€ 100,000,000 TERM LOAN FACILITY AGREEMENT
Exhibit
10.14
€ 100,000,000 Term Loan Agreement with Bank of
Scotland
execution
copy
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€
100,000,000
TERM
LOAN FACILITY AGREEMENT
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DATED
21 December 2007
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for
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ROYAL
INVEST EUROPE B.V.
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arranged
by
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BANK
OF SCOTLAND PLC
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as
Arranger
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with
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BANK
OF SCOTLAND PLC
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acting
as Facility Agent
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and
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BANK
OF SCOTLAND PLC
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acting
as Security Agent
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and
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BANK
OF SCOTLAND PLC
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as
Original Lender
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and
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BANK
OF SCOTLAND PLC
(acting
through its Treasury Division)
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as
Hedge Counterparty
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INDEX
Clause Page
| 40 | AMENDMENTS AND WAIVERS |
121
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| 41 | COUNTERPARTS |
122
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| 42 | WAIVER |
122
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| 43 | GOVERNING LAW |
123
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| 44 | ENFORCEMENT |
123
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SCHEDULES
Schedule
1 (The Original Parties and
Properties)
Schedule
2 (Conditions Precedent)
1.1.1(a)(i)(A)AaSchedule
3 (Requests)
Schedule
4 (Mandatory Cost Formula)
Schedule
5 (Form of Transfer Certificate)
Schedule
6 (Form of Compliance Certificate)
1.1.1(a)(i)(A)AaSchedule
7 (Form of Accession
Letter)
1.1.1(a)(i)(A)AaSchedule
8 (Form of Resignation
Letter)
Schedule
9(Property Information)
Schedule
10 (Property Details)
THIS
AGREEMENT is dated 21 December 2007 and made between:
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(1)
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ROYAL
INVEST EUROPE B.V.
a private company with limited liability (besloten vennootscap
met
beperkte aansprakelijkheid), incorporated and existing under Dutch
law and having its official seat (statutaire zetel) in
Amsterdam, the Netherlands and having its principal place of business
at
Xxxxxxx 0, (0000XX) Xxxxxxxxx, xxx Xxxxxxxxxxx, registered with the
trade
register of the chamber of commerce under number 34130365 (the "Parent");
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(2)
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ROYAL
INVEST EUROPE B.V.
as borrower (the "Original
Borrower");
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(3)
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ROYAL
INVEST EUROPE B.V.
as guarantor ( the "Original
Guarantor");
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(4)
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BANK
OF SCOTLAND PLC as
mandated lead arranger (the "Arranger");
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(5)
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THE
FINANCIAL
INSTITUTIONS listed in Part II of Schedule
1 (The
Parties) as lenders (the "Original
Lender");
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(6)
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BANK
OF SCOTLAND PLC as
facility agent of the other Finance Parties (the "Facility
Agent");
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(7)
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BANK
OF SCOTLAND PLC as
security agent for the Finance Parties (the "Security Agent");
and
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(8)
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BANK
OF SCOTLAND PLC
(acting through its Treasury Division) as counterparty to certain
Hedging
Agreements (the "Original
Hedge Counterparty").
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IT
IS
AGREED as follows:
SECTION
1
INTERPRETATION
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1
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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1.1.1
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In
this Agreement (including its recitals and the
Schedules):
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"Accession
Letter" means a
document substantially in the form set out in Schedule 7 (Form of
Accession Letter).
"Account"
means any Collection
Account, the General Account or the Rent Account.
"Accounting
Principles" means
generally accepted accounting principles in the Netherlands, including
IFRS.
1
"Additional
Borrower" means the
companies listed on Part IB of Schedule 1
(Additional Obligors) and any other company who becomes an Additional Borrower
in accordance with Clause 30 (Changes to the Obligors).
"Additional
Guarantor" means
listed on Part IB of Schedule 1
(Additional Obligors) and any other company who becomes an Additional Guarantor
in accordance with Clause 30 (Changes to the Obligors).
"Additional
Obligor" means an
Additional Borrower or an Additional Guarantor.
"Additional
Property" has the
meaning given thereto in Clause 26.4 (Additional Properties).
"Additional
Property Company"
has the meaning given thereto in Clause 26.4 (Additional
Properties).
"Affiliate"
means, in relation
to any person, a Subsidiary of that person or a Holding Company of that person
or any other Subsidiary of that Holding Company.
"Agreement"
means this facility
agreement.
"Agreement
for Lease" means an
agreement to grant an Occupational Lease of all or part of a
Property.
"Allocated
Loan Amount" means,
in respect of a Property, the amount set out opposite that Property in Schedule 10 (Property
Details).
"Acquisition
Documents" means
any Sale and Purchase Agreement, any deed of transfer in respect of the
Properties, any deed of transfer in respect of the shares in the capital of
an
Obligor who owns Property and any other document designated as an "Acquisition
Document" by the Facility Agent and the Parent.
"Apartment
Rights" means an
appartementsrecht,
pursuant to Section 5:106 of the Dutch Civil Code (or any similar right), in
respect of a Property.
"Auditors"
means one of Xxx
& Partners, PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte or
such other firm approved in advance by the Majority Lenders (such approval
not
to be unreasonably withheld or delayed).
"Authorisation"
means an
authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
"Availability
Period" means the
period from and including the date of this Agreement to and including the date
falling one (1) month prior to the Final Maturity Date.
"Available
Commitment" means,
in relation to the Facility, a Lender's Commitment under the Facility
minus:
2
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(a)
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its
participation in any outstanding Loans under the Facility;
and
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(b)
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in
relation to any proposed Loans, its participation in any other Loans
that
are due to be made under the Facility on or before the proposed
Utilisation Date.
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"Available
Facility" means, in
relation to the Facility, the aggregate for the time being of each Lender's
Available Commitment in respect of the Facility.
"Borrower"
means:
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(a)
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the
Original Borrower; or
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(b)
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any
Additional Borrower,
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unless
it
has ceased to be an Obligor in accordance with Clause 30 (Changes to the
Obligors).
"Break
Costs" means the amount
(if any) by which:
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(a)
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the
interest which a Lender should have received for the period from
the date
of receipt of all or any part of its participation in a Loan or Unpaid
Sum
to the last day of the current Interest Period in respect of that
Loan or
Unpaid Sum, had the principal amount or Unpaid Sum received been
paid on
the last day of that Interest
Period;
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exceeds:
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(b)
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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
last day
of the current Interest Period.
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"Building
Rights" means an
opstalrecht, pursuant
to Section 5:101 of the Dutch Civil Code (or any similar right), in respect
of a
Property.
"Business
Day" means a day
(other than a Saturday or Sunday) on which banks are open for general business
in Amsterdam, the Netherlands and any TARGET Day.
"Charged
Property" means all of
the assets of the Obligors or any other person which from time to time are,
or
are expressed to be, the subject of the Transaction Security.
3
"Collection
Account" has the
meaning given to that term in Clause 20.1 (Designation of Accounts)
.
"Commitment"
means:
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(a)
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in
relation to an Original Lender, the amount set opposite its name
under the
heading "Commitment" in Part II of Schedule
1 (The
Original Parties) and the amount of any other Commitment transferred
to it
under this Agreement; and
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(b)
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in
relation to any other Lender, the amount of any Commitment transferred
to
it under this Agreement,
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to
the
extent not reduced pursuant to Clause 5.5 (Reduction of Commitment) or
cancelled, reduced otherwise or transferred by it under this
Agreement.
"Compliance
Certificate" means
a certificate substantially in the form as set out in Schedule 6 (Form of
Compliance Certificate).
"Constitutional
Documents"
means the deed of incorporation (oprichtingsakte) and the
articles of association (statuten) of an Obligor and
any other document designated as a "Constitutional Document" by the Facility
Agent and the Parent.
"Dangerous
Substance" means any
radioactive emissions and any natural or artificial substance (whether in the
form of a solid, liquid, gas or vapour) the generation, transportation, storage,
treatment, use or disposal of which (whether alone or in combination with any
other substance) and including (without limitation) any controlled, special,
hazardous, toxic, radioactive or dangerous waste, is capable of causing harm
to
any living organism or damaging the Environment or public health.
"Debt
Service Cover" means, at
any time, projected annual rental as a percentage of projected annual finance
costs at that time. For the purpose of this definition:
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(a)
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projected
annual finance costs means an estimate by the Facility Agent of the
aggregate amount payable to the Finance Parties (including scheduled
principal repayments) under the Finance Documents during any year
in
respect of which the Facility Agent has estimated projected annual
rental;
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(b)
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projected
annual rental means an estimate by the Facility Agent, as at any
date, of
the passing net rental income that will be received during the year
commencing on that date;
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(c)
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in
determining projected annual finance costs the Facility Agent will
take
into account any amount payable or receivable by an Obligor during
the
relevant year under any Hedging Agreement;
and
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(d)
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in
determining projected annual rental, the Facility Agent will
assume:
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4
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(i)
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a
break clause under any Lease Document will be deemed to be exercised
at
the earliest date available to the relevant
tenant;
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(ii)
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net
rental income will be ignored unless payable under an unconditional
and
binding Lease Document;
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(iii)
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potential
rental income increases as a result of rent reviews will be ignored
other
than where there are fixed rental increases under the relevant Lease
Documents;
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(iv)
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net
rental income payable by a tenant that is more than one month in
arrears
on its rental payments will be ignored;
and
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(v)
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net
rental income will be reduced by the amounts (together with any related
value added or similar taxes) of ground rent, rates, service charges,
insurance premia, maintenance and other outgoings with respect to
a
Property to the extent that any of those items are not fully funded
by the
tenants under the Lease Documents.
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"Default"
means an Event of
Default or any event or circumstance specified in Clause 27 (Events of Default)
which would (with the expiry of a grace period, the giving of notice, the making
of any determination under the Finance Documents or any combination of any
of
the foregoing) be an Event of Default.
"Disposal"
means a disposal by
an Obligors of any Property or by a person of any share in the capital of an
Obligor.
"Environment"
means all, or any
of, the following media: the air (including, without limitation, the air within
buildings and the air within other natural or man-made structures above or
below
ground), water (including, without limitation, ground and surface water) and
land (including, without limitation, surface and sub-surface soil).
"Environmental
Approval" means
any permit and other Authorisation and the filing of any notification, report
or
assessment required under any Environmental Law for the operation of the
business of any Obligor conducted on or from the Properties owned or used by
any
Obligor.
"Environmental
Claim" means any
claim by any person:
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(a)
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in
respect of any loss or liability suffered or incurred by that person
as a
result of or in connection with any violation of Environmental Law;
or
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(b)
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that
arises as a result of or in connection with Environmental Contamination
and that is capable of giving rise to any remedy or penalty (whether
interim or final) that may be enforced or assessed by private or
public
legal action or administrative order or proceedings including, without
limitation, any such claim that arises from injury to persons or
property.
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5
"Environmental
Contamination"
means each of the following and their consequences:
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(a)
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any
release, emission, leakage or spillage of any Dangerous Substance
at or
from any site part of a Property owned by an Obligor into any part
of the
Environment;
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(b)
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any
accident, fire, explosion or sudden event at any site owned or occupied
by
an Obligor which is directly caused by or attributable to any Dangerous
Substance; or
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(c)
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any
other pollution of the Environment arising at or from any site part
of the
Property (legally or beneficially) owned or occupied by an
Obligor.
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"Environmental
Law" means any
applicable law or regulation which relates to:
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(a)
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the
pollution or protection of the
Environment;
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(b)
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harm
to or the protection of human
health;
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(c)
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the
conditions of the workplace;
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(d)
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any
emission or substance capable of causing harm to any living organism
or
the environment; or
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(e)
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Dangerous
Substance.
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"Environmental
Report"
means
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(a)
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an
environmental report prepared by Arcadis and dated on or about the
date
hereof relating to the Properties;
or
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(b)
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any
other environmental report acceptable to the Facility Agent relating
to
the Properties,
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addressed
to, and/or capable of being relied upon by, the Arranger and the other Finance
Parties.
"EURIBOR"
means, in relation to
any Loan:
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(a)
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the
applicable Screen Rate; or
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(b)
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(if
no Screen Rate is available for the Interest Period of that Loan)
the
arithmetic mean of the rates (rounded upwards to four decimal places)
as
supplied to the Facility Agent at its request quoted by the Reference
Banks to leading banks in the European Interbank
Market,
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6
as
of
11:00 a.m. on the Quotation Day for the offering of deposits in euro for a
period comparable to the Interest Period of the relevant Loan.
"Event
of Default" means any
event or circumstance specified as such in Clause 27 (Events of
Default).
"Facility"
means the term loan
facility made available under this Agreement as described in Clause 2.1 (The
Facility).
"Facility
Office"
means:
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(a)
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in
respect of a Lender, the office or offices notified by that 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 Business Days' written
notice)
as the office or offices through which it will perform its obligations
under this Agreement; or
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(b)
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in
respect of any other Finance Party, the office in the jurisdiction
in
which it is resident for tax
purposes.
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"Fitch"
means Fitch Ratings
Limited or any successor to its rating business.
"Fee
Letter" means any letter
or letters dated on or about the date of this Agreement between the Arranger
and
the Parent (or the Facility Agent and the Parent or the Security Agent and
the
Parent) setting out any of the fees referred to in Clause 13
(Fees).
"Final
Maturity Date" means in
relation to the Facility, the date falling 6 years after the first Utilisation
Date.
"Finance
Document" means this
Agreement, any Fee Letter, any Hedging Agreement, the Subordination Agreement,
any Transaction Security Document, any Utilisation Request, any Transfer
Certificate, any Accession Letter, any Resignation Letter, any Compliance
Certificate and any other document designated as a "Finance Document" by the
Facility Agent and the Parent.
"Finance
Party" means the
Facility Agent, the Arranger, the Security Agent, any Lender or any Hedge
Counterparty.
"Financial
Indebtedness" means
any indebtedness for or in respect of:
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(a)
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monies
borrowed;
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(b)
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any
amount raised by acceptance under any acceptance credit facility
or
dematerialised equivalent;
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7
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(c)
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any
amount raised pursuant to any note purchase facility or the issue
of
bonds, notes, debentures, loan stock or any similar
instrument;
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(d)
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the
amount of any liability in respect of any lease or hire purchase
contract
which would, in accordance with the Accounting Principles, be treated
as a
finance or capital lease;
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(e)
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receivables
sold or discounted (other than any receivables to the extent they
are sold
on a non-recourse basis);
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(f)
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any
Treasury Transaction (and, when calculating the value of that Treasury
Transaction, only the marked to market value as at the relevant date
on
which Financial Indebtedness is calculated (or, if any actual amount
is
due as a result of the termination or close-out of that Treasury
Transaction, that amount) shall be taken into
account);
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(g)
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any
counter-indemnity obligation in respect of a guarantee, bond, standby
or
documentary letter of credit or any other instrument issued by a
bank or
financial institution;
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(h)
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any
amount of any liability under an advance or deferred purchase agreement
if
(a) one of the primary reasons behind entering into the agreement
is to
raise finance or (b) the agreement is in respect of the supply of
assets
or services and payment is due more than 30 days after the date of
supply;
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(i)
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any
amount raised under any other transaction (including any forward
sale or
purchase agreement) having the commercial effect of a borrowing;
and
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(j)
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the
amount of any liability in respect of any guarantee for any of the
items
referred to in paragraphs (a) to (i)
above.
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"Financial
Quarter" means each
period of three (3) Months ending on 31 March, 30 June, 30 September and 31
December of each year.
"Financial
Year" means each
period of twelve (12) Months ending on 31 December of each year.
"Funds
Flow Statement" means
the funds flow letter in agreed form, as set out in the notary letter dated
on
or about the date of this Agreement.
"General
Account" has the
meaning given to that term in Clause 20.1 (Designation of
Accounts).
"Group"
means the Parent, each
Obligor (other than the Parent) and each of its Subsidiaries for the time
being.
8
"Group
Structure Chart" means
the group structure chart in the agreed form.
"Guarantor"
means:
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(a)
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the
Original Guarantor; or
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(b)
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any
Additional Guarantor,
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unless
it
has ceased to be an Obligor in accordance with Clause 30 (Changes to the
Obligors).
"Hedging
Agreement" means any
ISDA Master agreement (in the form published in 1992 by the International Swaps
and Derivatives Association Inc.), confirmation, schedule or other agreement
in
agreed form entered into or to be entered into by the Parent and a Hedge
Counterparty for the purpose of hedging interest rate liabilities in relation
to
the Facility
"Hedge
Counterparty" means the
Original Hedge Counterparty or any other hedge counterparty acceptable to the
Facility Agent who becomes a hedge counterparty under this Agreement in
accordance with Clause 10.3.2.
"Holding
Company" means, in
relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
"IFRS"
means international
accounting standards within the meaning of IAS Regulation 1606/2002 to the
extent applicable to the relevant financial statements.
“Initial
Valuation” means the
Valuation prepared by the Valuer in respect of each Property and addressed
to,
and/or capable of being relied upon by, the Arranger and the other Finance
Parties.
"Interest
Cover" means, at any
time, projected annual rental as a percentage of projected annual finance costs
at that time. For the purpose of this definition:
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(a)
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projected
annual finance costs means an estimate by the Facility Agent of the
aggregate amount payable to the Finance Parties (excluding scheduled
principal repayments) under the Finance Documents during any year
in
respect of which the Facility Agent has estimated projected annual
rental;
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(b)
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projected
annual rental means an estimate by the Facility Agent, as at any
date, of
the passing net rental income that will be received during the year
commencing on that date;
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(c)
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in
determining projected annual finance costs the Facility Agent will
take
into account any amount payable or receivable by an Obligor during
the
relevant year under any Hedging Agreement;
and
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9
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(d)
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in
determining projected annual rental, the Facility Agent will
assume:
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(i)
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a
break clause under any Lease Document will be deemed to be exercised
at
the earliest date available to the relevant
tenant;
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(ii)
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net
rental income will be ignored unless payable under an unconditional
and
binding Lease Document;
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(iii)
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potential
rental income increases as a result of rent reviews will be ignored
other
than where there are fixed rental increases under the relevant Lease
Documents;
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(iv)
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net
rental income payable by a tenant that is more than one month in
arrears
on its rental payments will be ignored;
and
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(v)
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net
rental income will be reduced by the amounts (together with any related
value added or similar taxes) of ground rent, rates, service charges,
insurance premia, maintenance and other outgoings with respect to
a
Property to the extent that any of those items are not fully funded
by the
tenants under the Lease Documents.
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"Interest
Payment Date" means
15 January, 15 April, 15 July and 15 October with the first interest payment
date being 15 April 2008.
"Interest
Period" means, in
relation to a Loan, each period determined in accordance with Clause 11
(Interest Periods) and, in relation to an Unpaid Sum, each period determined
in
accordance with Clause 10.3 (Default interest).
"Lease
Document"
means:
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(a)
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an
Agreement for Lease;
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(b)
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an
Occupational Lease; or
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(c)
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any
other document designated as such by the Facility Agent and the
Parent.
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"Leasehold
Interest" means a
leasehold interest (erfpachtsrecht), pursuant to
Section 5:85 of the Dutch Civil Code (or similar right), in respect of a
Property.
"Legal
Opinion" means any legal
opinion delivered to the Facility Agent under Clause 4 (Conditions Precedent)
or
Clause 30 (Changes to the Obligors).
"Legal
Reservations"
means:
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(a)
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the
principle that equitable remedies may be granted or refused at the
discretion of a court and the limitation of enforcement by laws relating
to insolvency, reorganisation and other laws generally affecting
the
rights of creditors;
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10
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(b)
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similar
principles, rights and defences under the laws of any Relevant
Jurisdiction; and
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(c)
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any
other matters which are set out as qualifications or reservations
as to
matters of law of general application in the Legal
Opinions.
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"Lender"
means:
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(a)
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any
Original Lender; and
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(b)
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any
bank, financial institution, trust, fund or other entity which has
become
a Party in accordance with Clause 29 (Changes to the
Lenders),
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which
in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"Loan"
means a loan made or to
be made under the Facility or the principal amount outstanding for the time
being of that loan.
"Loan
to Value" means, at any
time, the Loans as a percentage of the value of the Portfolio (determined in
accordance with the most recent Valuation at that time).
"Major
Lease" means an
Occupational Lease under which the annual rent exceeds € 50,000.
"Majority
Lenders" means a
Lender or Lenders whose Commitment aggregate more than 66 2/3 per cent. of
the
Commitment (or, if the Commitments has been reduced to zero, aggregated more
than 66 2/3 per cent. of the Commitment immediately prior to that
reduction).
"Managing
Agent" means Royal
Invest Develop and Services B.V. or any other managing agent appointed by an
Obligor in respect of the Properties with the approval of the Facility
Agent.
"Mandatory
Cost" means the
percentage rate per annum calculated by the Facility Agent in accordance with
0
(Mandatory Cost Formula).
"Margin"
means 1.32 per cent.
per annum;
"Material
Adverse Effect" means
in the reasonable opinion of the Majority Lenders a material adverse effect
on:
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(a)
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the
business, operations, property, condition (financial or otherwise)
or
prospects of an Obligor;
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11
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(b)
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the
ability of an Obligor to perform its obligations under the Transaction
Documents; or
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(c)
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the
validity or enforceability of, or the effectiveness or ranking of
any
Security granted or purporting to be granted pursuant to any of,
the
Finance Documents or the rights or remedies of any Finance Party
under any
of the Finance Documents.
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"Month"
means a period starting
on one day in a calendar month and ending on the numerically corresponding
day
in the next calendar month, except that:
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(a)
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(subject
to paragraph (c) 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;
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(b)
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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
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(c)
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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 will only apply to the last Month of any period. "Monthly" shall be construed
accordingly.
"Moody's"
means Xxxxx'x
Investor Services Limited or any successor to its rating business.
“Net
Rental Income” means
Rental Income other than Tenant Contributions.
"Obligor"
means a Borrower or a
Guarantor.
"Occupational
Lease" means any
lease or licence or other right of occupation or right to receive rent to which
a Property may at any time be subject.
"Original
Financial Statements"
means:
|
(a)
|
in
relation to the Parent, its annual financial statements for its Financial
Year ending in December 2006;
|
|
(b)
|
in
relation to the Additional Obligors set out in Schedule
1 Part
IB (Additional Obligors),
|
12
|
(i)
|
in
respect of Alfang B.V., its semi-annual financial statements for
its
financial semi-annual period ending in June 2007;
and
|
|
(ii)
|
in
respect of Amogb B.V., its annual financial statements for its Financial
Year ending in December 2006; and
|
|
(c)
|
in
relation to any other Obligor, its audited financial statements delivered
to the Facility Agent as required by Clause 30 (Changes to the
Obligors).
|
"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.
"Permitted
Operating Costs"
means the reasonable irrevocable operating costs incurred by an Obligor with
respect to the Properties, including:
|
(a)
|
non-recoverable
rates, service charges, insurance premia and other expenses relating
to
the day-to day- upkeep of the
Properties;
|
|
(b)
|
regular
and scheduled repair, maintenance and capital expenditure costs at
a level
sufficient to maintain the current quality of the Properties (and
acceptable to the Facility Agent);
|
|
(c)
|
property
related taxes;
|
|
(d)
|
asset
management fees no exceeding 2.5 per cent. of the aggregate Net Rental
Income of each Property in any financial
year.
|
“Portfolio”
means
all
Properties taken together.
"Property"
means
|
(a)
|
a
property as described in Schedule
10
(Property Details); or
|
|
(b)
|
any
Additional Property,
|
(including
its fixtures (bestanddelen), fittings
(inrichting) and
improvements) and, where the context so requires, includes the buildings on
that
Property (and any rights of any nature pertaining to that Property which an
Obligor have).
"Property
Management Agreement"
means
|
(a)
|
the
property management agreement dated on or about the date hereof by
and
between the Parent and the Managing Agent, relating to certain
Properties;
|
13
|
(b)
|
the
property management agreement dated on or about the date hereof by
and
between Alfang B.V. and the Managing Agent, relating to certain
Properties;
|
|
(c)
|
the
property management agreement dated on or about the date hereof by
and
between Amogb B.V. and the Managing Agent, relating to certain Properties;
or
|
|
(d)
|
any
other property management agreement (acceptable to the Facility Agent)
relating to the Properties.
|
"Qualifying
Lender" has the
meaning given to that term in Clause 14 (Tax Gross up and
Indemnities).
"Quarter
Date" means the last
day of a Financial Quarter.
"Quasi-Security"
has the
meaning given to that term in Clause 24.9 (Negative pledge).
"Quotation
Day" means, in
relation to any period for which an interest rate is to be determined two TARGET
Days before the first day of that period unless market practice differs in
the
European Interbank Market for a currency, in which case the Quotation Day for
that currency will 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 day,
the Quotation Day will be the last of those days).
"Reference
Banks" means the
principal office in Edinburgh, United Kingdom of the Bank of Scotland plc and
Rotterdam, the Netherlands of Fortis Bank (Nederland) N.V. or such other banks
as may be appointed by the Facility Agent in consultation with the
Parent.
"Relevant
Jurisdiction" means,
in relation to an Obligor:
|
(a)
|
its
jurisdiction of incorporation;
|
|
(b)
|
any
jurisdiction where any asset subject to or intended to be subject
to the
Transaction Security to be created by it is
situated;
|
|
(c)
|
any
jurisdiction where it conducts its business;
and
|
|
(d)
|
the
jurisdiction whose laws govern the perfection of any of the Transaction
Security Documents entered into by
it.
|
"Rent
Account" has the meaning
given to that term in Clause 20.1 (Designation of Accounts).
14
“Rental
Income” means the
aggregate of all amounts paid or payable to or for the account of the Obligors
in connection with the letting of any part of the Portfolio, including each
of
the following amounts:
|
(a)
|
rent,
licence fees and equivalent amounts paid or
payable;
|
|
(b)
|
any
sum received or receivable from any deposit held as security for
performance of a tenant’s
obligations;
|
|
(c)
|
a
sum equal to any apportionment of rent allowed in favour of the
Obligors;
|
|
(d)
|
any
other moneys paid or payable in respect of occupation and/or usage
of a
Property and any fixture and fitting on a Property including any
fixture
or fitting on a Property for display or advertisement, on licence
or
otherwise;
|
|
(e)
|
any
sum paid or payable under any policy of insurance in respect of loss
of
rent or interest on rent;
|
|
(f)
|
any
sum paid or payable, or the value of any consideration given, for
the
surrender or variation of any Lease
Document;
|
|
(g)
|
any
sum paid or payable by any guarantor of any occupational tenant under
any
Lease Document;
|
|
(h)
|
any
Tenant Contributions; and
|
|
(i)
|
any
interest paid or payable on, and any damages, compensation or settlement
paid or payable in respect of, any sum referred to above less any
related
fees and expenses incurred (which have not been reimbursed by another
person) by the Obligors.
|
"Rental
IncomeGuarantee" means:
|
(a)
|
a
guarantee issued by Xxxxx Muermans and Frans Feijdherbe in favour
of the
Parent and the Security Agent guaranteeing the Rental Income payable
by
Carrara Projectontwikkeling B.V. in respect of the Property located
at
Franciscusweg 0-00, Xxxxxxxxx, xxx
Xxxxxxxxxxx;
|
|
(b)
|
a
guarantee issued by Xxxxx Muermans in favour of the Parent and the
Security Agent guaranteeing the Rental Income in respect of the Property
located at Xxxxxxxxxxxx 0, Xxxxx, xxx Xxxxxxxxxxx secured by a cash
deposit in the amount of € 1,000,000 under the terms and conditions of an
escrow agreement dated on or about the date hereof;
and
|
|
(c)
|
any
other guarantee or deposit securing or guaranteeing the Rental Income
in
respect of a Property.
|
15
"Repayment
Instalment" means
each instalment for repayment of the Loans as determined in accordance with
Clause 6.1.1 (Repayment of loans).
"Repeating
Representations"
means each of the representations set out in Clause 21.
“Report
on Title”
means:
|
(a)
|
the
due diligence report in respect of each Property prepared by Loyens
&
Loeff N.V. and dated on or about the date hereof;
or
|
|
(b)
|
any
other due diligence report (acceptable to the Facility Agent) in
respect
of a Property,
|
addressed
to, and/or capable of being relied upon by, the Arranger and the other Finance
Parties.
"Reports"
means the
Environmental Report, the Report on Title and the Structure Memorandum and
any
other report relating to a Property.
"Requisite
Rating" means a
person with long or short term (as appropriate) unsecured debt instruments
in
issue which are neither subordinated nor guaranteed and which meet the following
requirements:
|
(a)
|
in
relation to a bank at which an Account is held or the Managing Agent’s
account into which the Net Rental Income is to be
paid:
|
|
(i)
|
short
term instruments with a rating of at least "A1" by S&P, "P1" by
Xxxxx’x and "F1+" by Fitch; and
|
|
(ii)
|
long
term instruments with a rating of at least "A+" by S&P, "A1" by
Xxxxx’x and "A" by Fitch; and
|
|
(b)
|
in
relation to a Hedge Counterparty or a person guaranteeing the obligations
of such Hedge Counterparty:
|
|
|
(i)
|
short
term instruments with a rating of at least "A1" by S&P, "P1" by
Xxxxx’x and "F1" by Fitch; and
|
|
|
(ii)
|
long
term instruments with a rating of at least "A+" by S&P, "A1" by
Xxxxx’x and "A" by Fitch; and
|
|
(c)
|
in
relation to an insurance company or underwriter in relation to an
insurance company or underwriter, long term instruments with a
rating of at least "A" by S&P, "A2" by Xxxxx’x and "A" by
Fitch.
|
16
"Resignation
Letter" means, a
letter substantially in the form as set out in Schedule 8 (Form of
Resignation Letter).
"S&P"
means standard &
Poor's Rating Services, a division of the XxXxxx-Xxxx Companies, Inc or any
successor to its rating business.
"Sale
and Purchase Agreement"
means each sale and purchase agreement pursuant to which an Obligor has acquired
a Property or shares in an Obligor who owns Property.
"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 Parent and the Lenders.
"Security"
means a mortgage,
charge, pledge, lien or other security interest securing any obligation of
any
person or any other agreement or arrangement having a similar
effect.
"Selection
Notice" means a
notice substantially in the form set out in Part II of Schedule 3
(Requests).
"Structure
Memorandum"
means
|
(a)
|
the
structure memorandum setting out, inter alia, the tax analyses, the
flow
of funds and the steps in connection with the acquisition and the
financing of the Portfolio prepared by Statenconsult B.V. and dated
on or
about the date hereof; or
|
|
(b)
|
any
other structure memorandum (acceptable to the Facility Agent) setting
out,
inter alia, the tax analyses, the flow of funds and the steps in
connection with the acquisition and the financing of an Additional
Property,
|
addressed
to, and/or capable of being relied upon by, the Arranger and the other Finance
Parties.
"Subsidiary"
means in relation
to an entity incorporated under Dutch law a "dochtermaatschappij" within
the meaning of Section 2:24a of the Dutch Civil Code (regardless whether the
shares or voting rights on the shares in such company are held directly or
indirectly through another "dochtermaatschappij").
"Subordination
Agreement" means
a subordination agreement in the agreed form to be entered into on or about
the
date of this Agreement between the Security Agent (on behalf of the Finance
Parties) as senior creditors and (as requested by the Security Agent) the
Parent, any other Obligor and/or any of its Subsidiaries as junior
creditors.
17
"Syndication
Date" means the
day on which the Arranger confirms that the primary syndication or
securitisation of the Facility has been completed.
"TARGET"
means Trans-European
Automated Real-time 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 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).
“Tenant
Contributions” means
any amount paid to an Obligor by any tenant under a Lease Document or any other
occupier of a Property, by way of:
|
(a)
|
contribution
to:
|
|
(i)
|
insurance
premia;
|
|
(ii)
|
the
cost of an insurance valuation;
|
|
(iii)
|
a
service charge in respect of an Obligor’s costs under any repairing or
similar obligation or in providing services to a tenant of, or with
respect to, a Property; or
|
|
(iv)
|
a
sinking fund; or
|
|
(b)
|
value
added tax or similar taxes.
|
"Transaction
Documents" means
the Finance Documents, the Acquisition Documents, any Rental Income Guarantee,
any Property Management Agreement and the Constitutional
Documents.
"Transaction
Security" means
the Security created or expressed to be created in favour of the Security Agent
pursuant to the Transaction Security Documents.
"Transaction
Security
Documents" means each of the documents listed as being a Transaction
Security Document in Part I paragraph 2.2 and Part II paragraph 3.2 of Schedule 2
(Conditions Precedent) together with any other document entered into by any
Obligor (or any other person) creating or expressed to create any Security
over
all or any part of its assets in respect of the obligations of any of the
Obligors under any of the Finance Documents.
"Transfer
Certificate" means a
certificate substantially in the form set out in Schedule 5 (Form of
Transfer Certificate) or any other form agreed between the Facility Agent and
the Parent.
18
"Transfer
Date" means, in
relation to an assignment or transfer, the later of:
|
(a)
|
the
proposed Transfer Date specified in the relevant Transfer Certificate;
and
|
|
(b)
|
the
date on which the Facility Agent executes the relevant Transfer
Certificate.
|
"Treasury
Transactions" means
any derivative transaction entered into in connection with protection against
or
benefit from fluctuation in any rate or price.
"Unpaid
Sum" means any sum due
and payable but unpaid by an Obligor under the Finance Documents.
"Utilisation
Date" means the
date on which the Facility is utilised.
"Utilisation
Request" means a
notice substantially in the relevant form set out in Part I of Schedule 3
(Requests).
"Valuation"
means a valuation
of some or all of the Properties by a Valuer, and addressed to, and/or capable
of being relied upon by, the Arranger and the other Finance Parties and prepared
on the basis of the open market value (ignoring portfolio effect and on an
asset
by asset basis, on the terms of appointment approved by the Facility
Agent.
"Valuer"
means, in respect of
any Valuation, King Sturge SA/NV and Xxxxxxxx Partners or any other surveyor
or
valuer appointed by the Facility Agent.
"VAT"
means value added tax as
provided for in the Dutch Value Added Tax Act 1968 (Wet op de Omzetbelasting
1968) and any other tax of a similar nature.
|
1.2
|
Interpretation
|
|
1.2.1
|
Unless
a contrary indication appears, any reference in this Agreement (including
its recitals and the Schedules) to:
|
|
(a)
|
the
"Facility Agent",
the "Arranger",
any "Hedge
Counterparty", any "FinanceParty",
any "Lender", any "Obligor",
any "Party", the "SecurityAgent"
or any other
person shall be construed so as to include its successors in title,
permitted assigns and permitted transferees and, in the case of the
Security Agent, any person for the time being appointed as Security
Agent
or Security Agent in accordance with the Finance
Documents;
|
19
|
(b)
|
a
document in "agreedform"
is a document
which is previously agreed in writing by or on behalf of the Parent
and
the Facility Agent or, if not so agreed, is in the form specified
by the
Facility Agent;
|
|
(c)
|
"assets"
includes present
and future properties, shares, revenues and rights of every
description;
|
|
(d)
|
a
"Finance Document"
or a "Transaction
Document" or any other agreement or instrument is a reference to
that Finance Document or Transaction Document or other agreement
or
instrument as amended, novated, supplemented, extended or
restated;
|
|
(e)
|
"guarantee"
means (other
than in Clause 19 (Guarantee and Indemnity)) any guarantee, letter
of
credit, bond, indemnity or similar assurance against loss, or any
obligation, direct or indirect, actual or contingent, to purchase
or
assume any indebtedness of any person or to make an investment in
or loan
to any person or to purchase assets of any person where, in each
case,
such obligation is assumed in order to maintain or assist the ability
of
such person to meet its
indebtedness;
|
|
(f)
|
"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;
|
|
(g)
|
a
"person" includes
any person, firm, company, corporation, government, state or agency
of a
state or any association, trust or partnership (whether or not having
separate legal personality) of two or more of the
foregoing;
|
|
(h)
|
"Property"
includes a
Leasehold Interest and/or a Building Right and/or Apartment Right,
as the
case may be in connection with that
Property;
|
|
(i)
|
a
"regulation"
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or
organisation;
|
|
(j)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
(k)
|
a
time of day is a reference to Amsterdam
time.
|
|
1.2.2
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
1.2.3
|
Schedules
form an integral part of this
Agreement.
|
20
|
1.2.4
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
1.2.5
|
A
Default (other than an Event of Default) is "continuing" if it
has
not been remedied or waived and an Event of Default is "continuing" if it
has
not been waived.
|
|
1.2.6
|
Where
under a Finance Document a Finance Party is required to act reasonably,
it
is reasonable for that Finance Party to act in a manner which, in
the
opinion of that Finance Party, is reasonably appropriate to avoid
an
adverse effect on the then current ratings of securities issued in
connection with any securitisation involving this
Agreement.
|
|
1.3
|
Dutch
terms
|
In
this
Agreement, where it relates to a Dutch entity, a reference to:
|
(a)
|
a
necessary action to authorise where applicable, includes without
limitation:
|
|
(i)
|
any
action required to comply with the Works Councils Act of the Netherlands
(Wet op de
ondernemingsraden); and
|
|
(ii)
|
obtaining
an unconditional positive advice (advies) from
the
competent works council(s);
|
|
(b)
|
gross
negligence means groveschuld;
|
|
(c)
|
negligence
means xxxxxx;
|
|
(d)
|
a
security interest includes any mortgage (hypotheek), pledge
(pandrecht),
retention of title arrangement (eigendomsvoorbehoud),
privilege (voorrecht), right
of
retention (rechtvanretentie),
right to
reclaim goods (recht
vanreclame),
and, in
general, any right in rem (beperkte recht),
created for the purpose of granting security (goederenrechtelijkzekerheidsrecht);
|
|
(e)
|
wilful
misconduct means opzet;
|
|
(f)
|
a
winding-up, administration or dissolution (and any of those terms)
includes a Dutch entity being declared bankrupt (failliet verklaard) or
dissolved (ontbonden);
|
|
(g)
|
a
moratorium includes surseance van
betaling
and granted a moratorium includes surséance
verleend;
|
|
(h)
|
any
step or procedure taken in connection with insolvency proceedings
includes
a Dutch entity having filed a notice under section 36 of the Dutch
Tax
Collection Act (Invorderingswet
1990);
|
21
|
(i)
|
a
trustee in bankruptcy includes a curator;
|
|
(j)
|
an
administrator includes a bewindvoerder
|
|
(k)
|
an
attachment includes a beslag;
and
|
|
(l)
|
Dutch
Civil Code means Burgerlijk
Wetboek.
|
22
SECTION
2
|
2
|
THE
FACILITY
|
|
2.1
|
The
Facility
|
Subject
to the terms of this Agreement, the Lenders make available a term loan facility
in an aggregate amount equal to the Commitment.
|
2.2
|
Finance
Parties’ rights and obligations
|
|
2.2.1
|
The
obligations of each Finance Party under the Finance Documents are
several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under
the
Finance Documents. No Finance Party is responsible for the obligations
of
any other Finance Party under the Finance
Documents.
|
|
2.2.2
|
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising
under
the Finance Documents to a Finance Party from an Obligor shall be
a
separate and independent debt.
|
|
2.2.3
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
|
2.3
|
Obligors’
Agent
|
|
2.3.1
|
Each
Obligor (other than the Parent) by its execution of this Agreement
irrevocably appoints the Parent to act on its behalf as its agent
in
relation to the Finance Documents and irrevocably
authorises:
|
|
(a)
|
the
Parent on its behalf to supply all information concerning itself
contemplated by this Agreement to the Finance Parties and to give
all
notices and instructions (including, in the case of a Borrower,
Utilisation Requests) to make such agreements and to effect the relevant
amendments, supplements and variations capable of being given, made
or
effected by any Obligor notwithstanding that they may affect the
Obligor,
without further reference to or the consent of that Obligor;
and
|
|
(b)
|
each
Finance Party to give any notice, demand or other communication to
that
Obligor pursuant to the Finance Documents to the
Parent,
|
and
in
each case the Obligor shall be bound as though the Obligor itself had given
the
notices and instructions (including, without limitation, any Utilisation
Requests) or executed or made the agreements or effected the amendments,
supplements or variations, or received the relevant notice, demand or other
communication.
23
|
2.3.2
|
Every
act, omission, agreement, undertaking, settlement, waiver, amendment,
supplement, variation, notice or other communication given or made
by the
Parent or given to the Parent under any Finance Document on behalf
of
another Obligor or in connection with any Finance Document (whether
or not
known to any other Obligor and whether occurring before or after
such
other Obligor became an Obligor under any Finance Document) shall
be
binding for all purposes on that Obligor as if that Obligor had expressly
made, given or concurred with it. In the event of any conflict between
any
notices or other communications of the Parent and any other Obligor,
those
of the Parent shall prevail.
|
|
2.3.3
|
It
is expressly agreed that the appointment under this Clause 2.3 is
given
with full power of substitution and also applies to any situation
where
the Parent acts as an Obligor's counterparty (Selbsteintritt) within
the meaning of Section 3:68 of the Dutch Civil Code or as a representative
of an Obligor's counterparty.
|
|
3
|
|
3.1
|
Purpose
|
The
Obligors shall apply all amounts borrowed by it under the Facility to
finance:
|
(a)
|
the
acquisition of the Properties to be acquired by the Parent and the
shares
in the capital of the Obligors (save for the Parent);
and/or
|
|
(b)
|
to
refinance existing financial
indebtedness,
|
all
as
specified in the Funds Flow Statement.
|
3.2
|
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
|
4.1
|
Initial
conditions precedent
|
The
Lenders will only be obliged to comply with Clause 5.3.1 (Lenders'
participation) in relation to any Loan if on or before the first Utilisation
Date, the Facility Agent has received all of the documents and other evidence
listed in Part IA of Schedule 2
(Conditions Precedent) in form and substance satisfactory to the Facility Agent.
The Facility Agent shall notify the Parent and the Lenders promptly upon being
so satisfied.
24
|
4.2
|
Conditions
precedent to each Utilisation
|
The
Lenders will only be obliged to comply with Clause 5.3.1 (Lenders'
participation) in relation to a Loan for a Property if on or before the relevant
Utilisation Date, the Facility Agent has received all of the documents and
other
evidence listed in Part I and Part II of Schedule 2
(Conditions Precedent) in form and substance satisfactory to the Facility Agent.
The Facility Agent shall notify the relevant Borrower and the Lenders promptly
upon being so satisfied.
|
4.3
|
Further
conditions precedent
|
|
4.3.1
|
Subject
to Clause 4.1 (Initial conditions precedent), the Lenders will only
be
obliged to comply with Clause 5.3.1 (Lenders' participation), if
on the
date of the Utilisation Request and on the proposed Utilisation
Date:
|
|
(a)
|
no
Default is continuing or would result from the proposed
Loan;
|
|
(b)
|
in
relation to any Loan, all the representations and warranties in Clause
21
(Representations) are true in all material respects;
and
|
|
(c)
|
following
the making of each Loan:
|
|
(i)
|
the
Interest Cover is at least 130 per
cent.;
|
|
(ii)
|
the
Debt Service Cover is at least 105 per cent.;
and
|
|
(iii)
|
the
Loan to Value does not exceed 85 per
cent.
|
|
4.3.2
|
Unless
the Facility Agent agrees, the Utilisation Request may not be given
if, as
a result, there would be more than five (5) Loans
outstanding.
|
25
UTILISATION
|
5.1
|
Delivery
of a Utilisation Request
|
A
Borrower (or the Parent on its behalf) may utilise the Facility by delivery
to
the Facility Agent of a duly completed Utilisation Request not later than on
11:00 a.m. three (3) Business Days before the proposed Utilisation
Date.
|
5.2
|
Completion
of a Utilisation Request
|
|
5.2.1
|
Each
Utilisation Request for a Loan is irrevocable and will not be regarded
as
having been duly completed unless:
|
|
(a)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period;
|
|
(b)
|
the
amount and currency of a Loan comply with Clause 5.3 (Amount and
currency); and
|
|
(c)
|
the
relevant Properties for which the proposed Loan is requested are
specified.
|
|
5.2.2
|
Only
one Loan may be requested in each Utilisation
Request.
|
|
5.3
|
Amount
and currency
|
|
5.3.1
|
The
amount of a proposed Loan shall be:
|
|
(a)
|
an
amount equal to the lower of:
|
|
(i)
|
85
per cent. of the net market value of the Property for which the proposed
Loan is requested as determined from the relevant Initial Valuation;
and
|
|
(ii)
|
85
per cent. of the acquisition costs of the Property for which the
proposed
Loan is requested; and
|
|
(b)
|
an
amount so that Interest Cover, as at the relevant Utilisation Date
immediately after the making of that Loan, is at least 130 per cent.;
and
|
|
(c)
|
an
amount so that Debt Service Cover, as at the relevant Utilisation
Date
immediately after the making of that Loan, is at least 105 per
cent.,
|
provided
that at all times the aggregate of the utilisations made under the Facility
shall not exceed the Commitment.
26
|
5.3.2
|
The
currency specified in the Utilisation Request shall be
euro.
|
|
5.4
|
Lenders'
participation
|
|
5.4.1
|
If
the conditions set out in this Agreement have been met, each Lender
shall
make its participation in each Loan available by the relevant Utilisation
Date through its Facility Office.
|
|
5.4.2
|
The
amount of each Lender's participation in each Loan will be equal
to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making that
Loan.
|
|
5.5
|
Reduction
of Commitment
|
|
5.5.1
|
The
Commitment shall be reduced on each Interest Payment Date by an amount
equal to the amount set out in column B in the table below next to
the
period set out in column A in the table below in which the relevant
Interest Payment Date falls..
|
|
Column
A
|
Column
B
|
|
(Period)
|
(Reduction
amount in euro)
|
|
The
period from the first Utilisation Date to (and including) the fourth
Interest Payment Date.
|
312,500
|
|
The
period from the fourth Interest Payment Date to (and including) the
twelfth Interest Payment Date.
|
375,000
|
|
The
period from the twelfth Interest Payment Date to (and including)
the Final
Maturity Date.
|
500,000
|
27
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
6.1
|
Repayment
of Loans
|
|
6.1.1
|
The
Borrowers shall repay the aggregate Loans in instalments. Repayment
Instalments shall be due on each Interest Payment Date. The amount
of each
Repayment Instalment shall be the percentage of the amount utilised
under
the Facility at the relevant Interest Payment Date (ignoring any
repayments or prepayments) which is set out in column B in the table
below
next to the period set out in column A in the table below in which
the
relevant Interest Payment Date
falls.
|
|
Column
A
|
Column
B
|
|
(Period)
|
(Repayment
Instalment)
|
|
The
period from the first Utilisation Date to (and including) the fourth
Interest Payment Date.
|
0.3125%
|
|
The
period from the fourth Interest Payment Date to (and including) the
twelfth Interest Payment Date.
|
0.375%
|
|
The
period from the twelfth Interest Payment Date to (and including)
the Final
Maturity Date.
|
0.50%
|
|
6.1.2
|
The
Borrowers shall repay the outstanding amount of the Loans in full
on the
Final Maturity Date.
|
|
7.1
|
Illegality
|
If
it
becomes unlawful in any applicable jurisdiction for a Lender to perform any
of
its obligations as contemplated by this Agreement or to fund, issue or maintain
its participation in any Loan:
|
(a)
|
that
Lender, shall promptly notify the Facility Agent upon becoming aware
of
that event;
|
|
(b)
|
upon
the Facility Agent notifying the Parent, the Commitment of that Lender
will be immediately cancelled; and
|
28
|
(c)
|
each
Borrower shall repay that Lender's participation in the Loans made
to that
Borrower on the last day of the then current Interest Period for
each Loan
occurring after the Facility Agent has notified the Parent 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).
|
|
7.2
|
Voluntary
cancellation
|
|
7.2.1
|
Subject
to paragraph 7.4 below the Parent may, if it gives the Facility Agent
not
less than 10 Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, cancel the whole or any part (being
a
minimum amount of € 5,000,000 and is a multiple of € 1,000,000) of the
Available Facility. Any cancellation under this Clause 7.2 shall
reduce
the Commitment of the Lenders rateably under the
Facility.
|
|
7.3
|
Automatic
cancellation
|
The
Commitment of a Lender shall be immediately cancelled at the close of business
in Amsterdam, the Netherlands on the last day of the Availability
Period.
|
7.4
|
Voluntary
prepayment of Loans
|
|
7.4.1
|
A
Borrower to which a Loan has been made may, if it or the Parent gives
the
Facility Agent not less than 10 Business Days' (or such shorter period
as
the Majority Lenders may agree) prior notice, prepay the whole or
any part
of that Loan (but, if in part, being an amount that reduces that
Loan by a
minimum amount of € 5,000,000 and is a multiple of €
1,000,000).
|
|
7.4.2
|
Each
prepayment under this Clause 7.4 shall be made on an Interest Payment
Date
in which the Facility Agent has been notified of such
prepayment.
|
|
7.5
|
Right
of cancellation and repayment in relation to a single
Lender
|
|
7.5.1
|
If
any sum payable to any Lender by an Obligor is required to be increased
under Clause 14.2.3 (Tax gross-up) or any Lender claims indemnification
of
an Obligor under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased
costs), the Parent may, whilst the circumstance giving rise to the
requirement for indemnification continues, give the Facility Agent
notice
(if such circumstances relate to a Lender) of cancellation of the
Commitment of that Lender and its intention to procure the repayment
of
that Lender's participation in the
Loans.
|
|
7.5.2
|
On
receipt of a notice referred to in Clause 7.5.1 above in relation
to a
Lender, the Commitment of that Lender shall immediately be reduced
to
zero.
|
|
7.5.3
|
On
an Interest Payment Date falling after the Parent has given notice
under
Clause 7.5.1 above in relation to a Lender (or, if earlier, the date
specified by the Parent in that notice), each Borrower to which a
Loan is
outstanding shall repay that Lender's participation in that Loan
together
with all interest and other amounts accrued under the Finance
Documents.
|
29
|
8.1
|
Disposals
and recoveries
|
|
8.1.1
|
In
this Clause 8.1:
|
"net
proceeds” means any amount
received by an Obligor as consideration for a relevant disposal or a relevant
recovery, less all Taxes and reasonable costs and expenses incurred by that
Obligor in connection with such disposal or recovery.
"relevant
disposal" means a
disposal of any asset or business (whether by way of a share or asset sale)
other than:
|
(a)
|
a
disposal of an asset other than a Property to the extent it is replaced
by
another asset for use in the present business of the Obligor within
6
Months after the date of the
disposal;
|
|
(b)
|
a
disposal of an asset other than a Property made in the ordinary course
of
business of the Obligor;
|
|
(c)
|
a
disposal of an obsolete asset other than a
Property;
|
|
(d)
|
a
disposal of cash as payment for purposes allowed under this
Agreement;
|
|
(e)
|
a
disposal with the creation of a Security allowed by this
Agreement;
|
|
(f)
|
a
Disposal;
|
|
(g)
|
a
disposal made with the prior consent of the Majority
Lenders.
|
"relevant
recovery”
means:
|
(a)
|
any
amount received or recovered by an Obligor under the Acquisition
Documents, unless that amount has been applied within 6 Months of
receipt
in meeting the liability or loss which gave rise to that claim;
or
|
|
(b)
|
any
amount received or recovered by an Obligor under any insurance policy
for
loss or damage to its assets or business unless those proceeds have
to be
applied, and are applied within 6 Months after receipt, in replacement
or
reinstatement of damaged assets, or comprise a payment for business
interruption or public liability.
|
|
8.1.2
|
Each
Obligor shall procure that an amount equal
to:
|
30
|
(a)
|
in
the case of a Disposal, the lower
of:
|
|
(i)
|
the
outstanding Loans; and
|
|
(ii)
|
110%
of the Allocated Loan Amount; and
|
|
(b)
|
in
any other case, the net proceeds,
|
is
applied toward prepayment of the relevant Loans.
|
8.2
|
Miscellaneous
|
|
8.2.1
|
Any
prepayment under this Clause 8.1 shall be made on or before the last
day
of the Interest Period of the Loan to be repaid in which the relevant
disposal, receipt or recovery
occurred.
|
|
8.2.2
|
If
the amount to be applied in prepaying a Loan is more than the amount
of
the Loans (if any) then outstanding, the Borrowers shall immediately
cancel the Commitment in an amount equal to the
excess.
|
|
8.2.3
|
When
it is established that a Borrower will be required to prepay a Loan
on the
last day of the current Interest Period for that Loan, the Obligors
shall
promptly ensure than an amount equal to the amounts to be prepaid
is
deposited into the Rent Account.
|
|
8.2.4
|
The
Parent shall apply any amount deposited into the Rent Account under
paragraph 8.2.3 towards prepayment of the relevant Loan on the last
day of
the relevant Interest Period or earlier if the Parent so
directs.
|
|
9.1
|
Notices
of Cancellation or Prepayment
|
Any
notice of cancellation, prepayment, authorisation or other election given by
any
Party under Clause 6.1 (Illegality, Voluntary Prepayment and Cancellation)
shall
(subject to the terms of those Clauses) be irrevocable and, unless a contrary
indication appears in this Agreement, any such notice 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.
|
9.2
|
Interest
and other amounts
|
Any
prepayment under this Agreement shall be made together with accrued interest
on
the amount prepaid, Break Costs and any prepayment fees due and
payable.
31
|
9.3
|
Reborrowing
of Facility
|
Unless
a
contrary indication appears in this Agreement, any part of the Facility which
is
prepaid may be reborrowed in accordance with the terms of this
Agreement.
|
9.4
|
Prepayment
in accordance with Agreement
|
No
Borrower shall repay or prepay all or any part of the Loans or cancel all or
any
part of the Commitment except at the times and in the manner expressly provided
for in this Agreement.
|
9.5
|
No
reinstatement of Commitment
|
No
amount
of the Commitment cancelled under this Agreement may be subsequently
reinstated.
|
9.6
|
Facility
Agent's receipt of Notices
|
If
the
Facility Agent receives a notice under Clause 6.1 (Illegality, Voluntary
Prepayment and Cancellation), it shall promptly forward a copy of that notice
or
election to either the Parent or the affected Lender, as
appropriate.
|
9.7
|
Prepayment
elections
|
The
Facility Agent shall notify the Lenders as soon as possible of any proposed
prepayment of a Loan under Clause 7.3 (Voluntary prepayment of Loans) or Clause
8.1 (Disposals and recoveries).
32
COSTS
OF UTILISATION
|
10
|
|
10.1
|
Calculation
of interest
|
The
rate
of interest on each Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:
|
(a)
|
the
Margin;
|
|
(b)
|
EURIBOR;
and
|
|
(c)
|
Mandatory
Cost, if any.
|
|
10.2
|
Payment
of interest
|
|
10.2.1
|
The
Borrower to which a Loan has been made shall pay accrued interest
on that
Loan on each Interest Payment Date.
|
|
10.3
|
Hedging
|
|
10.3.1
|
From
and including the Utilisation Date, the Parent shall enter into a
Hedging
Agreement to hedge at least 65 per cent. of the aggregate interest
rate
liabilities of the Obligors in relation to the Facility, in accordance
with this Clause.
|
|
10.3.2
|
All
Hedging Agreements shall be:
|
|
(a)
|
with
a Hedge Counterparty and that Hedge Counterparty, or a person acceptable
to the Facility Agent that has unconditionally guaranteed its obligations
under the Hedging Agreements in form and substance satisfactory to
the
Facility Agent, has a Requisite Rating, and if requested by the Facility
Agent, has acceded to this Agreement as a hedge
counterparty;
|
|
(b)
|
on
terms that the Hedging Agreements shall at all times have an aggregate
notional amount not less than the aggregate amount of the Loans
outstanding with terms not expiring before the Final Maturity
Date,
|
|
(c)
|
in
the form of a swap, swaption, cap, caption, floor (when in combination
with any of the instruments referred to above) or such other instrument
satisfactory to the Facility Agent and in any event in form and substance
satisfactory to the Facility Agent;
and
|
|
(d)
|
charged
or assigned by way of security or pledged under any Transaction Security
Document.
|
33
|
10.3.3
|
If,
at any time, the notional principal amount of the Hedging Agreements
exceeds the aggregate amount of the Loans at that time, the Parent
shall,
at the request of the Facility Agent, reduce the notional principal
amount
of the Hedging Agreements by an amount and in a manner satisfactory
to the
Facility Agent so that it no longer exceeds the aggregate amount
of the
Loans then outstanding.
|
|
10.3.4
|
A
failure on the part of a Hedge Counterparty to comply with its obligations
under this Clause 10.3 will not affect the obligations of the Parent
under
this Clause 10.3.
|
|
10.3.5
|
The
parties to each Hedging Agreement shall comply with the terms of
that
Hedging Agreement.
|
|
10.3.6
|
Neither
a Hedge Counterparty nor the Parent may amend or waive the terms
of any
Hedging Agreement without the consent of the Facility
Agent.
|
|
10.3.7
|
Each
Hedge Counterparty and the Parent agree that following any breach
by the
Parent of its payment obligations under the Hedging Agreements, the
Facility Agent may make any such payments on behalf of the
Parent.
|
|
10.3.8
|
Neither
a Hedge Counterparty nor the Parent may terminate or close out any
Hedging
Agreement (in whole or in part)
except:
|
|
(a)
|
in
accordance with the Clauses 10.3.3
above;
|
|
(b)
|
if
it becomes illegal for that party to continue to comply with its
obligations under that Hedging
Agreement;
|
|
(c)
|
if
the Loans and other amounts outstanding under the Finance Documents
have
been unconditionally and irrevocably paid and discharged in
full;
|
|
(d)
|
in
the case of termination or closing out by a Hedge Counterparty, if
the
Facility Agent serves notice under Clause 27.19 (Acceleration);
or
|
|
(e)
|
in
the case of termination or closing out by the
Parent:
|
|
(i)
|
if
immediately after such termination or closing out the notional principal
amount of the Hedging Agreements still in force is at least equal
to the
aggregate amount of the Loans; or
|
|
(ii)
|
with
the consent of the Facility Agents.
|
|
10.3.9
|
Each
Hedge Counterparty agrees that it shall give the Facility Agent 5
Business
Days notice of any breach by the Parent in respect of its payment
obligations under the Hedging
Agreements.
|
|
10.3.10
|
Each
Hedge Counterparty may only suspend making payments under a Hedging
Agreement if the Parent is in breach of its payment obligations under
that
Hedging Agreement and due notification has been given to the Facility
Agent in accordance with Clause 10.3.9
above.
|
34
|
10.3.11
|
Each
Hedge Counterparty acknowledges that the rights of the Parent under
the
Hedging Agreements to which it is party have been charged or assigned
or
pledged by way of security under the Transaction Security
Documents.
|
|
10.4
|
Default
interest
|
|
10.4.1
|
If
an Obligor fails to pay any amount payable by it under a Finance
Document
on its due date, interest shall accrue on the overdue amount from
the due
date up to the date of actual payment (both before and after judgment)
at
a rate which, subject to Clause 10.4.2 below, is 2 per cent. higher
than
the rate which would have been payable if the overdue amount had,
during
the period of non-payment, constituted a Loan in the currency of
the
overdue amount for successive Interest Periods, each of a duration
selected by the Facility Agent (acting reasonably). Any interest
accruing
under this Clause 10.3 shall be immediately payable by the Obligor
on
demand by the Facility Agent.
|
|
10.4.2
|
If
any overdue amount 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:
|
|
(a)
|
the
first Interest Period for that overdue amount shall have a duration
equal
to the unexpired portion of the current Interest Period relating
to that
Loan; and
|
|
(b)
|
the
rate of interest applying to the overdue amount during that first
Interest
Period shall be 2 per cent. higher than the rate which would have
applied
if the overdue amount had not become
due.
|
|
10.4.3
|
Default
interest (if unpaid) arising on an overdue amount will be compounded
with
the overdue amount at the end of each Interest Period applicable
to that
overdue amount but will remain immediately due and
payable.
|
|
10.5
|
Notification
of rates of interest
|
The
Facility Agent shall promptly notify the Lenders and the relevant Borrower
(or
the Parent) of the determination of a rate of interest under this
Agreement.
|
11.1
|
Selection
of Interest Periods
|
|
11.1.1
|
A
Borrower (or the Parent) may select an Interest Period for a Loan
in the
Utilisation Request for that Loan or (if the Loan has already been
borrowed) in a Selection Notice.
|
35
|
11.1.2
|
Each
Selection Notice for a Loan is irrevocable and must be delivered
to the
Facility Agent by that Borrower to which that Loan was made (or the
Parent
not later than 11.00 am three (3) Business Days before the last day
of the
relevant Interest Period.
|
|
11.1.3
|
If
a Borrower (or the Parent) fails to deliver a Selection Notice to
the
Agent in accordance with Clause 11.1.2, the relevant Interest Period
will,
be three (3) Months..
|
|
11.1.4
|
Subject
to this Clause 11.1, a Borrower (or the Parent) may select an Interest
Period of one (1) or three (3) or six (6) months or any other period
agreed between the relevant Borrower (or the Parent) and the Facility
Agent (acting on the instructions of all the Lenders), provided that
the
first Interest Payment Date in connection with a Loan shall commence
on
the relevant Utilisation Date and end on the Interest Payment Date
falling
directly after such Utilisation
Date.
|
|
11.1.5
|
An
Interest Period for a Loan shall not extend beyond the Final Maturity
Date.
|
|
11.1.6
|
Each
Interest Period for a Loan shall start on the Utilisation Date or
(if
already made) on the last day of its preceding Interest
Period.
|
|
11.2
|
Non-Business
Days
|
If
an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar
month
(if there is one) or the preceding Business Day (if there is not).
|
11.3
|
Consolidations
of Loans
|
|
11.3.1
|
If
two or more Interest Periods:
|
|
(a)
|
end
on the same date; and
|
|
(b)
|
are
made to the same Borrower,
|
|
(c)
|
those
Loans will be consolidated into, and treated as, a single Loan on
the last
day of the Interest Period.
|
|
12.1
|
Absence
of quotations
|
Subject
to Clause 12.2 (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
11:00 a.m. on the Quotation Day, the applicable EURIBOR shall be determined
on
the basis of the quotations of the remaining Reference Banks.
36
|
12.2
|
Market
disruption
|
|
12.2.1
|
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender's share of that
Loan for
the Interest Period shall be the percentage rate per annum which
is the
sum of:
|
|
(a)
|
the
Margin;
|
|
(b)
|
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 Loan
from
whatever source it may reasonably select;
and
|
|
(c)
|
the
Mandatory Cost, if any, applicable to that Lender's participation
in the
Loan.
|
|
12.2.2
|
In
this Agreement "Market
Disruption Event" means:
|
|
(a)
|
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 the
relevant currency and Interest Period;
or
|
|
(b)
|
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
(whose participations in a Loan exceed 50 per cent. of that Loan)
that the
cost to it of obtaining matching deposits in the European Interbank
Market
would be in excess of EURIBOR.
|
|
12.3
|
Alternative
basis of interest or funding
|
|
12.3.1
|
If
a Market Disruption Event occurs and the Facility Agent or the Parent
so
requires, the Facility Agent and the Parent 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.
|
|
12.3.2
|
Any
alternative basis agreed pursuant to Clause 12.3.1 above shall, with
the
prior consent of all the Lenders and the Parent, be binding on all
Parties.
|
|
12.4
|
Break
Costs
|
|
12.4.1
|
Each
Borrower shall, within three 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 that Borrower on a day other
than
the last day of an Interest Period for that Loan or Unpaid
Sum.
|
37
|
12.4.2
|
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.
|
|
13
|
|
13.1
|
Commitment
fee
|
The
Parent shall pay to the Facility Agent for the account of the Lenders a
commitment fee of 0.25 per cent. over the unused and uncancelled amount of
the
Facility for the Availability Period starting from the date of this Agreement,
payable quarterly in arrears during the Availability Period, on each Interest
Payment Date.
|
13.2
|
Other
fees
|
In
addition to the fee payable under Clause 13.1 above, the Parent shall pay to
the
Facility Agent (for the account of each Lender) the fees as set out in any
Fee
Letter.
38
ADDITIONAL
PAYMENT OBLIGATIONS
|
14.1
|
Definitions
|
In
this
Agreement:
"Protected
Party" means a
Finance Party which is or will be subject to any liability or required to make
any payment for or on account of Tax in relation to a sum received or receivable
(or any sum deemed for the purposes of Tax to be received or receivable) under
a
Finance Document.
"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.
"Tax
Payment" means either the
increase in a payment made by an Obligor to a Finance Party under Clause 14.2
(Tax gross-up) or a payment under Clause 14.3 (Tax indemnity).
Unless
a
contrary indication appears, in this Clause 14 a reference to "determines" or "determined"
means a
determination made in the absolute discretion of the person making the
determination.
|
14.2
|
Tax
gross-up
|
|
14.2.1
|
Each
Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
|
14.2.2
|
The
Parent shall promptly upon becoming aware that an Obligor shall 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 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 notify the Parent and that
Obligor.
|
|
14.2.3
|
If
a Tax Deduction is required by law to be made by an Obligor, the
amount of
the payment due from that Obligor shall be increased to an amount
which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
39
|
14.2.4
|
If
an Obligor is required to make a Tax Deduction, that Obligor 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.
|
|
14.2.5
|
Within
30 days of making either a Tax Deduction or any payment required
in
connection with that Tax Deduction, the Obligor making that Tax Deduction
shall deliver to the Facility Agent for the Finance Party entitled
to the
payment evidence reasonably satisfactory to that Finance Party that
the
Tax Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing
authority.
|
|
14.3
|
Tax
indemnity
|
|
14.3.1
|
The
Parent shall (within three Business Days of demand by the Facility
Agent)
pay to a Protected Party an amount equal to the loss, liability or
cost
which that Protected Party determines will be or has been (directly
or
indirectly) suffered for or on account of Tax by that Protected Party
in
respect of a Finance Document.
|
|
14.3.2
|
Clause
14.3.1 above shall not apply:
|
|
(a)
|
with
respect to any Tax assessed on a Finance
Party:
|
|
(i)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes;
or
|
|
(ii)
|
under
the law of the jurisdiction in which that Finance Party's Facility
Office
is located in respect of amounts received or receivable in that
jurisdiction,
|
if
that
Tax is imposed on or calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by that Finance
Party; or
|
(b)
|
to
the extent a loss, liability or
cost:
|
|
(i)
|
is
compensated for by an increased payment under Clause 14.2 (Tax gross-up);
or
|
|
(ii)
|
would
have been compensated for by an increased payment under Clause 14.2
(Tax
gross-up) but was not so compensated solely because one of the exclusions
in Clause 14.2 (Tax gross-up)
applied.
|
|
14.3.3
|
A
Protected Party making, or intending to make a claim under Clause
14.3.1
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 Parent.
|
40
|
14.3.4
|
A
Protected Party shall, on receiving a payment from an Obligor under
this
Clause 14.3, notify the Facility
Agent.
|
|
14.4
|
Tax
Credit
|
If
an
Obligor 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 or to that Tax Payment;
and
|
|
(b)
|
that
Finance Party has obtained, utilised and retained that Tax
Credit,
|
the
Finance Party shall pay an amount to the Obligor 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
Obligor.
|
14.5
|
Stamp
taxes
|
The
Parent shall pay and, within three Business Days of demand, indemnify each
Finance Party and Arranger against any cost, loss or liability that Finance
Party or Arranger incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of any Finance Document.
|
14.6
|
Value
added tax
|
|
14.6.1
|
All
consideration expressed to be payable under a Finance Document by
any
Party to a Finance Party shall be deemed to be exclusive of any VAT.
Subject to Clause 14.6.2 below, if VAT is chargeable on any supply
made by
any Finance Party to any Party in connection with a Finance Document,
that
Party shall pay to the Finance Party (in addition to and at the same
time
as paying the consideration) an amount equal to the amount of the
VAT.
|
|
14.6.2
|
If
VAT is chargeable on any supply made by any Finance Party (the "Supplier") to any
other
Finance Party (the "Recipient") in
connection with a Finance Document, and any Party is required by
the terms
of any Finance Document to pay an amount equal to the consideration
for
such supply to the Supplier, such Party shall also pay to the Supplier
(in
addition to and at the same time as paying such amount) an amount
equal to
the amount of such VAT.
|
|
14.6.3
|
Where
a Finance Document requires any Party to reimburse a Finance Party
for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance
Party
in respect of the costs or expenses to the extent that the Finance
Party
reasonably determines that it is not entitled to credit or repayment
from
the relevant tax authority in respect of the
VAT.
|
41
|
15.1
|
Increased
costs
|
|
15.1.1
|
Subject
to Clause 15.3 (Exceptions) the Parent shall, within three Business
Days
of a 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 (a) the introduction of or any change
in (or
in the interpretation, administration or application of) any law
or
regulation or (b) compliance with any law or regulation made after
the
date of this Agreement.
|
|
15.1.2
|
In
this Agreement "Increased
Costs" means:
|
|
(a)
|
a
reduction in the rate of return from the Facility or on a Finance
Party's
(or its Affiliate's) overall
capital;
|
|
(b)
|
an
additional or increased cost; or
|
|
(c)
|
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.
|
15.2
|
Increased
cost claims
|
|
15.2.1
|
A
Finance Party intending to make a claim pursuant to Clause 15.1 (Increased
costs) shall notify the Facility Agent of the event giving rise to
the
claim, following which the Facility Agent shall promptly notify the
Parent.
|
|
15.2.2
|
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.
|
|
15.3
|
Exceptions
|
|
15.3.1
|
Clause
15.1 (Increased costs) does not apply to the extent any Increased
Cost
is:
|
|
(a)
|
attributable
to a Tax Deduction required by law to be made by an
Obligor;
|
|
(b)
|
compensated
for by Clause 14.3 (Tax indemnity) (or would have been compensated
for
under Clause 14.3 (Tax indemnity) but was not so compensated solely
because any of the exclusions in Clause 14.3.1 (Tax indemnity)
applied);
|
|
(c)
|
compensated
for by the payment of the Mandatory Cost;
or
|
|
(d)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates
of
any law or regulation.
|
42
|
15.3.2
|
In
this Clause 15.3 reference to a "Tax Deduction" has the
same meaning given to the term in Clause 14.1
(Definitions).
|
|
16.1
|
Currency
indemnity
|
|
16.1.1
|
If
any sum due from an Obligor under the Finance Documents (a "Sum"), or any
order,
judgment or award given or made in relation to a Sum, has to be converted
from the currency (the "First Currency") in
which that Sum is payable into another currency (the "Second Currency") for
the purpose of:
|
|
(a)
|
making
or filing a claim or proof against that Obligor;
or
|
|
(b)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation
or
arbitration proceedings,
|
that
Obligor shall as an independent obligation, within three Business Days of
demand, indemnify the Arranger and each other Finance Party to whom that Sum
is
due against any cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (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.
|
16.1.2
|
Each
Obligor 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.
|
|
16.2
|
Other
indemnities
|
|
16.2.1
|
The
Parent shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify the Arranger and each other Finance
Party against any cost, loss or liability incurred by it as a result
of:
|
|
(a)
|
the
occurrence of any Event of Default;
|
|
(b)
|
a
failure by an Obligor 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 33 (Sharing Among The Finance
Parties);
|
|
(c)
|
funding,
or making arrangements to fund, its participation in a Loan requested
by a
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 Finance Party alone);
and
|
|
(d)
|
a
Loan (or part of a Loan) not being prepaid in accordance with a notice
of
prepayment given by a Borrower or the
Parent.
|
43
|
16.2.2
|
The
Parent shall promptly indemnify each Finance Party, each Affiliate
of a
Finance Party and each officer or employee of a Finance Party or
its
Affiliate, against any cost, loss or liability incurred by that Finance
Party or its Affiliate (or officer or employee of that Finance Party
or
Affiliate) in connection with or arising out of the acquisition of
the
Portfolio or the funding of the acquisition of the Portfolio (including
but not limited to those incurred in connection with any litigation,
arbitration or administrative proceedings or regulatory enquiry concerning
the acquisition of the Portfolio), unless such loss or liability
is caused
by the gross negligence or wilful misconduct of that Finance Party
or its
Affiliate (or employee or officer of that Finance Party or Affiliate).
Any
Affiliate or any officer or employee of a Finance Party or its Affiliate
may rely on this Clause 16.2.
|
|
16.3
|
Indemnity
to the Facility Agent
|
The
Parent shall promptly indemnify the Facility Agent against any cost, loss or
liability incurred by the Facility Agent (acting reasonably) as a result
of:
|
(a)
|
investigating
any event which it reasonably believes is a
Default;
|
|
(b)
|
entering
into or performing any foreign exchange contract for the purposes
of
Clause 34.9.1 (Change of currency);
or
|
|
(c)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
|
16.4
|
Indemnity
to the Security Agent
|
|
16.4.1
|
Each
Obligor shall promptly indemnify the Security Agent 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,
|
|
(b)
|
the
exercise of any of the rights, powers, discretions and remedies vested
in
the Security Agent by the Finance Documents or by law;
and
|
|
(c)
|
any
default by any Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance
Documents.
|
|
16.4.2
|
The
Security Agent may, in priority to any payment to the Finance Parties,
indemnify itself out of the Charged Property in respect of, and pay
and
retain, all sums necessary to give effect to the indemnity in this
Clause
16.4 and shall have a lien on the Transaction
Security and the proceeds of the enforcement of the Transaction Security
for all monies payable to it.
|
|
16.4.3
|
44
|
17.1
|
Mitigation
|
|
17.1.1
|
Each
Finance Party shall, in consultation with the Parent, 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 7.1 (Illegality), Clause 14 (Tax
gross up and Indemnities) or Clause 15
(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.
|
|
17.1.2
|
Clause
17.1.1 above does not in any way limit the obligations of any Obligor
under the Finance Documents.
|
|
17.2
|
Limitation
of liability
|
|
17.2.1
|
The
Parent 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 17.1 (Mitigation).
|
|
17.2.2
|
A
Finance Party is not obliged to take any steps under Clause 17.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably),
to do so might be prejudicial to
it.
|
|
18.1
|
Transaction
expenses
|
The
Parent shall promptly on demand pay the Agent, the Arranger and the Security
Agent the amount of all costs and expenses (including legal 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;
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
|
18.2
|
Amendment
costs
|
If
(a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 34.9 (Change of currency), the Parent shall, within three
Business Days of demand, reimburse each of the Facility Agent and the Security
Agent for the amount of all costs and expenses (including legal fees) reasonably
incurred by the Facility Agent and the Security Agent in responding to,
evaluating, negotiating or complying with that request or
requirement.
45
|
18.3
|
Enforcement
and preservation costs
|
The
Parent shall, within three Business Days of demand, pay to the Arranger and
each
other Finance Party the amount of all costs and expenses (including legal fees)
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 Security Agent as a consequence of
taking or holding the Transaction Security or enforcing these
rights.
46
GUARANTEE
|
19.1
|
Guarantee
and indemnity
|
Each
Guarantor irrevocably and unconditionally jointly and severally:
|
(a)
|
guarantees
to each Finance Party punctual performance by another Obligor of
all such
Obligor's obligations under the Finance
Documents;
|
|
(b)
|
undertakes
with each Finance Party that whenever another Obligor does not pay
any
amount when due under or in connection with any Finance Document,
that
Guarantor shall immediately on demand pay that amount as if it was
the
principal obligor; and
|
|
(c)
|
indemnifies
each Finance Party immediately on demand against any cost, loss or
liability suffered by that Finance Party if any obligation guaranteed
by
it is or becomes unenforceable, invalid or illegal. The amount of
the
cost, loss or liability shall be equal to the amount which that Finance
Party would otherwise have been entitled to
recover.
|
|
19.2
|
Continuing
Guarantee
|
This
guarantee is a continuing guarantee and will extend to the ultimate balance
of
sums payable by any Obligor under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.
|
19.3
|
Reinstatement
|
If
any
payment by an Obligor or any discharge given by a Finance Party (whether in
respect of the obligations of any Obligor or any security for those obligations
or otherwise) is avoided or reduced as a result of insolvency or any similar
event:
|
(a)
|
the
liability of each Obligor shall continue as if the payment, discharge,
avoidance or reduction had not occurred;
and
|
|
(b)
|
each
Finance Party shall be entitled to recover the value or amount of
that
security or payment from each Obligor, as if the payment, discharge,
avoidance or reduction had not
occurred.
|
|
19.4
|
Waiver
of defences
|
The
obligations of each Guarantor under this Clause 19 will not be affected by
an
act, omission, matter or thing which, but for this Clause 19, would reduce,
release or prejudice any of its obligations under this Clause 19 (without
limitation and whether or not known to it or any Finance Party)
including:
47
|
(a)
|
any
time, waiver or consent granted to, or composition with, any Obligor
or
other person;
|
|
(b)
|
the
release of any other Obligor or any other person under the terms
of any
composition or arrangement with any creditor of any Obligor or any
other
person;
|
|
(c)
|
the
taking, variation, compromise, exchange, renewal or release of, or
refusal
or neglect to perfect, take up or enforce, any rights against, or
security
over assets of, any Obligor or other person or any non-presentation
or
non-observance of any formality or other requirement in respect of
any
instrument or any failure to realise the full value of any
Security;
|
|
(d)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any
other
person;
|
|
(e)
|
any
amendment, novation, supplement, extension (whether of maturity or
otherwise) or restatement (in each case, however fundamental and
of
whatsoever nature) or replacement of a Finance Document or any other
document or security;
|
|
(f)
|
any
unenforceability, illegality or invalidity of any obligation of any
person
under any Finance Document or any other document or Security;
or
|
|
(g)
|
any
insolvency or similar proceedings.
|
|
19.5
|
Immediate
recourse
|
Each
Guarantor waives any right it may have of first requiring any Finance Party
(or
any trustee or agent on its behalf) to proceed against or enforce any other
rights or Security or claim payment from any person before claiming from that
Guarantor under this Clause 19. This waiver applies irrespective of any law
or
any provision of a Finance Document to the contrary.
|
19.6
|
Appropriations
|
Until
all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may:
|
(a)
|
refrain
from applying or enforcing any other moneys, Security or rights held
or
received by that Finance Party (or any trustee or agent on its behalf)
in
respect of those amounts, or apply and enforce the same in such manner
and
order as it sees fit (whether against those amounts or otherwise)
and no
Guarantor shall be entitled to the benefit of the same;
and
|
48
|
(b)
|
hold
in an interest-bearing suspense account any moneys received from
any
Guarantor or on account of any Guarantor's liability under this Clause
19.
|
|
19.7
|
Deferral
of Guarantors' rights
|
Until
all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full and unless the
Facility Agent otherwise directs, no Guarantor will exercise any rights which
it
may have by reason of performance by it of its obligations under the Finance
Documents:
|
(a)
|
to
be indemnified by an Obligor;
|
|
(b)
|
to
claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents;
and/or
|
|
(c)
|
to
take the benefit (in whole or in part and whether by way of subrogation
or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant to,
or in
connection with, the Finance Documents by any Finance
Party.
|
|
19.8
|
Release
of Guarantors' right of
contribution
|
If
any
Guarantor (a "Retiring
Guarantor") ceases to be a Guarantor in accordance with the terms of the
Finance Documents then on the date such Retiring Guarantor ceases to be a
Guarantor:
|
(a)
|
that
Retiring Guarantor is released by each other Guarantor from any liability
(whether past, present or future and whether actual or contingent)
to make
a contribution to any other Guarantor arising by reason of the performance
by any other Guarantor of its obligations under the Finance Documents;
and
|
|
(b)
|
each
other Guarantor waives any rights it may have by reason of the performance
of its obligations under the Finance Documents to take the benefit
(in
whole or in part and whether by way of subrogation or otherwise)
of any
rights of the Finance Parties under any Finance Document or of any
other
Security taken pursuant to, or in connection with, any Finance Document
where such rights or Security are granted by or in relation to the
assets
of the Retiring Guarantor.
|
|
19.9
|
Additional
Security
|
This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or Security now or subsequently held by any Finance
Party.
49
|
19.10
|
Waiver
|
|
19.10.1
|
Without
prejudice to the other clauses of this Clause 19, each Guarantor
waives
all its rights and defences as set out in Section 7:852 (1), (2)
and (3),
Section 7:853 and Section 7:855 Dutch Civil Code and all its rights
and
defences as set out in Section 6:139 and Section 6:154 Dutch Civil
Code as
well as all other rights and defences accorded to it by law or otherwise
including, without limitation, the right of set-off, insofar as such
a
waiver is permitted by mandatory provisions of
law.
|
|
19.11
|
Guarantee
Limitations
|
|
19.11.1
|
This
guarantee does not apply to any liability to the extent that it would
result in this guarantee constituting unlawful financial assistance
within
the meaning of Section 2:207 (c) of the Dutch Civil Code or any equivalent
and applicable provisions under the laws of the jurisdiction of
incorporation of the relevant
Guarantor.
|
|
19.11.2
|
If
required by law, the guarantee, indemnity and other obligations of
an
Additional Obligor to be assumed in this Clause 19 shall be limited
as set
out in the relevant Accession
Letter.
|
|
20.1
|
Designation
of Accounts
|
|
20.1.1
|
The
Parent shall maintain the following bank
accounts:
|
|
(a)
|
a
rent account designated the "Rent Account";
and
|
|
(b)
|
a
current account designated the "General
Account".
|
|
20.1.2
|
Each
Obligor collecting any Rental Income shall maintain one or more current
accounts designated a "Collection
Account".
|
|
20.1.3
|
No
Obligor shall, without the prior consent of the Facility Agent, maintain
any other bank account.
|
|
20.2
|
Collection
Accounts
|
|
20.2.1
|
Each
Obligor shall have signing rights in relation to its Collection
Account.
|
|
20.2.2
|
Each
Obligor must ensure that all Rental Income is paid into the relevant
Collection Account.
|
|
20.2.3
|
If
any payment of any amount referred to in Clause 20.2 is paid into
an
Account other than a Collection Account, that payment shall be paid
immediately into the relevant Collection
Account.
|
50
|
20.2.4
|
At
the close of business on the last Business Day of each Month the
Obligors
shall ensure that the balance of each Collection Account is swept
to the
Rent Account provided that:
|
|
(a)
|
any
amount standing to the credit of a Collection Account which the Obligor
confirms corresponds either to Tenant Contributions or to value added
tax
payable by tenants which is reimbursable by an Obligor to the tenants
shall be retained in that Collection Account;
and
|
|
(b)
|
an
Obligor shall be entitled to retain in its Collection Account during
each
Interest Period an aggregate amount equal to the Permitted Operating
Costs
for that Interest Period.
|
|
20.2.5
|
Each
Obligor shall ensure that any amount retained in a Collection Account
pursuant to Clause 20.2.4 is applied in payment or discharge of items
to
which the relevant Tenant Contributions relate or in reimbursement
of the
relevant value added tax or in payment of the Permitted Operating
Costs.
|
|
20.3
|
Rent
Account
|
|
20.3.1
|
Except
as provided in Clause 20.3.8, the Parent shall have signing rights
in
relation to the Rent Account.
|
|
20.3.2
|
The
Borrowers shall ensure that any amounts payable to it under any Hedging
Agreements are paid into the Rent
Account.
|
|
20.3.3
|
Each
Borrower shall deposit amounts into the Rent Account in accordance
with
Clause 8.2.3.
|
|
20.3.4
|
On
any day on which an amount is due under a Building Right, Apartment
Right
or Leasehold Interest, the relevant Obligor
may:
|
|
(a)
|
withdraw
from the Rent Account an amount necessary to meet that due amount;
and
|
|
(b)
|
apply
that amount in payment of that due
amount.
|
|
20.3.5
|
If
any payment of any amount referred to in Clause 20.3.2 is paid into
an
Account other than the Rent Account, that payment shall be paid
immediately into the Rent Account.
|
|
20.3.6
|
If
any payment is made in to the Rent Account which should have been
paid
into another Account, the Parent shall pay that amount to that other
Account, unless a Default is outstanding, in which case the Facility
Agent
may determine to which Account that amount is
paid.
|
51
|
20.3.7
|
Except
as provided in Clause 34.5 (Partial Payments) and Clause 20.3.8,
on each
Interest Payment Date, the Parent shall apply the amounts standing
to the
credit of the Rent Account, in the following
order:
|
|
(a)
|
firstly,
payment pro rata of any
unpaid
costs and expenses of the Facility Agent and the Security Agent due
but
unpaid under the Finance Documents;
|
|
(b)
|
secondly,
in or towards
payment of any amount due to the Hedge Counterparty but unpaid as
a result
of termination or closing out under the Hedging
Agreements;
|
|
(c)
|
thirdly,
in or towards
payment of any payment (not being a payment as a result of termination
of
closing out) due but unpaid to the Hedge Counterparty under the Hedging
Agreements;
|
|
(d)
|
fourthly,
payment of any
Break Costs due but unpaid under the Finance
Documents;
|
|
(e)
|
fifthly,
payment of any
accrued interest and principal due but unpaid under this Agreement;
and
|
|
(f)
|
sixthly,
payment of any
surplus into the General Account.
|
|
20.3.8
|
At
its first written request, the Facility Agent may, and shall be
irrevocably authorised by the Parent
to:
|
|
(a)
|
operate
the Rent Account; and
|
|
(b)
|
withdraw
from, and apply amounts standing to the credit of, the Rent Account
in or
towards any purpose for which moneys in any Account may be
applied.
|
|
20.4
|
General
Account
|
|
20.4.1
|
Except
as provided in Clause 20.4.4, the Parent has signing rights in relation
to
the General Account.
|
|
20.4.2
|
Each
Borrower shall ensure that any amount received by it, other than
any
amount specifically required under this Agreement to be paid into
any
other Account, is paid into the General
Account.
|
|
20.4.3
|
Subject
to any restriction in the Subordination Agreement and if no Default
is
outstanding, the Parent may withdraw any amount from the General
Account.
|
|
20.4.4
|
At
its first written request, the Facility Agent may, and shall be
irrevocably authorised by the Parent
to:
|
52
|
(a)
|
operate
the General Account; and
|
|
(b)
|
withdraw
from, and apply amounts standing to the credit of, the General Account
in
or towards any purpose for which moneys in any Account may be
applied.
|
|
20.5
|
Miscellaneous
Accounts provisions
|
|
20.5.1
|
Each
Obligor shall ensure that no Account goes into
overdraft.
|
|
20.5.2
|
Any
amount received or recovered by the Obligors otherwise than by credit
to
an Account shall be held subject to the security created by the Finance
Documents and immediately be paid to the relevant Account or to the
Facility Agent in the same funds as received or
recovered.
|
|
20.5.3
|
The
monies standing to the credit of each Account may be applied by the
Facility Agent on the date any repayment of the Loans is due to be
made in
or towards repayment of the Loans and all other amounts due to a
Finance
Party under the Finance Documents.
|
|
20.5.4
|
No
Finance Party is responsible or liable to any Obligor
for:
|
|
(a)
|
any
non-payment of any liability of such Obligor which could be paid
out of
moneys standing to the credit of an Account;
or
|
|
(b)
|
any
withdrawal wrongly made, if made in good
faith.
|
|
20.5.5
|
Each
Obligor shall, within five Business Days of any request by the Facility
Agent, supply the Facility Agent with the following information in
relation to any payment received in an
Account:
|
|
(a)
|
the
date of payment or receipt;
|
|
(b)
|
the
payer; and
|
|
(c)
|
the
purpose of the payment or receipt.
|
|
20.6
|
Change
of Bank Accounts
|
|
20.6.1
|
An
Account shall be moved to another bank at any time if the Facility
Agent
so requests.
|
|
20.6.2
|
A
change of Account only becomes effective when the proposed new bank
agrees
with the Facility Agent and the Parent, in a manner satisfactory
to the
Facility Agent, to fulfil the role of the bank holding that
Account.
|
53
|
20.6.3
|
Each
Obligor shall promptly notify the Finance Parties upon becoming aware
that
a bank at which an Account is held does not have a Requisite
Rating.
|
|
20.6.4
|
Without
limiting Clause 20.6.3, if a bank at which an Account is held does
not
have a Requisite Rating, the Finance Parties may require that that
Account
be moved, within 10 Business Days, to another bank of its choice
which
does have a Requisite Rating.
|
54
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
|
21.1
|
General
|
|
21.1.1
|
Each
Obligor makes the representations and warranties set out in this
Clause 21
to each Finance Party on the date of this
Agreement.
|
|
21.2
|
Status
|
|
21.2.1
|
It
and each of its Subsidiaries is a limited liability company, duly
incorporated and validly existing under the law of its jurisdiction
of
incorporation.
|
|
21.2.2
|
It
and each of its Subsidiaries has the power to own its assets and
carry on
its business as it is being
conducted.
|
|
21.3
|
Binding
obligations
|
Subject
to the Legal Reservations:
|
(a)
|
the
obligations expressed to be assumed by it in each Transaction Document
to
which it is a party are legal, valid, binding and enforceable obligations;
and
|
|
(b)
|
(without
limiting the generality of paragraph (a) above), each Transaction
Security
Document to which it is a party creates the security interests which
that
Transaction Security Document purports to create and those security
interests are valid and effective.
|
|
21.4
|
Non-conflict
with other obligations
|
The
entry
into and performance by it of, and the transactions contemplated by, the
Transaction Documents and the granting of the Transaction Security do not and
will not conflict with:
|
(a)
|
any
law or regulation applicable to it;
|
|
(b)
|
the
constitutional documents of any Obligor;
or
|
|
(c)
|
any
agreement or instrument binding upon it or any of its or assets or
constitute a default or termination event (however described) under
any
such agreement or instrument.
|
55
|
21.5
|
Power
and authority
|
|
21.5.1
|
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 Transaction Documents to which it is or will be a party and the
transactions contemplated by those Transaction
Documents.
|
|
21.6
|
Validity
and admissibility in evidence
|
|
21.6.1
|
All
Authorisations required or
desirable:
|
|
(a)
|
to
enable it lawfully to enter into, exercise its rights and comply
with its
obligations in the Transaction Documents to which it is a party;
and
|
|
(b)
|
to
make the Transaction Documents to which it is a party admissible
in
evidence in its Relevant
Jurisdictions,
|
have
been
obtained or effected and are in full force and effect.
|
21.6.2
|
All
Authorisations necessary for the conduct of the business, trade and
ordinary activities of the Obligors have been obtained or effected
and are
in full force and effect if failure to obtain or effect those
Authorisations has or is reasonably likely to have a Material Adverse
Effect.
|
|
21.7
|
Governing
law and enforcement
|
|
21.7.1
|
The
choice of governing law of the Finance Documents will be recognised
and
enforced in its Relevant
Jurisdictions.
|
|
21.7.2
|
Any
judgment obtained in relation to a Finance Document in the jurisdiction
of
the governing law of that Finance Document will be recognised and
enforced
in its Relevant Jurisdictions.
|
|
21.8
|
Insolvency
|
No:
|
(a)
|
corporate
action, legal proceeding or other procedure or step described in
Clause
27.7.1 (Insolvency proceedings); or
|
|
(b)
|
creditors'
process described in Clause 27.8 (Creditors'
process),
|
has
been
taken or, to the knowledge of the Parent, threatened in relation to an Obligor
or any other person granting Transaction Security, and none of the circumstances
described in Clause 27.6 (Insolvency) applies to an Obligor or any other person
granting Transaction Security.
56
|
21.9
|
No
filing or stamp taxes
|
Under
the
laws of its Relevant Jurisdiction it is not necessary that the Finance Documents
be filed, recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration, notarial or similar Taxes or
fees
be paid on or in relation to the Finance Documents or the transactions
contemplated by the Finance Documents except for the filing of certain
Transaction Security Documents to which it is a party which will be made
promptly after the execution of such Transaction Security Document.
|
21.10
|
Deduction
of Tax
|
It
is not
required to make any deduction for or on account of Tax from any payment it
may
make under any Finance Document.
|
21.11
|
No
default
|
|
21.11.1
|
No
Event of Default and, on the date of this Agreement and the Utilisation
Date, no Default is continuing or is reasonably likely to result
from the
making of any Utilisation or the entry into, the performance of,
or any
transaction contemplated by, any Transaction
Document.
|
|
21.11.2
|
No
other event or circumstance is outstanding which constitutes (or,
with the
expiry of a grace period, the giving of notice, the making of any
determination or any combination of any of the foregoing, would
constitute) a default or termination event (however described) under
any
other agreement or instrument which is binding on it or any of its
Subsidiaries or to which its (or any of its Subsidiaries') assets
are
subject which has or is reasonably likely to have a Material Adverse
Effect.
|
|
21.12
|
No
proceedings pending or threatened
|
No
litigation, arbitration or administrative proceedings or investigations of,
or
before, any court, arbitral body or agency which, if adversely determined,
are
reasonably likely to have a Material Adverse Effect have (to the best of its
knowledge and belief (having made due and careful enquiry)) been started or
threatened against it or any of its Subsidiaries.
|
21.13
|
No
breach of laws
|
|
21.13.1
|
It
has not (and none of its Subsidiaries has) breached any law or regulation
which breach has or is reasonably likely to have a Material Adverse
Effect.
|
|
21.13.2
|
No
labour disputes are current or, to the best of its knowledge and
belief
(having made due and careful enquiry), threatened against any Obligor
which have or are reasonably likely to have a Material Adverse
Effect.
|
57
|
21.14
|
No
misleading information
|
|
21.14.1
|
Save
as disclosed in writing to the Facility Agent and the Arranger prior
to
the date of this Agreement:
|
|
(a)
|
any
factual information supplied by each Obligor was true and accurate
in all
material respects as at the date of the relevant report or document
containing the information or (as the case may be) as at the date
the
information is expressed to be
given;
|
|
(b)
|
any
financial projection or forecast supplied by each Obligor has been
prepared on the basis of recent historical information and on the
basis of
reasonable assumptions and was fair (as at the date of the relevant
report
or document containing the projection or forecast) and arrived at
after
careful consideration;
|
|
(c)
|
the
expressions of opinion or intention provided by or on behalf of an
Obligor
were made after careful consideration and (as at the date of the
relevant
report or document containing the expression of opinion or intention)
were
fair and based on reasonable
grounds;
|
|
(d)
|
no
event or circumstance has occurred or arisen and no information has
been
omitted and no information has been given or withheld that results
in the
information, opinions, intentions, forecasts or projections supplied
by
each Obligor being untrue or misleading in any material
respect;
|
|
(e)
|
all
other written information provided by any Obligor (including its
advisers)
to a Finance Party or the provider of any Report was true, complete
and
accurate in all material respects as at the date it was provided
and is
not misleading in any respect.
|
|
21.15
|
Valuation
|
|
21.15.1
|
All
information supplied by or on behalf of the Obligors to the Valuer
for the
purposes of each Valuation was true and accurate as at its date or
(if
appropriate) as at the date (if any) at which it is stated to be
given.
|
|
21.15.2
|
Any
financial projections contained in the information referred to in
Clause
21.15.1 above have been prepared as at their date, on the basis of
recent
historical information and assumptions believed by the Obligors to
be fair
and reasonable.
|
|
21.15.3
|
The
Obligors have not omitted to supply any information which, if disclosed,
would adversely affect the
Valuation.
|
|
21.15.4
|
In
the case of the relevant Initial Valuation only, nothing has occurred
since the date information referred to in paragraph (a) above was
supplied
and the Utilisation Date which, if it had occurred prior to the relevant
Initial Valuation, would adversely affect that Initial
Valuation.
|
58
|
21.16
|
Information
for Report on Title
|
|
21.16.1
|
The
information supplied by or behalf of the Obligors to the lawyers
who
prepared any Report on Title for the purpose of that Report on Title
was
true and accurate in all material respects as at its date or (if
appropriate) as at the date (if any) at which it is stated to be
given.
|
|
21.16.2
|
The
information referred to in Clause 21.16.1 above was at the date it
was
expressed to be given complete and did not omit any information which,
if
disclosed would make that information untrue or misleading in any
material
respect.
|
|
21.16.3
|
As
at the relevant Utilisation Date, nothing has occurred since the
date of
any information referred to in Clause 21.16.1 above which, if disclosed,
would make that information untrue or misleading in any material
respect.
|
|
21.17
|
Financial
Statements
|
|
21.17.1
|
Its
Original Finance Statements were prepared in accordance with Accounting
Principle consistently applied.
|
|
21.17.2
|
Its
unaudited Original Finance Statements fairly represent its financial
condition and results of operations for the relevant financial
year.
|
|
21.17.3
|
Its
audited Original Finance Statements give a true and fair view of
its
financial condition and results of operations during the relevant
financial year.
|
|
21.17.4
|
There
has been no material adverse change in its assets, business or financial
condition since the date of the Original Financial
Statements.
|
|
21.17.5
|
Its
most recent financial statements delivered pursuant to Clause 22.2
(Financial statements):
|
|
(a)
|
have
been prepared in accordance with the Accounting
Principles;
|
|
(b)
|
give
a true and fair view of (if audited) or fairly present (if unaudited)
its
(consolidated, if appropriate) financial condition as at the end
of, and
results of operations (consolidated, if appropriate) for, the period
to
which they relate; and
|
|
(c)
|
the
budgets and forecasts supplied under this Agreement were arrived
at after
careful consideration and have been prepared in good faith on the
basis of
recent historical information and on the basis of assumptions which
were
reasonable as at the date they were prepared and
supplied.
|
59
|
21.17.6
|
Its
most recent financial statements delivered pursuant to Clause 22.2
(Financial statements):
|
|
(a)
|
have
been prepared in accordance with the Accounting Principles as applied
to
the Original Financial Statements;
and
|
|
(b)
|
give
a true and fair view of (if audited) or fairly present (if unaudited)
its
consolidated financial condition as at the end of, and consolidated
results of operations for, the period to which they
relate.
|
|
21.17.7
|
The
budgets and forecasts supplied under this Agreement were arrived
at after
careful consideration and have been prepared in good faith on the
basis of
recent historical information and on the basis of assumptions which
were
reasonable as at the date they were prepared and
supplied.
|
|
21.17.8
|
Since
the date of the most recent financial statements delivered pursuant
to
Clause 22.2 (Financial statements) there has been no material adverse
change in the business, assets or financial condition of an
Obligor.
|
|
21.18
|
Good
title to assets
|
|
21.18.1
|
It
and each of its Subsidiaries has a good, valid and marketable title
to, or
valid leases or licences of, and all appropriate Authorisations to
use,
the assets necessary to carry on its business as presently
conducted.
|
|
21.18.2
|
It
and each of its Subsidiaries is the sole legal and beneficial owner
of the
respective assets over which it purports to grant
Security.
|
|
21.19
|
Title
to Property
|
|
21.19.1
|
Notwithstanding
the generality of Clause 21.18 (Good title to assets), the Obligors
shall
from the relevant Utilisation Date:
|
|
(a)
|
be
the legal and beneficial owner of each Property;
and
|
|
(b)
|
have
good and marketable title to each
Property,
|
in
each
case free from Security (other than those set out in the Transaction Security
Documents) and restrictions and onerous covenants (other than those set out
in
the Report on Title).
|
21.19.2
|
From
the relevant Utilisation Date except as disclosed in any Report on
Title:
|
|
(a)
|
no
breach of any law or regulation is outstanding which adversely affects
or
might adversely affect the value of any
Property;
|
60
|
(b)
|
(there
is no covenant, agreement, stipulation, reservation, condition, interest,
right or other matter adversely affecting any
Property;
|
|
(c)
|
nothing
has arisen or has been created or is outstanding which would be an
overriding interest, or an unregistered interest which overrides
first
registration or registered dispositions, over any
Property;
|
|
(d)
|
no
facility necessary for the enjoyment and use of any Property is enjoyed
by
any Property on terms entitling any person to terminate or curtail
its
use;
|
|
(e)
|
it
has not received any notice of any adverse claim by any person in
respect
of the ownership of any Property or any interest in it, nor has any
acknowledgement been given to any person in respect of any Property;
and
|
|
(f)
|
any
Property is held by it free from any tenancy or licence other than
any
Occupational Lease.
|
|
21.19.3
|
All
deeds and documents necessary to show good and marketable title to
the
Borrowers’ interests in any Property will from the relevant Utilisation
Date be:
|
|
(a)
|
in
possession of the Facility Agent;
or
|
|
(b)
|
held
to the order of the Facility Agent.
|
|
21.20
|
Ownership
shares
|
|
21.20.1
|
Notwithstanding
the generality of Clause 21.18 (Good title to assets) the Parent
legally
and beneficially owns 100 per cent. of the ordinary shares in the
capital
of any other Obligor;
|
|
21.20.2
|
The
shares of any Obligor which are subject to the Transaction Security
are
fully paid and not subject to any option to purchase or similar rights.
Save for any "blokkeringsclausule" pursuant to Section 2:195 of the
Dutch
Civil Code, the Constitutional Documents do not and could not restrict
or
inhibit any transfer of those shares on creation or enforcement of
the
Transaction Security.
|
|
21.21
|
Group
Structure Chart
|
|
21.21.1
|
The
Group Structure Chart delivered to the Facility Agent pursuant to
Schedule
2 part
IB (Conditions Precedent) is true, complete and accurate in all material
respects.
|
|
21.22
|
Lease
Documents
|
|
21.22.1
|
All
payments to it by any other party to each Lease Document are not
subject
to any right of set-off or similar right other than those permitted
by
mandatory law.
|
61
|
21.22.2
|
Each
list of Occupational Leases delivered by the Obligors to the Facility
Agent under the Finance Documents represents a true, complete and
accurate
list of all Occupational Leases in effect at the relevant time in
respect
of the Properties.
|
|
21.23
|
Acquisition
Documents
|
|
21.23.1
|
The
Acquisition Documents contain all the terms of the
Acquisition.
|
|
21.23.2
|
There
is no disclosure made to the Acquisition Documents which has or may
have a
material adverse effect on any of the information, opinions, intentions,
forecasts and projections supplied by the
Obligors.
|
|
21.23.3
|
To
the best of its knowledge no representation or warranty given by
any party
to the Acquisition Documents is untrue or misleading in any material
respect.
|
|
21.24
|
Environmental
laws
|
|
21.24.1
|
To
the extent applicable, it has obtained all Environmental Approvals
required for the carrying on of their respective businesses as currently
conducted and is in compliance
with:
|
|
(a)
|
the
terms and conditions of such Environmental Approvals;
and
|
|
(b)
|
all
other applicable Environmental
Laws,
|
|
21.24.2
|
where,
in each case, if not obtained or complied with, the failure or its
consequences might have a material adverse effect on the ability
of any
Obligor to comply with its obligations under the Finance Documents.
There
are to their respective knowledge no circumstances that may prevent
or
interfere with such compliance in the
future.
|
|
21.24.3
|
Except
as disclosed by the Parent in writing to the Lender prior to the
date of
this Agreement, it is in compliance with Clause 25.5 (Environmental
matters) there is no Environmental Claim (to the best of each Obligor's
knowledge and belief after due and careful enquiry) pending or formally
threatened (including, without limitation, any arising out of the
generation, storage, transport, disposal or release of any Dangerous
Substance) against an Obligor which, if adversely determined, might
have
or is reasonably likely to result in a Material Adverse
Effect.
|
|
21.24.4
|
To
the best of its knowledge and belief, no Dangerous Substance has
been
used, disposed of, generated, stored, transported, dumped, released,
deposited, buried or emitted at, on, from or under any premises (whether
or not (legally or beneficially) owned, leased, occupied or controlled
by
an Obligor and including any off-site waste management or disposal
location utilised by an Obligor) in such manner or circumstances
as if
adversely determined, might have a material adverse effect on the
ability
of any Obligor to comply with its obligations under the Finance
Documents.
|
62
|
21.25
|
Taxation
|
|
21.25.1
|
It
is not (and none of its Subsidiaries is) materially overdue in the
filing
of any Tax returns and it is not (and none of its Subsidiaries is)
overdue
in the payment of any amount in respect of
Tax.
|
|
21.25.2
|
No
claims or investigations are being, or are reasonably likely to be,
made
or conducted against it (or any of its Subsidiaries) with respect
to
Taxes.
|
|
21.25.3
|
It
is resident for Tax purposes only in the jurisdiction of its
incorporation.
|
|
21.25.4
|
It
is not a member of a fiscal unity.
|
|
21.25.5
|
No
person which holds any cumulative preference shares in the
capital of an Obligor qualifies as an affiliated entity
(verbonden
lichaam) with the Parent as meant in section 4
(7) of the Real Estate Transfer Act (Wet op belastingen van
rechtsverkeer).
|
|
21.26
|
Security
and Financial Indebtedness
|
|
21.26.1
|
No
Security or Quasi-Security exists over all or any of the present
or future
assets of any Obligor other than as permitted by this
Agreement.
|
|
21.26.2
|
No
Obligor has any Financial Indebtedness outstanding other than as
permitted
by this Agreement.
|
|
21.27
|
Ranking
|
The
Transaction Security has or will have first ranking priority and it is not
subject to any prior ranking or pari passu ranking
Security.
|
21.28
|
No
other business
|
|
21.28.1
|
No
Obligor has traded or carried on any business since the date of its
incorporation or formation except for the ownership and management
of
their interests in the Properties and, in case of the Parent, the
ownership of the shares as set out in Clause 21.20 (Ownership
Shares).
|
|
21.28.2
|
As
at the date of this Agreement, it is not party to any material agreement
other than the Transaction
Documents.
|
|
21.28.3
|
As
at the date of this Agreement, the Obligors (save for the Parent)
do not
have any Subsidiaries and the Parent does not have any Subsidiaries
other
than the other Obligors.
|
|
21.28.4
|
The
Obligors:
|
63
|
(a)
|
do
not have, and has not had, any employees;
and
|
|
(b)
|
do
not have any obligation in respect of any retirement benefit or
occupational pension scheme of any
person.
|
|
21.29
|
Centre
of main interests and
establishments
|
For
the
purposes of The Council of the European Union Regulation No. 1346/2000 on
Insolvency Proceedings (the "Regulation"), its centre of
main interest (as that term is used in Article 3(1) of the Regulation) is
situated in its jurisdiction of incorporation and it has no "establishment"
(as
that term is used in Article 2(h) of the Regulations) in any other
jurisdiction.
|
21.30
|
Times
when representations made
|
|
21.30.1
|
All
the representations and warranties in this Clause 21 are made by
each
Obligor on the date of this
Agreement.
|
|
21.30.2
|
All
the representations and warranties in this Clause 21 are deemed to
be made
by each Obligor on the first Utilisation
Date.
|
|
21.30.3
|
The
representations and warranties in Clause 21.14 (No misleading information)
are deemed to be made by each Obligor on the Syndication
Date.
|
|
21.30.4
|
The
Repeating Representations are deemed to be made by each Obligor on
the
date of each Utilisation Request, on each Utilisation Date and on
the
first day of each Interest Period (except that those contained in
Clauses
21.17.1 - 21.17.4 (Financial Statements) will cease to be so made
once
subsequent financial statements have been delivered under this
Agreement).
|
|
21.30.5
|
Each
representation or warranty deemed to be made after the date of this
Agreement shall be deemed to be made by reference to the facts and
circumstances existing at the date the representation or warranty
is
deemed to be made.
|
|
22.1.1
|
The
undertakings in this Clause 22 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.
|
|
22.1.2
|
In
this Clause 22:
|
"Annual
Financial Statements"
means the annual financial statements for a Financial Year delivered pursuant
to
paragraph (a) of Clause 22.2 (Financial statements).
64
"Quarterly
Financial
Statements" means the quarterly financial statement in respect of a
Financial Quarter delivered pursuant to paragraph (b) of Clause 22.2 (Financial
statements).
|
22.2
|
Financial
statements
|
The
Parent shall supply to the Facility Agent in sufficient copies for all the
Lenders:
|
(a)
|
as
soon as the same become available, but in any event within 90 days
after
the end of the Obligors’ Financial Years, the Obligors’ audited Annual
Financial Statements; and
|
|
(b)
|
as
soon as the same become available, but in any event within 45 days
after
the end of the Obligors' Financial Quarter, the Obligors’ Quarterly
Financial Statements.
|
|
22.3
|
Compliance
Certificate
|
|
22.3.1
|
The
Parent shall supply a Compliance Certificate to the Facility Agent
with
each set of its audited consolidated Annual Financial Statements
and each
set of its Quarterly Financial
Statements.
|
|
22.3.2
|
The
Compliance Certificate shall, amongst other things, set out (in reasonable
detail) computations as to compliance with Clause 23 (Financial
Covenants).
|
|
22.3.3
|
Each
Compliance Certificate shall be signed by the number of directors
required
to duly represent the Parent and, if required to be delivered with
the
consolidated Annual Financial Statements, shall be reported on by
the
Auditors in the form agreed by the Parent and the Majority
Lenders.
|
|
22.3.4
|
|
22.4
|
Requirements
as to financial statements
|
|
22.4.1
|
Each
set of Annual Financial Statements or Quarterly Financial Statements
delivered by the Obligors pursuant to this Clause 22 shall be certified
by
the number of directors required to duly represent the relevant Obligor
as
fairly representing its financial condition as at the date as at
which
those financial statements were drawn
up.
|
|
22.4.2
|
|
22.4.3
|
Each
Obligor shall procure that each set of Annual Financial Statements
or
Quarterly Financial Statements delivered pursuant to this Clause
22 shall
be prepared using the Accounting
Principles.
|
|
22.4.4
|
65
|
22.5
|
Valuation
|
|
22.5.1
|
The
Facility Agent may request for a Valuation at any
time.
|
|
22.5.2
|
The
Obligors shall on demand by the Facility Agent pay the cost of the
Initial
Valuation and any Valuation requested by the Facility
Agent:
|
|
(a)
|
annually;
or
|
|
(b)
|
at
any time when a Default is
outstanding.
|
|
22.5.3
|
The
Obligors shall supply the Facility Agent a copy of any valuation
of the
Properties it obtains, promptly upon obtaining
it.
|
|
22.5.4
|
Any
Valuation not referred to in Clause 22.5.3 above will be at the cost
of
the Lenders.
|
|
22.5.5
|
Each
Obligor shall provide to the Facility Agent before it shall submit
a
Utilisation Request in connection with an Additional Property a valuation
prepared by the Valuer with respect to such Additional Property addressed
to the Finance Parties.
|
|
22.6
|
Year-end
|
|
22.6.1
|
The
Parent shall procure that each Financial Year-end of each Obligor
falls on
31 December.
|
|
22.6.2
|
The
Parent shall procure that each quarterly accounting period and each
Financial Quarter of each Obligor ends on 31 March, 31 June, 30 September
and 31 December respectively.
|
|
22.7
|
Information:
miscellaneous
|
The
Parent shall supply to the Facility Agent (in sufficient copies for all the
Lenders, if the Facility Agent so requests):
|
(a)
|
at
the same time as they are dispatched, copies of all documents dispatched
by the Parent to its shareholders generally (or any class of them)
or
dispatched by the Parent or any Obligors to its creditors generally
(or
any class of them);
|
|
(b)
|
promptly
upon becoming aware of them, the details of any litigation, arbitration
or
administrative proceedings which are current, threatened or pending
against any Obligor, and which, if adversely determined, are reasonably
likely to have a Material Adverse
Effect;
|
|
(c)
|
promptly,
such information as the Security Agent may reasonably require about
the
Charged Property and compliance of the Obligors and any other relevant
person with the terms of any Transaction Security Documents;
and
|
66
|
(d)
|
promptly
on request, such further information regarding the financial condition,
assets and operations of the Group and/or any Obligor (including
any
requested amplification or explanation of any item in the financial
statements, budgets or other material provided by any Obligor under
this
Agreement, any changes to management of the Group and an up to date
copy
of its shareholders' register (or equivalent in its jurisdiction
of
incorporation)) as any Finance Party through the Facility Agent may
reasonably request.
|
|
22.8
|
Notification
of default
|
|
22.8.1
|
Each
Obligor shall notify the Facility Agent of any Default (and the steps,
if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence (unless that Obligor is aware that a notification has
already
been provided by another Obligor).
|
|
22.8.2
|
Promptly
upon a request by the Facility Agent, the Parent shall supply to
the
Facility Agent a certificate signed by the number of directors required
to
duly represent the Parent certifying that no Default is continuing
(or if
a Default is continuing, specifying the Default and the steps, if
any,
being taken to remedy it).
|
|
22.9
|
"Know
your customer" checks
|
|
22.9.1
|
If:
|
|
(a)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
(b)
|
any
change in the status of an Obligor or the composition of the shareholders
of an Obligor after the date of this Agreement;
or
|
|
(c)
|
a
proposed assignment or transfer by a Lender of any of its rights
and/or
obligations under this Agreement to a party that is not a Lender
prior to
such assignment or transfer,
|
obliges
the Facility Agent or any Lender (or, in the case of paragraph (c) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information
is
not already available to it, each Obligor shall promptly upon the 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,
in
the case of the event described in paragraph (c) above, on behalf of any
prospective new Lender) in order for the Facility Agent, such Lender or, in
the
case of the event described in paragraph (c) above, 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 relevant person pursuant to the
transactions contemplated in the Finance Documents.
67
|
22.9.2
|
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 on Lenders or prospective
new Lenders pursuant to the transactions contemplated in the Finance
Documents.
|
|
22.9.3
|
The
Parent shall, by not less than 10 Business Days' prior written notice
to
the Facility Agent, notify the Facility Agent (which shall promptly
notify
the Lenders) of its intention to request that one of the Parent's
wholly
owned Subsidiaries becomes an Additional Obligor pursuant to Clause
30
(Changes to the Obligors).
|
|
22.9.4
|
Following
the giving of any notice pursuant to Clause 22.9.3, if the accession
of
such Additional Obligor obliges the Facility Agent or any Lender
to comply
with "know your customer" or similar identification procedures in
circumstances where the necessary information is not already available
to
it, the Parent shall promptly upon the 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 or such Lender
or
any prospective new Lender to carry out and be satisfied it has complied
with all necessary "know your customer" or other similar checks under
all
applicable laws and regulations pursuant to the accession of such
Subsidiary to this Agreement as an Additional
Obligor.
|
|
23.1
|
Interest
Cover
|
The
Obligors shall ensure that the Interest Cover is at all times at least 130
per
cent.
|
23.2
|
Loan
to Value
|
The
Obligors shall ensure that the Loan to Value does not, at any time, exceed
85
per cent.
|
23.3
|
Debt
Service Cover
|
|
23.3.1
|
The
Borrowers shall ensure that the Debt Service Cover is at all times
at
least 105 per cent.
|
68
The
undertakings in this Clause 24 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.
|
24.1
|
Authorisations
|
Each
Obligor 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 a Relevant Jurisdiction
to:
|
(a)
|
enable
it to perform its obligations under the Transaction
Documents;
|
|
(b)
|
ensure
the legality, validity, enforceability or admissibility in evidence
of any
Transaction Document; and
|
|
(c)
|
carry
on its business where failure to do so has or is reasonably likely
to have
a Material Adverse Effect.
|
|
24.2
|
Compliance
with laws
|
Each
Obligor shall (and the Parent shall ensure that each Obligor will) comply in
all
respects with all laws to which it may be subject, if failure so to comply
has
or is reasonably likely to have a Material Adverse Effect.
|
24.3
|
Taxation
|
|
24.3.1
|
Each
Obligor shall pay and discharge all Taxes imposed upon it or its
assets
within the time period allowed without incurring penalties unless
and only
to the extent that:
|
|
(a)
|
such
payment is being contested in good
faith;
|
|
(b)
|
adequate
reserves are being maintained for those Taxes and the costs required
to
contest them which have been disclosed in its latest financial statements
delivered to the Facility Agent under Clause 22.2 (Financial statements);
and
|
|
(c)
|
such
payment can be lawfully withheld and failure to pay those Taxes does
not
have or is not reasonably likely to have a Material Adverse
Effect.
|
|
24.3.2
|
No
Obligor may change its residence for Tax
purposes.
|
69
|
24.3.3
|
No
Obligor may be a member of a fiscal
unity.
|
|
24.3.4
|
Each
Obligor shall procure that no person which holds any cumulative preference
shares in the capital of an Obligor shall become an
affiliated entity (verbonden
lichaam) with the Parent as meant in section 4
(7) of the Real Estate Transfer Act (Wet op belastingen van
rechtsverkeer).
|
|
24.4
|
Merger
|
No
Obligor shall enter into any amalgamation, demerger, merger, consolidation
or
corporate reconstruction, without the written consent of the Facility Agent
(at
the instruction of the Majority Lenders).
|
24.5
|
Change
of business
|
Each
Obligors shall procure that no substantial change is made to the general nature
of its business from that carried on at the date of this Agreement.
|
24.6
|
Acquisitions
|
|
24.6.1
|
No
Obligor shall:
|
|
(a)
|
acquire
a company or any shares or securities or a business or undertaking
(or, in
each case, any interest in any of
them);
|
|
(b)
|
incorporate
a company; or
|
|
(c)
|
enter
into, invest in or acquire (or agree to acquire) any shares, stocks,
securities or other interests in any joint
venture,
|
without
the written consent of the Facility Agent (at the instruction of the Majority
Lenders) or unless expressly permitted under the terms of this
Agreement.
|
24.7
|
Pari
passu ranking
|
Each
Obligor shall ensure that at all times any unsecured and unsubordinated claims
of a Finance Party or Hedge Counterparty against it under the Finance Documents
rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors except those creditors whose claims are mandatorily preferred by
laws
of general application to companies.
|
24.8
|
Acquisition
Documents
|
|
24.8.1
|
Each
Obligor shall promptly pay all amounts payable by it under the Acquisition
Documents as and when they become due (except to the extent that
any such
amounts are being contested in good faith by an Obligor and where
adequate
reserves are set aside for any such
payment).
|
70
|
24.8.2
|
Each
Obligor shall take all reasonable and practical steps to
preserve and enforce its rights (or the rights of any other Obligor)
and
pursue any claims and remedies arising under any Acquisition
Documents.
|
|
24.9
|
Negative
pledge
|
|
24.9.1
|
In
this Clause 24.9, "Quasi-Security" means
a
transaction described in Clause
24.9.4.
|
|
24.9.2
|
No
Obligor shall create or permit to subsist any Security over any of
its
assets.
|
|
24.9.3
|
Clause
24.9.2 does not apply to:
|
|
(a)
|
any
Transaction Security; and
|
|
(b)
|
any
lien arising by operation of law and in the ordinary course of
trading.
|
|
24.9.4
|
No
Obligor shall:
|
|
(a)
|
sell,
transfer or otherwise dispose of any of its assets on terms whereby
they
are or may be leased to or re-acquired by an
Obligor;
|
|
(b)
|
sell,
transfer or otherwise dispose of any of its receivables on recourse
terms;
|
|
(c)
|
enter
into any arrangement under which money or the benefit of a bank or
other
account may be applied, set-off or made subject to a combination
of
accounts; or
|
|
(d)
|
enter
into any other preferential arrangement having a similar
effect,
|
in
circumstances where the arrangement or transaction is entered into primarily
as
a method of raising Financial Indebtedness or of financing the acquisition
of an
asset, without the written consent of the Facility Agent (at the instruction
of
the Majority Lenders).
|
24.10
|
Disposals
|
|
24.10.1
|
Except
as provided for in this Agreement, no Obligor shall enter into a
disposal
or any other single transaction or a series of transactions (whether
related or not) whether voluntary or involuntary) to sell, lease,
transfer
or otherwise dispose of any asset.
|
|
24.11
|
Financial
Indebtedness
|
|
24.11.1
|
No
Obligor shall incur or allow to remain outstanding any Financial
Indebtedness.
|
71
|
24.11.2
|
Clause
24.11 does not apply to:
|
|
(a)
|
any
Financial Indebtedness pursuant to the Finance Documents;
and
|
|
(b)
|
to
intra-Group loans subordinated to the Finance
Parties.
|
|
24.12
|
Loans
or credit
|
|
24.12.1
|
No
Obligor shall be a creditor in respect of any Financial
Indebtedness.
|
|
24.12.2
|
Clause
24.12.1 does not apply to intra-Group loans subordinated to the Finance
Parties.
|
|
24.13
|
No
Guarantees or indemnities
|
|
24.13.1
|
No
Obligor shall incur or allow to remain outstanding any guarantee
in
respect of any obligation of any person, other than pursuant to the
Finance Documents.
|
|
24.14
|
Treasury
Transactions
|
|
24.14.1
|
No
Obligor shall enter into any Treasury Transaction, other than the
hedging
transactions contemplated and documented by the Hedging
Agreements.
|
|
24.15
|
Arm's
length basis
|
|
24.15.1
|
No
Obligor shall enter into any transaction with any person except on
arm's
length terms and for full market
value.
|
|
24.15.2
|
The
following transactions shall not be a breach of this Clause
24.15:
|
|
(a)
|
intra-Group
loans permitted under Clause 24.12 (Loans or
credit);
|
|
(b)
|
fees,
costs and expenses payable under the Transaction Documents in the
amounts
set out in the Transaction Documents delivered to the Facility Agent
under
Clause 4.1 (Initial conditions precedent) or agreed by the Facility
Agent.
|
|
24.16
|
Financial
assistance
|
Each
Obligor shall (and the Parent shall procure that each Obligor will) comply
in
all respects with article 2:98c and article 2:207c of the Dutch Civil Code
(as
the case may be) and any equivalent legislation in other jurisdictions in
relation to the execution of the Transaction Security Documents and payment
of
any amounts due under the Finance Documents.
72
|
24.17
|
Dividends
and share redemption
|
|
24.17.1
|
Upon
the occurrence of a Default, no Obligor
shall:
|
|
(a)
|
declare,
make or pay any dividend, charge, fee or other distribution (or interest
on any unpaid dividend, charge, fee or other distribution) (whether
in
cash or in kind) on or in respect of its share capital (or any class
of
its share capital);
|
|
(b)
|
repay
or distribute any dividend or share premium
reserve;
|
|
(c)
|
pay
or allow any member of the Group to pay any management, advisory
or other
fee to or to the order of any of the shareholders of the Parent;
or
|
|
(d)
|
redeem,
repurchase, defease, retire or repay any of its share capital or
resolve
to do so,
|
provided
that the making of such payments under (a) up to and including (d) would not
result in the occurence of a Default.
|
24.17.2
|
Clause
24.17.1 does not apply to any payment made out of the amounts standing
to
the credit of the General Account in accordance with Clause 20.4.3
(General Account).
|
|
24.18
|
Share
capital
|
No
Obligor shall issue any shares without the written consent of the Facility
Agent.
|
24.19
|
Other
Contracts
|
|
24.19.1
|
No
Obligor may enter into any contract other
than:
|
|
(a)
|
the
Transaction Documents;
|
|
(b)
|
in
respect of the disposals of a Property to the extent permitted under
this
Agreement;
|
|
(c)
|
any
other contract expressly allowed under any other term of this Agreement;
and
|
|
(d)
|
required
in the ordinary course of business.
|
|
24.19.2
|
No
Obligor may amend or terminate any Transaction Document without the
prior
written approval of the Facility Agent (at the instruction of the
Majority
Lenders) other than as permitted under Clause 25.1 (Occupational
Leases).
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73
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24.19.3
|
No
Obligor may amend, vary, change, terminate or rescind any Constitutional
Document, without the prior written consent of the Facility
Agent.
|
|
24.20
|
Separateness
Covenants
|
Each
Obligor shall:
|
(a)
|
keep
and maintain its books, records and accounts separate from any other
person or entity;
|
|
(b)
|
not
co-mingle assets with those of any other
entity;
|
|
(c)
|
maintain
separate financial statements;
|
|
(d)
|
observe
all corporate formalities and not, without the prior written consent
of
the Lenders, amend, modify, terminate or fail to comply with the
provisions of its organisational
documents;
|
|
(e)
|
maintain
an arm’s length relationship with
Affiliates;
|
|
(f)
|
pay
its own liabilities out of its own
funds;
|
|
(g)
|
maintain
adequate capital in light of contemplated business
operations;
|
|
(h)
|
allocate
fairly and reasonably any overhead for shared office
space;
|
|
(i)
|
not
acquire obligations or securities of its own
shareholders;
|
|
(j)
|
use
separate stationery, invoices and
cheques;
|
|
(k)
|
hold
itself out as a separate entity;
|
|
(l)
|
correct
any known misunderstanding regarding its separate identity;
and
|
|
(m)
|
not
have any employees.
|
|
24.21
|
Syndication
and securitisation
|
|
24.21.1
|
Each
Obligor shall:
|
|
(a)
|
assist
the Finance Parties with any steps a Finance Party may reasonably
wish to
take to achieve a successful syndication, securitisation or similar
transaction involving any part of the rights of a Finance Party under
this
Agreement;
|
|
(b)
|
supply
the Finance Parties with all information which a Finance Party may
reasonably require in connection with that syndication, that
securitisation or that similar transaction involving any part of
the
rights of a Finance Party under this Agreement (including but not
limited
to any information to complete the most recent data template of Fitch
for
commercial mortgage backed
securitisations);
|
74
|
(c)
|
use
its best endeavours to ensure full compliance with the listing rules
of
any applicable stock exchange that may become applicable as a result
of
that securitisation or that similar transaction involving any part
of the
rights of a Finance Party under this Agreement;
and
|
|
(d)
|
co-operate
to the extent reasonable to any amendment of the Finance Documents
to
obtain a sufficient rating form the rating agencies necessary or
desirable
in connection with the commercial mortgage backed
securitisations.
|
|
24.22
|
Access
|
If
a
Default is continuing or the Facility Agent reasonably suspects a Default is
continuing or may occur, each Obligor shall (not more than once in every
Financial Year unless the Facility Agent reasonably suspects a Default is
continuing or may occur) permit the Facility Agent and/or the Security Agent
and/or accountants or other professional advisers and contractors of the
Facility Agent or Security Agent free access at all reasonable times and on
reasonable notice at the risk and cost of the Obligors to (a) the premises,
assets, books, accounts and records of each Obligor and (b) meet and discuss
matters with senior management of the Group.
|
24.23
|
Further
assurance
|
|
24.23.1
|
Each
Obligor shall promptly do all such acts or execute all such documents
(including assignments, transfers, mortgages, charges, notices and
instructions) as the Security Agent may reasonably specify (and in
such
form as the Security Agent may reasonably require in favour of the
Security Agent or its nominee(s)):
|
|
(a)
|
to
perfect the Security created or intended to be created under or evidenced
by the Transaction Security Documents (which may include the execution
of
a mortgage, charge, assignment or other Security over all or any
of the
assets which are, or are intended to be, the subject of the Transaction
Security) or for the exercise of any rights, powers and remedies
of the
Security Agent or the Finance Parties provided by or pursuant to
the
Finance Documents or by law;
|
|
(b)
|
to
confer on the Security Agent or confer on the Finance Parties Security
over any property and assets of that Obligor located in any jurisdiction
equivalent or similar to the Security intended to be conferred by
or
pursuant to the Transaction Security Documents;
and/or
|
|
(c)
|
to
facilitate the realisation of the assets which are, or are intended
to be,
the subject of the Transaction
Security.
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|
24.23.2
|
Each
Obligor shall all such action as is available to it (including making
all
filings and registrations) as may be necessary for the purpose of
the
creation, perfection, protection or maintenance of any Security conferred
or intended to be conferred on the Security Agent or the Finance
Parties
by or pursuant to the Finance
Documents.
|
|
24.24
|
Conditions
subsequent
|
|
24.24.1
|
The
Additional Obligors listed on Schedule 1 part IB (Additional Obligors)
shall (and the Parent shall procure that the Additional Obligors
listed on
Schedule 1 part IB (Additional Obligors) shall) open a Collection
Account
with ABN AMRO Bank N.V. which shall be pledged in favour of the Security
Agent within two (2) weeks from the date of this
Agreement.
|
|
24.24.2
|
The
Parent and the Additional Obligors listed on Schedule 1 part IB
(Additional Obligors) shall (and the Parent shall procure that the
Additional Obligors listed on Schedule 1 part IB (Additional Obligors)
shall) close any bank account held by it with a financial institution
other than the accounts held with ABN AMRO Bank N.V. (provided that
such
accounts have been pledged in favour of the Security Agent) on or
before 1
February 2008.
|
|
24.24.3
|
The
Parent shall opt for VAT on rentals by filing the relevant application
form with the Dutch Revenue Service for all Occupational Leases in
respect
of its Properties within one Month after the date of this
Agreement.
|
|
24.24.4
|
The
Parent shall ensure that a lessor has occupied the Properties located
at
Xxxxxxxxxxxx 0, Xxxxxxxx and Xxxxxxxx 00-00, Xxxxxxxxxx on or before
30
November 2008..
|
|
25.1
|
Occupational
Leases
|
|
25.1.1
|
No
Obligor shall, without the consent of the Facility
Agent
|
|
(a)
|
enter
into any Agreement for Lease;
|
|
(b)
|
other
than under an Agreement for Lease, grant or agree to grant any new
Occupational Lease;
|
|
(c)
|
agree
to any amendment, waiver or surrender in respect of any Lease
Document;
|
|
(d)
|
commence
any forfeiture proceedings in respect of any Lease
Document;
|
76
|
(e)
|
grant
any contractual licence or right to occupy any part of any
Property;
|
|
(f)
|
consent
to sub-lease or assignment of tenant’s interest under any Lease
Document;
|