (iii) payment can
be lawfully withheld).
(b) It is not overdue in the filing of any Tax returns.
(c) No claims are being or are reasonably likely to be asserted against it
with respect to Taxes.
(d) It has to duly and punctually paid and discharged all other
liabilities.
18.20 TITLE TO ASSETS
Subject to registration at any relevant land registry, on and from the
Initial Utilisation Date:
(a) the Borrower is the legal and beneficial owner of each of its assets
which are expressed to be the subject of the Transaction Security, in
each case free from any Security (other than under the Finance
Documents);
(b) the Borrower is, subject to the Borrower being registered in the
respective land register (Grundbuch), the bare legal owner
(Eigentumer) in respect of, and has good and valid title to, the
Properties;
(c) the Borrower has the benefit of all necessary licences, consents and
authorisations required under all applicable law in connection with
its ownership of the Properties, and they are in full force and
effect;
(d) no breach of any law or regulation is subsisting which would be
reasonably likely to materially adversely affect the value of any
Properties or the amount of Net Rental Income;
(e) except as disclosed in the Report on Title, there is no covenant,
easement, agreement, reservation, restriction, condition or other
matter which adversely affects any Property;
(f) no Property is subject to any overriding interest or an unregistered
interest which overrides first registration or registered
dispositions; and
(g) to the Borrower's best knowledge, having made due enquiries, each
Property is free and clear of material damage and structural defects
which could reasonably be expected to have a material adverse effect
on the value of that Property.
18.21 ENCUMBRANCES
Save as disclosed in the Report on Title and except for those charges,
liens, mortgages, land charges, and encumbrances expressly provided for in
the Sale and Purchase Agreement, the
56
Properties is free and clear of any charges, liens, mortgages, land charges
and encumbrances.
18.22 SECURITY
(a) No Security exists over any asset of the Borrower expressed to be the
subject of any Security created or expressed to be created under the
Finance Document except as permitted under Clause 22.4 (Negative
pledge).
(b) The Transaction Security created or expressed to be created under the
Finance Documents has or will have (after the registration of the Land
Charge in the competent land register first ranking priority and it is
not subject to any prior ranking or pari passu ranking Security except
as permitted under Clause 22.4 (Negative pledge).
(c) Each Security Document which purports to create a Security validly
creates or will create a Security of the type described, and over the
assets to which it is expressed to apply, in the relevant Finance
Document and, if a Finance Document purports to evidence any Security,
it accurately evidences that Security.
(d) Any Shares which are expressed to be subject to any Security created
or expressed to be created pursuant to the Finance Documents are fully
paid and not subject to any option to purchase or similar rights.
Except for the requirement of the Shareholders to the granting of its
consent to the transfer of Shares in the Borrower, the constitutional
documents of the Borrower do not and could not restrict or inhibit any
transfer of those shares on creation or on enforcement of that
Security.
18.23 OWNERSHIP OF BORROWER
The entire issued share capital of the Borrower is legally and beneficially
owned and controlled by the Shareholders (or, subject to the fulfilment of
the "Know your customer" checks to the satisfaction of the Facility Agent,
by an entity fully held and controlled by the Shareholders unless disposed
in accordance with Clause 22.5 (Disposals)).
18.24 FINANCIAL INDEBTEDNESS
Save for the Financial Indebtedness permitted under Clause 22.6 (Financial
Indebtedness), there is no Financial Indebtedness existing.
18.25 INSOLVENCY
(a) The Borrower is not unable nor admits inability to pay its debts as
they fall due, nor 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.
57
(b) The value of the assets of the Borrower is not less than its
liabilities (taking into account contingent and prospective
liabilities and reserves).
(c) No moratorium is declared in respect of any indebtedness of the
Borrower.
18.26 REPETITION
(a) The representations set out in Clauses 18.1 (Status) to 18.25
(Insolvency) are made by the Borrower on the date of this Agreement.
(b) The representations set out in Clauses 18.1 (Status) to 18.25
(Insolvency) (excluding Clause 19.1 (Financial Statements))(the
"REPEATED REPRESENTATION") are made and shall thereafter be repeated
by the Borrower by reference to the facts and circumstances then
existing on the date of the Utilisation Request and each Interest
Payment Date and, in the case of Clause 19.1 (a) (Financial
Statements), each date on which the Borrower delivers, or, if earlier,
is obliged to deliver, financial statements in accordance with Clause
19.1 (Financial statements).
19. INFORMATION UNDERTAKINGS
The undertakings in this Clause 19 remain in force from the date of this
Agreement for so long as any amount of the Secured Obligations is
outstanding or any Commitment is in force.
19.1 FINANCIAL STATEMENTS
The Borrower shall supply to the Facility Agent in sufficient copies for
all the Lenders as soon as the same become available, but in any event:
(a) within one hundred and twenty (120) days after the end of each of its
financial years its unaudited financial statements for that financial
year;
(b) within forty-five (45) days after the end of each of its financial
half-years its unaudited financial statements for that financial
half-year; and
(c) within one hundred and twenty (120) days after the end of the
respective financial year the audited financial statements for that
financial year of the applicable Existing Funds or such other ultimate
owner of the Borrower as may be the case; and
(d) within forty-five (45) days after the end of each of financial
half-years the unaudited financial statements of the applicable
Existing Funds for that financial half-year or such other ultimate
owner of the Borrower as may be the case.
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19.2 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) The Original Financial Statements and each set of financial statements
delivered by the Borrower pursuant to Clause 19.1 (Financial
statements) shall be certified by a manager or an authorised signatory
of the Borrower or the Shareholders, as the case may be, as fairly
representing its financial condition as at the date as at which those
financial statements were drawn up.
(b) The Borrower shall deliver together on each Interest Payment Date in
accordance with Clause 19.4 (a) (Properties information), a
certificate signed by a manager or an authorised signatory for and on
behalf of the Borrower certifying that no Default has occurred during
the preceding financial quarter and in the form of Schedule 8
(Financial Covenants Compliance Certificate) computations establishing
(if that is the case) that the Borrower is in compliance with the
covenants set out in Clause 22.3 (Loan to value), the Lease
Obligations Covenant, the Tenant Covenant and any issues related to a
possible insolvency of any of the Tenants or Wagon PLC as at the end
of such financial quarter.
19.3 ACCOUNT STATEMENTS
No later than ten (10) Business Days before each Interest Payment Date, the
Borrower shall or shall ensure that the Account Bank deliver to the
Facility Agent all bank account statements (Kontoauszuge) of each Control
Account that have become available to the Borrower.
19.4 PROPERTIES INFORMATION
The Borrower shall supply to the Facility Agent in sufficient copies for
all the Lenders:
(a) no later than five (5) Business Days before each Interest Payment Date
at the latest a written report in respect of the capital expenditure
and development of the Properties (containing in particular, but not
limited to, the report, contractor, description, budget, timeline,
cost overrun and completion status for the immediately preceding
ending calendar quarter);
(b) no later than ten (10) Business Days after each Interest Payment Date
occurring on the 30th of June of each calendar year at the latest an
Annual Management Report for the immediately preceding ending calendar
year (PROVIDED THAT where the information to be provided in the
relevant section has not changed since the last Annual Management
Report delivered to the Facility Agent, the relevant section may state
"no change");
(c) no later than ten (10) Business Days after each anniversary of the
Initial Utilisation Date at the latest, a Market Valuation, except for
the full Market Valuation to be
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supplied by the Borrower to the Facility Agent no later than ten (10)
Business Days before the 30 March 2013;
(d) no later than five (5) Business Days after the sending of a default
notice to a Tenant, even if waived by the Borrower or remedied by the
respective Tenant and of any amount due by any of the Tenants or any
other tenant, a copy of such default notice; and
(e) promptly, any other information in respect of the Properties available
to the Borrower or any occupational tenant of any part of the
Properties and any guarantor or surety of any such occupational
tenant, insurances and such other information as the Facility Agent
may reasonably request.
19.5 INFORMATION: MISCELLANEOUS
The Borrower shall supply to the Facility Agent in sufficient copies for
all the Lenders:
(a) all documents dispatched by the Borrower to its shareholders or its
creditors generally at the same time as they are dispatched;
(b) promptly after the fifth anniversary of the Initial Utilisation any
information available to the Borrower requested by the Facility Agent
in respect of Wagon PLC and any of the Tenants;
(c) promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened in writing or pending against the Borrower, and which
would, if adversely determined, reasonably be expected to have a
Material Adverse Effect; and
(d) promptly, such further information regarding the financial condition,
business and operations of the Borrower as any Finance Party (through
the Facility Agent) may reasonably request (including, without
limitation, all information and documents as maybe required under
Sections 13, 13 (a) and 18 of the German Banking Act (Gesetz uber das
Kreditwesen)).
19.6 NOTIFICATION OF DEFAULT
(a) The Borrower shall notify the Facility Agent of any Default (and the
steps, if any, being taken to remedy it), including, but not limited
to, any breach of the Borrower or any of the Tenants related to
environmental issues, promptly upon becoming aware of its occurrence.
(b) The Borrower shall inform the Facility Agent no later than five (5)
Business Days before each Interest Payment Date of any breach of Lease
Obligations Covenant.
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(c) Promptly upon a reasonable request by the Facility Agent, the Borrower
shall supply to the Facility Agent a certificate signed by two of its
managers or senior officers on its behalf certifying without personal
liability except for any damage caused by such manager's or senior
officer's wilful misconduct (Vorsatz) that no Default is continuing
(or if a Default is continuing, specifying the Default and the steps,
if any, being taken to remedy it).
(d) The Borrower shall notify the Facility Agent of any material event
promptly upon becoming aware of its occurrence.
19.7 "KNOW YOUR CUSTOMER" CHECKS
(a) The Borrower shall promptly upon the reasonable request of the
Facility Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Facility Agent (for itself or on behalf of any Lender) or any Lender
(for itself or on behalf of any prospective New Lender) in order for
the Facility Agent, such Lender or any prospective New Lender to carry
out and be satisfied with the results of all necessary "know your
customer" or other checks in relation to any Finance Documents.
(b) Each Lender shall promptly upon the request of the Facility Agent
supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Facility Agent (for itself)
in order for the Facility Agent to carry out and be satisfied with the
results of all necessary "know your customer" or other checks in
relation to any such Finance Documents.
20. TENANT COVENANT
From the fifth anniversary of the Initial Utilisation Date until the Final
Repayment Date the Borrower shall inform the Facility Agent no later than
five (5) Business Days before each Interest Payment Date that
(a) Wagon PLC has an EBITDA Margin of at least 7 per cent and the
financial ratio of Net Debt to EBITDA does not exceed 3.0; and
(b) Full Occupancy is fulfilled.
21. CONTROL ACCOUNTS
The undertakings in this Clause 21 (Control Accounts) 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.
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21.1 DESIGNATION OF CONTROL ACCOUNT
(a) The Borrower shall on or prior to the Initial Utilisation Date, open
and maintain in its name with the designated branches of an Account
Bank a current account designated "Proceeds Account".
(b) The Borrower may only with the prior written consent of the Facility
Agent, maintain any other account with any bank or financial
institution, such consent not to be unreasonably withheld and provided
that such other accounts will not go in any overdraft, except for
(i) tenant deposit accounts (Mietkautionskonten) for the sole purpose
of collecting rent deposits (Mietkautionszahlungen) of tenants;
and
(ii) an account with Bank of America, account number 18874014 sort
code 50010900, which shall be opened and maintained by the
Borrower and to which only any surplus pursuant to Clause 21.4
(b)(vii)(4) (Proceeds Account) shall be paid. The Borrower must
ensure that such account does not go into overdraft.
21.2 ACCOUNT BANK
(a) If the Facility Agent so reasonably requires or the Borrower so
requests and the Facility Agent consents (such consent not to be
unreasonably withheld or delayed), an Account Bank shall (as soon as
practicable after the requirement or request):
(i) be changed to another Account Bank; or
(ii) change its designated branch to another branch of the Account
Bank in Germany.
(b) The Borrower shall do all such things as the Facility Agent reasonably
requests in order to facilitate any such change of Account Bank
(including, without limitation, the execution of bank mandate forms).
(c) If at any time the rating of any account-holding bank falls below a
minimum rating of A-1+ from Standard & Poor's Rating Services, a
division of The McGraw Hill Companies Inc., P1 (short term) and Aa3
(long-term) from Moody's Investors Service, Inc. and F 1+ (short term)
from Fitch Ratings Ltd. the Borrower will notify the Security Agent
and procure that, within thirty (30) days of any of them becoming
aware of that rating downgrade another Account Bank will be appointed
in accordance with this Clause 21.2 (Account Bank).
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21.3 PAYMENTS INTO THE PROCEEDS ACCOUNT
(a) The Borrower will ensure that the Rental Income is paid directly and
promptly by each Tenant into the Proceeds Account.
(b) Subject to Clause 8.6 (Mandatory Prepayments) the Borrower will ensure
that the Disposal Proceeds, the Acquisition Proceeds and the Insurance
Proceeds (to the extent not directly paid to the Tenants or to be
applied towards the restoration of the Properties pursuant to the
respective Lease Agreement) are paid directly into the Proceeds
Account.
(c) To the extent Insurance Proceeds shall be applied towards the
restoration of the Properties pursuant to the respective Lease
Agreement, the Borrower will ensure that such Insurance Proceeds are
paid into an account pledged with a first rank in favour of the
Finance Parties and which shall become a Control Account. After
consultation with the Facility Agent, the Borrower shall be entitled
to transfer any monies standing to the credit of such account to third
parties for the discharge of debt incurred, resulting from the
restoration of the Properties.
(d) If any Tenant of any part of the Properties sends a cheque (or
otherwise makes one payment) to the Borrower which includes a sum in
respect of Rental Income, that cheque or payment must be paid into the
Proceeds Account.
(e) The Borrower will ensure that any other amount not listed in lit. (b)
- (c) above that is paid to the Borrower and relating to the
Properties is paid directly and without undue delay into the Proceeds
Account.
(f) The Borrower shall deliver within five (5) Business Days after the
Initial Utilisation Date, to all Tenants a written notification
instructing them to pay their rent and other payments under the
relevant Lease directly into the Proceeds Account of the Borrower
provided that such notification shall not be necessary if the tenants
had previously been instructed to pay their rent into the Proceeds
Account, as the case may be.
21.4 PROCEEDS ACCOUNT
(a) The Facility Agent shall have sole signing rights (alleinige
Zeichnungs- und Verfugungsbefugnis) on the Proceeds Account. The
Borrower shall grant the Facility Agent an irrevocable order of
authority (unwiderrufliche Kontovollmacht) including the right to
grant a secondary power of attorney (Untervollmacht).
(b) On each Interest Payment Date and on the Final Repayment Date the
Facility Agent shall withdraw such amount standing to the credit of
the Proceeds Account as it is necessary for the application in or
towards (and in the order of) the following:
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(i) first, payment of all Break Costs due from the Borrower;
(ii) second, payment of all other costs, fees and expenses due and
payable to the Finance Parties;
(iii) third, payment of:
(1) first, the payments due and payable pursuant to Clause 15.5
(Fixed Rate Breakage Amount Indemnity); and
(2) second, the payments due and payable pursuant to Clause 7
(Repayment), including, but not limited to, scheduled
repayments;
(iv) fourth, in and towards payment pro rata of all accrued interest
due but unpaid under the Finance Documents;
(v) fifth, payment of:
(1) first, the mandatory prepayment of the Loans in inverse
order of maturity as may be required pursuant to Clause 8.6
(Mandatory prepayments);
(2) second, all amounts then due and payable under Clause 12.4
(Prepayment Fee);
(3) third, all amounts then due and payable under Clause 8.8(b)
(Restrictions); and
(vi) sixth, all or part of the other Secured Obligations, including
any default interest, then due and payable.
(vii) seventh, any surplus, after all or part of the Secured
Obligations due and payable have been irrevocably been paid or
discharged, in full will be distributed on any Interest Payment
date as follows:
(1) if a Default has occurred and is continuing and until the
Interest Payment Date immediately following the remedy of
the Default any surplus standing to the credit of the
Proceeds Account (including any amounts set out in Clause
15.5(b) (Fixed Rate Breakage Amount Indemnity)) shall, at
the Facility Agent's sole discretion, be retained in the
Proceeds Account and shall serve as additional cash
collateral for the repayment of the Secured Obligations;
(2) if the Lease Obligations Covenant is breached, the Facility
Agent may, until the Lease Obligations Covenant is remedied
on two (2) consecutive Interest Payment Dates, utilise 100
per cent. of the
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surplus standing to the credits of the Proceeds Account
(including any amounts set out in Clause 15.5(b) (Fixed Rate
Breakage Amount Indemnity)) on that Interest Payment Date in
repayment of the Loans and of any other Secured Obligations
on a pro rata basis or as otherwise agreed between the
Facility Agent and the Borrower;
(3)
(A) if the Tenant Covenant is breached after 28 June 2013,
the Facility Agent may utilise 100 per cent. of the
surplus standing to the credits of the Proceeds Account
on that Interest Payment Date until the Interest
Payment Date immediately following the date on which
the Tenant Covenant is fulfilled on the basis of the
most recent published semi-annual unaudited or annual
audited financial statements of Wagon PLC in repayment
of the Loans and of any other Secured Obligations on a
pro rata basis or as otherwise agreed between the
Facility Agent and the Borrower;
(B) if the Tenant Covenant is, following a breach of a
Tenant Covenant after 28 June 2013, fulfilled on an
Interest Payment Date immediately following the date on
which the Tenant Covenant is fulfilled on the basis of
the most recent published semi-annual unaudited or
annual audited financial statements of Wagon PLC, any
surplus standing to the credits of the Proceeds Account
shall, at the Facility Agent's sole discretion, be
retained in the Proceeds Account and shall save as
additional cash collateral of the Secured Obligations
until the Interest Payment Date immediately following
the date on which the Tenant Covenant is fulfilled on
the basis of the newly published semi-annual unaudited
or annual audited financial statements of Wagon PLC. If
the Tenant Covenant on such Interest Payment Date is
then fulfilled, any surplus, subject to the compliance
of the requirements set out in lit. (1) and (2) above,
may be transferred by the Facility Agent in accordance
with lit. (4) below;
(C) if the Tenant Covenant is breached on such date, lit.
(A) shall apply.
(4) subject to the compliance with all representations,
warranties and undertakings and the non-occurrence of a
Default under any of the Finance Documents, any surplus
standing to the credit of the Proceeds
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Account may be transferred by the Facility Agent, after
having received a respective written request from the
Borrower, such written request shall not be received by the
Facility Agent earlier than three (3) Business Days after
each Interest Payment Date.
21.5 CONTROL ACCOUNTS GENERALLY
(a) Each Control Account shall be denominated in euro.
(b) The Facility Agent shall have sole signing rights on the Proceeds
Account.
(c) On the Final Repayment Date or upon any part of a Loan becoming
immediately due and payable under this Agreement, the monies
outstanding to the credit of each Control Account may be applied by
the Facility Agent in or towards payment of the Secured Obligations.
(d) The Borrower must ensure that no Control Account goes in to overdraft.
(e) The Borrower must, within five (5) Business Days of any reasonable
request by the Facility Agent, supply the Facility Agent with the
following information in relation to any payment received in an
Account:
(i) the date of payment or receipt;
(ii) the payer; and
(iii) the purpose of the payment or receipt.
(f) No Finance Party is responsible or liable to the Borrower for:
(i) any non-payment of any liability of the Borrower which could be
paid out of moneys standing to the credit of a Control Account
other to the extent such damage is incurred as a result of wilful
misconduct (Vorsatz) or gross negligence (grobe Fahrlassigkeit)
of such Finance Party; or
(ii) any withdrawal wrongly made if made in good faith on the basis of
written directions.
(g) The Borrower may pay to the Account Bank such reasonable transaction
charges and other fees (in each case, consistent with the Account
Bank's usual practice in relation to similar accounts) as the Borrower
may from time to time agree with the Account Bank. No other charges or
fees shall be payable to the Account Bank (in its capacity as such) in
respect of the Proceeds Account.
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(h) This Clause 21 (Control Account) does not limit or affect the
Borrower's obligations to pay the Secured Obligations or to make
voluntary or mandatory payments under the Finance Documents.
(i) The Borrower shall procure that the Account Bank waives its pledge
arising out of its general business terms (AGB Pfandrecht) and any
set-off and retention rights it might have in relation to the Proceeds
Account.
22. GENERAL UNDERTAKINGS
The undertakings in this Clause 22 remain in force from the date of this
Agreement for so long as any amount of the Secured Obligations is
outstanding or any Commitment in force.
22.1 AUTHORISATIONS
The Borrower shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(b) supply certified copies to the Facility Agent of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform its obligations under the Finance
Documents to which it is a Party and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
22.2 COMPLIANCE WITH LAWS
The Borrower shall comply, or cause Tenant to comply, in all respects with
all laws to which it may be subject, if failure to so comply would
materially impair its ability to perform its obligations under the Finance
Documents.
22.3 LOAN TO VALUE
The Borrower shall ensure that the aggregate sum of the Loans at any time
does not exceed
(a) prior to the second anniversary of the Initial Utilisation Date 60 per
cent,
(b) after the second and prior to the date of 30 March 2013, 55 per cent,
and
(c) after 30 March 2013, 50 per cent
of the Market Value at that time as recorded in the then most recent Market
Valuation.
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22.4 NEGATIVE PLEDGE
(a) The Borrower shall not create or permit to subsist any Security over
the whole or any part of its assets.
(b) Paragraph (a) above does not apply to:
(i) any Security which is to be irrevocably discharged or released in
full on the Initial Utilisation Date;
(ii) any Security arising by operation of law in the ordinary course
of the Borrower's business (including retention of title
arrangements) and securing amounts exceeding not more than an
aggregate amount of EUR 100,000 overdue;
(iii) any Security created in the general business conditions
(Allgemeine Geschaftsbedingungen) of an Account Bank where an
account is held provided that such Account Bank has waived its
first ranking account pledge in its favour;
(iv) the Transaction Security;
(v) any lien permitted under section 1136 of the German Civil Code
(Burgerliches Gesetzbuch);
(vi) the land charge in favour of the City of Nagold over EUR
102,258.37 (DEM 200,000); and
(vii) any other Security granted by the Borrower with the prior
written consent of the Facility Agent.
22.5 DISPOSALS
(a) The Borrower or any of the Shareholders shall not enter into a single
transaction or a series of transactions (whether related or not) and
whether voluntary or involuntary, to sell, lease, transfer or
otherwise dispose of the whole or any part of its assets.
(b) Paragraph (a) above does not apply to:
(i) any sale, lease, transfer or other disposal:
(1) under any Lease entered into by the Borrower in accordance
with Clause 23.2 (Leases);
(2) which is a Permitted Disposal;
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(3) in case of a compulsory purchase of any part of any
Property, if, in the opinion of the Facility Agent, the
Initial Market Value of the Properties is not materially
affected and the Loan to Value Ratio on the Interest Payment
Date immediately following the date on which the Facility
Agent has received notice of such compulsory purchase could
be more than the then applicable Loan to Value Ratio;
(4) which is permitted under Clause 22.4(b) (Negative Pledge);
(5) of assets (other than the Properties or parts thereof) in
the ordinary course of its business;
(6) made with the prior written consent of the Facility Agent;
(7) any compulsory purchase in accordance with Clause 23.7; and
(ii) any disposal shall be permitted (a "PERMITTED DISPOSAL") provided
that:
(1) in case of a disposal by the Borrower of its interest in the
Properties if
(A) no Default is continuing or would occur following such
disposal or, if a Default is continuing, such Default
will be remedied by such disposal by repayment of 100
per cent of the Secured Obligations; and
(B) all of the Properties are being disposed of on arm's
length terms to a bona fide third party purchaser;
(C) the Borrower gives at least five (5) Business Days'
prior notice of such Disposal;
(D) the Facility Agent is satisfied that the Net Disposal
Proceeds arising from the Disposal will not be less
than the aggregate of:
- all Secured Obligations outstanding;
- the amount certified by the Borrower (on the basis
of its professional tax advice which shall be copied
to the Facility Agent, if the Facility Agent so
requires) as being the aggregate liability to Tax of
Borrower arising from the Disposal;
- the Disposal Costs arising from the Disposal;
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- any sums which may become due and payable under
Clause 8.6 (Restrictions) as a result of the
prepayment to be made following the Disposal; and
(E) the Net Disposal Proceeds are directly credited by the
Purchaser of the Properties into the Proceeds Account;
and the Borrower shall provide the Facility Agent with such
evidence of the relevant sums and calculations involved as
the Facility Agent may reasonably request; and
(2) in case of any disposal by the Shareholders of any of their
shares held in the Borrower, if
(A) such Shares in the Borrower are transferred to any
member of the WP Carey Group; and
(B) the "Know your customer" checks have been fulfilled to
the satisfaction of the Facility Agent.
22.6 FINANCIAL INDEBTEDNESS
(a) The Borrower shall not, without the prior written consent of the
Facility Agent:
(i) permit any Financial Indebtedness to be outstanding to it by, or
to make any other form of credit available to, any person;
(ii) incur or have outstanding any Financial Indebtedness to any other
person (including Affiliates); and
(iii) 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 to any
other person.
(b) The prior written consent of the Facility Agent is given to any
Financial Indebtedness:
(i) incurred under the Finance Documents;
(ii) owed by the Borrower to any Shareholder and/or any Junior
Creditor if such Financial Indebtedness is subordinated to
amounts owing to a Finance Party under the Finance Documents by
the terms of the Subordination Agreement; or
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(iii) that arises as a normal trade credit in the ordinary course of
the Borrower's business and is not outstanding for more than
thirty (30) days.
22.7 DISCHARGE OF EXISTING SECURITY
The Borrower shall ensure that all prior ranking existing Security
affecting the property shall be discharged.
22.8 MERGERS
The Borrower shall not enter into any amalgamation, demerger, merger or
corporate reconstruction other than with entities that are a part of the
W.P. Carey Group provided that such other entity of the W.P. Carey Group
has not any liabilities (whether actual or contingent and subject to a
satisfactory "Know your customer" check by the Finance Parties).
22.9 CHANGE OF BUSINESS
The Borrower shall only conduct the business of owning the Properties and
managing them.
22.10 MATERIAL CONTRACTS
The Borrower shall not amend or alter the terms of any contract to which it
is a party with any entity outside of the W.P. Carey Group which creates
liability in excess of EUR 100,000 without the prior written consent of the
Facility Agent (not to be unreasonably withheld or delayed).
22.11 TRANSACTION DOCUMENTS
(a) The Borrower shall not amend, vary, forego or waive any material
provision, right or condition arising in or under the Transaction
Documents or agree to do any of those things, without the prior
written consent of the Facility Agent (acting reasonably).
(b) The Borrower shall exercise its rights and comply with its material
obligations under the Transaction Documents referred to in paragraph
(a) above in a commercially reasonable manner.
22.12 CENTRE OF MAIN INTERESTS
The Borrower shall not be permitted to move its centre of main interests to
any jurisdiction other than its jurisdiction of incorporation.
22.13 TAXES
The Borrower shall:
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(a) maintain its tax residence solely in the state of Delaware, U.S.A.;
(b) ensure that all Taxes payable by, or assessed upon, it are paid when
due except to the extent that they are contested in good faith and by
appropriate means and an adequate reserve has been set aside with
respect to the unpaid Tax;
(c) ensure that input VAT (Vorsteuer) in future will not have been repaid
in whole or in part pursuant to Section 15 a of the German VAT Act
(Umsatzsteuergesetz) without the Facility Agent's prior written
consent;
(d) comply, within all applicable time limits, with the requirements to
make, deliver or amend returns (including company tax returns)
required to be made by it to any Tax Authority;
(e) ensure that no tax losses belonging to it or tax reliefs available to
it are surrendered, waived or otherwise disposed of without the
Facility Agent's prior written consent;
(f) ensure that no latent capital gains tax liability of the Borrower is
triggered or realised, whether by reason of capital gains tax
degrouping or for any other reason; and
(g) not implement any measure which limits or excludes the deductibility
of interest expenses for German corporate income tax purposes.
(h) Ensure that the annual amount of interest expenses which are not
deductible for German corporate income tax purposes will not exceed
the amounts mentioned in Clause 18.7 (c) (Deduction of Tax / Interest
Barrier Rules).
22.14 VAT
The Borrower shall not form or be a member of any VAT group.
22.15 DISTRIBUTIONS
(a) The Borrower shall not declare or pay any dividends or interest on
unpaid dividends or distributions, fees or expenses in the nature of
or intended to act as a distribution to any of the Shareholders or any
of its Affiliates or make any payments in respect of Financial
Indebtedness subordinated under the Subordination Agreement only in
accordance with the Subordination Agreement.
(b) Paragraph (a) shall not apply to the payment of any dividend,
distribution, fee, interest, loan repayment or expenses paid out of
the Proceeds Account if no Default is outstanding and the payment is
made in accordance with Clause 20.5 (Proceeds Account) this Agreement.
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22.16 SHARE CAPITAL
(a) The Borrower shall not without the prior consent of the Facility
Agent:
(i) redeem, reduce, repurchase, defease, retire or repay any of its
share capital or resolve to do so;
(ii) issue any limited liability company interests, stock, share,
debenture or other securities to any person unless such shares
are issued by the Borrower and the Shareholders of the Borrower
subscribes all such new Shares by injecting new equity or other
cash contribution of the Shareholders; or
(iii) subscribe for or otherwise acquire any limited liability company
interests, stock or share which is only partly paid up or in
respect of which the company which issued that stock or share has
any call or lien.
(b) The Borrower shall pay on the same becoming due all calls or other
payments which may be or become due in respect of any shares held by
it.
22.17 SECURITISATION AND SYNDICATION
(a) Assignments by the Lenders:
(i) A Lender may assign any of its rights to any European
securitisation vehicle or enter into any synthetic securitisation
arrangement in connection therewith.
(ii) The consent of the Borrower and the Finance Parties is hereby
irrevocably given to such an assignment.
(b) The Borrower agrees to:
(i) co-operate with the Finance Parties to facilitate the rating of
any Lender's interest in any of the Finance Documents by
internationally recognised ratings agencies nominated by the
Finance Party concerned; and
(ii) provide such information as any Finance Party may reasonably
require in connection with the sale and transfer of a Lender's
interest in any of the Finance Documents in connection with any
securitisation of this Facility whether alone or in conjunction
with any other loan or loans, including any information that
needs to be disclosed in any prospectus and/or to any
internationally recognised ratings agency and its professional
advisers;
in each case, in connection with the assignment, transfer or disposal
of a Lender's interest in any of the Finance Documents in relation to
any securitisation of all or
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part of the Facility whether alone or in conjunction with any other
loan or loans, but with no cost for the Borrower.
22.18 SECURITISATION AND TRANCHING
(a) The Lenders shall have the right, as amongst themselves to subdivide,
split, sever or modify the whole or any part of the Facility or any of
them as provided in Clause (b) below.
(b) The Lenders may:
(i) cause the whole and/or any part or parts of the Facility and/or
the related Security Documents to be split and/or subdivided into
one or more different and separate parts or tranches (whether
being of equal or unequal principal amounts having the same or
different interest rates and/or margins and whether, as between
themselves, ranking in priority, on a pari passu basis or
otherwise) each such part or tranche being a "TRANCHE";
(ii) apportion and/or prioritise the security created by the Security
Documents as between each individual Tranche;
(iii) apportion any principal instalment as between each individual
Tranche; and
(iv) adjust or modify, waive or release any undertaking or other
provision of this Agreement and/or any Security Document as
necessary to give effect to any such splitting or sub-division or
the stand alone nature of the Loan.
(c) The Borrower shall (and shall use its reasonable endeavours to ensure
that each Shareholder and each Junior Creditor shall):
(i) at the request and cost of the Lenders agree actively to
co-operate with the Lenders and to provide and give reasonable
representations in relation to such information and execute such
documents as the Lenders may reasonably request in connection
with any sale or transfer of the whole or any part of any
Lenders' Commitment in the Facility or any other part of the
Lenders' interest in the Facility and/or any of the Financing
Documents in connection with any securitisation, syndication or
other transfer of these Facility or the whole or any part of any
Lenders' Commitment in the Facility, including the listing of
notes on any recognised stock exchange and any dealings with any
competent listing or regulatory authority relating thereto
whether alone or in conjunction with any other facility or
facilities;
(ii) in connection with any such securitisation, syndication or other
transfer, acknowledge that a Lender may procure that
internationally recognised rating agencies and legal counsel
review the Facility and the Finance Documents;
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(iii) at the request and cost of such Finance Party agree to
co-operate with such review and to make any necessary prudent
modifications to the Finance Documents that the Facility Agent
proposes in relation to such securitisation, syndication or other
transfer, PROVIDED THAT such modifications are not material, do
not relate to the fees or overall amount of interest payable in
respect of the Facility and the financial terms of the Facility
remain unchanged; and
(iv) shall, at the request and cost of the Lenders, enter into such
further documentation or agreements (including but not limited to
further Finance Documents, Security Documents, intercreditor or
priority agreements, and transfer documents) as the Lenders
and/or the Facility Agent may reasonably request and as agreed
with the Borrower.
(d) Any such transfer, assignment, novation and any associated request or
requirement of the Lenders and/or the Facility Agent pursuant to
Clause (c) above shall be subject to the following conditions:
(i) no change in tenor, and overall amount of the Facility being
imposed on any provider of Security;
(ii) no change in the timing of any interest or principal repayments
by the Borrower;
(iii) no change in any undertaking given by a provider of Security
under any Finance Document which may have an adverse effect on
any provider of Security under any Finance Document;
(iv) any provider of Security and the Borrower being reimbursed any
additional costs in such regard and the legal, tax and financial
situation of the Borrower is not adversely affected; and
(v) after such transfer, assignment, novation, split, sub-division or
other amendment contemplated by this Clause 22.18 (Securitisation
and Tranching) the weighted average of interest rate attributable
to each Tranche shall be no greater than the overall interest
rate attributable to the Facility prior to the same to the extent
that the amount of interest, principal repayments and/or fees
payable by the Borrower pursuant to this Agreement shall not (in
aggregate) exceed the amount of the same which would have been
payable had no such transfer, assignment, novation, split,
sub-division or other amendment taken place.
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22.19 CONDUCT OF BUSINESS
(a) The Borrower shall not trade or carry on any business, or incur any
liabilities, other than the business of disposing, marketing, managing
and owning the Properties consistent with the terms of the provision
of the Finance Documents.
(b) The Borrower shall conduct its business in a reasonable and prudent
matter and in accordance with its constitutional documents and the
Finance Documents.
(c) The Borrower will, save as otherwise expressly permitted under the
terms of this Agreement:
(i) maintain its accounts, books and records separately from any
other person;
(ii) maintain separate accounts and financial statements, provided
that the Borrower may consolidate its financial statements with
its parent companies;
(iii) not commingle its assets with those of any other;
(iv) conduct its business in its own name;
(v) only enter into transactions in accordance with the Finance
Documents, in good faith for its own benefit and on arm's length
terms,
(vi) discharge all obligations and liabilities due and owing by it
from its own funds;
(vii) not acquire or allowed to be transferred to it any obligations
or securities of its Shareholders;
(viii) use its own invoices and not those of any other person; and
(ix) hold itself out as a separate entity.
22.20 NO EMPLOYEES
The Borrower shall not at any time have any employees.
22.21 PARI PASSU RANKING
Its payment obligations under the Finance Documents will always rank at
least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by
law applying to companies generally.
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22.22 OWNERSHIP OF THE BORROWER
Subject to Clause 22.5(b)(ii)(2) (Disposals), the entire issued share
capital of the Borrower will be legally and beneficially owned and
controlled by the Shareholders unless the prior written consent of the
Lenders approve any sale of the Shares to a third party or as permitted
under this Agreement.
22.23 INVESTMENTS
The Borrower will not:
(a) acquire directly or indirectly (whether by one transaction or by a
series of related transaction) any interest whatsoever in the share
capital (or equivalent) or the business or undertaking (including
without limitation, any franchise rights) or assets constituting a
separate business or undertaking of any person;
(b) acquire any company, business or undertaking; or
(c) make any other investment or otherwise acquires any document
evidencing Financial Indebtedness, loan stock or other securities,
unless otherwise approved in writing by the Majority Lenders (such approval
not to be unreasonably withheld).
22.24 NO OTHER CAPITAL EXPENDITURE
The Borrower shall not carry out any other capital expenditure other than
the Capex Costs unless it is funded out of equity and material liability
may arise out of them exceeding an aggregate amount of EUR 100,000.
23. PROPERTY UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the date of this
Agreement for so long as any amount of the Secured Obligations is
outstanding or any Commitment is in force.
23.1 TITLE
The Borrower shall:
(a) observe and perform all restrictive and other covenants, stipulations
and obligations now or at any time affecting the Properties insofar as
the same are subsisting and are capable of being enforced;
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(b) duly and diligently enforce all restrictive or other covenants,
stipulations and obligations benefiting the Properties and not waive,
release or vary (or agree to do so) the obligations of any other party
thereto; and
(c) promptly take all such steps (including, without limitation, the
execution, completion and delivery of documentation, returns, forms
and certificates; the answering of any questions or correspondence
from any Tax Authority or any land registry; the payment of any fees,
penalties, tax and interest), as may be necessary or desirable to
enable the Security expressed to be created by the Finance Documents
and its title to the relevant Properties to be validly registered at
the competent land registry.
23.2 LEASES
(a) Subject to paragraphs (b) and (d) below and except as permitted under
the applicable Lease, the Borrower shall not, without the prior
written consent of the Facility Agent (such consent not to be
unreasonably withheld or delayed):
(i) enter or agree to enter into any new Lease save pursuant to an
agreement for lease;
(ii) agree to any amendment, waiver or surrender in respect of any
Lease other than the amendments contemplated in the Sale and
Purchase Agreement;
(iii) agree to any sublease to be entered between any of the Tenants
and a third party (other than a sublease to an Affiliate of a
Tenant) in respect of a Property;
(iv) consent to any assignment of any tenant's interest under any
Lease except as required under the applicable Lease;
(v) waive, release, forfeit or exercise any right of re-entry or vary
any obligation under, or the terms of, or exercise any option or
power to break, determine or extend, any Lease; or
(vi) accept or permit the surrender of all or any part of any Lease.
(b) The Borrower shall notify the Facility Agent upon any proposed action
set out in paragraph (a) and the Facility Agent shall respond within
fifteen (15) Business Days following the receipt of such notice. If
the Facility Agent considers the proposed action sufficiently complex
(acting reasonably), the Facility Agent and the Borrower shall agree
upon such longer period as the Facility Agent deems necessary.
(c) Paragraph (a) does not apply to any replacement of any of the Tenants
as lessee under the respective lease agreement or to any sub-lease
agreements, if:
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(i) in respect of sub-leases, the respective sub-lease agreements do
not exceed 25 % of the aggregate amount of Rental Income in
respect of such Property received by such Tenant during the
immediately preceding Interest Period; or
(ii) in respect of new lease agreements,
(1) the new lease agreement to be entered into is in all
material respects, including, but not limited to, the term
of the lease, the net rental income deriving out of such
lease, identical to the Lease with the Tenants; and
(2) the Borrower has notified the Facility Agent at least twenty
(20) Business Days prior to the signing of such new lease
agreement.
(d) The Borrower shall
(i) diligently collect all Rental Income payable under each Lease;
(ii) use commercially reasonable endeavours of a prudent merchant
(ordentlicher Kaufmann) to enforce the tenant's obligations under
each Lease (including the enforcement of any related guarantee);
and
(iii) duly and diligently implement the provisions of any Lease
(including any provision for the review of the rents thereby
reserved).
23.3 ENVIRONMENTAL COMPLIANCE
(a) The Borrower shall comply, or shall cause the Tenant to comply, in all
material respects with all Environmental Law and obtain and maintain
any Environmental Permits and take all reasonable steps in
anticipation of known or expected future changes to or obligations
under the same.
(b) The Borrower shall promptly implement, or shall cause the Tenant to
implement, (and, in any event, within any time period stipulated in
any Environmental Report) all steps recommended to be implemented
under any such Environmental Report and under any official decree and
notify the Facility Agent when all such steps have been implemented
fully.
(c) The Borrower shall inform the Facility Agent in writing as soon as
reasonably practicable upon becoming aware of the same:
(i) if any Environmental Claim has been commenced or (to the best of
the Borrower's knowledge and belief) is threatened against the
Borrower or any Tenant, or
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(ii) of any facts or circumstances which shall or are reasonably
likely to result in any Environmental Claim being commenced or
threatened against the Borrower or any Tenant.
23.4 VAT ELECTION
The Borrower shall not, without the prior written consent of the Facility
Agent:
(a) change the treatment of its services as exempt or taxable, for German
value added tax purposes; or
(b) exercise any option, election or discretion to transfer or otherwise
dispose of all or part of any right to credit or repayment in respect
of any VAT from the relevant Tax Authority.
23.5 MARKET VALUATIONS
(a) The Borrower shall request the Valuer to promptly prepare and deliver
to the Facility Agent a yearly desktop Market Valuation of the
Properties to be provided on each anniversary of the Initial
Utilisation Date of the Facilities.
(b) Subject to lit. (c) below, the Facility Agent may also, at any other
time, request:
(i) the Valuer promptly to prepare and deliver to the Facility Agent
a full Market Valuation of;
(ii) the Valuer promptly to prepare and deliver to the Facility Agent
a structural survey of; or
(iii) the Borrower to ensure an environmental report is prepared in
relation to,
the Properties as the Facility Agent may direct. The cost of each such
full Market Valuation, survey or report shall be borne by the Facility
Agent unless such full Market Valuation, survey or report reveals an
Event of Default which is continuing in which case the costs shall be
borne by the Borrower.
(c) No later than ten (10) Business Days before the 30 March 2013, the
Borrower shall request the Valuer to promptly prepare and deliver to
the Facility Agent a full Market Valuation. The Borrower shall supply
such full Market Valuation to the Facility Agent no later than ten
(10) Business Days prior to the 30 March 2013. The costs of such full
Market Valuation shall be borne by the Borrower.
(d) The Borrower shall supply to the Facility Agent promptly copies of all
external valuations (including year end valuations) relating to the
Properties or parts thereof.
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23.6 INSURANCE
(a) The Borrower shall ensure to the satisfaction of the Facility Agent
that the Tenants effect and maintain and that there is effected and
maintained at all times with Zurich Insurance Company or a substantial
and reputable insurance underwriter having a long term credit rating
of at least A- from Standard & Poor's Rating Services, a division of
the McGraw-Hill Companies Inc., and, in addition, either A3 (long
term) from Moody's Investors Service, Inc. or, if the insurer does not
possess such other rating, ensure that the insurer is a reputable
insurance company and is authorised to underwrite insurances in
Germany or otherwise acceptable to the Facility Agent (acting
reasonably):
(i) an insurance in respect of the Properties, trade and other
fixtures and fixed plant and machinery forming part of the
Properties against loss or damage by fire, explosion, storm,
tempest (including lightning), flood, earthquake, burst pipes,
impact, heave, subsidence and (in peacetime) aircraft and other
aerial devices and articles dropped from them, riot, civil
commotion and malicious damage, impact by road vehicle and such
other risks and contingencies as are insured in accordance with
sound commercial practice in Germany or which the Facility Agent
may direct from time to time to the full reinstatement value
thereof with sufficient provision also being made for the cost of
clearing the site and architects', engineers', surveyors' and
other professional fees incidental thereto (together with
provision for forward inflation) and the loss of Rental Income or
prospective Rental Income for a period of not less than two (2)
years and having regard to any potential increases in Rental
Income or to the value of the Nagold Property as a result of
reviews or resulting from Works performed in respect of the
Nagold Property;
(ii) an insurance against product and third party and public liability
risks with a limit of not less than EUR 3,000,000; and
(iii) any other insurance as the Borrower or the Facility Agent shall
reasonably request which is applicable to commercial properties
and constitutes a risk and an amount that it is usual business
practice to insure against in Germany.
(b) The Borrower shall ensure at all times that all Insurance Policies
contain a mortgagee clause whereby such Insurance Policy shall not be
vitiated or avoided as against a mortgagee or security holder in the
event of or as a result of any misrepresentation, act, neglect or
failure to make disclosure on the part of the insured party (other
than the Finance Parties) or any tenant or other insured party and a
waiver of all rights of subrogation or a ny circumstances beyond the
control of any insured party.
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(c) The Borrower shall ensure at all times that all Insurance Policies
contain terms providing that it shall not be invalidated so far as the
Facility Agent is concerned for failure to pay any premium due without
the insurer first giving to the Facility Agent not less than fourteen
(14) days' written notice. The Borrower shall use its best endeavours
that each relevant insurer will issue a certificate of third party
interest in the insurance (Sicherungsbestatigung / Sicherungsschein)
in favour of the Facility Agent confirming that the legal provisions
set out in sections 94 and 142 to 149 of the German Insurance Contract
Act (Versicherungsvertragsgesetz) apply to all kinds of property
insurances.
(d) The Facility Agent may request the Borrower to provide it with details
of any Insurance Policy and may, if it considers that the amount
insured by, or the risks covered by, any such Insurance Policy are
inadequate based upon reasonable standards of owners of similar
commercial real estate in Germany, require the Borrower to increase
the amount insured by, and/or amend the category of risks covered by,
any such Insurance Policy to such extent and in such manner as the
Facility Agent may consider appropriate but not exceeding the Market
Value of the Properties and the Borrower shall promptly comply with
such request.
(e) The Borrower shall:
(i) use all reasonable endeavours to ensure that there has been given
to the Facility Agent such information in connection with, and
copies of, the Insurance Policies as the Facility Agent may at
any time require and shall notify the Facility Agent of renewals
made and material variations or cancellations of Insurance
Policies made or, to the knowledge of the Borrower, threatened or
pending;
(ii) not do or permit anything to be done which may make void or
voidable any Insurance Policy; and
(iii) ensure that each Tenant duly and punctually pays all premiums
and other monies payable under all Insurance Policies and produce
on yearly basis and for each renewal to the Facility Agent a copy
or sufficient extract of every Insurance Policy together with the
premium receipts or other evidence of the payment thereof.
(f) The Borrower shall at all times:
(i) ensure that each Insurance Policy (other than third party
liability insurances) is in the name of the respective Tenant
concerned (Versicherungsnehmer) and the Facility Agent on behalf
of the Finance Parties as co-insured with the Facility Agent
named as loss payee (Versicherter) within the meaning of Section
74 et seq. of the German Insurance Contract Act
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(Versicherungsvertragsgesetz), (Versicherung fur fremde Rechnung)
and shall ensure that either each Insurance Policy contains a
provision under which the proceeds of the insurance are payable
directly to the Proceeds Account or it irrevocable instructs the
respective insurance company to transfer any proceeds payable
under the respective Insurance Policy is directly paid into the
Proceeds Account; and
(ii) where any asset is for the time being insured otherwise than in
the name of the Facility Agent and the respective Tenant (other
than third party liability insurances), cause the interest of the
Facility Agent to be noted or endorsed on the policy or policies
of insurance relating thereto.
(g) If any Tenant does not comply with its obligations in respect of any
Insurance Policy, the Facility Agent may (without any obligation to do
so), after the Facility Agent has set down a twenty (20) Business
Days' grace period, effect or renew any such Insurance Policy in its
own name (and not in any way for the benefit of the Borrower or the
respective Tenant) and the monies expended by the Facility Agent on so
effecting or renewing any such insurance shall be reimbursed by the
Borrower to the Facility Agent on demand. However, the Facility Agent
shall not be required to set the grace period of twenty (20) Business
Days if the Properties was underinsured or non-insured during such
grace period.
23.7 COMPULSORY PURCHASE
(a) The Borrower shall promptly after becoming aware notify the Facility
Agent if any part of the Properties is compulsorily purchased or the
applicable governmental agency or authority makes an order for the
compulsory purchase of the same.
(b) On receipt of such notice from the Borrower, the Facility Agent shall
be entitled to request a revised Market Valuation of the Properties
(the cost of any such Market Valuation shall be borne by the Borrower)
ignoring that part being compulsorily purchased, for the purposes of
Clause 22.3 (Loan to value).
23.8 REPAIR AND RECONSTRUCTION
The Borrower shall ensure that each Tenant:
(a) repairs and keeps or causes each Tenant to repair and keep in good and
substantial repair and condition the Properties and any other
machinery and equipment forming part of the Properties and when
necessary replaces the same by items of similar quality and value
taking into account any Construction and Planning Law and Construction
and Planning Permits;
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(b) after being required to do so by the Facility Agent, makes good or
causes each Tenant to make good within the time periods set forth in
the applicable Lease, any want of repair in the Properties and any
other machinery and equipment forming part of the Properties;
(c) reconstructs the Properties within the time periods and as provided in
the applicable Lease in case of the occurrence of an event of force
majeure; and
(d) promptly implements or causes each Tenant to implement in accordance
with the applicable Lease (and, in any event, within any time period
stipulated in any such structural survey) all steps recommended to be
implemented under any structural survey referred to in the relevant
reports set out in Schedule 2 (Conditions precedent) or requested in
accordance with Clause 23.5(b)(ii) (Market Valuations) and notifies
the Facility Agent when all such steps have been implemented fully.
23.9 ALTERATIONS
The Borrower shall not and shall ensure that the Tenants, at any time,
without the prior written consent of the Facility Agent:
(a) effect, carry out or permit any demolition, reconstruction or
rebuilding of or any structural alteration to, or material change in
the use of, the Properties or parts thereof; or
(b) sever, unfix or remove any of the fixtures (except for the purpose and
in the course of effecting necessary repairs thereto or of replacing
the same with new or improved models or substitutes) thereon belonging
to or in use by the Borrower.
(c) Notwithstanding the paragraphs (a) and (b) above, the consent of the
Facility Agent shall not be required to the extent the consent of the
Landlord is not required for an alteration pursuant to Clause 10.3 of
the applicable Lease.
23.10 NOTICES
(a) The Borrower shall promptly give full particulars (and if requested a
copy of any written particulars received by the Borrower) to the
Facility Agent of any notice, order, directive, designation,
resolution or proposal having application to the Properties or to the
area in which it is situate by any planning authority or other public
body or authority under or by virtue of planning acts or any other
statutory power or powers conferred by any other law; and
(b) if so required by the Facility Agent, the Facility Agent may at the
cost of the Borrower take all reasonable or expedient steps (in the
name of the Borrower or otherwise) to ensure compliance with any such
notice or order and may at the cost of the Borrower make such
objection or objections or representations against or in
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respect of any proposal for such a notice or order as the Facility
Agent considers expedient.
23.11 PAY RENTS, CHARGES AND TAXES
The Borrower shall and shall ensure that the Tenants punctually pay or
cause to be paid and indemnify the Facility Agent on demand against all
existing and future rents, Taxes, 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 this Agreement
are payable in respect of the Properties or any part thereof.
23.12 REFURBISHMENT
The Borrower shall and shall ensure that the Tenants without undue delay
complete all pending refurbishment and reconstruction works at the
Properties as agreed in any Lease in case pending refurbishment works have
not been properly completed by the Sellers and have not been approved and
signed off by the respective tenant upon completion.
23.13 SERVICE CHARGE EXPENSES
The Borrower shall ensure that the Tenants promptly pay all Service Charge
Expenses as set out in the Lease Agreements.
23.14 ENTRY AND POWER TO REMEDY BREACHES
(a) If, at any time, the Borrower fails, or is considered by the Facility
Agent to have failed to have performed, any obligation under this
Clause 23 (Properties undertakings), it shall be lawful for the
Facility Agent (without any obligation to do so), if it gives the
Borrower not less than thirty (30) Business Days' prior written
notice, subject to the rights of Tenant under the Leases, to enter the
Properties 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 opinion of the Facility
Agent, be required to remedy or rectify any such failure and do or
take any action on or in relation to the Properties as may in the
opinion of the Facility Agent be required to remedy or rectify such
failure.
(b) The reasonable fees, costs and expenses incurred by the Facility Agent
for such works and taking such steps shall be reimbursed by the
Borrower to the Facility Agent on demand.
(c) The exercise by the Facility Agent of its powers under this Clause
23.13 (Entry and power to remedy breaches) shall not render any
Finance Party liable to account as mortgagee in possession.
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24. CAPEX UNDERTAKINGS
The undertakings in this Clause 24 (Capex Undertakings) remain in force
from the date of this Agreement for so long as any amount of the Secured
Obligations is outstanding or any Commitment is in force.
24.1 WORKS
(a) The Borrower shall diligently and expeditiously ensure the design,
carrying out and completion of all Works by the Tenants pursuant to
the respective Lease Agreements in accordance with (as applicable) the
applicable plans, drawings, calculations, consents and specifications
and otherwise in accordance with this Agreement, and (without limiting
or derogating from the requirements of the plans, drawings,
calculations, consents and specifications and this Agreement):
(i) in a good and workmanlike manner, using materials which are fit
for their respective purposes, free from any latent or inherent
defect (whether of design, workmanship or material); and
(ii) at least in accordance with all relevant laws and regulations.
(b) In respect of any Works, the Borrower shall without undue delay
(unverzuglich):
(i) obtain, or ensure the obtaining of all required consents so as to
ensure the required Consents are in place as and when required
for the purposes of the relevant Works and use its reasonable
endeavours to ensure that each such consent is preserved and
remains effective without material amendment for the benefit of
the Works;
(ii) in all material respects, comply, or ensure compliance with, all
laws relating to the Works and all conditions attaching to any
consent; and
(iii) exercise its rights and comply in all material respects with its
obligations under each Capex Document and use its reasonable
endeavours to ensure that other exercise their rights and comply
with their obligations under each Capex Document in a proper and
timely manner.
(c) The Borrower shall not, except with the prior written consent of the
Facility Agent enter into or agree to or permit to be agreed any
amendment to any contract or budget in relation to any Works after the
same shall have been approved in writing by the Facility Agent which
is likely to have an adverse effect on
(i) the cost, size, specification, lay-out or quality of those Works;
or
(ii) the timing of completion of those Works.
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24.2 CAPEX COSTS
(a) The Borrower and each of the Tenants shall not incur any cost or
expense in connection with any Works which is not anticipated in the
calculations and/or budgets except where the aggregate of such costs
and expenses at any time does not exceed EUR 100,000 or if such costs
are 100 % funded out of equity by the respective Tenant.
(b) The Borrower shall ensure prompt payment or funding, from sources
other than the Capex Loans, but in compliance with the terms of this
Agreement, all cost overruns.
(c) The Borrower shall ensure that costs and expenses in connection with
Works over and above those financed by the Lender are funded in full
by insertion of equity by the Shareholders, subordinated intercompany
debt or the applicable Tenant.
25. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 25 (Events of
Default) is an Event of Default.
25.1 NON-PAYMENT
The Borrower or any Shareholder or Junior Creditor does not pay on the due
date any amount payable pursuant to a Finance Document at the place and in
the currency in which it is expressed to be payable unless
(a) in respect of any payment obligations set out in Clause 7, 8 and 9,
its failure to pay is caused solely by an administrative or technical
error in the transmission of funds and such failure is remedied in two
(2) Business Days, or
(b) in respect of any other payment obligation not mentioned in (a), its
failure is remedied in three (3) Business Days.
25.2 BREACH OF SPECIFIC UNDERTAKINGS
(a) The Borrower does not comply with Clauses 21 (Control Accounts)
(unless any failure by the Borrower to perform or comply with that
Clause is caused solely by the default on the part of the Facility
Agent in applying proceeds standing to the credit of a Control Account
in accordance with this Agreement), 22.3 (Loan to value) (subject to
Clause 25.2 (b) below), 20.6 (Disposals), 22.6 (Financial
Indebtedness), 22.15 (Distributions), 22.21 (Pari Passu Ranking) 23.2
(Leases), 23.4 (VAT election), 23.5 (Market Valuations) and 23.6
(Insurance) (other than those obligations referred to in Clause 25.1
(Non-payment)).
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(b) No Event of Default under Clause 22.3 (Loan to value) shall occur if
the failure to comply is capable of remedy and is remedied on the
immediately succeeding Interest Payment Date by means of
(i) cash equity contribution or shareholder loans by an Affiliate of
the Borrower which are subordinated in accordance with the
Subordination Agreement; or
(ii) a cash deposit by the Borrower into a reserve account on terms
satisfactory to the Facility Agent.
However, the cure rights under this Clause 25 (b) (Breach of specific
undertakings) may only be used not more than two (2) times (not two
(2) consecutive times) throughout the term of this Agreement.
(c) Notwithstanding paragraph (b) above, no Event of Default shall under
paragraph (a) above occur if the failure to comply is capable of
remedy in the opinion of the Facility Agent and is remedied within
twenty (20) days of the occurrence of such Event of Default.
25.3 ENCUMBRANCES OF THE PROPERTIES
The Borrower creates or allows to exist a security interest over the
Properties which is not permitted or only permitted pursuant to Clause
22.4(b) (vi) (Negative pledge).
25.4 BREACH OF OTHER UNDERTAKINGS
(a) The Borrower or any Shareholder or any Junior Creditor does not comply
with any material provision of the Finance Documents other than those
referred to in Clauses 20 (Tenant Covenant), 25.1 (Non-payment), 25.2
(Breach of specific undertakings) and 25.3 (Encumbrances of the
Properties)).
(b) No Event of Default under paragraph (a) above shall occur if the
failure to comply is capable of remedy in the opinion of the Facility
Agent and is remedied within fifteen (15) Business Days of the
Facility Agent giving notice to the Borrower or the Borrower becoming
aware of the failure to comply.
25.5 MISREPRESENTATION
Any material representation or statement made or deemed to be made by the
Borrower, any Shareholder or any Junior Creditor in the Finance Documents
or any other document delivered by or on behalf of the Borrower under or in
connection with any Finance Document is or proves to have been incorrect or
misleading in any material respect when made or deemed to be made unless
the circumstances giving rise to the misrepresentation are capable of
remedy and (i) except for Clause 18.7 (c) (Deduction of Tax / Interest
Barrier Rules) are remedied within twenty (20) Business Days of the earlier
of the Facility Agent
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giving notice of the misrepresentation and the Borrower or the respective
Shareholder becoming aware of the misrepresentation, or, (ii) in case of
Clause 18.7 (c) (Deduction of Tax / Interest Barrier Rules), if the
thresholds set out in Clause 18.7 (c) (Deduction of Tax / Interest Barrier
Rules) have been exceeded, the additional taxes triggered by the interest
barrier rules have been financed upon request by the Facility Agent by
equity contributions of an Affiliate of the Borrower, such equity
contributions being subordinated in accordance with the Subordination
Agreement.
25.6 CROSS-DEFAULT
(a) Any Financial Indebtedness of the Borrower, Shareholder or any Junior
Creditor is not paid when due nor within any originally applicable
grace period;
(b) any Financial Indebtedness of the Borrower, Shareholder or any Junior
Creditor 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),
(c) any commitment for any Financial Indebtedness of the Borrower,
Shareholder or any Junior Creditor is cancelled or suspended by a
creditor of the Borrower as a result of an event of default (however
described);
(d) any creditor becomes entitled to declare any Financial Indebtedness of
the Borrower, Shareholder or any Junior Creditor due and payable prior
to its specified maturity as a result of an event of default (however
described;
unless the aggregate principal amount of Financial Indebtedness falling
within (a) to (d) above is less than EUR 100,000.
25.7 INSOLVENCY
(a) The Borrower 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.
(b) The value of the assets of the Borrower is less than its liabilities
(taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of the
Borrower.
25.8 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken, or notice given, in relation to:
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(a) the opening of insolvency proceedings, the suspension of payments, a
moratorium of any indebtedness, winding-up, dissolution,
administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of, or the appointment of an
administrator to the Borrower, voluntary or judicial liquidation,
composition with creditors, reprieve from payment, controlled
management, general settlement with creditors, reorganisation or
similar law affecting the rights of creditors generally; or
(b) a composition, assignment or arrangement with any creditors of the
Borrower; or
(c) the appointment of an insolvency administrator, a provisional
liquidator, a liquidator, receiver, receiver or manager,
administrative receiver, preliminary insolvency administrator,
compulsory or interim manager or other similar officer in respect of
the Borrower or any of its assets; or
(d) enforcement of any Security over any assets of the Borrower,
or any analogous procedure or step is taken in any jurisdiction.
25.9 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution affects
any material asset or assets of the Borrower or any of the Shareholder and
is not discharged within ten (10) days.
25.10 INSOLVENCY OF ANY OF THE TENANTS
(a) A Tenant is unable or admits inability to pay its debts as they fall
due or is deemed to be or declared to be unable to pay its debts
(including German law Zahlungsunfahigkeit in accordance with section
17 of the German Insolvency Code (Insolvenzordnung) or insolvent or in
a situation of impending illiquidity (drohende Zahlungsunfahigkeit) in
accordance with section 18 of the German Insolvency Code
(Insolvenzordnung) or overindebted (uberschuldet) in accordance with
section 19 of the German Insolvency Code (Insolvenzordnung) or any
similar concept under applicable law other than German law 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.
(b) The value of the assets of a Tenant is less than its liabilities
(taking into account contingent and prospective liabilities).
(c) An application has been rejected on grounds of insufficiency of assets
(including German law Abweisung mangels Masse) by a court or by direct
application of the law in Germany or elsewhere for the winding-up,
dissolution or administration of any of the Tenants.
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(d) A moratorium is declared in respect of any indebtedness of a Tenant.
(e) A Tenant or any third party files for the opening of insolvency
proceedings of such Tenant's assets or insolvency proceedings on the
Tenant's assets are opened or dismissed for lacking assets.
25.11 INSOLVENCY OF WAGON PLC
The Finance Parties shall act reasonably in making a decision of whether to
declare a Default pursuant to this Clause 25.11 (Insolvency of Wagon PLC):
(a) Wagon PLC 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.
(b) The value of the assets of Wagon PLC is less than its liabilities
(taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any of the
Tenants or of Wagon PLC.
25.12 COMPULSORY PURCHASE
Any part or interest of the Borrower in the Properties is compulsorily
purchased or is otherwise nationalised or otherwise expropriated unless
otherwise permitted in this Agreement and subject to Clause 22.5 (b)(i)(3)
(Disposals).
25.13 MAJOR DAMAGE
The Properties or parts thereof are destroyed or otherwise damaged and the
Facility Agent determines (acting reasonably) that such destruction or
damage is not fully insured for full reinstatement value or which may
result in any abatement of rent under any Lease which abatement the
Facility Agent determines (acting reasonably) is not fully insured for a
period of at least two (2) years.
25.14 CESSATION OF BUSINESS
The Borrower ceases, or threatens to cease, to carry on a substantial part
of its business except as a result of any Disposal permitted under this
Agreement.
25.15 UNLAWFULNESS
It is or becomes unlawful for the Borrower or any Shareholder or any Junior
Creditor to perform any of its obligations under the Finance Documents or
any Transaction Security
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created or expressed to be created or enhanced by the Security Documents
ceases to be effective.
25.16 FINANCE DOCUMENTS
Any Finance Document, the Sale and Purchase Agreement or any Transaction
Security is not, or is alleged by any Party thereto (other than a Finance
Party) not to be, binding on or enforceable against such Party or effective
to create any Security intended or purported to be created by it.
25.17 REPUDIATION (ENDGULTIGE ERFULLUNGSVERWEIGERUNG)
The Borrower, any of the Shareholders or any Junior Creditor repudiates a
Finance Document or Sale and Purchase Agreement or evidences an intention
to repudiate a Finance Document or Sale any Purchase Agreement.
25.18 TRANSACTION SECURITY
(a) The Borrower or any Shareholder fails to perform or comply with any of
the obligations assumed by it under the Security Documents.
(b) At any time any of the Transaction Security is not or ceases to be
legal, valid, binding or enforceable.
25.19 TERMINATION
The Borrower or the any of the Shareholders suspends, terminates or cancels
any Security or guarantee for whatever reason.
25.20 OWNERSHIP OF THE BORROWER
All of the membership interests of the Borrower are not or ceases to be
legally and beneficially owned and controlled by the Shareholders or by an
entity fully controlled by the respective Shareholder except as a result of
any disposal permitted under this Agreement, including a transfer to a
member of the W.P. Carey Group pursuant to Clause 22.5 (Disposals)
25.21 TRANSFER OF OBLIGATIONS
The Borrower assigns any of its rights or transfer any of its rights and
obligations under the Finance Documents to a third party without the prior
written consent of the Original Lender and except for any transfers of
rights and obligations to a member of the W.P. Carey Group.
25.22 TAX AUTHORITY ASSESSMENTS
Any tax authority assessment, which is reasonably likely to have a Material
Adverse Effect.
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25.23 MATERIAL ADVERSE EFFECT
Any event or series of events occurs which gives rise to a Material Adverse
Effect other than a breach of the Lease Obligations Covenant, the Tenant
Covenant or the Loan to Value Covenant.
25.24 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing, the Facility Agent may, and shall, if so directed by the
Majority Lenders, by notice to the Borrower:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) 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
(c) take any step to enforce or direct the Security Agent to enforce any
Security, or exercise any rights, remedies and powers of the Finance
Parties, under the Finance Documents.
26. CHANGES TO FINANCE PARTIES
26.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 26, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights; or
(b) assign and transfer or otherwise dispose of, any of its rights and
obligations by way of assumption of contract (Vertragsubernahme),
under the Finance Documents (including any Security created under the
Finance Documents) to
(a) any of its subsidiaries;
(b) another bank or any other financial institutions; or
(c) to a new lender
(the "NEW LENDER").
26.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) Such an assignment or disposal shall only be effective on:
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(i) receipt by the Facility Agent of written confirmation from the
New Lender (in form and substance satisfactory to the Facility
Agent) (acting reasonably) that the New Lender shall assume the
same obligations to the Finance Parties as it would have been
under if it was the Existing Lender concerned and upon such
assignment or disposal becoming effective, the assigning or
disposing Lender will be relieved of its obligations under the
Finance Documents to the extent assumed by the New Lender; and
(ii) performance by the Facility Agent of all "know your customer" or
other similar checks under all applicable laws and regulations in
relation to such assignment to a New Lender, the completion of
which the Facility Agent shall promptly notify to the Existing
Lender and the New Lender.
(b) A transfer shall only be effective if the procedure set out in Clause
26.4 (Procedure for transfer) is complied with.
(c) Nothing in any Finance Document shall be construed as prohibiting a
Lender from creating Security over any or all of its rights under the
Finance Documents (including any Security created under the Finance
Documents) in favour of any person at any time.
If:
(d) a Lender assigns or transfers any of its rights or obligations under
the Finance Documents or changes its Facility Office; and
(e) as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Borrower would be obliged to make a
payment to the New Lender, or the Lender acting through its new
Facility Office, under Clause 13 (Tax gross-up and indemnities) or
Clause 14 (Increased Costs),
then the New Lender, or the Lender acting through its new Facility Office,
is only entitled to receive payment under those clauses to the same extent
as the Existing Lender, or Lender acting through its previous Facility
Office, would have been if the assignment, transfer or change had not
occurred and accordingly the Borrower shall not be obliged to make any
payment to the New Lender or Lender acting through its new Facility Office
under those clauses in excess of the payment that it would have had to make
to the Existing Lender or Lender acting through its previous Facility
Office if the assignment, transfer or change had not occurred.
26.3 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to the New
Lender for:
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(i) the legality, validity, effectiveness, adequacy or enforceability
of the Finance Documents or any other documents;
(ii) the financial condition of the Borrower;
(iii) the performance and observance by the Borrower of its
obligations under the Finance Documents or any other documents;
or
(iv) 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.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of the Borrower 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
(ii) shall continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities whilst
any amount is or may be outstanding under the Finance Documents
or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(d) accept a re-transfer or re-assignment from a New Lender of any of the
rights and obligations assigned, transferred or disposed of under this
Clause 26; or
(e) support any losses directly or indirectly incurred by the New Lender
by reason of the non-performance by the Borrower of its obligations
under the Finance Documents or otherwise.
26.4 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 26.2 (Conditions of
assignment or transfer) a transfer (Vertragsubernahme) is effected in
accordance with paragraph (c) below when the Facility Agent executes
an otherwise duly completed Transfer Certificate delivered to it by
the Existing Lender and the New Lender. The Facility Agent shall, as
soon as reasonably practicable after receipt by it of a duly completed
Transfer Certificate appearing on its face to comply with the terms of
this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.
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(b) The Facility Agent shall only be obliged to execute a Transfer
Certificate delivered to it by the Existing Lender and the New Lender
once it is satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations in relation to the transfer to such New Lender.
(c) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer 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 its respective rights against one another
shall be cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
(ii) 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;
(iii) the Facility Agent, the Arranger, the Security Agent, the New
Lender and the 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 Facility Agent, the
Arranger, the Security Agent and the Existing Lender shall each
be released from further obligations to each other under this
Agreement; and
(iv) the New Lender shall become a Party as a Lender.
26.5 COPY OF TRANSFER CERTIFICATE TO BORROWER
The Facility Agent shall, as soon as reasonably practicable after it has
executed a Transfer Certificate, send to the Borrower a copy of that
Transfer Certificate.
26.6 DISCLOSURE OF INFORMATION
Any Finance Party may disclose to any of its Affiliates and any other
person:
(a) to (or through) whom that Finance Party assigns, transfers or disposes
of (or may potentially assign, transfer or dispose) all or any of its
rights and obligations under the Finance Documents;
(b) with (or through) whom that Finance Party enters into (or may
potentially enter into) any sub-participation in relation to, or any
other transaction under which payments
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are to be made by reference to, the Finance Documents including in
connection with a proposed Securitisation including, but not limited
to, any disclosure in a prospectus;
(c) which is a person in whose favour that Finance Party creates Security
over its rights under or in connection with the Finance Documents in
connection with a proposed Securitisation;
(d) which is an internationally recognised ratings agency where
appropriate in connection with a proposed Securitisation;
(e) which is an agent or trustee of that Finance Party where appropriate
in connection with a proposed Securitisation;
(f) who is an agent of, or professional and financial adviser to, that
Finance Party or any person named in paragraphs (a) to (e) above;
(g) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation; or
(h) to any potential investor;
any information about the Borrower, the Properties and the Finance
Documents as it shall consider appropriate.
26.7 SYNDICATION
The Borrower shall provide such information and reasonable assistance to
the Facility Agent and the Arranger in the preparation of any information
package and the primary syndication of the Facility on an assignment basis
or on a sub-participation basis, prior or after the Facility Signing Date
(including, without limitation, by making senior management available for
the purpose of making presentations to, or meeting, potential lending
institutions) and will comply with all reasonable requests for information
from potential syndicate members prior to completion of syndication.
27. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its rights
or obligations under the Finance Documents without the prior written
consent of the Original Lender except for any transfers of rights and
obligations (Vertragsubernahme) to another member of the W.P. Carey Group.
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28. ROLE OF THE FACILITY AGENT, THE SECURITY AGENT, THE ARRANGER AND THE
SERVICER
28.1 APPOINTMENT OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) Each other Finance Party appoints
(i) the Facility Agent to act as its agent and, where expressly
stated in any Finance Document, its trustee under and in
connection with the Finance Documents; and
(ii) the Security Agent to act as its security agent and trustee (as
far as applicable under German law as Treuhander)
(b) Each other Finance Party authorises the Facility Agent and the
Security Agent to exercise the rights, powers, authorities
and discretions specifically given to the Facility Agent and the
Security Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities and
discretions.
(c) Each Finance Party releases the Facility Agent and the Security Agent
from the restrictions set out in Section 181 of the German Civil Code
(Burgerliches Gesetzbuch) to the extent legally permissible.
28.2 DUTIES OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) The Facility Agent and the Security Agent shall promptly forward to a
Party the original or a copy of any document which is delivered to the
Facility Agent and the Security Agent for that Party by any other
Party.
(b) Except where a Finance Document specifically provides otherwise,
neither the Facility Agent nor the Security Agent is obliged to review
or check the adequacy, accuracy or completeness of any document it
forwards to another Party.
(c) If the Facility Agent or the Security 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.
(d) If the Facility Agent is aware of the non-payment of any principal,
interest, commitment fee, agency fee or other fee payable to a Finance
Party (other than the Facility Agent, the Security Agent or the
Arranger) under this Agreement it shall promptly notify the other
Finance Parties.
(e) The Facility Agent's and the Security Agent's duties under the Finance
Documents are solely mechanical and administrative in nature.
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28.3 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.
28.4 NO FIDUCIARY DUTIES
(a) Unless otherwise expressly stated in any Finance Document, nothing in
this Agreement constitutes the Facility Agent, the Security Agent or
the Arranger as a trustee or fiduciary of any other person.
(b) None of the Facility Agent, the Security Agent or 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.
28.5 APPOINTMENT OF THE SERVICER
(a) Not later than the Securitisation of the Loan, each Finance Party may
appoint without additional costs for the Borrower the Servicer to act
as loan servicer on its behalf.
(b) Each Finance Party authorises the Servicer to act as its
representative in connection with the Finance Documents and to
exercise the power and authority specifically given to it under or in
connection with the Finance Documents subject only to any express
limitations notified to the Servicer, the Security Agent and the
Facility Agent by any Lender.
(c) The Servicer shall promptly notify the Finance Parties by not less
than five (5) Business Days' notice in advance of any change in the
identity or contact details of the Servicer.
28.6 DUTIES OF SERVICER
(a) The Borrower shall be entitled to act on any instruction or notice
reasonably believed to be issued by or on behalf of the Servicer as if
issued by or on behalf of the Finance Parties and without prejudice to
any defect in the appointment or authority of the Servicer.
(b) A Servicer may sub-contract or otherwise delegate all or some of its
authority and power.
(c) The Borrower and the Finance Parties acknowledge the authority and
power of the Servicer and of any person to whom any such authority or
power is sub-contracted or delegated.
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(d) Unless otherwise notified by the Facility Agent, the Borrower shall be
entitled to act on any instruction or notice reasonably believed to be
issued by or on behalf of the Servicer as if issued by or on behalf of
the Finance Parties without prejudice to any defect in the appointment
or authority of the Servicer.
28.7 BUSINESS WITH THE BORROWER
The Facility Agent 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.
28.8 RIGHTS AND DISCRETIONS OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) The Facility Agent and the Security Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a manager, 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.
(b) Each of the Facility Agent and the Security Agent may assume (unless
it has received notice to the contrary in its capacity as agent or
trustee for the Finance Parties) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 25.1 (Non-payment)); and
(ii) any right, power, authority or discretion vested in any Party to
a Finance Document, the Lenders or the Majority Lenders has not
been exercised,
(c) Each of the Facility Agent and the Security Agent may engage, pay for
and rely on the advice or services of any lawyers, accountants,
surveyors or other experts.
(d) Each of the Facility Agent and the Security Agent may act in relation
to the Finance Documents through its personnel and agents.
(e) Each of the Facility Agent and the Security Agent disclose to any
other Party any information it reasonably believes it has received as
agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, none of the Facility Agent or the Security Agent or the
Arranger is obliged to do or omit to do anything if it would or might
in its reasonable opinion constitute a breach of any law or a breach
of a fiduciary duty or duty of confidentiality.
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28.9 DELEGATION
(a) The Security Agent may, at any time, delegate by power of attorney or
otherwise to any person for any period, all or any of the rights,
powers and discretions vested in it by any of the Finance Documents.
(b) The delegation may be made upon any terms and conditions (including
the power to sub-delegate) and subject to any restrictions as the
Security Agent may think fit in the interests of the Finance Parties
and it shall not be bound to supervise, or be in any way responsible
for any loss incurred by reason of any misconduct or default on the
part of any delegate or sub-delegate.
28.10 LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the
Facility Agent and the Security Agent shall:
(i) exercise any right, power, authority or discretion vested in it
as Facility Agent or Security 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 Facility
Agent or Security 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
Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Lenders shall be binding on all the Finance
Parties.
(c) The Facility Agent and the Security Agent may refrain from acting in
accordance with the instructions of 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.
(d) In the absence of instructions from the Majority Lenders (or if
appropriate the Lenders) each of the Facility Agent and the Security
Agent may act (or refrain from taking action) as it considers to be in
the best interest of the Lenders.
(e) Neither the Facility Agent nor the Security Agent is authorised to act
on behalf of a Finance Party (without first obtaining that Finance
Party's consent) in any litigation or arbitration proceedings relating
to any Finance Document.
28.11 RESPONSIBILITY FOR DOCUMENTATION
Neither the Facility Agent, nor the Security Agent, nor the Arranger:
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(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Facility Agent,
the Arranger, the Borrower or any other person given in or in
connection with any Finance Document; or
(b) 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.
28.12 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Facility Agent and the
Security Agent shall not be liable for any action taken by them under
or in connection with any Finance Document, unless directly caused by
its gross negligence, fraud or wilful misconduct.
(b) No Party (other than the Facility Agent or, as the case may be, the
Security Agent) may take any proceedings against any officer, employee
or agent of the Facility Agent and the Security Agent respectively in
respect of any claim it might have against the Facility 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 Facility Agent and the Security Agent respectively may
rely on this Clause.
(c) Neither the Facility Agent nor the Security Agent shall 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
Facility Agent or the Security Agent respectively if the Facility
Agent or the Security Agent respectively has taken all necessary steps
as soon as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement system
used by the Facility Agent or the Security Agent respectively for that
purpose.
(d) Nothing in this Agreement shall oblige the Facility Agent, the
Security Agent or the Arranger to carry out any "know your customer"
or other checks in relation to any person on behalf of any Lender and
each Lender confirms to the Facility Agent, the Security Agent and the
Arranger that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in
relation to such checks made by the Facility Agent, the Security Agent
or the Arranger.
(e) The Security Agent will not be liable for any losses to any person or
any liability arising as a result of taking or refraining from taking
any action in relation to any of the Finance Documents or the
Transaction Security or otherwise, whether in accordance with an
instruction from the Facility Agent or otherwise;
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(f) The Security Agent will not be liable for:
(i) the exercise of, or the failure to exercise, any judgment,
discretion or power given to it by or in connection with any of
the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, or in
connection with the Finance Documents; or
(ii) any shortfall which arises on the enforcement of Security.
28.13 LENDERS' INDEMNITY TO THE FACILITY AGENT AND THE SECURITY AGENT
(a) 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 Facility Agent and the Security Agent, within three (3) Business
Days of demand, against any cost, loss or liability incurred by the
Facility Agent and/or the Security Agent (otherwise than by reason of
the Facility Agent's or the Security Agent's gross negligence or
wilful misconduct) in acting as Facility Agent under the Finance
Documents (unless the Facility Agent and/or the Security Agent has
been reimbursed by the Borrower pursuant to a Finance Document).
(b) The Borrower shall promptly on demand by the Facility Agent reimburse
each Lender for any payment made by it under paragraph (a) above.
28.14 RESIGNATION OF THE FACILITY AGENT
(a) The Facility Agent may resign and appoint one of its Affiliates acting
through an office in Germany as successor by giving notice to the
other Finance Parties and the Borrower.
(b) Alternatively the Facility Agent 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
Facility Agent.
(c) If the Majority Lenders have not appointed a successor Facility Agent
in accordance with paragraph (b) above within ten (10) days after
notice of resignation was given, the Facility Agent (after
consultation with the Borrower) may appoint a successor Facility Agent
(acting through an office in Germany).
(d) The retiring Facility Agent shall, at its own cost, make available to
the successor Facility Agent such documents and records and provide
such assistance as the successor Facility Agent may reasonably request
for the purposes of performing its functions as Facility Agent under
the Finance Documents.
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(e) The Facility Agent's resignation notice shall only take effect upon
the appointment of a successor.
(f) Upon the appointment of a successor:
(i) the retiring Facility Agent shall be discharged from any further
obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 28; and
(ii) the successor Facility Agent 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.
(g) After consultation with the Borrower, the Majority Lenders may, by
notice to the Facility Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Facility Agent shall resign in
accordance with paragraph (b) above.
28.15 RESIGNATION OF THE SECURITY AGENT
(a) The Security Agent may resign and appoint one of its Affiliates acting
through an office in Germany as successor by giving notice to the
other Finance Parties and the Borrower.
(b) Alternatively the Security Agent 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
Security Agent.
(c) If the Majority Lenders have not appointed a successor Security Agent
in accordance with paragraph (b) above within ten (10) days after
notice of resignation was given, the Security Agent (after
consultation with the Borrower) may appoint a successor Security Agent
(acting through an office in Germany).
(d) The retiring Security Agent shall, at its own cost, make available to
the successor Security Agent such documents and records and provide
such assistance as the successor Security Agent may reasonably request
for the purposes of performing its functions as Security Agent under
the Finance Documents.
(e) The Security Agent's resignation notice shall only take effect upon
the appointment of a successor.
(f) Upon the appointment of a successor:
(i) the retiring Security Agent shall be discharged from any further
obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 28; and
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(ii) the successor Security Agent 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.
(g) After consultation with the Borrower, the Majority Lenders may, by
notice to the Security Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Security Agent shall resign in
accordance with paragraph (b) above.
28.16 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, the Facility Agent and the
Security Agent shall be regarded as acting through its agency division
which shall be treated as a separate entity from any other of its
divisions or departments.
(b) If information is received by another division or department of the
Facility Agent and the Security Agent respectively, it may be treated
as confidential to that division or department and the Facility Agent
and the Security Agent respectively shall not be deemed to have notice
of it.
28.17 RELATIONSHIP WITH THE LENDERS
(a) The Facility Agent and the Security 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 (5)
Business Days' prior notice from that Lender to the contrary in
accordance with the terms of this Agreement.
(b) Each Lender shall supply the Facility Agent with any information that
the Security Agent may reasonably specify (through the Facility Agent)
as being necessary or desirable to enable the Security Agent to
perform its functions as security agent. Each Lender shall deal with
the Security Agent exclusively through the Facility Agent and shall
not deal directly with the Security Agent.
28.18 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of the Borrower for information
supplied by them or on its behalf in connection with any Finance Document,
each Lender confirms to the Facility Agent, the Security Agent and the
Arranger that it has been, and shall continue to be, solely responsible (at
no cost to the Borrower) 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:
(a) the financial condition, status and nature of the Borrower;
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(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document;
(c) 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, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document;
(d) the adequacy, accuracy and/or completeness of any information provided
by the Facility 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, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document; and
(e) the right or title of any person in or to, or the value or sufficiency
of any part of the Security Documents, the priority of any of the
Security Documents or the existence of any Security affecting the
Security Documents.
28.19 DEDUCTION FROM AMOUNTS PAYABLE BY THE FACILITY AGENT AND THE SECURITY
AGENT
If any Party owes an amount to the Facility Agent or the Security Agent
under the Finance Documents the Facility Agent or the Security Agent may,
after giving notice to that Party, deduct an amount not exceeding that
amount from any payment to that Party which the Facility Agent or the
Security Agent would otherwise be obliged to make under the Finance
Documents and apply the amount deducted in or towards satisfaction of the
amount owed. For the purposes of the Finance Documents that Party shall be
regarded as having received any amount so deducted.
28.20 ADMINISTRATION OF GERMAN SECURITY
(a) The Security Agent will:
(i) hold and administer any German Security which is security
assigned or otherwise transferred to it under a non accessory
security right (nicht akzessorische Sicherheit) as trustee
(Treuhander) for the benefit of the Finance Parties; and
(ii) administer (verwalten) any German Security which is pledged
(Verpfandung) or otherwise transferred to any or each Finance
Party under an accessory security Right (akzessorische
Sicherheit).
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(b) Each Finance Party authorises the Security Agent (whether or not by or
through employees or agents):
(i) to exercise such rights, remedies, powers and discretions as are
specifically delegated to or conferred upon the Security Agent by
the German Security Documents and this Agreement together which
such powers and discretions as are reasonably incidental thereto;
(ii) to take such action on its behalf as may, from time to time, be
authorised under or in accordance with the German Security
Documents and this Agreement; and
(iii) to execute for and on its behalf any and all German Security
Documents which create non-accessory (nicht akzessorisch)
Security.
(c) The Security Agent may delegate its power by way of granting a
sub-power of attorney.
(d) The Security Agent may take such action (including, without
limitation, the exercise of all rights, discretions or powers and the
granting of consents or releases or the engagement of a notary for
execution of any documents required in notarial form) or, as the case
may be, refrain from taking such action under or pursuant to the
German Security Documents as the Facility Agent will specifically
direct the Security Agent in writing from time to time.
(e) Unless the Security Agent has been so directed, the Security Agent
will not take any action under the German Security Documents PROVIDED
THAT it may (but is not obliged to) take such action as permitted
under the German Security Documents as it reasonably considers
necessary or appropriate to protect the interests of the Finance
Parties under the German Security Documents.
(f) In Clause 28.20:
"GERMAN SECURITY" means any Security assumed or accepted by or through
the Security Agent or the Finance Parties, as the case may be,
pursuant to any German Security Document and held or administered by
the Security Agent on behalf of or in trust for the Finance Parties
under this Agreement and includes any addition, replacement or
substitutions thereof.
"GERMAN SECURITY DOCUMENT" means each Security Document governed by
German law.
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29. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement shall:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) 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
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
30. SHARING AMONG THE FINANCE PARTIES
30.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers any
amount from the Borrower other than in accordance with Clause 31 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Finance Party shall, within three (3) Business Days,
notify details of the receipt or recovery, to the Facility Agent;
(b) the Facility 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 Facility
Agent and distributed in accordance with Clause 31 (Payment
mechanics), without taking account of any Tax which would be imposed
on the Facility Agent in relation to the receipt, recovery or
distribution; and
(c) the Recovering Finance Party shall, within three (3) Business Days of
demand by the Facility Agent, pay to the Facility Agent an amount (the
"SHARING PAYMENT") equal to such receipt or recovery less any amount
which the Facility Agent determines may be retained by the Recovering
Finance Party as its share of any payment to be made, in accordance
with Clause 31.5 (Partial payments).
30.2 REDISTRIBUTION OF PAYMENTS
The Facility 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 31.5 (Partial
payments).
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30.3 RECOVERING FINANCE PARTY'S RIGHTS
(a) On a distribution by the Facility Agent under Clause 30.2
(Redistribution of payments), the Recovering Finance Party shall be
subrogated to the rights of the Finance Parties which have shared in
the redistribution.
(b) If and to the extent that the Recovering Finance Party is not able to
rely on its rights under paragraph (a) 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.
30.4 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:
(a) each Finance Party which has received a share of the relevant Sharing
Payment pursuant to Clause 30.2 (Redistribution of payments) shall,
upon request of the Facility Agent, pay to the Facility 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
(b) that Recovering Finance Party's rights of subrogation in respect of
any reimbursement shall be cancelled and the Borrower shall be liable
to the reimbursing Finance Party for the amount so reimbursed.
30.5 EXCEPTIONS
(a) This Clause 30 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.
(b) 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:
(i) it notified that other Finance Party of the legal or arbitration
proceedings; and
(ii) the other Finance Party had an opportunity to participate in
those legal or arbitration proceedings but did not do so as soon
as reasonably practicable having received notice and did not take
separate legal or arbitration proceedings.
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31. PAYMENT MECHANICS
31.1 PAYMENTS TO THE FACILITY AGENT
(a) On each date on which the Borrower or a Lender is required to make a
payment under a Finance Document, the Borrower or Lender shall make
the same available to the Facility 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 Facility Agent as being customary
at the time for settlement of transactions in the relevant currency in
the place of payment.
(b) Payment to the Facility Agent shall be made to the Agent's account
designated SG OPER/CAF/DMT1 (account name) with the IBAN FR76 30003
07003 00301999500 79; Swift Code SOGEFRPPHCM at Societe Generale Paris
with attention to Franck Halope Baptiste Duseaux/Nicolas Delestre, and
reference "WP Carey/Wagon" (or such other account, in a principal
financial centre in a Participating Member State, as the Facility
Agent may have specified for this purpose from time to time) so as to
be received by 11.00 a.m. on the due date for each such payment.
31.2 DISTRIBUTIONS BY THE FACILITY AGENT OR THE SECURITY AGENT
Each payment received by the Facility Agent or the Security Agent under the
Finance Documents for another Party shall, subject to Clause 31.3
(Distributions to the Borrower) and Clause 31.4 (Clawback), be made
available by the Facility Agent or the Security 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
Facility Agent or the Security Agent by not less than five (5) Business
Days' notice with a bank in a principal financial centre in a Participating
Member State.
31.3 DISTRIBUTIONS TO THE BORROWER
The Facility Agent may (with the consent of the Borrower or in accordance
with Clause 32 (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 currently due from the Borrower under the Finance
Documents.
31.4 CLAWBACK
(a) Where a sum is to be paid to the Facility Agent or the Security Agent
under the Finance Documents for another Party, neither the Facility
Agent nor the Security Agent is 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.
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(b) If the Facility Agent or the Security Agent pays an amount to another
Party and it proves to be the case that the Facility Agent or the
Security Agent had not actually received that amount, then the Party
to whom that amount (or the proceeds of any related exchange contract)
was paid by the Facility Agent or the Security Agent shall on demand
refund the same to the Facility Agent or the Security Agent together
with interest on that amount from the date of payment to the date of
receipt by the Facility Agent or the Security Agent, calculated by the
Facility Agent to reflect its cost of funds.
31.5 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by the Borrower under
the Finance Documents (or the provisions of this Clause are otherwise
expressed to apply to such payment), the Facility Agent shall apply
that payment towards the obligations of the Borrower under the Finance
Documents in the order as set out in Clause 21.4 (a) (i) to (vii).
(b) Paragraph (a) above shall override any appropriation made by the
Borrower.
31.6 APPLICATION OF PROCEEDS OF SECURITY
All moneys from time to time received or recovered by the Facility Agent or
the Security Agent in connection with the realisation or enforcement of all
or any part of the Transaction Security shall be held by the Security Agent
on trust to apply them at such times as the Security Agent sees fit, to the
extent permitted by applicable law, in the following order of priority:
(a) in discharging costs and expenses incurred by the Security Agent (in
its capacity as security Agent), any Delegate; and
(b) in payment to the Facility Agent, on behalf of the Finance Parties,
towards the discharge of all sums due and payable by the Borrower or
any Shareholder under any of the Finance Documents in the order set
out in Clause 21.4 (Proceeds Account).
31.7 NO SET-OFF BY THE 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.
31.8 BUSINESS DAYS
(a) Save in relation to the Final Repayment Date 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 Month (if there is one) or the preceding
Business Day (if there is not).
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(b) During any extension of the due date for payment of any principal or
an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
31.9 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) and (c) below, euro is the currency of
account and payment for any sum due from the Borrower under any
Finance Document.
(b) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
(c) Any amount expressed to be payable in a currency other than euro shall
be paid in that other currency.
31.10 CHANGE OF CURRENCY
(a) 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:
(i) 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 Facility Agent
(after consultation with the Borrower); and
(ii) 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 Facility Agent (acting
reasonably).
(b) If a change in any currency of a country occurs, this Agreement shall,
to the extent the Facility Agent (acting reasonably and after
consultation with the Borrower) specifies to be necessary, be amended
to comply with any generally accepted conventions and market practice
in the European Interbank Market and otherwise to reflect the change
in currency.
32. 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 matured obligation 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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33. NOTICES
33.1 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 a reputable overnight courier, fax or letter.
33.2 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:
(a) in the case where a person becomes a Party on the day on which this
Agreement is entered into, that identified with its name in the
Contact Detail Letter; and
(b) in the case where a person becomes a Party after the day on which this
Agreement is entered into, that notified in writing to the Facility
Agent on or prior to the date on which it becomes a Party,
or any substitute address, fax number or department or officer as the Party
may notify to the Facility Agent (or the Facility Agent may notify to the
other Parties, if a change is made by the Facility Agent) by not less than
five (5) Business Days' notice.
33.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents shall only
be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of overnight courier, when it has been left at the
relevant address (Zugang), and, if a particular department or
officer is specified as part of its address details provided
under Clause 33.2 (Addresses), if addressed to that department or
officer.
(b) All notices from or to the Borrower or any of them shall be sent
through the Facility Agent.
33.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 33.2 (Addresses) or
changing its own address or fax number, the Facility Agent shall notify the
other Parties.
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33.5 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document must
be in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Facility Agent,
accompanied by a certified English translation and, in this case,
the English translation shall prevail unless the document is a
constitutional, statutory or other official document.
34. CONFIDENTIALITY AND PUBLICITY
The terms and provisions contained in the Finance Documents may not be
disclosed by the Borrower, the Shareholders or any Junior Creditor to any
third party without the prior written consent of the Arranger.
35. CALCULATIONS AND CERTIFICATES
35.1 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.
35.2 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.
35.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document shall
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 European Interbank Market differs, in accordance with that market
practice.
36. PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under any law of any jurisdiction,
neither the legality, validity
114
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. The illegal, invalid or
unenforceable provision shall be deemed replaced by such provision
reflecting the same commercial intent of the parties which provision shall
be legal, valid and enforceable in the relevant jurisdiction. This also
applies in the event of gaps in the documentation (Vertragslucken).
37. 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.
38. AMENDMENTS AND WAIVERS
38.1 FORM OF AMENDMENTS
Changes and amendments to this Agreement including this Clause 38.2
(Required consents) shall be made in writing, unless notarial form by
operation of law is required. The parties may waive this form requirement
by written agreement only. No oral supplements to this Agreement have been
made.
38.2 REQUIRED CONSENTS
(a) Subject to Clause 38.3 (Exceptions), any term of the Finance Documents
may be amended or waived only with the consent of the Majority Lenders
and the Borrower and any such amendment or waiver shall be binding on
all Parties.
(b) The Facility Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause 38 (Amendments and
waivers).
38.3 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount under the
Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount or
currency of any payment of principal, interest, fee or commission
payable;
(iv) an increase in or an extension of any Commitment;
115
(v) a change to the Borrower or any release from any Security
constituted under the Finance Documents except as expressly
contemplated by the Finance Documents;
(vi) any provision which expressly requires the consent of all the
Lenders;
(vii) the nature or scope of the Security created under the Finance
Documents or the manner in which the proceeds of enforcement of
that Security are distributed;
(viii) Clause 2.2 (Finance Parties' rights and obligations), Clause 26
(Changes to the Finance Parties) or this Clause 38 (Amendments
and waivers),
shall not be made without the prior consent of all Lenders.
(b) An amendment or waiver which relates to the rights or obligations of
the Facility Agent, the Security Agent or the Arranger may not be
effected without the consent of the Facility Agent, the Security Agent
or the Arranger.
(c) An amendment to any Fee Letter may be effected by the Parties to that
Fee Letter.
(d) The Facility Agent may agree with the Borrower any amendment to or the
modification of the provisions of any of the Finance Documents or any
schedule thereto, which is necessary to correct a manifest error.
39. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if signatures on the counterparts were on a
single copy of the Finance Documents.
40. GOVERNING LAW
This Agreement is governed by German law.
41. ENFORCEMENT
41.1 JURISDICTION OF GERMAN COURTS
(a) The district court (Landgericht) in Frankfurt am Main, Germany, shall
have exclusive jurisdiction in respect of any dispute arising out of
or in connection with this Agreement. Deviating mandatory statutes
relating to jurisdiction shall remain unaffected hereby. The Security
Agent shall, however, also be entitled to take legal action against
the Borrower in any other court of competent jurisdiction.
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(b) Further, the taking of proceedings against the Borrower in any one or
more jurisdictions shall not preclude the taking of proceedings in any
other jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable law.
(c) Without prejudice to any other mode of service allowed under any
relevant law, the Borrower
(i) irrevocably appoints Reed Smith LLP, attn: Dr. Etienne
Richthammer, attorney-at-law, Theatinerstrasse 8, 80333 Munich,
Germany, as its agent for service of process in relation to any
proceedings before the German courts in connection with the
Finance Documents;
(ii) agrees that a failure by a process agent to notify the Borrower
of the process will not invalidate the proceedings concerned; and
(iii) agrees that if the appointment of such process agent ceases to
be effective in respect of the Borrower, the Borrower will
immediately appoint a further person in Germany to accept service
of process on its behalf in Germany and, failing such appointment
within fifteen (15) days, the Security Agent shall be entitled to
appoint such person by notice to the Borrower.
41.2 CONFIRMATION PURSUANT TO SECTION 8 MONEY LAUNDERING ACT
The Borrower expressly confirms to the Finance Parties that all funds made
available to it under this Agreement have been drawn for its own account
and that it is the economic beneficiary within the meaning of Section 8
Money Laundering Act (Geldwaschegesetz).
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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EXECUTION PAGE
FACILITY AGREEMENT
BORROWER
WGN (GER) LLC
Acting through Conduit B.V.
By:
------------------------------------ -------------------------------------
Name: Name:
Title: Title:
ORIGINAL LENDER
SOCIETE GENERALE
By:
------------------------------------ -------------------------------------
Name: Name:
Title: Title:
FACILITY AGENT
SOCIETE GENERALE
By:
------------------------------------ -------------------------------------
Name: Name:
Title: Title:
ARRANGER
SOCIETE GENERALE
By:
------------------------------------ -------------------------------------
Name: Name:
Title: Title:
118
SECURITY AGENT
SOCIETE GENERALE (ACTING THROUGH ITS
FRANKFURT BRANCH)
By:
------------------------------------ -------------------------------------
Name: Name:
Title: Title: