Exhibit 10.11


 


EXECUTION COPY


 


6 June 2007


 


 


EUROHYPO Aktiengesellschaft 

as Original Lender


 


and


 


EUROHYPO Aktiengesellschaft 

as Hedge Counterparty


 


and


 


EUROHYPO Aktiengesellschaft 

as Arranger, Facility Agent and Security Agent


 


and


 


THE OTHER PERSONS NAMED HEREIN 

as Borrowers and Obligors


 


 










 


EUR 550,000,000

CREDIT AGREEMENT

(Acquisition Line)


 










 


 


HENGELER MUELLER


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
   

  	
  INTERPRETATION

  	
   

  	
  3

  
	
  2.

  	
   

  	
  THE FACILITY

  	
   

  	
  22

  
	
  3.

  	
   

  	
  PURPOSE

  	
   

  	
  24

  
	
  4.

  	
   

  	
  CONDITIONS PRECEDENT

  	
   

  	
  24

  
	
  5.

  	
   

  	
  UTILISATION

  	
   

  	
  25

  
	
  6.

  	
   

  	
  REPAYMENT OF LOANS

  	
   

  	
  26

  
	
  7.

  	
   

  	
  PREPAYMENT AND CANCELLATION

  	
   

  	
  26

  
	
  8.

  	
   

  	
  INTEREST

  	
   

  	
  30

  
	
  9.

  	
   

  	
  CHANGES TO THE CALCULATION OF INTEREST

  	
   

  	
  33

  
	
  10.

  	
   

  	
  INTEREST PERIODS

  	
   

  	
  34

  
	
  11.

  	
   

  	
  TAXES

  	
   

  	
  34

  
	
  12.

  	
   

  	
  INCREASED COSTS

  	
   

  	
  41

  
	
  13.

  	
   

  	
  MITIGATION

  	
   

  	
  42

  
	
  14.

  	
   

  	
  PAYMENTS UNDER THE FINANCE DOCUMENTS

  	
   

  	
  42

  
	
  15.

  	
   

  	
  EVIDENCE AND CALCULATIONS

  	
   

  	
  44

  
	
  16.

  	
   

  	
  SET-OFF

  	
   

  	
  44

  
	
  17.

  	
   

  	
  BANK ACCOUNTS AND CASH WATERFALL

  	
   

  	
  44

  
	
  18.

  	
   

  	
  GUARANTEE AND INDEMNITY

  	
   

  	
  52

  
	
  19.

  	
   

  	
  REPRESENTATIONS

  	
   

  	
  54

  
	
  20.

  	
   

  	
  INFORMATION COVENANTS

  	
   

  	
  63

  
	
  21.

  	
   

  	
  GENERAL COVENANTS

  	
   

  	
  67

  
	
  22.

  	
   

  	
  PROPERTY COVENANTS

  	
   

  	
  76

  
	
  23.

  	
   

  	
  EVENTS OF DEFAULT

  	
   

  	
  83

  
	
  24.

  	
   

  	
  THE AGENTS

  	
   

  	
  87

  
	
  25.

  	
   

  	
  SHARING AMONG FINANCE PARTIES

  	
   

  	
  93

  
	
  26.

  	
   

  	
  FEES

  	
   

  	
  95

  
	
  27.

  	
   

  	
  INDEMNITIES

  	
   

  	
  96

  
	
  28.

  	
   

  	
  EXPENSES

  	
   

  	
  97

  
	
  29.

  	
   

  	
  AMENDMENTS AND WAIVERS

  	
   

  	
  98

  
	
  30.

  	
   

  	
  CHANGES TO THE PARTIES

  	
   

  	
  99

  
	
  31.

  	
   

  	
  DISCLOSURE OF INFORMATION

  	
   

  	
  100

  
	
  32.

  	
   

  	
  PRESCRIPTION

  	
   

  	
  101

  
	
  33.

  	
   

  	
  SEVERABILITY AND SURVIVAL OF THE TRANSACTION
  DOCUMENTS

  	
   

  	
  101

  
	
  34.

  	
   

  	
  COUNTERPARTS

  	
   

  	
  101

  
	
  35.

  	
   

  	
  NOTICES

  	
   

  	
  102

  
	
  36.

  	
   

  	
  LANGUAGE

  	
   

  	
  103

  
	
  37.

  	
   

  	
  GOVERNING LAW/JURISDICTION

  	
   

  	
  103

  
	
  38.

  	
   

  	
  CONCLUSION

  	
   

  	
  103

  
	
  SCHEDULE 1 BORROWERS AND OBLIGORS

  	
   

  	
  105

  
	
  SCHEDULE 2 CONDITIONS PRECEDENT DOCUMENTS

  	
   

  	
  106

  
	
  SCHEDULE 3 FORM OF REQUEST

  	
   

  	
  120

  
	
  SCHEDULE 4 PROPERTY ELIGIBILITY CRITERIA

  	
   

  	
  123

  
	
  SCHEDULE 5 PROPERTY INFORMATION

  	
   

  	
  125

  
	
  SCHEDULE 6 ENTITY ELIGIBILITY CRITERIA

  	
   

  	
  126

  
	
  SCHEDULE 7 FORM OF TRANSFER CERTIFICATE

  	
   

  	
  127

  
	
  SCHEDULE 8 COMPLIANCE CERTIFICATE

  	
   

  	
  129

  
	
  SCHEDULE 9 CALCULATION OF THE MANDATORY COSTS

  	
   

  	
  130

  
	
  SCHEDULE 10 FORM OF TAX CONFIRMATION

  	
   

  	
  132

  
	
  Signature Page

  	
   

  	
  134

  



 


2

















 


THIS
AGREEMENT (the Agreement) is dated 6 June 2007 and made


 


BETWEEN:


 


(1)       THE PERSONS identified in Part A of Schedule 1 as borrowers
(the Borrowers);


 


(2)       THE PERSONS identified in Part B of Schedule 1 as additional
obligors (such persons, together with the Borrowers, the Obligors);


 


(3)       EUROHYPO AKTIENGESELLSCHAFT, a stock corporation incorporated
under the laws of Germany and registered in the commercial register of
Frankfurt am Main under the registration number HRB 45701, whose registered
office is at Helfmann-Park 5, 65760 Eschborn, as original lender (the Original Lender);


 


(4)       EUROHYPO AKTIENGESELLSCHAFT,
a stock corporation incorporated under the laws of Germany and
registered in the commercial register of Frankfurt am Main under the
registration number HRB 45701, whose registered office is at Helfmann-Park 5,
65760 Eschborn, as arranger (the Arranger), hedge
counterparty (the Hedge Counterparty), facility
agent (the Facility Agent) and
security agent (the Security Agent).


 


IT IS
AGREED as follows:


 


1.        INTERPRETATION


 


1.1       Definitions


 


In this Agreement:


 


Account means
any Disposal Proceeds Reserve Account, any Rent Collection Account, any General
Account, any Proceeds Account, any Sales Proceeds Account, any CSA Account and
the Reserve Account (each as defined in Clause 17.1), and any other account required
hereunder and approved by the Facility Agent.


 


Account
Bank means (i) ABN AMRO Bank N.V., a corporation organised
under the laws of The Netherlands, acting through its Frankfurt Branch, with
its legal address at Theodor-Heuss-Allee 80, 60486 Frankfurt am Main, Germany,
and/or (ii) Badenwürttembergische Bank, with its registered address Vaihinger
Markt 3, 70563 Stuttgart-Vaihingen, Germany, and/or (iii) any other bank with
which an Account is held that has been assigned the relevant Requisite Rating and
is accepted in such capacity hereunder by the Facility Agent (acting
reasonably).


 


Accounts
Pledge Agreement means any accounts pledge agreement in form
and substance satisfactory to the Facility Agent as required pursuant to number
33 of Part I and Part II of Schedule 2 (Conditions Precedent Documents).


 


Acquired
Entity means any Eligible Entity purchased by a Borrower
pursuant to a Share Deal.


 


Acquisition
means any direct or indirect (by way of a Share Deal)
acquisition by a Borrower of an Eligible Property.


 


3

















 


Acquisition
Document means, in relation to a Property, each property
acquisition agreement (Grundstückskaufvertrag mit Auflassung)  or other deed or document entered
into in relation to the transfer of that Property to a Borrower or, in relation
to a Share Deal, each share purchase agreement.


 


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.


 


Agent(s)
means either or both of the Facility Agent and/or the
Security Agent, as the context may require and in each case, includes any
agent, delegate or appointee of same.


 


Aggregate
Properties Market Value means the sum of Market Values of all
Properties.


 


Allocated
Loan Amount means, in respect of each Property, the amount of
any Loan which is allocated to such Property as set forth in any relevant
Properties Schedule.


 


Archstone
means Archstone-Smith Operating Trust, a real estate
investment trust organized in the United States under the laws of the State of
Maryland.


 


Auditors
means Ernst & Young LLP, 7 Parc d’Activité Syrdall,
L-9365 Luxembourg.


 


Available
Commitment means a Lender’s Commitment under the Facility
minus:


 


(a)       its participation in any outstanding
Loans; and


 


(b)      in relation to any proposed
Utilisation, its participation in any Loans that are due to be made under the
Facility on or before the proposed Utilisation Date.


 


Available
Facility means the Maximum Facility Amount minus any Loans
made under the Facility.


 


Availability
Period means the period of 36 months from the date hereof.


 


Break
Costs has the meaning defined in Clause 27.3 (Break
Costs).


 


Business
Day means a TARGET Day (other than a Saturday or a Sunday) on
which banks are open for general business in Frankfurt am Main, Germany and
Amsterdam, the Netherlands.


 


Business
Plan means, with respect to each Acquisition, a budget
prepared by the relevant Borrower or on its behalf substantially in the form as
set out in an excel file provided by the Fund Manager to the Facility Agent and
entitled “Investment Model 070522”, which shall be updated annually such update
to only become effective with the prior written consent of the Facility Agent.


 


Cash
Funding means cash made available to a Borrower by its
Shareholders in the form of equity or subordinated (qualifizierter Rangrücktritt)  funds, in each case in form and
substance satisfactory to the Facility Agent.


 


Centre
of Main Interests means the “centre of main interests” for
the purposes of Council Regulation (EC) No. 1346/2000 of 29th May, 2000.


 


4

















 


Closing
Date means, in relation to an Acquisition, the date on which
possession of the relevant Property is to be transferred to the relevant
Borrower (Übergabetag, as defined in the relevant Acquisition
Document) in accordance with the relevant Acquisition Document.


 


Commitment
means:


 


(a)       in relation to the Original
Lender, the amount equal to the Available Facility; and


 


(b)      in relation to any other
Lender, the amount of commitment under the Facility transferred to it under
this Agreement,


 


in each case to the
extent not cancelled, reduced or transferred by it under this Agreement.


 


Compliance
Certificate means a compliance certificate substantially in
the form of Schedule 8 (Compliance Certificate) or in form and substance
satisfactory to the Facility Agent.


 


Contracted
Net Rental Income means the product of (i) any Net Rental
Income entitled to be received under or pursuant to any Property Lease in
respect of the 3 months period commencing on a relevant Interest Payment Date
multiplied by (ii) 4.


 


Credit
Support Annex means any credit support annex entered into by
a Borrower and a Hedge Counterparty in connection with any Hedging Arrangement.


 


CP
Document means a document referred to in Schedule 2
(Conditions Precedent Documents) and delivered as a CP Document and other words
of similar meaning shall be construed accordingly as a reference to the
delivery of the relevant document as a condition precedent to Utilisation.


 


Deed of
Land Charge (Grundschuldbestellungsurkunde)  means every notarial deed of land
charge entered into with respect to each Property by the relevant Borrower,
Acquired Entity and/or other owner in form and substance satisfactory to the
Security Agent and providing for:


 


(a)       the creation of one or more
comprehensive uncertificated first ranking land charges (Gesamtbuchgrundschulden)  over the relevant Properties
located in the same land register district (Grundbuchbezirk)  in an amount equal to the sum of
the Allocated Loan Amounts of all relevant Properties, plus 18 per cent,
interest per annum, ranking (i) first in section III of the relevant Land
Register (upon deletion of all prior ranking encumbrances in section III), (ii)
after the Permitted Encumbrances, and (iii) before the priority notice (Auflassungsvormerkung)  benefiting the relevant Borrower
in section II of the relevant Land Register (upon the deletion of all
encumbrances in section II which are not permitted under the terms of this
Agreement); and


 


(b)      a submission of the relevant
Property to immediate enforcement (dingliche Unterwerfung unter die sofortige
Zwangsvollstreckung)  in
respect of the last payable 20% portion of the nominal amount of the relevant
Land Charges; and


 


(c)       a personal submission of
the relevant Borrower to immediate enforcement (persönliche Unterwerfung unter die
sofortige Zwangsvollstreckung)  in
the full nominal amount of the Land Charge in favour of the Security Agent.


 


5

















 


Deed of
Share Pledge means any notarial deed of share pledge governed
by the laws of the Netherlands and granted by the respective Parent with
respect to the shares in the capital of a Borrower.


 


Default means
an Event of Default or an event which would be (with the expiry of a grace
period, the giving of notice or the making of any determination under the
Finance Documents or any combination of them) an Event of Default.


 


Duty of
Care Declaration means the duty of care declaration issued by
the Managing Agent in favour of the Finance Parties in a form and substance
reasonably satisfactory to the Security Agent.


 


Eligible
Entity means any legal entity that a Borrower intends to
purchase which the Facility Agent determines to comply with the Entity
Eligibility Criteria.


 


Eligible
Property means any property that a Borrower intends to
purchase which the Facility Agent determines to comply with the Property
Eligibility Criteria.


 


Entity
Eligibility Criteria means the criteria set out in Schedule 6
(Entity Eligibility Criteria).


 


Entity
Security Assignment Agreement means each global assignment
agreement in form any substance satisfactory to the Facility Agent providing
for a security assignment (Sicherungsabtretung)  in favour of the Security Agent by
each of any relevant Eligible Entity of all of its present and future rights
and claims, including, without limitation, under or in connection with (i) any
Lease Agreement, (ii) any Management Agreement, (iii) any property acquisition
agreement (Grundstückskaufvertrag mit Auflassung)  or other deed or document entered
into in relation to the transfer of a Property to an Eligible Entity, and (iv)
any Insurance.


 


Entity
Security Document means any Entity Share Pledge Agreement,
any Deed of Land Charge entered into by any relevant Eligible Entity, any
Security Purpose Agreement entered into or acceded to by any relevant Eligible
Entity, any Entity Security Assignment Agreement, each Duty of Care Declaration
with respect to any relevant Property and any other document designated as such
by the Facility Agent and the Obligors’ Agent jointly.


 


Entity
Share Pledge Agreement means any share pledge agreement or
deed of share pledge (or such other document in the required form under any
relevant jurisdiction) in form and substance satisfactory to the Facility Agent
and creating security in favour of the Security Agent (for the benefit of the
Finance Parties) over the shares in any Eligible Entity acquired or to be
acquired by any relevant Borrower.


 


Environmental
Approval means any authorisation required by any Borrower (or
any Acquired Entity owned by such Borrower) under an Environmental Law.


 


Environmental
Claim means any claim by any person against any Borrower (or
any Acquired Entity owned by such Borrower) in connection with a breach, or
alleged breach, of an Environmental Law, any accident, fire, explosion or other
event of any type involving an emission or substance which is capable of
causing harm to humans or the environment, or any other environmental
contamination.


 


6

















 


Environmental
Law means any law or regulation concerning the protection of
health and safety, the environment or any emission or substance which is
capable of causing harm to humans or the environment.


 


Environmental
Report means an excerpt from the relevant register of
contaminated areas (Altlastenkataster), and, in the event the excerpt
reveals any environmental issues with respect to the relevant Property, a
report on the environmental issues in relation to such Property prepared by a
firm reasonably acceptable to the Facility Agent.


 


Euro,
EUR or € means
the single currency of the Participating Member States.


 


EURIBOR means
for an Interest Period of any Loan or overdue amount:


 


(a)       the applicable Screen Rate;
or


 


(b)      if no Screen Rate is
available for the Interest Period of the Loan or overdue amount, the arithmetic
mean (rounded upward to four decimal places) of the rates, as supplied to the
Facility Agent at its request, quoted by the Reference Banks to leading banks
in the European interbank market;


 


as of 11.00 a.m. Central
European Time on the Rate Fixing Day for the offering of deposits in Euro for a
period comparable to that Interest Period.


 


Event of
Default means an event specified as such in Clause 23 (Events
of Default).


 


Existing
Mortgage means a land charge (Grundschuld)  or mortgage (Hypothek)  (other than the Land Charges or
any other Security Interest approved in advance of such date by the Facility
Agent) which is in existence in respect of a Property on the date on which a
portion of the Loan is utilised for the purpose of purchasing, or refinancing
indebtedness in respect of the purchase, of that Property, provided that (i)
any claims secured thereby will be discharged on the first Utilisation Date
relating to the respective Borrower and (ii) each required deletion consent (Löschungsbewilligung)  in respect thereof has been
delivered to the relevant notary with the instruction to file such consents
with the competent Land Registry upon payment of the respective Purchase Price.


 


Facility
means the term loan facility made available under this
Agreement as described in Clause 2.1 (The Facility).


 


Facility
Office means the office or offices notified by a Lender to
the Facility Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days’ written notice) as
the office or offices through which it will perform its obligations under this
Agreement.


 


Fee
Letter means any letter entered into by reference to this
Agreement between the Facility Agent and the Borrowers setting out the amount of
certain fees referred to in this Agreement.


 


Final
Maturity Date means the Interest Payment Date immediately
following the seventh anniversary of the this Agreement.


 


Finance
Document means this Agreement, any Security Document, any
Entity Security Document, any Hedging Arrangements, any Subordination
Agreement, any Transfer


 


7

















 


Certificate, any Fee
Letter, any Duty of Care Declaration, any Request and any other document
designated as such by the Facility Agent and the Obligors’ Agent.


 


Finance
Party means a Lender, the Arranger, the Facility Agent, the
Security Agent and the Hedge Counterparty, and their respective successors and
assigns.


 


Financial
Covenants means the ICR and the LTV thresholds stipulated in
Clause 21.24 (a) and (b) (Financial Covenants).


 


Financial
Indebtedness means any indebtedness for or in respect of:


 


(a)       moneys borrowed;


 


(b)      any acceptance credit;


 


(c)       any bond, note or other
similar instrument;


 


(d)      any agreement treated as a
finance or capital lease in accordance with generally accepted accounting
principles applicable to a Borrower;


 


(e)       receivables sold or
discounted (otherwise than to the extent sold on a non-recourse basis);


 


(f)       moneys owing in respect of
any interest rate swap or cross-currency swap or foreign currency forward sale
or purchase contract or other form of interest currency hedging or speculative
futures transaction, other than transactions where the liable entity has no
indebtedness or financial obligation other than an initial transaction premium
or fee payable, but only to the extent such fee has been paid, and in each case
the net mark to market value of the derivative transaction shall be taken into
account;


 


(g)      any liability or indemnity
obligation in respect of any guarantee, indemnity, bond, letter of credit or
any other instrument issued by a bank or financial institution;


 


(h)      any amount of any liability
under an agreement granting a Hereditary Building Right in respect of a
Property;


 


(i)        any actual or contingent
liability in respect of a guarantee, indemnity or similar assurance for any
item referred to in paragraphs (a) to (h) above.


 


Financial
Quarter means a calendar quarter.


 


Fitch means
Fitch Ratings Ltd. and any successor to its rating business.


 


Fund means
a Luxembourg Fonds commun de placement - fonds d’investissement spécialisé to
be established in or about June 2007 in Luxembourg, in which Archstone will
hold an (indirect) interest of at least 10 per cent. at the expiry of the
subscription period. Fund Investor means any entity holding an interest in the
Fund.


 


Fund
Manager means Archstone Management Germany S.à r.l. acting in
its capacity as management company of the Fund.


 


8

















 


Gross
Rental Income means, at any time with respect to any lease or
other occupation of all or any part of a Property and on an annual basis, the
aggregate of all amounts paid or payable to or for the account of the Borrowers
allocable to, and in connection with, the letting or other occupation of all or
any part of a Property including, without limitation, 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)       any other moneys paid or
payable in respect of occupation and/or usage of a Property and any fixture and
fitting on the Property;


 


(d)      any sum paid or payable
under any policy of insurance or insurance contract in respect of loss of rent
or interest on rent;


 


(e)       any sum paid or payable, or
the value of any consideration given, for the surrender or variation of any
Property Lease;


 


(f)       any sum paid or payable by
any guarantor of any occupational tenant under any Property Lease;


 


(g)      any Tenant Contributions;
and


 


(h)      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 Borrower.


 


Guarantor means each of the Borrowers and the Parent.


 


Hedging Arrangement means any interest rate hedging transaction entered into by any
Borrower and the Hedge Counterparty, including any credit support transaction
relating thereto.


 


Hedging Assignment means any deed of charge
and assignment governed by English law creating security over the interests of
any Borrower in any Hedging Arrangement in favour of the Security Agent (for
the benefit of the Finance Parties).


 


Hereditary Building Right means a right, in rem, to own a building on a plot of land according to the
German Hereditary Building Right Ordinance (Verordnung
über das Erbbaurecht).


 


Holding Company means, in relation to an entity, any other entity in respect to 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.


 


9

















 


Increased Cost means an additional or increased cost, a reduction in the rate of
return from the Facility or on a Finance Party’s overall capital, or a
reduction of an amount due and payable under any Finance Document, which in
each case is incurred or suffered by a Finance Party or any of its Affiliates,
but only to the extent attributable to such Finance Party having entered into
any Finance Document or funding or performing its obligations under any Finance
Document.


 


Initial Utilisation Date means the date of the first Utilisation of
the Facility.


 


Insurance means any contract or policy of insurance of any nature which is from
time to time taken out by or entered into by or on behalf of a Borrower (or an
Acquired Entity owned by it) or (to the extent of such interest) in which a
Borrower has an interest, including any renewal or extension thereof, any cover
note (Deckungszusage)  in respect thereof and any other
insurance contract designated as such by the Facility Agent and any relevant
Borrower.


 


Insurance Proceeds means any proceeds paid by the insurer under an Insurance.


 


Intended Substitution Disposal means, for the duration of the relevant
Substitution Period, any disposal of a Property or an Acquired Entity in
accordance with this Agreement which is intended to be substituted by a
Replacement Property within that Substitution Period.


 


Intended Substitution Disposal Proceeds means, in relation to an Intended
Substitution Disposal (including by way of expropriation) of a Property or an
Acquired Entity in accordance with the terms of this Agreement, the Release
Price of each Property or Acquired Entity together with any Break Costs and
other fees that would be payable if the Intended Substitution Disposal was not
used to complete a Property Substitution.


 


Interest Cover Ratio or  ICR means
the ratio, expressed as a percentage, of (i) the Projected Net Rental Income to
(ii) the Projected Annual Interest Costs for the following twelve months at
that time.


 


Interest Payment Date means 25 January, 25 April, 25 July and 25 October
in each year, with the first Interest Payment Date being the date of the above
listed dates which immediately follows the first Utilisation Date, and the last
being the Final Maturity Date. If any such day is not a Business Day, the
Interest Payment Date will instead be the next Business Day in that calendar
month (if there is one) or the preceding Business Day (if there is not).


 


Interest Period means each period determined in accordance with this Agreement by
reference to which interest on a Loan or an Overdue Amount is payable.


 


Investment Memorandum means the confidential private placement
memorandum of the Fund as approved by the Luxembourg Commission for the
Supervision of the Financial Sector (Commission
de Surveillance du Secteur Financier).


 


IWG Wohnen GmbII (to be renamed to DeWAG Management GmbH) means a limited liability
company established under the laws of Germany, having its place of residence in
Stuttgart, Germany, and registered in the commercial register of the district
court of Stuttgart under folio HRB 19310.


 


10

















 


Land Charge (Grundschuld)  means any comprehensive (per Acquisition)
non-certificated land charge (Gesamtbuchgrundschuld)  in respect of any Property or Properties
created in favour of the Security Agent pursuant to a Deed of Land Charge.


 


Land Register means, in relation to a Property, the land register (Grundbuch)
maintained in respect to that Property.


 


Land Registry means, in relation to a Property, the competent land registry (Grundbuchamt)  in respect to that Property.


 


Lease Agreement means an agreement to grant a Property Lease of all or part of any
Property.


 


Lender means:


 


(a)       the Original Lender; and


 


(b)      any person which has become
a Party in accordance with Clause 30 (Changes
to the Parties);


 


which
in each case has not ceased to be a Party in accordance with the terms of this
Agreement.


 


Loan means,
unless otherwise stated in this Agreement, a loan made or to be made under the
Facility pursuant to a Request or the principal amount outstanding for the time
being of that loan.


 


Loan-based ICR means, in respect of a certain Loan, the Interest Cover Ratio provided
that, when determining the Projected Annual Interest Costs, only such interest
payments, fees and other payments shall be taken into account that relate to
the relevant Loan and, when determining the Projected Net Rental Income, only
such Net Rental Income shall be taken into account that relates to the
Properties to which the proceeds of the relevant Loan are allocated.


 


LTC means
the ratio, expressed as a percentage, of (i) the aggregate outstanding
principal amount of all Loans to (ii) the aggregate of the purchase prices and
Transaction Costs (Kaufpreise und
Erwerbsnebenkosten)  paid
for all Acquisitions (including, for the purposes of calculation, (a)
Properties the Acquisition of which is imminent subject to the making of a Loan
and (b) Permitted Refurbishment Cap Ex Costs).


 


LTV means
the ratio, expressed as a percentage, of (i) the aggregate outstanding principal
amount of all Loans to (ii) the Aggregate Properties Market Value (including,
for the purposes of calculation, Properties the Acquisition of which is
imminent subject to the making of a Loan).


 


Major Intended Substitution Disposal means one or more Intended Substitution
Disposals pursuant to one and the same property sale and purchase agreement
where the aggregate Intended Substitution Disposal Proceeds exceed the amount
of EUR 5,000,000.


 


Majority Lenders means, at any time:


 


11

















 


(a)       Lenders whose Commitments
aggregate more than 66 2/3 per cent of the Total Commitments; or


 


(b)      if the Total Commitments
have been reduced to zero, Lenders whose Commitments aggregated more than 66
2/3 per cent of the Total Commitments immediately before the reduction.


 


Management
Agreements means each of the management agreements (Geschäftsbesorgungsvertrag)  entered into between a Borrower (or an
Acquired Entity owned by it) and a Managing Agent.


 


Managing
Agent means IWG Wohnen GmbH or any other entity directly
owned by Archstone Management Germany S.à.r.l, together with any other person
appointed by a Borrower (or an Acquired Entity owned by such Borrower) in
respect of the management of its Properties (other than the Ultimate Managing
Agent) with the approval of the Facility Agent (acting reasonably) in
accordance with this Agreement.


 


Mandatory
Cost means the cost imputed to (and determined by) any of the
Lenders of complying with the banking supervision or other costs, any reserve
asset or other regulatory, reserve or similar costs applicable or any other
regulatory requirements of the European Central Bank, the Financial Services
Authority, the Bank of England or the Bundesanstalt für  Finanzdienstleistungsaufsicht (BaFin), as
calculated (to the extent applicable) in accordance with Schedule 9 hereto. The
Lender confirms that as of the date of this Agreement no Mandatory Costs fall
due.


 


Margin means
0.62% per annum.


 


Market
Value means, in respect of each Property, the fair market
value determined in the most recent Valuation.


 


Material
Adverse Effect means any effect which in the reasonable
opinion of the Lenders (a) is materially adverse to (i) the ability of any
Obligor to perform its obligations under any Finance Document, or (ii) the
business and financial condition of any Obligor or (b) would result in any
Finance Documents, or any right or remedy of a Finance Party in respect
thereto, being not valid and binding or enforceable against any party thereto
or the security over the assets expressed to be secured thereby not being valid
or enforceable.


 


Maximum
Facility Amount means, at any time, an amount equal to the
lower of:


 


(a)       the Total Commitments; and


 


(b)      the higher of (i) 75 per
cent. of the aggregate of the purchase prices and ancillary costs (Kaufpreise und Erwerbsnebenkosten)  paid for all Acquisitions and (ii) 70 per
cent. of the Aggregate Properties Market Value (including, for the purposes of
calculation of (i) and (ii), Properties the Acquisition of which is imminent
subject to the making of a Loan) and (iii) an amount assuring an ICR of at
least 120 per cent.


 


Minimum
Loan Amount means EUR 20,000,000.


 


Moody’s means
Moody’s Investors Service, Inc. and any successor to its rating business.


 


12

















 


Net
Disposal Proceeds means, in relation to a disposal (including
by way of expropriation) of a Property (other than a Intended Substitution
Disposal), in each case in accordance with the terms of this Agreement, the
total consideration (including compensation for an expropriation) received by
the relevant Borrower in respect of the disposal of such Property, in each case
less Taxes and reasonable costs and expenses incurred by such Borrower directly
in connection with that disposal.


 


Net
Rental Income means the Gross Rental Income actually received
by a Borrower but excluding (to the extent otherwise included) the following
amounts:


 


(a)       Tenant Contributions (other
than any insurance premiums); and


 


(b)      any value added tax or similar
Taxes payable on the Gross Rental Income.


 


Obligors’
Agent means Parent 1.


 


Original Financial Statements means the financial statements in respect of
the Obligors delivered to the Facility Agent as a CP Document hereunder.


 


Over Collateralised Amount means, with respect to a Hedge Counterparty,
an amount equal to the lowest of:


 


(i)        the net close-out amount
due from the relevant Borrower to that Hedge Counterparty under a Hedging
Arrangement following the termination of all transactions in respect of such
Hedging Arrangement as a result of the occurrence of an event of default or a
termination event under such Hedging Arrangement, if any, and otherwise zero;


 


(ii)       the Credit Support Balance
(as defined in the respective Hedging Arrangement) in relation to such
Counterparty and such Hedging Arrangement, if any, and otherwise zero; and


 


(iii)      the amount standing to the
credit of the relevant CSA Account in respect of such Counterparty and such
Hedging Arrangement.


 


Overdue Amount has the meaning given to
it in Clause 8.4 (Interest on Overdue
Amounts).


 


Parent means each and any of Parent 1 and Parent 2.


 


Parent 1 means DeWAG Holdings S.à
r.l., a limited liability company (société à
responsabilité limitée) incorporated under the laws of Luxembourg,
registered in the commercial register of the Grand Duchy of Luxembourg under
registration number B-125494 whose registered office is at 46A, Avenue John F.
Kennedy, L-1855 Luxembourg, being the sole shareholder of IWG 9.
Objektgesellschaft B.V., IWG 10. Objektgesellschaft B.V. and IWG 11.
Objektgesellschaft B.V. Parent 1 will transfer its shares in IWG 11.
Objektgesellschaft B.V. to Parent 2 pursuant to a share sale and transfer
agreement which is in form and substance reasonably satisfactory to the
Facility Agent.


 


Parent 2 means DeWAG LT Holdings S.à r.l., a limited liability company (société à responsabilité limitée)
incorporated under the laws of
Luxembourg, registered in the commercial register of the Grand Duchy of
Luxembourg under registration number B-127315 whose registered office is at
46A, Avenue John F. Kennedy, L-1855 Luxembourg.


 


13

















 


Parent Property Report means a due diligence report in respect of
the Properties, prepared by the relevant Parent and in a form acceptable to the
Facility Agent (acting reasonably) and accompanied by a duly executed reliance
letter addressed to, and in form and substance reasonably acceptable to, the
Facility Agent (on behalf of the Finance Parties).


 


Participating Member State means a member state of the European
Communities that adopts or has adopted the Euro as its lawful currency under
the legislation of the European Union for European Monetary Union.


 


Party means
a party to this Agreement.


 


Permitted Encumbrances means (i) any land charge (Grundschuld)  or mortgage (Hypothek)  with respect to a Property and created as
security for subsidized loans and other regular debt to be assumed by the
Borrowers with the consent of the Facility Agent and (ii) easements and
personal servitudes created with the consent of the Facility Agent such consent
not to be unreasonably withheld.


 


Permitted Operating Costs means the reasonable operating and
administrative costs (including VAT) incurred by a Borrower with respect to itself and a Property owned by it (or by
an Acquired Entity owned by such Borrower), including:


 


(a)       ground rent, rates, service
charges, insurance premia;


 


(b)      repair and maintenance costs
and associated fees;


 


(c)       any other costs incurred in
connection with Property Leases which are not recoverable from the tenant in
respect of that Property Lease;


 


(d)      market standard property
management fees on the residential properties along with any value added tax or
similar tax payable in relation to the relevant costs;


 


(e)       real estate taxes;


 


(f)       leasing commissions for
residential units and office space (including any value added tax or similar
tax payable in relation thereto)


 


but
excluding capital expenditure.


 


Permitted Refurbishment Cap Ex  Costs means,
in relation to an Eligible Property, any capital expenditure proposed by a
Borrower in relation to the refurbishment, repair or renovation of that
Property, provided that these costs:


 


(a)       are budgeted in the most
recent relevant Business Plan provided to the Facility Agent; and


 


(b)      have been explicitly
approved by the Facility Agent (i) in advance or (ii) prior to the Acquisition
of the relevant Eligible Property or the Eligible Entity which owns such
Property.


 


14

















 


Planning/Zoning
Laws means all applicable public laws and regulations
governing or controlling the use or development of land and property, including
building permissions (Baugenehmigung).


 


Prepayment
Fee means any prepayment fee agreed in a Fee Letter.


 


Pro Rata
Share, in respect of each Lender and a Loan requested to be
drawn under the Facility, means the proportion borne by the relevant Lender’s
Available Commitment to the Available Facility.


 


Projected
Annual Interest Costs means, in respect of any period, the
Borrowers’ estimate (approved by the Facility Agent, acting reasonably) of the
aggregate interest payments and fees or other payments due under the Facility
(for the avoidance of doubt, excluding principal payments) becoming due under
this Agreement and the other Finance Documents during the relevant period,
adjusted for any receipts under the Hedging Arrangements during the relevant
period.


 


Projected
Net Rental Income means, on any Interest Payment Date, the
Borrowers’ estimate (approved by the Facility Agent, acting reasonably) of Net
Rental Income for the 12 month period following the end of the calendar month
immediately preceding the relevant Interest Payment Date, which shall be
calculated as follows:


 


(a)       the Contracted Net Rental
Income; plus


 


(b)      interest earned from any
Proceeds Account; minus


 


(c)       the Contracted Net Rental
Income which has been waived or deferred with respect to the 12 month period
ending at the end of the calendar month immediately preceding the relevant
Interest Payment Date (unless payment has been actually received during such
period or unless the annual rent from the Relevant Lease Contract is deducted
pursuant to (g) below); minus


 


(d)      the Permitted Operating
Costs (excluding any tenant improvements) for the quarterly period ending at
the end of the calendar month immediately preceding the relevant Interest
Payment Date, multiplied by 4; minus


 


(e)       any tenant improvements
budgeted for the 12 months commencing on the relevant Interest Payment Date;
minus


 


(f)       the amount of rent from the
date of lease expiry through the end of the 12 months following the end of the
calendar month immediately preceding the relevant Interest Payment Date,
arising from any lease contract (a Relevant
Lease Contract)  which forms part of the net rental
income calculation pursuant to (a) for the entire quarterly period commencing
on the relevant Interest Payment Date but where the tenant has issued a written
notice of lease termination for a lease expiration in the next twelve months;
minus


 


(g)      the annual rent arising from
any Relevant Lease Contract where the rent is in arrears in an amount in excess
of the scheduled rent payments for two months (excluding any Relevant Lease
Contract in respect of which rent amounts in arrears have been waived or
deferred in compliance with Clause 22 (Property
Covenants)); plus


 


15

















 


(h)      the amount of rent expected
from the date of tenant occupation through the end of the 12 months following
the end of the calendar month immediately preceding the relevant Interest
Payment Date arising from any leases signed, or where there is a binding
commitment to sign a lease, but where the tenant has not yet taken occupancy
provided that such tenant is scheduled to take occupancy within the next 12
months.


 


Properties
Schedule means the schedule attached to each Request, setting
forth the details of the Properties the Acquisition of which is imminent,
direct or indirect by way of a Share Deal, subject to the making of the
requested Loan and the respective Allocated Loan Amounts.


 


Property
means any property directly or indirectly owned by a Borrower
pursuant to an Acquisition.


 


Property
Eligibility Criteria means the criteria set out in Schedule 4
(Property Eligibility Criteria).


 


Property
Lease means any lease, sublease or licence or other right of
occupation or right to receive rent to which a Property may at any time be
subject, or any other document designated as such by the Facility Agent and the
Obligors’ Agent.


 


Property
Substitution has the meaning ascribed to it in Clause 21.7 (Property Substitution).


 


Property
Substitution Reserve Amount means, in respect of any Intended
Substitution Disposal and any relating Property Substitution occurring within
the relevant Substitution Period, the amount of the respective Intended
Substitution Disposal Proceeds credited to the Disposal Proceeds Reserve
Account of the relevant Borrower together with any interest accrued thereon (if
any).


 


Purchase
Price means the total cash consideration payable by the relevant
Borrower in respect of an Acquisition on the due date (Fälligkeitstag)  under the relevant Acquisition Document.


 


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, in which case
the Quotation Day 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).


 


Rate
Fixing Day means in relation to any period for which an
interest rate is to be determined (unless provided otherwise herein), two
TARGET days before the first day of that period, unless market practice differs
in the European interbank market, in which case the Rate Fixing Day will be
determined by the Facility Agent in accordance with such market practice.


 


Rating
Agency means Fitch, Moody’s or S&P.


 


Reference
Banks means Commerzbank, Deutsche Bank, any Account Bank and
any other bank or financial institution appointed as such by the Facility Agent
under this Agreement in consultation with the Obligors’ Agent.


 


16

















 


Release
Price means, in relation to the disposal of any Property in
accordance with Clause 21.6 (Disposals)  (i) in the event the LTV is, at the time
of the disposal, equal to or lower than 50%, the Allocated Loan Amount of the
relevant Property, or (ii) in the event the LTV is, at the time of the
disposal, higher than 50%, the amount equal to the Allocated Loan Amount of the
relevant Property times 1.05.


 


Replacement
Property has the meaning ascribed to it in Clause 21.7 (Property Substitution).


 


Reports means
the Parent Property Report, any property valuation report, any technical due
diligence report, any financial and tax due diligence report, and any
confirmatory site inspection, each in relation to the Properties, or any one or
more of them or any other report designated as such by the Facility Agent and
the Obligors’ Agent.


 


Request means
a request for a Loan, substantially in the form of Schedule 3 (Form of
Request).


 


Requisite
Rating means a rating of long or short term (as relevant)
unsecured debt instruments in issue which are neither subordinated nor
guaranteed and which meets the following requirements:


 


(a)       in relation to an Account
Bank, the following minimum ratings:


 


(i)        by S&P, a short-term,
unsecured debt rating of A-1 and a long-term, unsecured debt rating of A,


 


(ii)       by Moody’s, a short-term,
unsecured debt rating of P-1 and a long-term, unsecured debt rating of A1, and


 


(iii)      by Fitch, a short-term,
unsecured debt rating of F-1 and a long-term, unsecured debt rating of A;


 


(b)      in relation to an insurance
company or an underwriter (in the case of a group of insurance companies or a
group of underwriters, on a weighted average rating basis), a long term
unsecured debt rating of at least two of the following: A by Fitch, A2 by Moody’s
and A by S&P.


 


S&P means
Standard & Poor’s Rating Services, a division of the McGraw-Hill Companies
and any successor to its rating business.


 


Screen
Rate means the EURIBOR rate as determined and published
jointly by the European Banking Federation and ACI - The Financial Market
Association and which appears for information purposes on the Reuters EURIBOR01
Screen page (or, if not available, any other display page on any screen service
maintained by any registered information vendor (including, without limitation,
the Reuters Monitor Money Rate Service and the Bloomberg Service) for the
display of the EURIBOR rate reasonably selected by the Facility Agent).


 


Security
Assignment Agreement means any of the security assignment
agreements (including, for the avoidance of doubt, any Hedging Assignment) in
form and substance satisfactory to the Facility Agent as required pursuant to
number 32 of Part I and Part II of Schedule 2 (Conditions Precedent Documents).


 


17

















 


Security
Document means any Deed of Share Pledge, any Deed of Land
Charge, any Security Purpose Agreement, any Security Assignment Agreement, any
Accounts Pledge Agreement, the Subordination Agreement, any Duty of Care
Declaration and any other document designated as such by the Facility Agent and
the Obligors’ Agent jointly.


 


Security
Interest means any land charge, mortgage, pledge, lien,
charge, assignment, hypothecation or other security interest in rem (dingliches Recht), any other type of real security
and any transfer of title by way of security.


 


Security
Purpose Agreement means any security purpose agreement (Sicherungszweck-erklärung)  entered into by a Borrower (and
any relevant Eligible Entity) and the Security Agent in respect of any relevant
Land Charge.


 


Sellers means
the sellers of Properties pursuant to the relevant Acquisition Document.


 


Share
Deal means the purchase of an Eligible Entity by a Borrower
in accordance with the terms of this Agreement.


 


Shareholder
means each of Parent 1 or Parent 2, each as a shareholder of
any relevant Borrower.


 


Structure
Chart means a structure chart set out in the Tax Structure
Memo showing the ownership of each Borrower and the ownership of the
Shareholders as at the date of this Agreement.


 


Subordination
Agreement means any subordination agreement entered into in
respect of or pursuant to this Agreement, in relation to Cash Fundings and/or
other indebtedness of a Borrower vis-à-vis an Affiliate.


 


Subsidiary
means an entity of which a person has direct or indirect
control or owns directly or indirectly more than 50 per cent. of the voting
capital or similar right of ownership, and control for this purpose means the
power to direct the management and the policies of the entity whether through
the ownership of voting capital, by contract or otherwise.


 


Substitution
Period means:


 


(a)       with respect to a Major
Intended Substitution Disposal, the period of time beginning on the date on
which the proceeds of the Major Intended Substitution Disposal are paid into
the relevant Disposal Proceeds Reserve Account and ending six (6) calendar
months after that date, which period may be extended by three (3) calendar
months with the Facility Agent’s approval (such approval not to be unreasonably
withheld); and


 


(b)      with respect to all other
Intended Substitution Disposals, the period of time beginning on the date (the Relevant Reference Date)  on which the aggregate Intended
Substitution Disposal Proceeds generated from such Intended Substitution Disposals
(other than a Major Intended Substitution Disposal) and standing to the credit
of all Disposal Proceeds Reserve Accounts taken together exceed EUR 5,000,000
(the “Threshold”) and ending six (6) calendar months after such Relevant
Reference Date, which period may be extended by three (3) calendar months with
the Facility Agent’s approval (such approval not to be unreasonably withheld),
provided that with respect


 


18

















 


to Intended Substitution
Disposals occurring after a Relevant Reference Date, the Substitution Period
shall commence as soon as the Threshold is reached again, but without double
counting any Intended Substitution Disposal Proceeds.


 


TARGET
Day means a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer Payment system is open for the
settlement of payment in Euro.


 


Tax means
any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any related penalty or interest), including, but not limited to, all
taxes (Steuern)  and
ancillary duties (steuerliche Nebenleistungen)  within the meaning of § 3 of the
German General Fiscal Code (Abgabenordnung - AO).


 


Tax
Deduction means a deduction or withholding for or on account
of Tax from a payment under a Finance Document.


 


Tax
Structure Memo means the memorandum dated on or about the
date hereof on, inter alia,  the tax structure and planning of the
Borrowers prepared by Linklaters LLP Germany and delivered by the Borrowers as
a CP Document.


 


Tax
Payment means a payment made by a Borrower to a Finance Party
pursuant to Clause 11.2 or 11.3 or under any indemnity given by the relevant
Borrower in respect of Tax under any Finance Document.


 


Tenant
Contributions means any amount paid or payable to or for the
account of the relevant Borrower by any tenant under a Property Lease or any
other occupier of a Property, by way of contribution to:


 


(a)       insurance premiums;


 


(b)      the costs of an insurance
valuation;


 


(c)       a service charge in respect
to the Borrower’s costs under any repairing or similar obligation or in
providing services to a tenant of, or with respect to, a Property;


 


(d)      other operating expenses (Betriebskosten)  (including the expenses defined in
the German Operating Expenses Ordinance (Betriebskostenverordnung - BetrKV)  as of 1 January 2004);


 


(e)       value added tax or similar
taxes; or


 


(f)       any other amount payable by
a tenant under a Property Lease.


 


Total
Commitments means EUR 550,000,000 at the date of this
Agreement.


 


Transaction
Costs means all fees, costs and expenses (including any
prepayment penalties, premia, stamp, transfer, notarial, registration or other
Taxes and all fees to be paid by the relevant Borrower pursuant to the Finance
Documents) reasonably incurred or required to be paid by the Borrowers in
connection with an Acquisition in an amount of up to eight (8) per cent. of the
purchase price for the relevant Acquisition.


 


19

















 


Transaction
Document means a Finance Document, any Acquisition Document,
any Management Agreement, any document entered into with respect to those
Permitted Operating Costs relating to all Properties owned by the respective
Borrower (or an Acquired Entity owned by such Borrower), and any other document
designated as such by the Facility Agent and the Obligors’ Agent.


 


Transfer
Certificate means a certificate substantially in the form of
Schedule 7 (Form of Transfer Certificate).


 


Ultimate
Managing Agent means any person appointed by the Managing
Agent in respect of the management of the Properties.


 


Utilisation
means any utilisation of the Facility.


 


Utilisation
Date means the date of a Utilisation, being the date on which
the relevant Loan is to be made.


 


Valuation
means, in respect of a Property, a valuation of the Borrowers’
direct or indirect interest in that Property by the Valuer, instructed by the
Facility Agent on behalf of the Lenders by way of an instruction letter and
supplied to the Facility Agent as a CP Document on or before the relevant
Utilisation Date relating to the Acquisition of that Property and any update
valuation prepared in accordance with Clause 20.3 (Valuations).


 


Valuer means
any independent and reputable surveyor or valuer proposed by the Obligors’
Agent and agreed by the Facility Agent (acting reasonably).


 


1.2       Construction


 


(a)       Unless a contrary
indication appears, any reference in this Agreement or any other Finance
Document to:


 


(i)        the Facility Agent, any
Lender, the Arranger, any Finance Party, the Hedge Counterparty, any Borrower,
any Obligor, any Party, any Shareholder, the Parent or the Security Agent shall
be construed so as to include its successors in title, permitted assigns and
permitted transferees;


 


(ii)       assets includes present and
future properties, revenues and rights of every description;


 


(iii)      guarantee means 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;


 


(iv)      a Security Document or any
other agreement or instrument is a reference to that Secured Document or other
agreement or instrument as amended (however fundamentally), novated,
supplemented, restated or replaced and includes without limiting the generality
of such terms any variation, increase, extension or addition of or to any
facility or amount made available under


 


20

















 


any such document or any
variation of the purposes for which such facility or amount might be made
available from time to time;


 


(v)       indebtedness includes any
obligation (whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;


 


(vi)      a person includes any
person, firm, corporation, government, state or agency of a state or any
association, trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing;


 


(vii)     a regulation includes any
regulation, rule, official directive, request or guideline (whether or not
having the force of law but, if not having the force of law, being a regulation
with which people subject thereto are accustomed to comply with) of any
governmental, intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;


 


(viii)    shares or share capital
includes equivalent ownership interests, including participations in
partnerships (and shareholder and similar expressions shall be construed
accordingly); and


 


(ix)      a provision of law is a
reference to that provision as amended or re-enacted.


 


(b)      A reference to including,
includes or like expression shall be without limitation to the items, terms or
description that follow such term.


 


(c)       Section, Clause and
Schedule headings are for ease of reference only.


 


(d)      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, and shall be construed in the same way, as in this
Agreement. For the avoidance of doubt, words denoting the singular number only
shall include the plural number also and vice versa.


 


(e)       A Default or an Event of
Default is continuing if it has not been remedied or waived.


 


(f)       A reference to set-off
includes rights of retention, claims of compensation or right to balance
accounts on insolvency.


 


(g)      In the event of any
inconsistency between this Agreement and another Finance Document, this
Agreement shall prevail.


 


(h)      This Agreement is made in the
English language only. For the avoidance of doubt, the English language version
of this Agreement shall prevail over any translation of this Agreement.
However, where a German translation of a word or phrase appears in the text of
this Agreement, the German translation of such word or phrase shall prevail
wherever such original English word or phrase translated by such German word or
phrase appears in the text of this Agreement. Wherever a German legal term of
concept has been used in this Agreement, such German legal term or concept (and
not the English legal term or concept to which it relates) shall be
authoritative for the


 


21

















 


construction. Where an
English legal term or concept has been used in this Agreement, the related
German legal term or concept shall be authoritative for the purpose of
construction, unless specifically so provided.


 


The above applies mutatis
mutandis to Dutch and French translations and legal concepts.


 


2.        THE FACILITY


 


2.1       The Facility


 


Subject to the terms of
this Agreement, the Lenders make available to the Borrowers a Euro term loan
facility in an aggregate amount equal to the Available Facility for Utilisation
in multiple drawings until (and including) the last day of the Availability
Period.


 


2.2       Automatic Cancellation


 


The Commitments of each
Lender will be automatically cancelled at the close of business on the last day
of the Availability Period.


 


2.3       Voluntary Cancellation


 


(a)       The Obligors’ Agent may, by
giving not less than 5 Business Days’ prior notice to the Facility Agent,
cancel the unutilised amount of the Total Commitments in whole or in part.


 


(b)      Partial cancellation of the
Total Commitments must be in a minimum amount of EUR 5,000,000 and an integral
multiple of EUR 100,000.


 


(c)       Any cancellation in part
will be applied against the Commitments of each Lender pro rata.


 


2.4       Several obligations of the
Finance Parties


 


The obligations of each
of the Finance Parties under the Finance Documents are several (keine Gesamtschuld)  and the total amounts outstanding at any
time under the Finance Documents constitute separate and independent debts.
Failure of a Finance Party to observe and perform its obligations under any
Finance Document shall:


 


(a)       neither result in any other
Finance Party incurring any liability whatsoever;


 


(b)      nor release an Obligor from
its obligations under the Finance Documents.


 


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. The
creation of jointly owned assets (Gesamthandsvermögen)
is excluded.


 


Subject to any provision
of the Finance Documents to the contrary, each Finance Party has the right to
protect and enforce its rights arising out of the Finance Documents and it will
not be necessary for any other Finance Party to be joined as an additional
party in any proceedings brought for the purpose of protecting or enforcing
such rights.


 


22














2.5       Parallel Debt


 


For the purposes of
taking and ensuring the continuing validity of security under the Security
Documents subject to the laws of (or to the extent affecting assets situated
in) Germany and/or the Netherlands, notwithstanding any contrary provision in
this Agreement:


 


(a)       Each Obligor irrevocably
and unconditionally undertakes to pay to the Security Agent amounts equal to
the aggregate present and future amounts (the Original Obligations) owing by it
to a Finance Party under or in connection with the Finance Documents. The
payment undertaking of each Obligor to the Security Agent under this paragraph
(a) is hereinafter to be referred to as a Parallel Debt. Each Parallel Debt
will become due and payable as and when one or more of the corresponding
Original Obligations of the relevant Obligor become due and payable.


 


(b)      Each of the parties to this
Agreement hereby acknowledges that:


 


(i)        each Parallel Debt
constitutes an undertaking, obligation and liability of the relevant Obligor to
the Security Agent which is separate and independent from, and without
prejudice to, the Original Obligations; and


 


(ii)       each Parallel Debt
represents the Security Agent’s own separate and independent claim to receive
payment of such Parallel Debt from the relevant Obligor, in its own name on
behalf of itself and not as agent or representative of any other person nor as
trustee, and the Security Documents shall secure each Parallel Debt so owing.


 


(c)       No Parallel Debt shall
limit or affect the existence of the Original Obligations for which the Finance
Parties shall have an independent right to demand payment.


 


(d)      Notwithstanding paragraphs
(b) and (c), payment by an Obligor of its Parallel Debt shall, upon receipt of
such payment by the relevant Finance Parties, to the same extent decrease and
be a good discharge of the corresponding Original Obligations owing to the
relevant Finance Parties, and payment by an Obligor of its Original Obligations
to the relevant Finance Parties shall to the same extent decrease and be a good
discharge of the Parallel Debt owing by it to the Security Agent.


 


(e)       Without limiting or
affecting the Security Agent’s right to protect, preserve or enforce its rights
under any Security Document, the Security Agent undertakes to each Finance Party
not to exercise its rights in respect of any Parallel Debt without the consent
of the relevant Finance Parties; and


 


(f)       the Security Agent
undertakes to pay to the Finance Parties any amount collected or received by it
in payment or partial payment of the relevant Parallel Debt and shall
distribute any amount so received to the Finance Parties in accordance with the
terms of this Agreement as if such amounts had been received in respect of the
Original Obligations.


 


23

















 


2.6       Joint Declarations only;
Obligors’ Agent


 


(a)       Any agreement, undertaking,
settlement, waiver, amendment, supplement, variation, notice, instruction
(including, in the case of a Borrower, Requests) or other communication
(together hereinafter referred to as a Communication) on the part of the
Obligors may only be made jointly by all Obligors. Each Obligor by its
execution of this Agreement irrevocably appoints the Obligors’ Agent to act on
its behalf as its agent in relation to the Finance Documents and irrevocably
authorises:


 


(i)        the Obligors’ Agent on its
behalf to supply all information concerning itself contemplated by this
Agreement to the Facility Agent and to make all Communications 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


 


(ii)       the Facility Agent to give
any notice, demand or other communication to that Obligor pursuant to the
Finance Documents to the Obligors’ Agent,


 


and in each case
the Obligor shall be bound as though the Obligor itself had given the notices
and instructions (including, without limitation, any Requests) or executed or
made the agreements or effected the amendments, supplements or variations, or
received the relevant notice, demand or other communication.


 


(b)      Every Communication made by
the Obligors’ Agent or given to the Obligors’ Agent 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
Communication of the Obligors’ Agent and any other Obligor, those of the
Obligors’ Agent shall prevail.


 


3.        PURPOSE


 


3.1       Purpose


 


The Loans made under the
Facility may only be used for the purpose of partial financing of one or more
Acquisitions of Eligible Properties, directly or by way of a Share Deal,
including Transaction Costs.


 


3.2       Monitoring


 


No Finance Party is bound
to monitor or verify a Utilisation.


 


4.        CONDITIONS PRECEDENT


 


4.1       Initial Conditions
Precedent


 


The obligations of the
Finance Parties to a Borrower under the Finance Documents, including the making
available of the Facility, are subject to the conditions precedent that:


 


24

















 


(a)       in relation to the first
Utilisation, the Facility Agent has notified the Lenders that it has received
all of the documents and evidence set out in Part I and in addition, if the
Utilisation is related to an Acquisition by way of a Share Deal, such documents
and evidence set out in Part IV of Schedule 2 (Conditions Precedent Documents),
each in form and substance satisfactory to the Facility Agent; and


 


(b)      in relation to any
subsequent Utilisation, the Facility Agent has notified the Lenders that it has
received all of the documents and evidence set out in Part II and in addition,
if the Utilisation is related to an Acquisition by way of a Share Deal, such
documents and evidence set out in Part IV of Schedule 2 (Conditions Precedent
Documents), each in form and substance satisfactory to the Facility Agent.


 


The Facility Agent must
give this notification to the Parent and the Lenders upon being so satisfied.
To the extent the CP Documents are not satisfactory to the Facility Agent it
may in accordance with any instructions given to it by the Majority Lenders
conditionally or unconditionally waive these CP Documents.


 


4.2       Additional Conditions
Precedent


 


In addition, the
obligations of the Lenders to a Borrower under the Finance Documents, including
the making available of the Facility, are subject to the conditions precedent
that (i) the Facility Agent has notified the Lenders that it has received all
of the documents and evidence set out in Part III of Schedule 2 (Conditions
Precedent Documents), each in form and substance satisfactory to the Facility
Agent, and that (ii) on both the dates of the relevant Request and the relevant
Utilisation Date:


 


(a)       the Representations are
true and correct in all material respects; and


 


(b)      no Default is outstanding or
would result from the Utilisation of the Loan.


 


5.        UTILISATION


 


5.1       Delivery of a Utilisation
Request


 


(a)       Each Borrower may borrow a
Loan under the Facility by giving to the Facility Agent a duly completed
Request.


 


(b)      Unless the Facility Agent
otherwise agrees, the latest time for receipt by the Facility Agent of a duly
completed Request is 11.00 a.m. CET four Business Days before the proposed
Utilisation Date (or such later time as is agreed by the Facility Agent).


 


(c)       Each Request is
irrevocable.


 


5.2       Completion of the
Utilisation Request


 


(a)       A Request will not be
regarded as having been duly completed if:


 


(i)        the Utilisation Date is
not a Business Day falling within the Availability Period;


 


25

















 


(ii)       the amount of the Loan
requested exceeds (1) the Available Facility as at the proposed Utilisation
Date, or (2) the higher of (aa) 75 per cent. of the aggregate of the purchase
prices and ancillary costs (Kaufpreise und
Erwerbsnebenkosten)  for
the Properties specified in the Properties Schedule attached to the relevant
Request and (bb) 70 per cent. of the Market Values of such Properties;


 


(iii)      the amount of the Loan
requested is lower than the Minimum Loan Amount (provided that for a total
number of up to five Utilisations the requested Loan amount may be lower than
the Minimum Loan Amount, but must in any case be at least EUR 5,000,000);


 


(iv)      the Interest Cover Ratio as
at the Interest Payment Date immediately following the proposed Utilisation
Date would fall below 120% as a result of the making of the requested Loan; and


 


(v)       the Loan-based ICR as at
the proposed Utilisation Date is less than 120%.


 


(b)      Only one Loan may be
requested in a Request.


 


5.3       Currency


 


The currency specified in
a Request must be Euro.


 


5.4       Advance of Loan


 


(a)       The Facility Agent must
promptly notify each Lender of the details of the requested Loan and the amount
of its share in the Loan.


 


(b)      The amount of each Lender’s
share of the Loan will be its Pro Rata Share on the proposed Utilisation Date
immediately prior to making the requested Loan.


 


(c)       No Lender is obliged to
participate in the Loan if its participation in the requested Loan would exceed
its Available Commitment in relation to the Facility.


 


(d)      If the conditions set out in
this Agreement have been met, each Lender must make its Pro Rata Share in the
Loan available to the Facility Agent for the relevant Borrower through its
Facility Office on the proposed Utilisation Date.


 


6.        REPAYMENT OF LOANS


 


All amounts outstanding
under the Facility must be repaid on the Final Maturity Date.


 


7.        PREPAYMENT AND
CANCELLATION


 


7.1       Mandatory prepayment -
Illegality


 


(a)       A Lender must notify the
Obligors’ Agent promptly if it becomes aware that it is unlawful in any
jurisdiction for that Lender to perform any of its obligations under a Finance
Document or to fund or maintain its share in the Loans.


 


26

















 


(b)      After notification under
paragraph (a) above, either:


 


(i)       (aa)     the relevant Borrowers must
repay or prepay the share of that Lender in the Loans relating to that relevant
Borrower on the date specified in paragraph (c) below, and


 


(bb)    the Commitments of that Lender
will be immediately cancelled; or


 


(ii)       the Borrowers may request
that such Lender be substituted by a New Lender by way of an assignment and/or
transfer of that Lender’s Commitments in accordance with, and subject to,
Clause 30.2.


 


(c)       The date for repayment or
prepayment of a Lender’s share in the Loans will be:


 


(i)        the last day of the
current Interest Period for each outstanding Utilisation at the time of the
notification under paragraph (a) above; or


 


(ii)       if earlier, the date
specified by the Lender in the notification under paragraph (a) above, which
must not be earlier than the last day of any applicable grace period allowed by
law.


 


(d)      No Prepayment Fee or Break
Costs shall be payable with respect to any prepayment made by pursuant to this
Clause 7.1 (Mandatory prepayment  Illegality).


 


7.2       Mandatory prepayment -
Disposals


 


(a)       In the event of a disposal
of a Property or of an Acquired Entity (other than an Intended Substitution
Disposal), the relevant Borrower must, on giving at least 20 Business Days’
prior notice to the Facility Agent, apply an amount equal to the aggregate of:


 


(i)        the Release Price in
respect of any Property or any Acquired Entity disposed of by a Borrower, in
each case in accordance with Clause 21.6 (Disposals);


 


(ii)       any Prepayment Fee payable
on account of such prepayment;


 


(iii)      all Break Costs (if any); and


 


(iv)      all amounts payable to the
Hedge Counterparty as a result of termination or closing out of all or any part
of any Hedging Arrangements on account of, and as at the date of such payment;


 


towards the prepayment of
the Loans made to the relevant Borrower and the payment of any sums due under
the Hedging Arrangements of the relevant Borrower, and any remainder amount
towards the prepayment pro rata of the other Loans and the payment pro rata of
any sums due under the other Hedging Arrangements, in each case pursuant to the
order of application set out in Clause 17.4(d). For the avoidance of doubt, no
mandatory prepayment shall be payable under this Clause 7.2 in connection with
a disposals made in accordance with Clause 21.6(b)(viii).


 


27

















 


(b)      No Prepayment Fee shall be
payable with respect to any prepayment made by pursuant to this Clause 7.2 (Mandatory
prepayment - Disposals),  if
the relevant disposal of a Property or an Acquired Entity is in accordance with
the relevant most recent Business Plan provided to the Facility Agent.


 


7.3       Mandatory prepayment
  Reserve Account


 


In the event that the LTV
is above 70% for a period longer than two consecutive Interest Periods, on the
Interest Payment Date on which the second of such Interest Periods ends and on
any subsequent Interest Payment Date thereafter (unless on any such subsequent
Interest Payment Date the LTV is again equal to or below 70%), any amount
standing to the credit of the Reserve Account shall be used for prepayment of
the Loans.


 


7.4       Mandatory
prepayment  Change of Control


 


(a)       Each Borrower and the
Obligors’ Agent must promptly notify the Facility Agent if it becomes aware
that (any of the following, a Change of Control):


 


(i)        Once the Fund has been
established:


 


(A)     Archstone ceases to own and
control, directly or indirectly,


 


(aa)     at least 10% of the units
issued by the Fund, or


 


(bb)    at least 50.1% of (1) the
shares of the Fund Manager or (2) of the voting rights with respect to the Fund
Manager;


 


(B)      the Fund Manager ceases to
be the management company of the Fund;


 


(C)      Archstone ceases to own and
control, directly or indirectly, at least 10% of (1) the shares of any Borrower
or (2) the voting rights with respect to any Borrower;


 


(D)      the Fund ceases to own and
control, directly or indirectly, at least 50.1% of (1) the shares of any
Borrower or (2) of the voting rights of any Borrower; or


 


(E)      any entity is admitted as a
Fund Investor holding in excess of a 25% interest in the Fund (such entity, a
New Fund Investor) without the prior consent of the Facility Agent (not to be
unreasonably withheld); provided, however, that the Facility Agent’s consent
shall not be required if


 


(aa)     the New Fund Investor is a
registered pension fund; or


 


(bb)    the New Fund Investor is an
insurance company with the Requisite Rating; or


 


28

















 


(cc)     the units of the Fund have
been listed as listed securities and the New Fund Investor has subscribed for
no more than 49% of the units.


 


Immediately upon the
admission of a New Fund Investor in accordance with this clause 7.4(i)(a)(E)
under (aa), (bb) or (cc) above, the Obligor’s Agent shall notify the Facility
Agent of such admission and shall provide the Facility Agent with evidence
reasonably satisfactory to the Facility Agent evidencing the satisfaction of
condition (aa), (bb) or (cc) above, as applicable.


 


(ii)       As long as the Fund has not
yet been established, Archstone ceases to beneficially own (wirtschaftliches
Eigentum)  or
control, directly or indirectly, at least 51% of the shares or the voting
rights of any Borrower.


 


(b)      After the occurrence of an
event described in Clause 7.4(a), each Lender may by notice to the Obligors’
Agent cancel the Commitments and declare the outstanding Loans, together with
accrued interest, Break Costs and all other amounts accrued under the Finance
Documents, to be immediately due and payable. Any such notice will take effect
in accordance with its terms.


 


7.5       Voluntary Prepayment


 


(a)       Each Borrower may prepay
any Loan or Loans (at its option, either Loans granted to the relevant Borrower
and/or other Borrowers) on any Interest Payment Date in whole or in part by
giving no less than 20 Business Days’ prior notice to the Facility Agent.


 


(b)      A prepayment of part of any
Loan or Loans must be in a minimum aggregate amount of EUR 3,000,000.


 


(c)       On the date of each
prepayment, the relevant Borrower shall pay to the Facility Agent (i) any
related Break Costs and (ii) any Prepayment Fee. The relevant Borrower shall
pay to the Hedge Counterparty any Hedging Arrangement termination costs.


 


7.6       Right of Prepayment and
Cancellation


 


(a)       If any Borrower is, or will
be, required to pay to a Lender:


 


(i)        a Tax Payment; or


 


(ii)       an Increased Cost,


 


the Borrower may, while
the requirement continues, give notice to the Facility Agent requesting
prepayment and cancellation in respect of that Lender.


 


(b)      After notification under
paragraph (a) above:


 


(i)        the Borrower must repay or
prepay that Lender’s share in the Loans on the date specified in paragraph (c)
below; and


 


(ii)       the Commitments of that
Lender will be immediately cancelled.


 


29

















 


(c)       The date for repayment or
prepayment of a Lender’s share in the Loans will be the last day of the current
Interest Period for the Loans or, subject to Break Costs, any date specified by
a Borrower.


 


7.7       Miscellaneous Provisions


 


(a)       Any notice of prepayment
and/or cancellation under this Agreement is irrevocable and must specify the
relevant date(s) and the affected Loans and Commitments. The Facility Agent
must notify the Lenders promptly of receipt of any such notice.


 


(b)      All prepayments under this
Agreement must be made with accrued interest up to the relevant prepayment date
on the amount prepaid.


 


(c)       The Majority Lenders may
agree a shorter notice period for a voluntary prepayment or a voluntary
cancellation.


 


(d)      No prepayment or
cancellation is allowed except in accordance with the express terms of this
Agreement (to the fullest extent permitted by law).


 


(e)       No amount of the Total
Commitments cancelled under this Agreement may subsequently be reinstated.


 


(f)       The Commitment of each
Lender shall be cancelled in the amount of its participation in each repaid
Loan and no amount of any Loan prepaid under this Agreement may subsequently be
re-borrowed.


 


8.        INTEREST


 


8.1       Calculation of Interest


 


From (and including) the
first Utilisation Date until (but excluding) the Final Maturity Date, the
interest rate applicable to the Loans outstanding under the Facility is the
percentage rate per annum equal to the aggregate of the applicable:


 


(i)        EURIBOR;


 


(ii)       Margin; and


 


(iii)      Mandatory Costs, if any.


 


8.2       Payment of Interest


 


Except where it is
provided to the contrary in this Agreement, the Borrowers must pay accrued
interest on each Loan on each Interest Payment Date.


 


8.3       Hedging


 


(a)       From and including the
first Utilisation Date the Borrowers must maintain Hedging Arrangements in
accordance with this Clause. If a Loan is made on a day which is not an
Interest Payment Date and such Loan, together with any other Loans made during


 


30

















 


the same Interest Period,
does not exceed an aggregate principal amount of EUR 10,000,000, no Hedging Arrangements
must be maintained in relation to such Loans before the next following Interest
Payment Date.


 


(b)      All Hedging Arrangements
must:


 


(i)        be in the form of swaps,
caps or collars (or a combination thereof) in each case in form and substance
satisfactory to the Facility Agent (acting reasonably);


 


(ii)       have a term expiring not
earlier than the Final Maturity Date; and


 


(iii)      have settlement dates that
coincide with the Interest Payment Dates.


 


(c)       If, at any time, due to a
partial or full prepayment repayment, cancellation or other reduction of a Loan
granted to a Borrower (a Loan Reduction), the notional principal amount of the
Hedging Arrangements of the relevant Borrower exceeds the amount of the Loans
of such Borrower outstanding at that time (or in the case of a reduction of
such Loans due to Clause 6(a) or a repayment of such Loans up to the amount of
EUR 5,000,000 provided that no Default is outstanding, 105% of such Loans), the
relevant Borrower must reduce the notional principal amount of such Hedging
Arrangements by an amount equal to the relevant Loan Reduction with effect from
the date such excess hedging occurs.


 


(d)      (i)        The parties to each Hedging Arrangement must
comply with the terms of the Hedging
Arrangements.


 


(ii)       Neither the Hedge Counterparty
nor the Borrowers may amend or waive the terms of any Hedging Arrangement
without the consent of the Facility Agent (acting reasonably).


 


(e)       Neither the Hedge
Counterparty nor the Borrowers may terminate or close out any Hedging
Arrangement (in whole or in part) except:


 


(i)        in accordance with
paragraph (c) above;


 


(ii)       if it becomes illegal for
that party to continue to comply with its obligations under that Hedging
Arrangement;


 


(iii)      if the Loans and other
amounts outstanding under the Finance Documents have been unconditionally and
irrevocably paid and discharged in full;


 


(iv)      in the case of termination
or closing out by the Hedge Counterparty, if the Facility Agent serves notice
under Clause 23.17 (Acceleration)  or, having served notice under Clause
23.17 (Acceleration),  makes demand;


 


(v)       in the case of termination
or closing out by any Borrower, with the consent of the Facility Agent; or


 


(vi)      if the relevant Borrower has
entered into substitute Hedging Arrangements which are acceptable to the
Facility Agent and comply with, and will at all


 


31

















 


times be in compliance
with, the requirements set out in this Clause 8.3 (Hedging).


 


(f)       The Hedge Counterparty may
only suspend making payments under a Hedging Arrangement if the relevant
Borrower is in breach of its payment obligations under that Hedging
Arrangement.


 


(g)      The Hedge Counterparty
acknowledges that the rights of the relevant Borrower under the Hedging
Arrangements to which it is party have been charged or assigned by way of
security under the Security Documents.


 


(h)      Other than pursuant to this
Clause 8.3, none of the Borrowers shall enter into, or be party to, any hedging
arrangement without the prior consent of the Facility Agent (such consent not
to be unreasonably withheld).


 


8.4       Interest on Overdue Amounts


 


(a)       If any Borrower fails to
pay any amount (other than principal or interest) payable by it under the
Finance Documents within 3 Business Days of notice, or fails to pay principal
or interest when due (an Overdue Amount), it must immediately upon the Facility
Agent’s demand pay interest on the Overdue Amount from its due date up to the
date of actual payment, both before, on and after judgment.


 


(b)      Interest on an Overdue
Amount is payable at a rate reasonably determined by the Facility Agent to be
1.5 per cent per annum above the interest rate which would have been payable if
the Overdue Amount had, during the period of non-payment, constituted a Loan in
the Overdue Amount. For this purpose, the Facility Agent, may (acting
reasonably) select successive Interest Periods of any duration of up to three
months and determine the appropriate Rate Fixing Day for that Interest Period.


 


(c)       Notwithstanding paragraph
(b) above, if the Overdue Amount is a principal amount of the Loan and becomes
due and payable prior to the last day of its current Interest Period, then the
first Interest Period for that Overdue Amount will be the unexpired portion of
that Interest Period and the rate of interest on the Overdue Amount for that
first Interest Period will be 1.5 per cent per annum above the rate then
payable on the Loan. After the expiry of the first Interest Period for that
Overdue Amount, the rate on the Overdue Amount will be calculated in accordance
with paragraph (b) above.


 


(d)      If any Borrower fails to pay
any amount of interest payable by it under the Finance Documents (an Overdue
Amount of Interest), it must, subject to mandatory German law, immediately pay
lump sum damages (Schadensersatzpauschale)  on the Overdue Amount of Interest from
its due date up to the date of actual payment, both before, on and after
judgement. Lump sum damages are payable in respect of an Overdue Amount of
Interest at a rate reasonably determined by the Facility Agent to be 1.5 per
cent per annum above the interest rate which would have been payable if the
Overdue Amount of Interest had, during the period of non-payment, constituted a
Loan in the currency of the Overdue Amount of Interest. For this purpose, the Facility
Agent, may (acting reasonably) select successive Interest Periods of any
duration of up to three months and determine the appropriate Rate Fixing Day
for that Interest Period.


 


32

















 


(e)       The Lender shall be
entitled to claim from the Borrowers further compensation for any further
losses incurred and/or damages suffered as a direct result of the Borrowers
having failed to pay any amount payable by it under the Finance Documents on
the due date.


 


8.5        Notification of Rates of
Interest


 


The Facility Agent must
promptly notify each relevant Party of the determination of a rate of interest
under this Agreement.


 


9.        CHANGES TO THE CALCULATION
OF INTEREST


 


9.1       Absence of quotations


 


Subject
to Clause 9.2 (Market disruption), if
EURIBOR is to be determined by reference to the Reference Banks but a Reference
Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable EURIBOR shall be
determined on the basis of the quotations of the remaining Reference Banks.


 


9.2       Market disruption


 


(a)       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:


 


(i)        the Margin;


 


(ii)       the rate notified to the
Facility Agent by that Lender as soon as practicable and in any event before
interest is due to be paid in respect of that Interest Period, to be that which
expresses as a percentage rate per annum the cost to that Lender of funding its
participation in that Loan from whatever source it may reasonably select; and


 


(iii)      the Mandatory Cost, if any,
applicable to that Lender’s participation in the Loan.


 


(b)      In this Agreement,
Market Disruption Event means:


 


(i)        at or about noon on the Quotation Day for the relevant Interest Period
the Screen Rate is not available
and none or only one of the Reference Banks supplies a rate to the Agent to
determine EURIBOR for euros for the relevant Interest Period; or


 


(ii)       before close of business in Frankfurt am Main, Germany, 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.


 


33

















 


9.3       Alternative basis of
interest or funding


 


(a)       If a Market Disruption Event occurs and the Facility Agent or the
Borrowers so require, the Facility
Agent and the Borrowers shall enter into negotiations (for a period of not more
than 30 days) with a view to agreeing a substitute basis for determining the
rate of interest.


 


(b)      Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Borrowers, be binding on all
Parties.


 


10.      INTEREST PERIODS


 


(a)       Each Loan has successive
Interest Periods.


 


(b)      Each Interest Period for a Loan will start on its Utilisation Date (and
include this Utilisation Date)
or on the Interest Payment Date following the expiry of its preceding Interest
Period (and include such Interest Payment Date) and end on the next Interest
Payment Date (and exclude such Interest Payment Date).


 


(c)       An Interest Period for a
Loan shall not extend beyond the Final Maturity Date.


 


11.      TAXES


 


11.1     General


 


In this Clause:


 


Exempt
Lender means a Lender which is entitled (otherwise than by
reason of being a Treaty Lender) under the domestic law of Germany, the
Netherlands, Luxembourg or any other jurisdiction in or from which an Obligor
operates under a Finance Document, to receive interest free of any Tax
Deduction”.


 


German
Lender means a Lender that is beneficially entitled to
interest payable under the Finance Documents to that Lender and which for
German tax purposes lends under the Finance Documents through a German
permanent establishment within the meaning of German domestic tax law and any
applicable double taxation 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.


 


Qualifying Lender means:


 


(a)       a German Lender; or


 


(b)      a Treaty Lender; or


 


(c)       an Exempt Lender.


 


34

















 


Tax Credit means a credit against any Tax or any relief or remission for Tax (or
its repayment) regardless whether, how and to what extent such credit has been
obtained, utilised or retained.


 


Tax Payment means either the increase in a payment made by an Obligor to a Finance
Party under Clause 11.2 (Tax gross-up)  or a payment under Clause 11.3 (Tax indemnity).


 


Treaty Lender means any Lender that is (1) beneficially entitled to interest payable
under the Finance Documents to that Lender, (2) treated as a resident of a
Treaty State for the purposes of the Treaty and (3) may claim the respective
treaty protection with respect to payments under the Finance Documents
receivable by the Lender.


 


Treaty
State means a jurisdiction having a double taxation agreement
(a “Treaty”) with Germany, the Netherlands, Luxembourg or any other
jurisdiction from which an Obligor operates under a Finance Document if that
Treaty fully denies Germany, the Netherlands, Luxembourg or the respective
other jurisdiction any right to tax interest payments under the Finance
Documents receivable by that Lender.


 


11.2     Tax Gross-up


 


(a)       Each payment to be made by an Obligor under the Finance Documents shall
be made without any Tax
Deduction, unless a Tax Deduction is required by law or by virtue of a binding
decision of a competent taxing authority.


 


(b)      The Obligors’ Agent shall promptly upon becoming aware that a Tax
Deduction must be made from a
payment to be made by it (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 without undue delay 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 without undue delay notify the
relevant Obligor.


 


(c)       If a Tax Deduction is required by law or by virtue of a binding
decision of a competent taxing authority to be made from a payment to be made
by an Obligor under any Finance Document, 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.


 


(d)      An Obligor is not required to make an increased payment to a Lender
under paragraph (c) above for a Tax Deduction from a payment of interest on a
Loan, if on the date on which the payment falls due:


 


(i)        if on the date on which
the payment falls due the payment could have been made to the relevant Lender
without a Tax Deduction if it was a Qualifying Lender, but on that date that
Lender is not or has ceased to be a Qualifying Lender other than as a result of
any change after the date it became a Lender under this Agreement in (or in the
interpretation, administration, or application of) any law or Treaty, or any published
practice or concession of any relevant taxing authority; or


 


35

















 


(ii)       if on the date on which the payment falls due the relevant Lender is a
Qualifying Lender and the Obligor making the payment


 


(A)     would be required to make an increased payment to such Lender under
paragraph (c) above and the relevant Lender became a Lender under this
Agreement after the requirement to make the relevant Tax Deduction became effective as a result of any change in (or in the
interpretation, administration, or application of) any law or Treaty, or any
published practice or concession of any relevant taxing authority, however
provided that the requirement to make the relevant Tax Deduction became
effective after the date of this Agreement; or


 


(B)      is able to demonstrate that
the payment could have been made to the Lender without the Tax Deduction had
the Lender complied with its obligations under paragraph (e) when requested to
do so by the Obligor (according to paragraph (e)).


 


(iii)      the Tax Deduction is
required as a result of Council Directive 2003/48/EC on the taxation on savings
income, related treaties or agreements, or respective national tax provisions,
whether such Tax Deduction being required in a EU Member State or otherwise.


 


(e)       Each Obligor and any Lender who is entitled to a payment from the
Obligor concerned shall co-operate in completing any procedural formalities
necessary for the Obligor concerned to obtain authorisation to make that
payment without a Tax Deduction. In particular, any Treaty Lender shall use its
commercially reasonable best efforts to complete, as soon as practicable following a request by
the relevant Obligor, any procedural formalities which it is able to complete
which are necessary for an Obligor to be able to make a payment to such Lender
without a Tax Deduction (or with a reduced rate of Tax Deduction).


 


(f)       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.


 


(g)      Within thirty 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.


 


11.3     Tax Indemnity


 


(a)       Each Obligor shall (within seven Business Days of a written demand by
the Facility Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party reasonably determines (taking into
account the likelihood that such loss, liability or cost arises or occurs) 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, it being understood that the
determination must be made in good faith and with due care customary in the
banking business.


 


36

















 


(b)      Paragraph (a) above does not apply:


 


(i)        with respect to any Tax assessed on a Finance Party:


 


(A)     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


 


(B)      under the law of the jurisdiction in which that Finance Party’s
Facility Office of if different, any permanent establishment for tax purposes
is located to which income under this Agreement is attributed in respect of
amounts received or receivable in that jurisdiction, or


 


(C)      by a German taxing authority by virtue of that Finance Party being
subject to limited liability to tax in Germany due to the fact that security
was granted over German real estate; this exclusion does only apply if that
said Finance Party, on the date on which the relevant payment falls due, is not
or has ceased to be a Qualifying Lender other than as a result of any change
after the date it became a Lender under this Agreement in (the interpretation,
administration, or application of) any law or Treaty, or any published practice
or concession of the relevant taxing authority;


 


if
that Tax is imposed on or calculated by reference to the gross income or net
income, as the case may be, received or receivable (but not any sum deemed to
be received or receivable such as a Tax Deduction) by that Finance Party; or


 


(ii)       to the extent a loss,
liability or cost:


 


(A)     is compensated for by an increased payment under Clause 11.2 (Tax
Gross-up);  or


 


(B)      would have been compensated for by an increased payment under Clause
11.2 (Tax
Gross-up)  but
was not so compensated solely because one of the exclusions in Clause 11.2(d) (Tax
Gross-up)  applied.


 


(c)       A Protected Party making, or intending to make a claim under Clause
11.3(a) above shall promptly notify the Facility Agent of the event which will
give, or has given, rise to the claim, following which the Facility Agent shall
notify the Borrower.


 


(d)      A Protected Party shall, on receiving a payment from a Borrower under
this Clause 11.3, notify the Facility Agent.


 


11.4     Tax Credit


 


If an Obligor makes a Tax
Payment and the relevant Finance Party reasonably determines that (it being
understood that such determination must be made in good faith and with due care
customary in the banking business):


 


37

















 


(a)       a Tax Credit is attributable to that Tax Payment; and


 


(b)      the relevant Finance Party has obtained, utilised and retained that Tax
Credit directly or on an affiliated group basis


 


the Finance Party shall
pay an amount to the relevant Obligor which that Finance Party determines (it
being understood that such determination must be made in good faith and with
due care customary in the banking business) will leave it (after that payment)
in the same after-Tax position as it would have been if the Tax Payment had not
been made by the Obligor.


 


11.5     New Lenders and Lenders
acting through new Facility Offices


 


If:


 


(i)        a Lender assigns, transfers or disposes of any of its rights or
obligations under the Finance Documents or changes its Facility Office; and


 


(ii)       as a result of circumstances existing at the date the assignment,
transfer or disposal occurs an Obligor would be obliged to make a payment to
the new Lender or a Lender acting through its new Facility Office under Clauses
11.2 and 11.3,


 


then the new Lender or
the Lender acting through its new Facility Office is only entitled to receive
payment under this Clause to the same extent as the existing Lender or the
Lender acting through its previous Facility Office would have been if the
assignment, transfer or disposal had not occurred.


 


11.6     Stamp Taxes and Transfer
Taxes


 


The Borrowers shall pay
and, within seven Business Days of demand, indemnify each Finance Party against
any cost, loss or liability that Finance Party incurs in relation to all stamp
duty, registration, transfer and other similar Taxes (including, for the
avoidance of doubt, any capital taxes charged in the Federal Republic of
Germany or elsewhere or any real estate transfer taxes charged in the Federal
Republic of Germany or elsewhere) payable in respect of the entry into, delivery,
performance or enforcement of any Finance Document.


 


11.7     Value Added Taxes


 


(a)       All amounts set out, or expressed to be payable under a Finance
Document by any Party to a Finance Party which (in whole or in part) constitute
the consideration for VAT purposes shall be deemed to be exclusive of any VAT
which is chargeable on such supply, and accordingly, subject to paragraph (c)
below, if (i) VAT is chargeable on any supply made by any Finance Party to any
Party under a Finance Document and (ii) the reverse charge mechanism is not
applicable, 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 (upon the provision of an invoice within the meaning of the applicable VAT
regulations to such Party).


 


(b)      If VAT is chargeable on any supply made by any Finance Party (the “Supplier”)
to any other Finance Party (the “Recipient”) under a Finance Document, and any
Party (the “Relevant Party”) is required by the terms of any Finance Document
to pay an


 


38

















 


amount equal to the
consideration for such supply to the Supplier (rather than being required to
reimburse the Recipient in respect of that consideration), such Party shall
also pay to the Supplier (in addition to and at the same time as paying such
amount) an amount equal to the amount of such VAT. The Recipient will promptly
pay to the Relevant Party an amount equal to any credit or repayment from the
relevant tax authority which it reasonably determines relates to the VAT
chargeable on that supply. Each Recipient will promptly notify the relevant
Party on any such credit or repayment possibility.


 


(c)       Where a Finance Document
requires any Party to reimburse a Finance Party for any costs or expenses, that
Party shall also at the same time pay and indemnify the Finance Party against
all VAT incurred by the Finance Party in respect of the costs or expenses to
the extent that the Finance Party reasonably determines that neither it nor any
other member of any group of which it is a member for VAT purposes is entitled
to credit or repayment from the relevant tax authority in respect of the VAT,
or where any such cost or expense constitutes a disbursement incurred by the
Finance Party as agent on behalf of the Party, such Party shall pay to the
Finance Party the VAT actually charged thereon.


 


(d)      Where a Finance Party has an
option available to it under applicable VAT law whether or not to subject a
supply or service under a Finance Document to VAT, it shall not exercise that
option to subject that supply or service to VAT, unless the relevant Borrower
agrees to such exercise.


 


11.8     Qualifying Lender Statement


 


(a)       On the date of this
Agreement, each Lender confirms that it is a Qualifying Lender.


 


(b)      On the date on which a
person becomes a Lender pursuant to Clause 30.2 (Assignments and Transfers by the Lenders), such person shall issue in writing to
the Facility Agent a statement as to whether it is a Qualifying Lender (and the
Facility Agent shall promptly notify the Obligors’ Agent of such statement).


 


(c)       Each Lender shall promptly
notify the Facility Agent if it becomes aware of any change in the position
from that set out in paragraphs (a) or (b) above and the Facility Agent shall
promptly notify the Obligors’ Agent.


 


11.9     German Tax Reform 2008


 


The Facility Agent shall
use its reasonable endeavours to assist each Borrower in relation to reasonable
requests made in respect of the business tax reform in Germany proposed to take
effect in 2008, provided that the Borrowers will only make such requests that
are compulsory (zwingend)  to avoid partial non-deductibility issues
under the proposed interest stripping rules (Zinsschranke)  and provided further that the Facility
Agent as well as the Lenders shall be under no obligation to agree to any
request which they determine, in their absolute discretion acting in good
faith, would adversely affect their position or the position of any of the
Finance Parties under the Finance Documents or otherwise.


 


39

















 


11.10   German thin capitalisation
rules (Sec. 8a German Corporate Income Tax Act)


 


(a)       General


 


In this Clause 11.10:


 


Tax
Confirmation means a confirmation substantially in the form
of Schedule 10.


 


Decree or
Decrees means the tax circulars
issued by the German Federal Ministry of Finance (Bundesfinanzministerium)  on
15 July 2004 (IV A2 - S 2242a - 20/40) and on 22 July 2005 (IV B 7 - S 2742a -
31/05) in relation to Sec. 8a KStG and decrees amending, modifying or replacing
such Decrees.


 


German
Borrower means any Borrower subject to limited or unlimited
tax liability in Germany.


 


(b)      Tax confirmation as to the
absence of back-to-back financing


 


(i)        For the purposes of
providing evidence to the German tax authorities of the absence of any
detrimental recourse situation in connection with the Decrees, the Lenders
hereby agree subject to reimbursement by the requesting Borrower of any
external cost reasonably incurred by the Lenders in connection therewith (in
particular reasonable legal and tax adviser fees) to deliver upon request to
each requesting German Borrower within due course a completed Tax Confirmation.
Each request must contain a fully filled in draft Tax Confirmation and the statement
that the requesting German Borrower releases any relevant person from any
applicable confidentiality obligation.


 


(ii)       The delivery of a Tax
Confirmation shall not prejudice the rights of the Finance Parties under this
Agreement or any other Finance Document.


 


(iii)      Any Tax Confirmation
delivered in accordance with (i): (A) is given exclusively at the request of
the German Borrowers and solely for the purpose of delivery to the competent
German tax authorities to assist the German Borrowers in the administration of
the tax affairs regarding Sec. 8a KStG and not for any other purpose, (B) does
not guarantee the achievement of a specific result or conclusion for German tax
purposes, (C) is addressed to and is solely for the benefit of the German
Borrowers in relation to this Agreement and (D) does not create any rights of
any party of any kind or nature.


 


(iv)      No Finance Party shall be
liable as a result of the delivery of a Tax Confirmation. The Finance Parties
are not responsible for examining the German Borrowers’ tax position or for
achieving any certain tax treatment of the German Borrowers. The German
Borrowers confirm to each Finance Party that the Tax Confirmation or any other
document, statement, information or else provided under this Clause is not
given for the Borrowers to rely on, but only for delivery to the competent
German tax authorities, and that, therefore, no German Borrower will raise any
claims against any Finance Party based on, or in connection with, a (correct or
incorrect) Tax


 


40

















 


Confirmation or any other
document, statement, information or else provided under this Clause. No Finance
Party provides any legal and/or tax advice to any other party, and it is the
responsibility of each party to consult its own legal/tax advisors.


 


(v)       The Lenders agree, subject
to reimbursement by the German Borrower of any external cost reasonably
incurred by them in connection therewith (in particular reasonable legal or tax
adviser fees), to provide additional information in relation to the securities
and guarantees granted under or in connection with the Finance Documents, which
is available to them if reasonably requested by a German Borrower for the
purposes of the completion by the German Borrower of its submissions regarding
Sec. 8a KStG to any German tax authority asserting jurisdiction over it, as
soon as reasonably practicable following such request if and to the extent that
such a request contains the release from any applicable confidentiality obligation
in accordance with clause (b) (i) above.


 


(vi)      The German Borrower may
disclose the existence and contents of a Tax Confirmation to any German tax
authority asserting jurisdiction over it, to its professional advisers and as
required by applicable law or regulation.


 


(vii)     If, after the date of this
Agreement, the German tax authorities require submission of a standard form
other than the Tax Confirmation set out in Schedule 10 for the purpose of
providing evidence to the German tax authorities of the absence of any
detrimental recourse situation, then the Lenders hereby agree to use such form
instead of the Tax Confirmation as set out in Schedule 10.


 


12.      INCREASED COSTS


 


12.1     Each Borrower shall forthwith
on demand pay to each Lender the amount of any Increased Cost incurred by it as
a result of:


 


(a)       the introduction of, change
in, or any change in the interpretation, administration or application of, any
law or regulation; or


 


(b)      compliance with any
regulation made after the date of this Agreement,


 


(in each case including
any law or regulation relating to taxation, change in the currency of a country
or reserve asset, special deposit, cash ratio, liquidity or capital adequacy
requirements or any other form of banking or monetary control). However, this
does not apply to the extent that the Increased Cost is:


 


(i)        incurred as a result of
the regulations imposed by the relevant authorities in any jurisdiction other
than a member state of the European Union, the jurisdiction of incorporation of
the Borrower, Switzerland or any of the Channel Islands;


 


(ii)       compensated for under
another clause of this Agreement or would have been but for an exception to
that clause;


 


41

















 


(iii)      a tax on the overall net income
of a the relevant Lender or any of its Affiliates;


 


(iv)      attributable to the relevant
Lender or its Affiliate wilfully failing to comply with any law or regulation;


 


(v)       the result of the operation
of Clause 30.2.


 


12.2     If any Lender makes or
intends to make a claim for an Increased Cost it must notify the Obligors’
Agent promptly of the circumstances giving rise to, and the amount of, the
claim.


 


13.      MITIGATION


 


(a)       Each Finance Party must, in
consultation with the relevant Borrower, and only if the Borrower pre-agrees
all relevant costs pursuant to (b) below, take all reasonable steps to mitigate
any circumstances which arise and which result or would result in any Tax
Payment or Increased Cost being payable to that Finance Party or the Finance
Party being able to exercise any right of prepayment and/or cancellation under
this Agreement by reason of any illegality 
(including with respect to Clause 7.1 (Mandatory prepayment — Illegality). Such steps may include
transferring its rights and obligations under the Finance Documents to an
Affiliate or changing its Facility Office. However, this does not in any way
limit the obligations of the Borrowers under the Finance Documents.


 


(b)      The Borrowers must indemnify
each Finance Party for all costs and expenses reasonably incurred by the
Finance Party (to the extent approved by the relevant Borrower) as a result of
any step taken by them under this provision.


 


(c)       A Finance Party is not
obliged to take any step under this provision if, in its reasonable opinion, to
do so might be prejudicial to it, it being understood that immaterial
disadvantages may not be considered prejudicial. In addition, no term of this
Agreement will interfere with the right of a Finance Party to arrange its
affairs (Tax or otherwise) in whatever manner it thinks fit; for the avoidance
of doubt, the obligation of each Finance Party under paragraph (a) above shall
not be affected thereby.


 


14.      PAYMENTS UNDER THE FINANCE
DOCUMENTS


 


14.1     Manner of Payments


 


(a)       On each date on which an
Obligor or a Lender is required to make a payment under a Finance Document, the
Obligor or Lender shall make the same available to the Facility Agent (unless a
contrary indication appears in a Finance Document) for value on the due date at
the time and in such funds specified by the Facility Agent as being customary
at the time for settlement of transactions in the relevant currency in the
place of payment.


 


(b)      Payments under the Finance
Documents to the Lenders must be made for value on the due date at such times
as the Facility Agent may specify as being customary at the time for the
settlement of transactions in the relevant currency and in the relevant place.


 


42

















 


(c)       Each payment received by
the Facility Agent from an Obligor under a Finance Document or in relation
thereto shall be applied towards the obligations of the Obligor under the
Finance Documents in accordance with the provisions thereof and shall not be
applied towards the discharge of any Security Interest created under a Security
Document. This paragraph will override any appropriation made by the Obligors.


 


(d)      Unless the Facility Agent
specifies that a specific payment under the Finance Documents is to be made in
a different manner, the currency of each amount payable under the Finance
Documents is Euro.


 


(e)       If a payment under the
Finance Documents is due on a day which is not a Business Day, the due date for
that payment will instead be the next Business Day in the same calendar month
(if there is one) or the preceding Business Day (if there is not).


 


(f)       If a Finance Document does
not provide for when a particular payment is due, that payment will be due
within three Business Days of written demand by the Facility Agent.


 


(g)      During any extension of the
due date for payment of any principal under this Agreement interest is payable
on that principal at the rate payable on the original due date.


 


14.2     Distributions by the Facility
Agent


 


Each payment received by
the Facility Agent under the Finance Documents for another Party shall, subject
to Clause 14.3 (Clawback),
be made available by that Facility Agent without undue delay (unverzüglich)  after receipt to the Party
entitled to receive payment in accordance with this Agreement, to such account
as that Party may notify to that Facility Agent by not less than five (5)
Business Days’ notice with a bank in the principal financial centre of the
country of that currency (or, in relation to Euro, in the principal financial
centre of a Participating Member State).


 


14.3     Clawback


 


(a)       Where a sum is to be paid
to the Facility Agent under the Finance Documents for another Party, the
Facility Agent is not obliged to pay that sum to that other Party (or to enter
into or perform any related exchange contract) until it has been able to
establish to its satisfaction that it has actually received that sum.


 


(b)      If the Facility Agent pays
an amount to another Party and it proves to be the case that it had not
actually received that amount, then the Party to whom that amount (or the
proceeds of any related exchange contract) was paid shall on demand refund the
same to the Facility Agent together with interest on that amount from the date
of payment to the date of receipt by the Facility Agent calculated by the
Facility Agent to reflect its cost of funds.


 


43

















 


15.      EVIDENCE AND CALCULATIONS


 


Accounts maintained by a
Finance Party in connection with this Agreement are prima facie evidence of the
matters to which they relate for the purpose of any litigation or arbitration
proceedings. Any certification or determination by a Finance Party of a rate or
amount under the Finance Documents will be, in the absence of manifest error,
conclusive evidence of the matters to which it relates. Any interest or fee
accruing under this Agreement accrues from day to day and is calculated on the
basis of the actual number of days elapsed and a year of 360 days.


 


16.      SET-OFF


 


16.1     Each Finance Party may set
off any matured obligation owed to it by any Obligor under the Finance
Documents (to the extent beneficially owned by such Finance Party) against any
obligation (whether or not matured) owed by that Finance Party to the relevant
Obligor, regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies, the
respective Finance Party may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set-off.


 


16.2     All payments made by the
Obligors under the Finance Documents must be made without set-off or
counterclaim, unless the counterclaim is undisputed or conclusively determined
by a court decision of competent jurisdiction.


 


17.      BANK ACCOUNTS AND CASH
WATERFALL


 


17.1     Designation of Accounts


 


(a)       Each Borrower must maintain
the following bank accounts in its name:


 


(i)        a rent collection account
designated a Rent Collection Account;


 


(ii)       a general account
designated the General Account;


 


(iii)      a proceeds account
designated the Proceeds Account;


 


(iv)      a sales proceeds account
designated the Sales Proceeds Account;


 


(v)       upon the request and at the
cost of the Hedge Counterparty, within 30 Business Days upon such request, a
swap collateral account designated the CSA Account;


 


(vi)      a disposal proceeds account
designated the Disposal Proceeds Reserve Account; and


 


(vii)     a reserve account designated
the Reserve Account


 


(in each case, such
defined term to include any successor account thereto).


 


(b)      Each Borrower may open
separate savings accounts designated as rent deposit account (Mietkautionskonto)  to credit any rent deposit
payments. Each Borrower


 


44

















 


shall, upon request of
the Facility Agent, provide suitable evidence in relation to the opening of and
the moneys credited on such rent deposit accounts.


 


(c)       No Borrower may, without
the prior consent of the Facility Agent, maintain any other bank account.


 


(d)      Each Account must be held
with an Account Bank.


 


17.2     Rent Collection Accounts


 


(a)       The Security Agent shall
have a pledge in respect of each Rent Collection Account.


 


(b)      Each Borrower shall procure
that all Gross Rental Income and other receipts arising from the Properties
owned by it or an Acquired Entity owned by such Borrower (excluding any
disposal thereof) are paid directly into the relevant Borrower’s Rent
Collection Account.


 


(c)       If any amount referred to
in paragraph (b) above is paid into an Account other than the relevant Rent
Collection Account, the relevant Borrower shall immediately give notice thereof
to the Security Agent and such Borrower shall arrange for the transfer of such
amount (subject to the approval of the Security Agent upon receipt of evidence
satisfactory to it) into the relevant Rent Collection Account.


 


(d)      The Security Agent shall
instruct the account bank to transfer, on the 5th Business Day of each calendar
month, any amounts standing to the credit of any Rent Collection Account which,
in aggregate, are in excess of the sum of (i) the Permitted Operating Costs and
(ii) value added tax on the Gross Rental Income due during the current calendar
month to the Proceeds Account in the name of the relevant Borrower. The amount
of such Permitted Operating Costs and such value added tax on the Gross Rental
Income shall be reasonably agreed by the Security Agent and the Borrowers from
time to time based on the monthly average Permitted Operating Costs and value
added tax for the last three calendar months. The amount of Permitted Operating
Costs shall in no event be higher than 20% of the Gross Rental Income of the
respective period as set out in the respective Business Plan. On each Interest
Payment Date, each Borrower shall provide proof satisfactory to the Security
Agent of the Permitted Operating Costs and value added tax having become due
and payable from (and including) the immediately preceding Interest Payment
Date to (but excluding) the then current Interest Payment Date.


 


17.3     General Accounts


 


(a)       Provided no Event of
Default is outstanding or would arise as a result therefrom, and subject to the
other terms of this Agreement, each Borrower may make payments out of its
General Account as it thinks fit (including the making of permitted prepayments
hereunder).


 


(b)      If any amount payable to a
General Account is paid into another Account, then, unless a Default is
outstanding, the relevant Borrower shall (subject to the approval of the
Security Agent upon receipt of evidence satisfactory to the Security Agent that
the payment should have been made to the relevant General Account) pay that
amount to the relevant General Account.


 


45

















 


(c)       Each Borrower shall procure
that only the following amounts shall be credited to its General Account (to
the extent applicable):


 


(i)        any payments to be made to
the relevant Borrower under Clause 17.4(d)(viii) (Proceeds Accounts);


 


(ii)       all other payments to be
made to the relevant General Account pursuant to this Agreement;


 


(iii)      any Cash Fundings or
payments under shareholder loans to the relevant Borrower; and


 


(iv)      all other receipts of the
relevant Borrower which are not to be paid to another Account pursuant to the
provisions of this Agreement.


 


17.4     Proceeds Accounts


 


(a)       The Security Agent shall
have a pledge in relation to each Proceeds Account.


 


(b)      Each Borrower must ensure
that:


 


(i)        any Release Price received
as a result from a disposal of its Property other than from an Intended
Substitution Disposal; and


 


(ii)       excess proceeds standing to
the credit of the Disposal Proceeds Reserve Account in accordance with Clause
17.6(e) and (f); and


 


(iii)      all its receipts under any
Hedging Arrangement, and


 


(iv)      any of the relevant Borrower’s
net Utilisation proceeds under this Agreement;


 


are paid directly into
its Proceeds Account as soon as possible upon receipt of such proceeds or
receipts.


 


(c)       If any amount referred to
in paragraph (b) above is paid into an Account other than the relevant Proceeds
Account, the relevant Borrower shall immediately give notice thereof to the
Security Agent and the Borrower shall arrange (subject to the approval of the
Security Agent upon receipt of evidence satisfactory to it) for the transfer of
such amount into the relevant Proceeds Account.


 


(d)      On each Interest Payment
Date prior to either an acceleration of the Loans pursuant to Clause 23.17 (Acceleration)  or an enforcement of the claims
under the Finance Documents and/or any Security Interests under the Security
Documents having occurred, each Borrower shall withdraw from, and apply amounts
standing to the credit of, its Proceeds Account, to pay in the following order
(provided that all obligations of the same order shall be discharged on a pro
rata basis and the obligations of any order shall only be discharged after the
discharge in full of all obligations of a higher order):


 


46

















 


(i)        first, to the Facility
Agent and to the Security Agent, all of the Agents’ fees, costs and expenses
due and payable by the relevant Borrower under the Finance Documents;


 


(ii)       second, to the Hedge
Counterparty, all scheduled payments (not being payments as a result of
termination or closing out) due and payable by the relevant Borrower under the
Hedging Arrangements;


 


(iii)      third, any accrued interest
under the Facility as well as fees and costs (other than pursuant to (i) above)
due and payable by the relevant Borrower under the Finance Documents;


 


(iv)      fourth, (provided that the
proportional redemption amounts in respect of the Facility shall be calculated
on the basis of the aggregate outstanding amount of the Loans under the
Facility) pro rata and pari passu, (aa)
to the Lenders, towards the repayment of the principal of the Loans made to the
relevant Borrower to the extent due subject to, and in accordance with, the terms
of this Agreement and (bb) to the Hedge Counterparty, any payments (not being
payments referred to in subparagraph (v) below) due and payable by the relevant
Borrower as a result of termination or closing out due but unpaid under the
Hedging Arrangements;


 


(v)       fifth, to any termination
payments under the Hedging Arrangements of the relevant Borrower arising from:


 


(A)     it becoming illegal for the
Hedge Counterparty to comply with its obligations under the Hedging
Arrangements; or


 


(B)      an event of default relating
to the Hedge Counterparty;


 


(vi)      sixth, any other amounts due
and payable by the relevant Borrower under the Finance Documents;


 


(vii)     seventh, any surplus, if so
required pursuant to Clause 17.7(b) below, to the Reserve Account of the
relevant Borrower; and


 


(viii)    eighth, any remaining surplus
to the General Account of the relevant Borrower or as otherwise directed by the
Obligors’ Agent in accordance with paragraph (f) below.


 


(e)       If the credit on the
Proceeds Account of a Borrower is insufficient to discharge the obligations of
any of the above orders, the other Borrowers, pursuant to Clause 18 (Guarantee
and Indemnity), shall
be obliged in an amount equal to such shortfall to discharge such obligations
from the credit on their respective Proceeds Accounts, such payment to be made
on a pari passu basis with the
payment obligations of such Borrowers of the same order in the priority of
payments set out above.


 


(f)       After the application of
funds pursuant to paragraph (d)(i) through (vii) above, on each Interest
Payment Date (or such earlier date as the Obligors’ Agent may specify in
accordance with the terms of this Agreement), the relevant Borrower shall
withdraw from, and apply amounts standing to the credit of the relevant
Proceeds Account


 


47

















 


(subject to the approval
of the Security Agent upon receipt of evidence satisfactory to it) in the
following order:


 


(i)        first, to the Facility
Agent for the account of the relevant Finance Parties of any accrued interest,
Break Costs and fees due from the relevant Borrower but unpaid under the
Finance Documents;


 


(ii)       second, an amount equal to
the Release Price in respect of the Property disposed of by the relevant
Borrower plus any amounts due from the relevant Borrower as a result of
termination or closing out under all its Hedging Arrangements as follows:


 


(aa)     pari passu and pro rota (1)
to the Lenders towards the repayment of the principal of the Loans made to the
relevant Borrower and (2) to the Hedge Counterparty, any payments as a result
of termination or closing out due but unpaid by the relevant Borrower under all
Hedging Arrangements;


 


and thereafter


 


(bb)    pursuant to Clause 18 (Guarantee and Indemnity),  towards the repayment of the principal of
the Loans and payment of termination or closing out obligations under Hedging
Arrangements of the other Borrowers; and


 


(iii)      third, any Prepayment Fee.


 


17.5     Sales Proceeds Accounts


 


(a)       The Security Agent shall
have a pledge in relation to each Sales Proceeds Account.


 


(b)      The net proceeds of the
disposal of any sale of a Property or of an Acquired Entity shall be credited
to the respective Sales Proceeds Account.


 


(c)       If any amount referred to
in paragraph (b) above is paid into an Account other than the relevant Sales
Proceeds Account, the relevant Borrower shall immediately give notice thereof
to the Security Agent and the Borrower shall arrange (subject to the approval
of the Security Agent upon receipt of evidence satisfactory to it) for the
transfer of such amount into the relevant Sales Proceeds Account.


 


(d)      Any funds credited to any
Sales Proceeds Account which have to be prepaid pursuant to Clause 7.2 (Mandatory prepayment – Disposals)  shall be transferred by the respective
Borrower to the relevant Proceeds Account at the end of each Business Day. Any
Intended Substitution Disposal Proceeds shall be transferred to the Disposal
Proceeds Reserve Account pursuant to Clause 17.6(b). All other amounts standing
to the credit of any Sales Proceeds Account may be transferred by the
respective Borrower to its General Account.


 


48

















 


17.6     Disposal Proceeds Reserve
Accounts


 


(a)       The Security Agent shall
have a pledge in relation to each Disposal Proceeds Reserve Account.


 


(b)      The relevant Borrower must
ensure that the Intended Substitution Disposal Proceeds received as a result
from an Intended Substitution Disposal of any Property and any Acquired Entity
will be credited to its Disposal Proceeds Reserve Account as soon as possible
upon receipt of such Intended Substitution Disposal Proceeds.


 


(c)       If any amount referred to
in paragraph (b) above is paid into an Account other than the relevant Disposal
Proceeds Reserve Account, the relevant Borrower shall immediately give notice
thereof to the Security Agent and the Borrower shall arrange (subject to the
approval of the Security Agent upon receipt of evidence satisfactory to it) for
the transfer of such amount into the relevant Disposal Proceeds Reserve
Account.


 


(d)      Upon the expiry of a
Substitution Period without any Acquisition of a Replacement Property having
occurred, the relevant Borrower shall withdraw from, and apply the relevant
Property Substitution Reserve Amount standing to the credit of its Disposal
Proceeds Reserve Account (subject to the approval of the Security Agent upon
receipt of evidence satisfactory to it) in the following order:


 


(i)        first, to the Facility
Agent for the account of the relevant Finance Parties of any accrued interest,
Break Costs and fees due from the relevant Borrower but unpaid under the
Finance Documents;


 


(ii)       second, an amount equal to
the Release Price in respect of the Property or Acquired Entity, respectively
disposed of by the relevant Borrower by the relevant Intended Substitution
Disposal plus any amounts due from the relevant Borrower as a result of
termination or closing out under all its Hedging Arrangements as follows:


 


(aa)     part passu and pro rota (1)
to the Lenders towards the repayment of the principal of the Loans made to the
relevant Borrower and (2) to the Hedge Counterparty, any payments as a result
of termination or closing out due but unpaid by the relevant Borrower under all
Hedging Arrangements;


 


and thereafter


 


(bb)    pursuant to Clause 18 (Guarantee and Indemnity),  towards the repayment of the principal of
the Loans and payment of termination or closing out obligations under Hedging
Arrangements of the other Borrowers; and


 


(iii)      third, any Prepayment Fee.


 


(e)       In the case of an
Acquisition of a Replacement Property occurring within the relevant
Substitution Period, the relevant Borrower shall withdraw from, and apply the
respective Property Substitution Reserve Amount standing to the credit of its
Disposal


 


49

















 


Proceeds Reserve Account
(subject to the approval of the Security Agent upon receipt of evidence
satisfactory to it) towards payment of the Purchase Price for the relevant
Replacement Property. Any amount remaining from the respective Property
Substitution Reserve Amount after payment of the Purchase Price for the
relevant Replacement Property shall be paid into the Proceeds Account of the
relevant Borrower.


 


(f)       If the ICR as of an
Interest Payment Date (aa) falling within the relevant Substitution Period or
(bb) immediately following the expiry of such Substitution Period (unless a
Property Substitution occurs) drops below 120% as a result of the relevant
Intended Substitution Disposal or Property Substitution, the relevant Borrower
shall transfer any shortfall in its Net Rental Income resulting from such
Intended Substitution Disposal or Property Substitution throughout the
Substitution Period from its Disposal Proceeds Reserve Account into its
Proceeds Account or provide an unconditional and irrevocable bank guarantee or
letter of credit, in each case issued by a credit institution which has the
Requisite Rating, up to an amount which results in such ICR to amount to at
least 120%.


 


17.7     Reserve Account


 


(a)       The Security Agent shall
have a pledge in relation to each Reserve Account.


 


(b)      If on any Interest Payment
Date the LTV is above 70%, any amount standing to the credit of any Proceeds
Account after all payments have been made pursuant to Clause 17.4(d)(i) through
(vi) above shall be paid into the Reserve Account of the relevant Borrower.


 


(c)       If for two consecutive
Interest Periods which fall after the latest payment into any Reserve Account
pursuant to paragraph (b) above the LTV is at or below 70%, then any amount
standing to the credit of the Reserve Accounts shall be remitted, provided that
no Default is outstanding, on the Interest Payment Date on which the last of
such consecutive Interest Periods ends, in each case to the General Account of
the relevant Borrower.


 


17.8     Miscellaneous Accounts
provisions


 


(a)       Each Obligor must ensure
that none of its Accounts goes into overdraft.


 


(b)      Any amount received or
recovered by a Obligor otherwise than by credit to the correct Account must be
held subject to the security created by the Finance Documents (to the extent
applicable under German law) and immediately be paid to the correct Account or
to the Facility Agent, in the same funds as received or recovered.


 


(c)       Each Borrower authorises
the Security Agent and the Facility Agent by way of an irrevocable power of
attorney to withdraw monies standing to the credit of any Account on the date
any repayment of the Loan or any other amount is due under the Finance
Documents and apply such monies in or towards the payment of any unsatisfied
payment obligation under the Finance Documents. Such power of attorney may only
be used by the Security Agent or the Facility Agent after the occurrence of a
Default which is continuing.


 


50

















 


(d)      None of the Finance Parties is responsible or liable (in the absence of
gross negligence or wilful misconduct) to the Obligors for any non-payment of
any liability of the Obligors which could be paid out of moneys standing to the
credit of an Account, or for any withdrawal wrongly made, if made in good faith.


 


(e)       The Obligors shall procure that the Facility Agent has electronic
access to all Accounts and that it,
upon request, receives without undue delay account statements in relation to
any relevant Accounts showing dates, amounts and names of the payees.


 


(f)       Claims of an Obligor for repayment of amounts standing to the credit of
its Accounts may be assigned to any other Obligor at any time, and monies
standing to the credit of the Accounts of a Obligor may be transferred to any other Obligor at any time, in
each case without prejudice to the security interests of the Security Agent and
the Lenders and subject to full compliance with the provisions of this
Agreement (in particular the priority of payments provisions of this Clause
17).


 


(g)      Any Insurance Proceeds in excess of EUR 100,000 received by a Borrower
for the purpose of reconstructing, reinstating or replacing damaged or
destroyed assets pertaining to, or forming part of, any of the Properties (aa)
shall be promptly paid to a separate Account opened with respect thereto and in
respect of which a first ranking pledge are granted to the Security Agent, and (bb) shall be
applied (with the prior written approval of the Facility Agent) exclusively for
aforesaid purpose or towards the voluntary prepayment of the Loans in
accordance with Clause 7.5 (Voluntary
Prepayment).


 


(h)      Each of the Obligors shall
not effect any payments from the Accounts (with the exception of the General
Account) unless explicitly permitted in this Agreement.


 


17.9     Change of Accounts


 


(a)       At the Facility Agent’s request and the Lenders’ costs, with the
consent of the Obligors’ Agent (such consent not to be unreasonably withheld),
the Borrowers shall transfer their respective Accounts to another bank in the
Federal Republic of Germany.


 


(b)      Without limiting paragraph (a) above, following a downgrade of the
rating of an Account Bank below the relevant Requisite Rating, or a withdrawal,
qualification or suspension of the rating of an Account Bank, each Account must
be moved within 30 calendar days (unless otherwise approved by the Facility
Agent) to a bank which has been assigned the relevant Requisite Rating.


 


(c)       A change of the Account
only becomes effective when the proposed new bank agrees with the Facility
Agent, and the relevant Borrower, in a manner satisfactory to the Facility
Agent, to fulfil the role of an Account Bank. If Accounts are moved to another
bank, each Borrower shall create a Security Interest in favour of the Security
Agent over the balance standing to the credit of its Accounts, in form and
substance satisfactory to the Security Agent.


 


51














18.                  GUARANTEE AND
INDEMNITY


 


18.1              Guarantee and
indemnity


 


Each Guarantor jointly
and severally and irrevocably and unconditionally:


 


(a)                    guarantees to each Finance Party punctual performance
by each Borrower of all that Borrower’s payment obligations under the Finance
Documents;


 


(b)                   undertakes with each Finance Party that,
whenever a Borrower does not pay any amount when due under any Finance Document, that Guarantor must
immediately on demand by the Facility Agent pay that amount as if it were the
principal obligor; and


 


(c)                    indemnifies each Finance Party immediately on
demand against any loss or liability suffered by that Finance Party if any
payment obligation guaranteed by it is or becomes unenforceable, invalid or illegal; the amount of the loss
or liability under this indemnity will be equal to the amount the Finance Party
would otherwise have been entitled to recover;


 


provided
that, in each case, the
maximum amount payable by each Guarantor under this Clause 18 for the
obligations of any Obligor which is not a direct or indirect Subsidiary of such
Guarantor shall be limited at any time to an aggregate amount of 95% of such
Guarantor’s net worth (capitaux propres)  as determined by Article 34 of the “Luxembourg
law of 19 December 2002 on the Register of Commerce and Companies on Accounting
and on Annual Accounts of the Companies” and as set out in such Guarantor’s
most recent financial statements or, if higher, as existing at the date hereof.


 


18.2              Continuing guarantee


 


This
guarantee is a continuing guarantee and will extend to the ultimate balance of
all sums payable by any Borrower under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.


 


18.3              Reinstatement


 


(a)                    If any discharge (whether in respect of the obligations
of any Obligor or any security for those obligations or otherwise) or
arrangement is made in whole or in part on the faith of any payment, security or other disposition which is
avoided or must be restored on insolvency, liquidation or otherwise without
limitation, the liability of each Guarantor under this Clause will continue as
if the discharge or arrangement had not occurred.


 


(b)                   Each Finance Party may concede or compromise
any claim that any payment, security or other disposition is liable to avoidance or restoration.


 


18.4              Waiver of defences


 


The
obligations of each Guarantor under this Clause will not be affected by any
act, omission or thing which, but for this provision, would reduce, release or prejudice any of its
obligations under this Clause (whether or not known to it or any Finance
Party). This includes:


 


52

















 


(a)                    any time or waiver granted to, or composition with, any person;


 


(b)                   any release of any person under the terms of any composition or arrangement;


 


(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 person;


 


(d)                   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;


 


(e)                    any incapacity or lack of power, authority or legal personality of or dissolution or
change in the members or status of any person;


 


(f)                      any amendment (however fundamental)  of a
Finance Document or any other document or security; or


 


(g)                   any unenforceability, illegality, invalidity or non-provability
of any obligation of any person under any Finance Document or any other document
or security.


 


18.5              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
right or security or claim payment from any person before claiming from that
Guarantor under this Clause. This waiver applies irrespective of any law or any
provision of a Finance Document to the contrary.


 


18.6              Appropriations


 


Until
all amounts which may be or become payable by the Obligors under the Finance
Documents have been irrevocably paid in full, each Finance Party (or any
trustee or agent on its behalf) may, without affecting the liability of any
Guarantor under this Clause:


 


(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


 


(b)                   apply and enforce them in such manner and order as it sees fit (whether against
those amounts or otherwise); and


 


(c)                    hold in an interest-bearing suspense account any moneys received from any
Guarantor or on account of that Guarantor’s liability under this Clause.


 


18.7              Non-competition


 


Unless:


 


(a)                    all amounts which may be or become payable by
the Obligors under the Finance Documents have been irrevocably paid in full; or


 


53

















 


(b)                   the Facility
Agent otherwise directs, no Guarantor will, after a claim has been made or by
virtue of any payment or performance by it under this Clause:


 


(i)                        be subrogated
to any rights, security or moneys held, received or receivable by any Finance
Party (or any trustee or agent on its behalf);


 


(ii)                     be entitled
to any right of contribution or indemnity in respect of any payment made or
moneys received on account of that Guarantor’s liability under this Clause;


 


(iii)                  claim, rank,
prove or vote as a creditor of any Obligor or its estate in competition with
any Finance Party (or any trustee or agent on its behalf); or


 


(iv)                 receive, claim or
have the benefit of any payment, distribution or security from or on account of
any Obligor, or exercise any right of set-off as against any Obligor.


 


Each Guarantor must hold
in trust for and immediately pay or transfer to the Facility Agent for the
Finance Parties any payment or distribution or benefit of security received by
it contrary to this Clause or in accordance with any directions given by the
Facility Agent under this Clause.


 


18.8              Additional security


 


This
guarantee is in addition
to and is not in any way prejudiced by any other security now or subsequently
held by any Finance Party.


 


19.                  REPRESENTATIONS


 


19.1             Representations by the Borrowers


 


Except
as explicitly stated otherwise, the representations set out in this Clause 19.1
(Representations by the Borrowers)  are
made by each of the Borrowers on its own behalf and on behalf of, and with
respect to all of the Acquired Entities owned by it to each Finance Party and
are made on the date of this Agreement and, unless a representation is
expressed to be given at a specific date, are deemed to be repeated by the
Borrowers on each date a Request is made, each Utilisation Date, each Closing
Date and each Interest Payment Date.


 


When
a representation is repeated, it is applied to the circumstances existing at
the time of repetition.


 


(a)                    Status, power and authority: It is a limited
liability company, duly formed or incorporated and validly existing under the
laws of its original jurisdiction of formation or incorporation and all facts
required to be registered with the commercial register with respect to it have
been registered in the commercial register. It has the power (i) to own its
assets and carry on its business
as it is being conducted, and (ii) to enter into and perform, and has taken all
necessary action to authorise the entry into and performance of, and has
complied with all corporate formalities in relation to, the Transaction
Documents to which it is or will be a party and the transactions contemplated
by those Transaction Documents.


 


54

















 


(b)                   Centre of Main Interests: Its Centre of Main
Interests is situated in its jurisdiction of incorporation and it has no
establishment in any other jurisdiction.


 


(c)                    Legal validity: Each Transaction Document to
which it is or will be a party constitutes, or when executed in accordance with its terms will
constitute, in relation to each Acquisition Document in all material respects
and in relation to any other Transaction Document in all respects, the legal,
valid and binding obligation of each party (other than the Finance Parties) to
it, enforceable in accordance with its terms, subject to any general principles
of law limiting its obligations.


 


(d)                   Non-conflict: Its entry into and performance
by it of, and the transactions contemplated by, the Transaction Documents do
not conflict in any respect with its constitutional documents or in any
material respect with any law or regulation applicable to it or with any
document which is binding upon it or any of its assets.


 


(e)                    No default: No Default is outstanding or will
result from the execution of, or the performance of any transaction
contemplated by, any Transaction Document, and no other event (which is
reasonably likely to have a Material Adverse Effect) is outstanding which
constitutes a default under any
document which is binding on it or any of its assets.


 


(f)                      Authorisations: All licenses, permits,
approvals and authorisations required by it in connection with the entry into,
performance, validity and enforceability of, and the transactions contemplated
by, the Transaction Documents
have been obtained or effected (as appropriate) and are in full force and
effect.


 


(g)                   Registration, notarisation and stamping
requirements:


 


(i)                        It is not necessary to file, register or
record any Finance Document in any public place or elsewhere, except for due
notarisation of each Deed of Land Charge and Deed of Share Pledge and
registration of each Deed of Land Charge in the relevant Land Registers;


 


(ii)                     As of each date a Request is made and as of
each Utilisation Date no stamp duty, registration fee or similar charge is
payable in respect of any Finance Document, except for (i) registration fees
payable at the relevant Land Registers in relation to the registration of each
Deed of Land Charge with the relevant Land Registers and (ii) the notarial fees
in relation to each Deed of Land Charge and Deed of Share Pledge. However, the
representation set out in this subparagraph (ii) is only made (and deemed to be
made) as of the date of this Agreement where (and to the extent) such duty, fee
or charge constitutes a Tax, which is being levied by a German taxing
authority;


 


provided,
however, that in the case of court proceedings in a Luxembourg court or the
presentation of the Finance Documents – either directly or by way of reference
– to an autorité constituée, such court or autoritée constituée may require
registration of all or part of the Finance Documents with the Administration de
I’Enregistrement et des Domaines in Luxembourg, which may result in registration duties, at an ad valorem rate which depends
on the nature of the registered document, becoming due and payable.


 


55

















 


(h)                   Financial statements: The combined financial
statements of the Borrowers most recently delivered to the Facility Agent (i)
have been prepared in accordance with IFRS and (ii) fairly represent their
financial condition as at the date to which they were drawn up, except (in each
case) as disclosed to the contrary in those financial statements.


 


(i)                       Litigation: No litigation, arbitration or
administrative proceedings (including any dispute with any regulatory or taxing
authority) are current or, to the best of its knowledge, pending or threatened,
which could reasonably be likely to restrain its entry into, the exercise of
its rights under, or the performance, enforcement of or compliance with any of
its obligations under, the Finance Documents or which, if adversely determined,
are likely to have a Material Adverse Effect.


 


(j)                       No insolvency: No event has occurred, and it
is not subject to any proceeding, of the type mentioned in Clause 23.5 (Insolvency), it has not been declared bankrupt
(failliet
verklaard)  or
granted a suspension of payments (surseance van betaling verleend), and there are no circumstances
pursuant to the insolvency laws of any applicable jurisdiction which might
justify the voidness of this Agreement or any other Transaction Document with
respect to any Borrower.


 


(k)                    Information: All written information supplied
by it or on its behalf to any Finance Party in connection with the transactions
contemplated under the Transaction Documents (or to the Valuer or any person
preparing a Report to be delivered as a CP Document) was true, complete 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. In addition:


 


(i)                        any financial projections contained in such
information and each Business Plan delivered to a Finance Party, have been
prepared as at their date, on the basis of recent historical information and
assumptions believed by it to be fair and reasonable;


 


(ii)                     it has not to the best of its knowledge
omitted to supply any information available to it which, if disclosed, would
make any such information untrue or misleading in any material respect; and


 


(iii)                  it has disclosed to the Facility Agent (to
the best of its knowledge) all covenants, restrictions, easements, encumbrances
and outgoings payable by it relating to:


 


(A)                the Properties which would adversely effect
any Valuation in a material respect; and


 


(B)                  any of its other assets,


 


in each case over which
any Security Interest is, or is expressed to be, created pursuant to a Security
Document.


 


(l)                       Representations
on the relevant Acquisition Document: At the date of signing of the relevant
Acquisition Document, (i) and subject to the information disclosed in the
Reports, the relevant Borrower has no actual knowledge that any material
representation or warranty given by any party in the relevant Acquisition
Document is


 


56

















 


untrue in any material
respect and (ii) the relevant Acquisition Document contains all material terms
of that Acquisition. As from the Closing Date of the relevant Acquisition, the
relevant Borrower is in compliance with its obligations under the relevant
Acquisition Document and no amendments have been made to the terms of the
relevant Acquisition Document from those last disclosed to the Facility Agent
and no contractual withdrawal rights, if any, have been exercised thereunder by
any party.


 


(m)                 Title to
Properties: Subject to Permitted Encumbrances and subject to Clause 19.1(n)(ii)
and (iii) below, to the actual knowledge of the relevant Borrower, on the
relevant Utilisation Date there are no circumstances which would hinder the
relevant Borrower to become the full and exclusive owner (alleiniger Eigentümer),  or holder of any Hereditary Building
Rights (alleiniges Erbbaurecht), of
any Property or Acquired Entity purchased by it pursuant to the relevant
Acquisition Document or to have good and marketable title (uneingeschränkter
Alleineigentümer)  to
such Property or Acquired Entity, or to become the owner (Eigentümer)  of all assets over which a
Security Interest is, or is expressed to be, created pursuant to a Security
Document.


 


(n)                   Issues
affecting title:


 


As from the Closing Date
of an Acquisition:


 


(i)                        subject to
the relevant Acquisition Document (including its schedules and annexes) to its
actual knowledge, no breach of any law or regulation is outstanding which
materially adversely affects or might materially adversely affect the value of
any Property owned or purported to be owned by it or by an Acquired Entity
owned by it;


 


(ii)                     subject to
Permitted Encumbrances, to its actual knowledge, there is no covenant,
agreement, stipulation, reservation, condition, interest, right or other matter
materially adversely affecting any Property owned or purported to be owned by
it or by an Acquired Entity owned by it;


 


(iii)                  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 owned or purported to be owned by it
or by an Acquired Entity owned by it;


 


(iv)                 subject to the
relevant Acquisition Document (including its schedules and annexes), to its
actual knowledge the buildings and erections on each Property owned or
purported to be owned by it or by an Acquired Entity owned by it have been
constructed, operated and maintained in accordance with applicable
Planning/Zoning Laws save for any non-compliance with such laws which does not
have a material adverse effect on the value of such Property;


 


(v)                    it has not
received any notice of any adverse claim by any person in respect of the
ownership of any Property owned or purported to be owned by it or by an
Acquired Entity owned by it or any interest in such Property, nor has any
acknowledgement been given by it to any person in respect of any Property


 


57

















 


owned or purported to be
owned by it or by an Acquired Entity owned by it; and


 


(vi)                 each Property
owned or purported to be owned by it or by an Acquired Entity owned by it is
held by it free from any Security Interest save as permitted by this Agreement.


 


(o)                   No other
business: In respect of each Borrower:


 


(i)                        It has not
traded or carried on any business since the date of its incorporation or
formation (as applicable) except for acquiring, managing, letting and owning
the Properties or Acquired Entities and related activities consistent with the
Finance Documents.


 


(ii)                     It is not
party to any material agreement other than the Transaction Documents.


 


(iii)                  It does not
have, nor has it had, at any time more than two employees (subject to any
transfer of employees as a matter of mandatory law in connection with the
acquisition of the Properties).


 


(iv)                 It has no
obligation in respect of any retirement benefit or occupational pension scheme
(subject to any transfer of employees as a matter of mandatory law in
connection with the acquisition of the Properties).


 


(p)                   Structure Chart
and Ownership:


 


(i)                        The
Structure Chart delivered to the Facility Agent pursuant to Schedule 2
(Conditions Precedent) is true, complete and accurate as of the date of this
Agreement and shows all shares held by the Borrowers and all shareholders of
the Borrowers.


 


(ii)                     The statutory
share capital in each Borrower is legally and beneficially owned and controlled
by the shareholders set out in the Structure Chart. The issued capital of the
Borrowers is fully paid and the shares of the Borrowers are fully transferable
and are not pledged or otherwise encumbered or subject to an attachment other
than in favour of any Finance Party pursuant to a Security Document.


 


(q)                   Security:


 


(i)                        The
security conferred by each Security Document constitutes or will constitute
(subject to any general principles of law limiting the Borrower’s obligations
and subject to Permitted Encumbrances) a first priority Security Interest for
the benefit of the Lenders of the type described over the assets referred to in
that Security Document and those assets are not subject to any prior or pari passu Security Interest.


 


(ii)                     Subject to
any relevant Permitted Encumbrances, the Borrowers’ notary involved in the
administration of the relevant Acquisition Document has received all necessary
consents for the deletion of the Existing Mortgages


 


58

















 


(Löschungsbewilligung) relating to
Properties which may only be subject to repayment of the debt secured by such
Existing Mortgages.


 


(iii)                  The Security
Interests granted by it under each Security Document are independent from any
Security Interests granted by any other security grantor.


 


(r)                      Rights under
the Leases: With effect from the relevant Utilisation Date, each Borrower is or
will become (i) in case of all Properties owned by it, the sole legal and
beneficial holder of any claims or other rights under the Property Leases
relating to such Properties, and (ii) in case of all Properties owned by an
Acquired Entity owned by it, the sole beneficial holder of any claims or other
rights under the Property Leases relating to such Properties.


 


(s)                    No obligations
or liabilities: It has no actual or contingent obligations or liabilities other
than obligations and liabilities (i) under the Transaction Documents, and (ii)
obligations and liabilities reflected in the Original Financial Statements as
of the date thereof.


 


(t)                      Pari passu ranking: Its payment
obligations under the Finance Documents rank at least pari passu with all its other present and
future unsecured payment obligations, except for obligations mandatorily
preferred by law applying to persons of its legal status generally.


 


(u)                   Insurance: The
Insurances comply with the requirements of this Agreement and are (or will on
the relevant Utilisation Date be) in full force and effect, with all premium
payments being up to date and there being no breach of any term of any
Insurance which would entitle the relevant insurer to void it.


 


(v)                   Taxation:


 


(i)                        It has
complied in all material respects with:


 


(A)                all Tax laws
applicable to it; and


 


(B)                  all requirements
to make or amend and time limits (taking into account any permitted extension)
applicable to the making or amending of, returns (including tax returns)
required to be made by it to any competent Tax authority.


 


(ii)                     It has not
been and is not a party to any control agreement, profit and loss transfer
agreement or any group arrangement (other than fiscal unities for German VAT
purposes).


 


(iii)                  The supplies (Leistungen)  subject to VAT (steuerpflichtig)  or treated as subject to VAT which
are rendered by Parent 1 or any of its Subsidiaries (other than any of the
Borrowers) do not exceed EUR 600,000 p.a. in the aggregate.


 


(w)                 Taxes on
payments: It is not overdue in the payment of any amount in respect of Taxes
nor is it in any dispute with any regulatory or taxing authority relating to
any


 


59

















 


unpaid Taxes other than
disputes in relation to the payment of Taxes which are being contested by it in
good faith and provided adequate reserves are being made by it for those Taxes.
As of the date of this Agreement all amounts payable by it under the Finance
Documents may be made without any Tax Deduction. Moreover, as at the date of
this Agreement, no tax office of any applicable jurisdiction requested that any
Obligor withhold and remit any income tax. As at the date of this Agreement,
subject to Clause 11.7(a), no Gross Rental Income payable to any Borrowers’
Rent Collection Account is subject to a requirement to make a material Tax
Deduction.


 


(x)                     Environmental
matters: subject to all matters which have been disclosed in any Environmental
Report, it is in compliance with all Environmental Laws and Environmental
Approvals applicable to it and (i) there is no material Environmental Claim
which is current or pending or threatened in relation to a Property, (ii) there
are no circumstances reasonably likely to result in a material Environmental
Claim in relation to a Property and (iii) there is no material suspension,
revocation or notification of any Environmental Approval in relation to a
Property.


 


(y)                   Leases: There
is no material breach of, or material non-compliance with, the terms of any
Property Lease by the relevant Obligors or Acquired Entities which has or is
reasonably likely to have a Material Adverse Effect on the value of the
respective Property. Subsequent to the relevant Utilisation Date, it has
provided to the Lenders complete and, in all material respects, accurate tenant
schedules.


 


(z)                     Confirmation
of economic benefit: It is the sole economic beneficiary (wirtschaftlich
Berechtigter)  within
the meaning of § 8 of the German Money Laundering Act (Gesetz über das Aufspüren von
Gewinnen aus schweren Straftaten (Geldwäschegesetz))  of any Loan made available to it
under this Agreement.


 


(aa)              Jurisdiction/governing
law: Subject to any reservation which may be expressed in any legal opinion
delivered as CP Document:


 


(i)                        its
irrevocable submission under this Agreement to the jurisdiction of the district
court of Frankfurt/Main, Germany, its agreement that this Agreement is governed
by German law, and its agreement not to claim any immunity to which it or its
assets may be entitled, are legal, valid and binding under the laws of its
jurisdiction of incorporation or formation; and


 


(ii)                     any judgment
obtained in Germany will be recognised and be enforceable by the courts of its
jurisdiction of incorporation or formation.


 


(bb)            Group arrangements (Unternehmensverträge): Except as consented to by the
Facility Agent, it is neither a member of a control agreement, profit and loss
transfer agreement or other group arrangement (other than fiscal unities for
German VAT purposes).


 


19.2              Representations by
the Parents


 


Except as explicitly
stated otherwise, the representations set out in this Clause 19.2 (Representations
by the Parents)  are
made by each of the Parents on its own behalf to each Finance Party and are made
on the date of this Agreement and, unless a representation is


 


60

















 


expressed to be given at
a specific date, are deemed to be repeated by the Parents on each date a
Request is made, each Utilisation Date, each Closing Date and each Interest
Payment Date.


 


When a representation is
repeated, it is applied to the circumstances existing at the time of
repetition.


 


(a)                    Status, power
and authority: It is a private limited liability company, duly incorporated and
validly existing under the laws of its jurisdiction of incorporation and all
facts required to be registered with the Luxembourg Register of Commerce and
Companies with respect to it have been registered with the Luxembourg Register
of Commerce and Companies. It has the power (i) to own its assets and carry on
its business as it is being conducted, and (ii) to enter into and perform, and
has taken all necessary action to authorise the entry into and performance of,
and has complied with all corporate formalities in relation to, the Transaction
Documents to which it is or will be a party and the transactions contemplated
by those Transaction Documents.


 


(b)                   Centre of Main
Interests: Its Centre of Main Interests and its central administration is
situated in its jurisdiction of incorporation and it has no establishment in
any other jurisdiction.


 


(c)                    Legal
validity: Each Transaction Document to which it is or will be a party
constitutes, or when executed in accordance with its terms, will constitute its
legal, valid and binding obligations, enforceable in accordance with its terms,
subject to any general principles of law limiting its obligations.


 


(d)                   Non-conflict:
Its entry into and performance by it of, and the transactions contemplated by,
the Transaction Documents do not conflict in any respect with its
constitutional documents or in any material respect with any law or regulation
applicable to it or with any document which is binding upon it or any of its
assets.


 


(e)                    No default: No
Default is outstanding or will result from the execution of, or the performance
of any transaction contemplated by, any Transaction Document, and no other
event (which is reasonably likely to have a Material Adverse Effect) is
outstanding which constitutes a default under any document which is binding on
it or any of its assets.


 


(f)                      Authorisations:
All licenses, permits, approvals and authorisations required by it in
connection with the entry into, performance, validity and enforceability of,
and the transactions contemplated by, the Transaction Documents have been
obtained or effected (as appropriate) and are in full force and effect.


 


(g)                   Registration,
notarisation and stamping requirements: It is not necessary to file, register
or record any Finance Document in any public place or elsewhere, except for due
notarisation of each Deed of Share Pledge provided, however, that in the case
of court proceedings in a Luxembourg court or the presentation of the Finance
Documents - either directly or by way of reference - to an autorité constituée,
such court or autoritée constituée may require registration of all or part of
the Finance Documents with the Administration de l’Enregistrement et des
Domaines in Luxembourg, which may result in registration duties, at an ad
valorem rate which depends on the nature of the registered document, becoming
due and payable.


 


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(h)                   Financial
statements: Its consolidated financial statements most recently delivered to
the Facility Agent (i) have been prepared in accordance with IFRS and (ii)
fairly represent its consolidated financial condition as at the date to which
they were drawn up, except (in each case) as disclosed to the contrary in those
financial statements.


 


(i)                       Litigation:
No litigation, arbitration or administrative proceedings (including any dispute
with any regulatory or taxing authority) are current or, to the best of its
knowledge, pending or threatened, which could reasonably be likely to restrain
its entry into, the exercise of its rights under, or the performance,
enforcement of or compliance with any of its obligations under, the Finance
Documents or which, if adversely determined, are likely to have a Material
Adverse Effect.


 


(j)                       No
insolvency: No event has occurred, and it is not subject to any proceeding, of
the type mentioned in Clause 23.5 (Insolvency), it has not been declared bankrupt or granted a
suspension of payments, and there are no circumstances pursuant to the
insolvency laws of any applicable jurisdiction which might justify the voidness
of this Agreement or any other Transaction Document with respect to it.


 


(k)                    Information:
All written information supplied by it or on its behalf to any Finance Party in
connection with the transactions contemplated under the Transaction Documents
(or to the Valuer or any person preparing a Report to be delivered as a CP
Document) was true, complete 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.


 


(l)                       Structure
Chart and Ownership:


 


(i)                        The
Structure Chart delivered to the Facility Agent pursuant to Schedule 2
(Conditions Precedent) is true, complete and accurate as of the date of this
Agreement and shows all shares held by the Parents and the Borrowers and all
shareholders of the Parents and the Borrowers.


 


(ii)                     The statutory
share capital in each Parent is legally and beneficially owned and controlled
by the shareholders set out in the Structure Chart. The issued capital of the
Borrowers is fully paid and the shares of the Borrowers are fully transferable
and are not pledged or otherwise encumbered or subject to an attachment other
than in favour of any Finance Party pursuant to a Security Document.


 


(m)                 Security:


 


(i)                        The
security conferred by each Security Document executed by it constitutes or will
constitute a first priority Security Interest for the benefit of the Lenders of
the type described over the assets referred to in that Security Document and
those assets are not subject to any prior or pari
passu Security Interest.


 


(ii)                     The Security
Interests granted by it under each Security Document executed by it are
independent from any Security Interests granted by any other security grantor.


 


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(n)                   Pari passu ranking: Its payment obligations under the
Finance Documents rank at least pari passu with
all its other present and future unsecured payment obligations, except for
obligations mandatorily preferred by law applying to persons of its legal
status generally.


 


(o)                   Jurisdiction/governing law: Subject to any reservation
which may be expressed in any legal opinion delivered as CP Document:


 


(i)                        its
irrevocable submission under this Agreement to the jurisdiction of the district
court of Frankfurt/Main, Germany, its agreement that this Agreement is governed
by German law, and its agreement not to claim any immunity to which it or its
assets may be entitled, are legal, valid and binding under the laws of its
jurisdiction of incorporation or formation; and


 


(ii)                     any judgment obtained in Germany will be
recognised and be enforceable by the courts of its jurisdiction of
incorporation or formation.


 


(p)                   Taxation


 


(i)                        It has not been and is not a party to any
control agreement, profit and loss transfer agreement or any other group arrangement (other than
fiscal unities for German VAT purposes).


 


(ii)                     The supplies (Leistungen)  subject
to VAT (steuerpflichtig)  or treated as subject to VAT which are
rendered by Parent 1 or any of its Subsidiaries (other than any of the Borrowers)
do not exceed EUR 600,000 p.a. in the aggregate.


 


20.                  INFORMATION
COVENANTS


 


20.1              Financial Statements


 


(a)                    The Borrower’s Agent must supply to the
Facility Agent in sufficient copies for all the Lenders:


 


(i)                        the Borrowers’ and any Acquired Entities’ combined audited annual financial
statements as well as consolidated financial statements (if applicable) for
each of its financial years;


 


(ii)                     the Borrowers’ and any Acquired Entities’ combined quarterly financial statements for
each of its financial quarters.


 


(b)                   All financial statements must be supplied as
soon as they are available and:


 


(i)                        in the case of annual financial statements,
within 120 days; and


 


(ii)                     in the case of quarterly financial
statements, within 45 days,


 


of the end of the
relevant financial period.


 


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20.2              Form of Financial
Statements


 


(a)                    The Borrowers
(aa) must prepare their combined and their consolidated (if any) financial
statements in accordance with the accounting principles, practices and policies
(consistently applied) which applied to the Original Financial Statements
(consistently applied) and each set of financial statements supplied under this
Agreement and (bb) must ensure that the financial statements delivered hereunder
give (if audited) a true and fair view of, or (if unaudited or prepared in
accordance with IFRS) fairly represent, the combined financial condition
(consolidated or otherwise) of the Borrowers and any Acquired Entities as at
the date to which those financial statements were drawn up and:


 


(i)                        in the case of the annual financial
statements, shall be accompanied by any letter addressed to the management of
the Borrowers by the Auditors and accompanying those financial statements;


 


(ii)                     in the case of quarterly financial
statements, shall be accompanied by a statement by the directors of the
Borrowers comparing actual performance for the period to which the financial
statements relate to the projected performance for that period set out in the
Business Plans;


 


(iii)                  in the case of quarterly financial
statements, there may be immaterial subsequent changes made during the auditing
process.


 


(b)                   The Obligors’ Agent must notify the Facility
Agent of any change to the manner in which its financial statements are prepared.


 


(c)                    If requested by the Facility Agent, the Obligors must supply to the Facility Agent:


 


(i)                        a full description of any change notified
under paragraph (b) above; and


 


(ii)                     sufficient information to enable the Finance
Parties to make a proper comparison between the financial position shown by the
set of financial statements prepared on the changed basis and its most recent
annual financial statements delivered to the Facility Agent under this
Agreement.


 


20.3              Valuations


 


(a)                    The Facility Agent may request Valuations at its own costs at any time.


 


(b)                   The Borrowers must, within 10 Business Days of written demand by the Facility Agent,
pay the costs of the relevant Valuation:


 


(i)                        at any time when a Default is outstanding;


 


(ii)                     if the Facility Agent believes, on the basis
of an updated Valuation, that a Default is likely to occur;


 


(iii)                  annually at the option of the Facility Agent;
or


 


64

















 


(iv)                 if required in the reasonable opinion of the
Facility Agent in the context of a securitisation of any Loan. In this case,
the Facility Agent may request that the Valuation is adjusted in line with
requirements of any Rating Agency.


 


(c)                    Each Borrower must supply to the Facility
Agent a copy of any valuation of any Property it obtains which has been prepared by a reputed
valuation firm (including the Valuer) following a formal mandate, promptly upon
obtaining it.


 


20.4              Monitoring of
Properties


 


(a)                    Two (2)
Business Days prior to each Interest Payment Date, the Borrowers must supply to
the Facility Agent the information set out in Schedule 5 (Property Information)
for the quarterly period ending in the month prior to the relevant Interest
Payment Date, in form and substance satisfactory to the Facility Agent, in respect
of the latest Financial Quarter.


 


(b)                   Each Borrower shall within a reasonable time
provide to the Facility Agent such further information regarding any Property
and/or any Property Lease as the Facility Agent may reasonably request in
writing. In particular, without limitation, each Borrower shall within a
reasonable time provide detailed information on (i) the vacancies of each
Property, including the location of any vacant apartments and/or (ii) on any
deviations of capital expenditures
from the relevant Business Plan, in each case if the Facility Agent so requests
in writing.


 


(c)                    Each Borrower must notify the Facility Agent of any likely occupational tenant
(after a letter of intent having been executed) of any part of any Property
generating more than five (5) per cent of the aggregate Gross Rental Income of
all Properties.


 


(d)                   Upon request in writing, each Borrower must
within a reasonable time deliver to the Facility Agent all information
reasonably necessary to determine the mortgage value (Beleihungswert)  of each Property, including, without limitation, the relevant up to date excerpt from
the Land Register, copy of the letters from the register of public easements (Baulastenverzeichnis)  for such Property (to the extent
available in the relevant federal state (Bundesland), copy of letters from the register
regarding contaminated soils (Auszug aus dem
Altlastenkataster)  for
such Property, site plan (including location of building), technical
description of building (Baubeschreibung),  calculation of area (Flächenberechnung)  and cubic contents (Kubaturberechnung),  calculation of residential area (Wohnflächenberechnung)  and utilisable area (Nutzfläche)  and current rent roll setting out the cash-flows on a
tenant by tenant basis.


 


20.5              Information - Miscellaneous


 


The Obligors and any
Acquired Entities must supply to the Facility Agent if it so requests:


 


(a)                    copies of all documents despatched to its
creditors generally or any class of them at the same time as they are despatched;


 


(b)                   within 30 days of the end of each financial year, a copy of updated Business Plans;


 


65

















 


(c)                    promptly upon
becoming aware of them, details of any current, threatened (in writing) or
pending (i) material litigation, arbitration or administrative proceedings,
(ii) material disputes with any regulatory authority as to payment of Tax or
(iii) material Environmental Claims;


 


(d)                   promptly on
request, such further information regarding:


 


(i)                        the
financial condition and operations of the Obligor; or


 


(ii)                     any Property;


 


as any Finance Party
through the Facility Agent may reasonably request or (at reasonable cost) which
any Finance Party is obliged to provide to appropriate regulatory bodies under
any applicable regulatory requirements.


 


(e)                    copies of all
material correspondence with the insurers and insurance brokers relating to
damage claims in excess of EUR 500,000; and


 


(f)                      copies of
all Valuations.


 


20.6              Compliance Certificate


 


(a)                    The Obligors’
Agent must on behalf of the Borrowers supply to the Facility Agent a Compliance
Certificate, evidencing, inter alia, whether
an Event of Default under Clause 23.16 (Breach of Financial Covenants)  has occurred, on each Interest
Payment Date, each Utilisation Date and at any time at the Facility Agent’s
request if and when (i) a Lender has reason to believe that a Default has
occurred or (ii) an Event of Default is continuing.


 


(b)                   Promptly
following each Valuation, the Obligors’ Agent on behalf of the Borrowers must
supply to the Facility Agent a certificate evidencing whether an Event of
Default under Clause 23.16(b) (Breach of Financial Covenants)  has occurred in respect of the
LTV.


 


(c)                    Each
certificate pursuant to paragraphs (a) and (b) above must be signed by two
authorised signatories of the Obligors’ Agent on behalf all Borrowers.


 


20.7              Notification of
Default


 


(a)                    The Borrowers
and the Obligors’ Agent must notify the Facility Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming aware of its
occurrence.


 


(b)                   The Borrowers
must supply to the Facility Agent:


 


(i)                        together
with each certificate supplied to the Facility Agent in accordance with Clause
20.6 (Compliance
Certificate);  and


 


(ii)                     promptly at
any other time, if the Facility Agent reasonably so requests, a certificate,
signed by two of its authorised signatories on its behalf, certifying


 


66

















 


that no Default is
outstanding or, if a Default is outstanding, specifying the Default and the
steps, if any, being taken to remedy it.


 


20.8              Financial Year End


 


Each Borrower shall
procure that its financial year-end will be the end of the calendar year which
financial year-end shall not be changed without the consent of the Facility
Agent (such consent not to be unreasonably withheld).


 


20.9              “Know your client”
Checks


 


(a)                    Each Obligor
shall, promptly upon the request of any Finance Party, supply to that Finance
Party, or procure the supply of, such documentation and other evidence which is
reasonably requested by that Finance Party (whether for itself, on behalf of
any Finance Party or any prospective new Lender) to enable a Finance Party or
prospective new Lender to carry out and be satisfied with the results of all
know your customer requirements or other checks in relation to the identity of
any person that it is required to carry out in relation to the transactions
contemplated in the Finance Documents.


 


(b)                   Each Lender
must promptly on the request of the Facility Agent supply to the Facility Agent
any documentation or other evidence which is reasonably required by the
Facility Agent to carry out and be satisfied with the results of all know your
customer requirements.


 


(c)                    Without
limiting any restriction in respect of or other provisions relating to a Change
of Control, the Obligors shall notify the Facility Agent in writing, if a
change in the beneficial interests in the Obligors occurs if such change would
result in any such party having 25 per cent or more of the total beneficial
interests in it.


 


21.                  GENERAL
COVENANTS


 


21.1              General


 


Each Borrower (and, where
indicated, each Parent) agrees to be bound by the covenants set out in this
Clause relating to it. In addition, each Borrower agrees to procure that any of
the Acquired Entities owned by it shall fulfill the covenants set out in this
Clause, and all covenants set out in this Clause shall also extend to any
Acquired Entity.


 


21.2              Consents and
Authorisations


 


Each Borrower and Parent
must promptly obtain, maintain and comply with the terms of any license, approval,
consent or authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of, any
Transaction Document to which it is a party.


 


21.3              Compliance with Laws


 


Each Borrower and Parent
must comply in all material respects with all laws and regulations to which it
is subject.


 


67

















 


21.4              Pari Passu Ranking


 


Each Borrower and Parent
must ensure that its payment obligations under the Finance Documents rank at
least pari passu with all its
other present and future unsecured and unsubordinated payment obligations,
except for obligations mandatorily preferred by law applying to companies
generally.


 


21.5              Negative Pledge


 


(a)                    Except as
provided below, no Borrower may create or allow the existence of any Security
Interest on any of its assets or create any encumbrance (including any public
charges (Baulasten))  over
its Properties, the perfection of which would require registration in the Land
Register pertaining to the relevant Property.


 


(b)                   Paragraph (a)
does not apply to:


 


(i)                        any
Security Interest constituted by the Security Documents;


 


(ii)                     any lien
arising by operation of law and in the ordinary course of trading (including on
the basis of customary general business conditions);


 


(iii)                  any Existing
Mortgage ;


 


(iv)                 any Permitted
Encumbrances;


 


(v)                    any Security
Interest approved by the Facility Agent in writing;


 


(vi)                 any priority
notice (Auflassungsvormerkung)  granted
in connection with the sale of a Property permitted under this Agreement; and


 


(vii)              any Security
Interest the granting of which cannot be prohibited under paragraph 1136 of the
German Civil Code.


 


(c)                    No Borrower
shall:


 


(i)                        sell,
transfer or otherwise dispose of any of its assets on terms where it is or may
be leased to or re-acquired or acquired by any of its related entities; or


 


(ii)                     sell,
transfer or otherwise dispose of any of its receivables on recourse terms, in
circumstances where the transaction is entered into primarily as a method of
raising Financial Indebtedness or of financing the acquisition of an asset.


 


The restriction under
paragraph (c)(i) above does not apply in cases where a Borrower is required to
sell a Property in order to redeem a Fund Investor’s interest in the Fund and
the relevant Property is sold at Market Value.


 


21.6              Disposals


 


(a)                    Except as
provided in this Agreement, no Borrower may, either in a single transaction or
in a series of transactions and whether related or not, dispose of all or any
part of its assets (including, without limitation, any of its receivables).


 


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(b)                   Paragraph (a)
above does not apply to:


 


(i)                        any
disposal (other than of Properties or Acquired Entities) made with the consent
of the Facility Agent;


 


(ii)                     any disposal
of cash by way of a payment out of an Account in accordance with this
Agreement;


 


(iii)                  any disposal of
obsolete assets which have outlasted their useful life and which are no longer
required for the efficient operation of the business;


 


(iv)                 any disposal
pursuant to an Property Lease permitted under Clause 22.1 (Property
Leases);


 


(v)                    any disposal
of a Property or an Acquired Entity if:


 


(A)                no Default is
outstanding or would occur as a result of such disposal;


 


(B)                  the Lenders will
receive the mandatory prepayment amounts pursuant to Clause 7.2 (Mandatory
prepayment - Disposals)  due
in respect of the relevant Property or Acquired Entity, respectively either
from the Net Disposal Proceeds received on the sale of the relevant Property or
Acquired Entity, respectively and/or additional Cash Fundings made to the
relevant Borrower.


 


(vi)                 any disposal of a
Property or an Acquired Entity in relation to a Property Substitution and
replaced by a Replacement Property, subject to the provisions set out in Clause
21.7 (Property
Substitution);  and


 


(vii)              any disposal which
cannot be prohibited under paragraph 1136 of the German Civil Code as a matter
of mandatory law.


 


(c)                    For purposes
of this Clause, the term “disposal” includes the entry into an agreement upon a
priority notice (Auflassungsvormerkung),  an agreement on the transfer of
title to a Property (Auflassung)  or an Acquired Entity, and the term “Property” shall
also refer to Hereditary Building Rights existing in relation to the
Properties.


 


(d)                   Unless a
contrary intention appears, a Property disposed of in accordance with this
Clause 21.6 (Disposals)
shall cease to be a Property and an Acquired Entity disposed
of in accordance with this Clause 21.6 (Disposals)
shall cease to be an Acquired Entity.


 


21.7              Property
Substitution


 


Each Borrower may replace
or substitute a Property or Acquired Entity by way of an Acquisition (such
replacement to be referred to as a Property Substitution and the property or
properties being acquired pursuant to the relevant Acquisition to be referred
to as a Replacement Property), provided that:


 


69

















 


(a)                    at least 20
Business Days prior to the Property Substitution, the relevant Borrower has
submitted to the Facility Agent the documents and evidence set out under the
heading “Property” in Schedule 2 Part I (Conditions Precedent Documents) with
respect to the proposed Replacement Property in form and substance satisfactory
to the Facility Agent;


 


(b)                   the Closing
Date in respect of the Acquisition of the Replacement Property occurs within
the Substitution Period;


 


(c)                    the Intended
Substitution Disposal Proceeds, or the proceeds of a Major Intended
Substitution Disposal, as the case may be, received as a result of an Intended
Substitution Disposal of any Property are credited to the relevant Borrower’s
Disposal Proceeds Reserve Account as soon as possible upon receipt;


 


(d)                   the Loan-Based
ICR relating to the relevant Loan does not, as a result of such Property
Substitution, drop below the level prior to the Property Substitution;


 


(e)                    (i)                         if LTV is
equal to 70% or lower prior to the Property Substitution, the LTV does not, as
a result


 


of such Property
Substitution, (i) increase by more than 2 percentage points above the level
prior to the Property Substitution and (ii) exceed 70%; or


 


(ii)                     if LTV is
higher than 70% prior to the Property Substitution, the LTV as a result of such
Property Substitution is lower or equal to the LTV prior to such Property
Substitution;


 


(f)                      no Event of
Default has occurred and is continuing at the time of the Property
Substitution; and


 


(g)                   immediately
upon the Acquisition of the Replacement Property, the relevant Borrower creates
first-ranking Security Interests substantially in the form of the Security
Documents with respect to each Replacement Property in favour of the Security
Agent.


 


21.8              Financial
Indebtedness


 


(a)                    Except as
provided in paragraph (b) below, no Borrower may incur any Financial
Indebtedness.


 


(b)                   Paragraph (a)
above does not apply to:


 


(i)                        any
Financial Indebtedness incurred under the Finance Documents;


 


(ii)                     any Financial
Indebtedness incurred under Property Management Agreements;


 


(iii)                  any Financial
Indebtedness related to Permitted Encumbrances; and


 


(iv)                 any Cash Funding.


 


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21.9              Lending and
Guarantees


 


(a)                    No Borrower
shall make any loan or provide any form of credit to any person other than in
accordance with Clause 18 (Guarantee and indemnity)  of this Agreement.


 


(b)                   No Borrower may
give any guarantee or indemnity to or for the benefit of any person in respect
of any obligation of any other person or enter into any document under which it
assumes any liability of any other person other than under the Finance
Documents.


 


21.10        Change of Business


 


(a)                    No Borrower
may carry on any business other than the ownership and management of its
interests in the Properties and the Acquired Entities and activities reasonably
incidental thereto.


 


(b)                   No Borrower may
have any Subsidiary (other than any Acquired Entity).


 


(c)                    No Borrower
may have more than two employees (subject to the transfer of any employees as a
matter of mandatory law in connection with the acquisition of the Properties).


 


(d)                   No Borrower may
have an obligation in respect of any retirement benefit or occupational pension
scheme (subject to any transfer of employees as a matter of mandatory law in
connection with the acquisition of the Properties).


 


21.11        Mergers


 


No Borrower may take any
steps towards any dissolution, liquidation, amalgamation, demerger, merger or
reconstruction.


 


21.12        Acquisitions


 


(a)                    Except as
otherwise permitted under this Agreement, no Borrower shall make any
acquisition or investment other than any asset reasonably acquired in the ordinary
course of its business in connection with the ownership, management and
development of the Properties owned by it or by an Acquired Entity owned by it.
An asset will be deemed to be reasonably acquired if its acquisition is
consistent with the principles of good real estate management.


 


(b)                   If a Borrower
acquires any such asset, other than low-value assets (geringwertige Wirtschaftsgüter),  it shall notify the Facility
Agent, prior to its acquisition, and shall, at the request of the Facility
Agent, grant a Security Interest over such asset in favour of the Security
Agent or/and the other Finance Parties, in form and substance satisfactory to
the Facility Agent.


 


21.13        Other Contracts


 


(a)                    No Borrower
may enter into any contract other than:


 


(i)                        the Transaction
Documents;


 


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(ii)                     any agreement
required in the course of good real estate management; and


 


(iii)                  any other
contract expressly allowed under any other term of this Agreement.


 


(b)                   To the extent
it might constitute a Material Adverse Effect, no Borrower or Parent may amend,
terminate or supplement any Transaction Document or enter into any other
agreement in relation to the matters referred to therein except as otherwise
permitted under this Agreement.


 


21.14        Accounts


 


No Borrower shall open or
maintain any bank account other than its respective Accounts.


 


21.15        Shares and Dividends;
Disposal and Negative Pledge in respect of shares in Borrowers


 


(a)                    No Borrower
shall declare or pay any dividend or make any other distribution in respect of
any of its shares or repay or redeem any of its share capital save, if no
Default is outstanding, from funds standing to the credit of the General
Accounts.


 


(b)                   No Borrower
shall issue any further shares or alter any rights attaching to its issued
shares.


 


(c)                    None of the
Parents shall without the prior written consent of the Security Agent:


 


(i)                        sell,
transfer or otherwise dispose of any of its respective shares in any of the
Borrowers and all present and future rights related thereto (for the purposes
of this Clause 21.15(c), the Share Collateral) pledged to the Security Agent in
accordance with the terms of any relevant Deed of Share Pledge;


 


(ii)                     create or
permit to subsist any Security Interest on any of the Share Collateral;


 


(iii)                  vote its
respective shares in any of the Borrowers (whether in a meeting or by way of
written resolution outside a meeting) in favour of:


 


(1)                    the issuance,
cancellation or transfer of any shares in the relevant Borrower’s share capital
by the relevant Borrower or any reduction of any reserve of the relevant
Borrower;


 


(2)                    a resolution
consenting to the acquisition by the relevant Borrower of its own shares;


 


(3)                    any proposal
to the general meeting of shareholders to transfer its pertinent authority to
issue shares to any other corporate body;


 


(4)                    a resolution
to amend the articles of association of the relevant Borrower;


 


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(5)                    a resolution
to dissolve the relevant Borrower or to liquidate its business or relating to
the sale of all or a material part of the relevant Borrower’s assets; or


 


(6)                    a resolution
for any legal merger (juridische fusie)  or legal division (juridische
splitsing)  in
which the relevant Borrower is involved.


 


21.16        Security Documents


 


Each Borrower and Parent
shall take all necessary action to maintain and defend the security rights
created under or pursuant to any of the Security Documents and shall notify the
Facility Agent and the Security Agent immediately if it becomes aware of any
event or circumstance which might reasonably be expected to materially
adversely affect the validity and enforceability of any such security rights or
which may cause an enforcement event under any relevant Security Document.


 


21.17        Arm’s-length Terms


 


No Borrower may enter
into any transaction (other than a Cash Funding with an Affiliate) otherwise
than on arm’s-length terms and for full market value, unless approved by the
Facility Agent (acting reasonably).


 


21.18        Taxes


 


(a)                    Each Obligor
must prepare and file separate tax returns as far as it is obliged to do so,
keep all documentation and records it is required to keep by any applicable law
and pay all Taxes due and payable by it (taking into account all permitted due
date extensions), unless payment of those Taxes is being contested in good
faith and, if appropriate, adequate reserves are being maintained for those
Taxes.


 


(b)                   No Obligor
shall deliberately change its residence for Tax purposes without consultation
of the Facility Agent unless such change does not have a Material Adverse
Effect.


 


(c)                    It shall not
become a party to any control agreement, profit and loss transfer agreement or
any other group arrangement (other than fiscal unities for German VAT
purposes).


 


(d)                   The supplies (Leistungen)  subject to VAT (steuerpflichtig)  or treated as subject to VAT which
are rendered by Parent 1 or any of its Subsidiaries (other than any of the
Borrowers) shall not exceed EUR 600,000 p.a. in the aggregate.


 


Parent 1 undertakes to:


 


(i)                        timely
file any advance VAT returns (Umsatzsteuervoranmeldungen)  with the competent tax
authorities, which have to be filed according to any applicable VAT law, and to
procure that its Subsidiaries which do not form part of a VAT fiscal unity with
Parent 1 to timely file any such advance VAT returns; and


 


(ii)                     pay until the
due date any VAT, which has to be paid according to any applicable VAT law to
the competent tax authorities, relating to any services


 


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rendered by itself or any
of its Subsidiaries which form part of a VAT fiscal unity with Parent 1 and to
procure that its Subsidiaries which do not form part of a VAT fiscal unity with
Parent 1 pay until the due date any such VAT; and


 


(iii)                  present to the
Facility Agent evidence reasonably satisfactory to the Facility Agent of such
payments pursuant to (ii) above until the 31 July and 31 January of each
calendar year in relation to the six-months period ending on 30 June and 31
December, respectively. The Facility Agent has the right to appoint, acting
reasonably, at the expense of Parent 1, an accountant or a tax adviser to
ensure and to verify such filings and payments.


 


21.19        Constitutional Documents,
Separate Identity


 


(a)                    No Borrower
may, without the consent of the Facility Agent:


 


(i)                        make, or
permit to be made, any amendment to its constitutional documents; or


 


(ii)                     enter into
any agreement or arrangement inconsistent with its constitutional documents.


 


(b)                   Each Borrower
must:


 


(i)                        maintain
its own books, records, financial statements and accounts in each case that are
separate and apart from the books, records, financial statements and accounts
for any other entity;


 


(ii)                     hold regular
meetings, as appropriate, to conduct its business and observe all corporate
formalities and record keeping required under applicable law or by its
organisational documents;


 


(iii)                  hold itself out
as being a legal entity, separate and apart from any other entity and conduct
its business and hold its assets in its own name and use separate stationery,
invoices, and cheques;


 


(iv)                 pay its
obligations and expenses from its own funds and allocate and charge reasonably
and fairly any overhead shared with its Affiliates and maintain an arm’s length
relationship with its Affiliates; and


 


(v)                    correct any
known misunderstanding regarding its separate identity.


 


(c)                    No Borrower is
permitted to commingle its assets or funds with those of any other entity.


 


21.20        Co-operation on Loan
Transfers; Securitisation and Syndication


 


(a)                    The Borrowers
and the Parents shall assist and cooperate with the Lenders (and the Facility
Agent acting on their behalf) with any assignment, transfer, sale, syndication,
securitisation of, or transfer of the credit risk under the Loans (synthetic
securitisation) or issuance of securities in respect of, all or part of their
respective rights and/or obligations under this Agreement, including
considering entering into


 


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any further documentation
or amending the existing documentation which may be required in the context of
such assignment, transfer, sale, syndication, securitisation or synthetic
securitisation provided that any such further documents or amended documents
shall be at no expense to any Obligor and no such further or amended documents
shall provide for a change in tenor or amount of the Loans, increase of
interest rate or any other provisions which have an adverse effect on the
legal, tax or financial situation of the Obligors.


 


(b)                   The Borrowers
and the Parents agree that in connection with the Lenders’ refinancing the
Lenders (and the Facility Agent acting on their behalf) have the right to
disclose information about the Loans, tenants (subject to applicable data
protection laws), the Properties and/or the Obligors, in particular the
Obligors’ names, addresses, the amounts outstanding under the Loans, terms,
interest rates, loan history and security (including land register excerpts) to
potential new lenders, potential transferees and assigns, syndicate members,
institutional investors and capital market participants as well as to other
third parties, in particular to rating agencies and credit enhancers. The
Obligors release the Lender from any bank secrecy obligations in connection
therewith and shall upon ten (10) Business Days’ advance notification use their
reasonable endeavours regarding the provision of information (including any
consent to be granted at the Obligors’ discretion) and assistance with regards
to compliance with all applicable rules.


 


21.21        Exercise of Rights of
Claim


 


Each Borrower must
exercise all rights of claim available to it under the Management Agreements
and the relevant Acquisition Document if a prudent borrower in the same
business as the Borrowers would exercise such rights and claims.


 


21.22        Group Arrangements


 


None of the Obligors is
permitted to be a member of a control agreement, profit and loss transfer
agreement or any other group arrangement.


 


21.23        Business


 


Each Borrower must ensure
that its Property is maintained and managed to at least the standard which
could be expected of a prudent company in the same business as the relevant
Borrower.


 


21.24        Financial Covenants


 


(a)                    The Borrowers
shall procure that on each Interest Payment Date, the ICR is equal to or above
110%.


 


(b)                   The Borrowers
shall procure that the LTV does not exceed 75% at any time.


 


21.25        Employees


 


In the event of any
transfer of employees to a Borrower as a matter of mandatory law in connection
with the acquisition of the Properties, the relevant Borrowers shall promptly
exercise and enforce to the fullest extent available (i) their termination
rights in respect of


 


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such employments and (ii)
all remedies available in relation thereto under the relevant Acquisition
Document.


 


22.                  PROPERTY
COVENANTS


 


22.1              Property Leases


 


(a)                    Each Borrower
must, and must cause the Managing Agent and any relevant Acquired Entities to:


 


(i)                        use its or
their reasonable endeavours to find tenants for any vacant lettable space in a
Property;


 


(ii)                     procure that
each Property Lease to be entered into in the future by the relevant Borrower
or an Acquired Entity owned by it is on arm’s length and market terms;


 


(iii)                  perform all the
obligations on its part contained in each Property Lease in accordance with the
principles of good real estate management and on a timely basis;


 


(iv)                 use reasonable
endeavours to procure (in accordance with the principles of good real estate
management) that each tenant performs its obligations under any Property Leases
in all material respects;


 


(v)                    exercise in a
manner consistent with the principles of good real estate management its
rights, powers and remedies under or in connection with the Property Leases;


 


(vi)                 procure that all
new Property Leases which are concluded are in compliance with the written form
requirements of German law; and


 


(vii)              subject to
applicable data protection laws, use its reasonable endeavours to procure that
no Property Lease shall be executed under which the landlord and the tenant
have agreed on confidentiality with respect to any tenant-related information
included in the lease agreement (e.g. name and address of tenant, rent
payments, other terms and conditions of lease agreement).


 


(b)                   None of the
Borrowers may, and each Borrower will ensure that the Managing Agent or any
relevant Acquired Entity does not, without the prior written consent of the
Facility Agent:


 


(i)                        agree to
any rent adjustments (except for rent increases);


 


(ii)                     agree to any
other material amendment to a Property Lease;


 


(iii)                  commence any
surrender or forfeiture proceedings in respect of any Property;


 


(iv)                 consent to any
assignment of any tenant’s interest under any Property Lease; or


 


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(v)                    claim or
accept any claim that any Property Lease is frustrated, repudiated or otherwise
terminated (unless validly claimed by a tenant);


 


in each case unless (aa)
the Property Lease represents less than 5% of the Net Rental Income of the
relevant Property or provides for an annual rent of less than EUR 50,000 or
(bb) if such action is in accordance with the relevant Business Plan. The
Facility Agent shall have 10 Business Days (following receipt of such request
together with all relevant information) to respond to any request to approve
any such action and will be deemed to have consented to the proposed action in
the absence of a response during such period.


 


(c)                    Each Borrower
must deliver to the Facility Agent a copy of any lease which has been concluded
in relation to a Property with an annual rent in excess of EUR 50,000 or which
has been requested by the Facility Agent.


 


22.2              Hereditary Building
Right


 


No Borrower shall, in
relation to the Hereditary Building Rights held by it in respect of a Property,
without the prior written consent of the Facility Agent, waive, release or vary
any obligation under, or the terms of, exercise any option or power to break,
determine or extend in each case, the Hereditary Building Right.


 


22.3              Managing Agents


 


(a)                    The Borrowers must
not appoint any Managing Agent for any Property other than IWG Wohnen GmbH
without the prior consent of, and on terms approved by, the Facility Agent
acting reasonably. Each Managing Agent must be a reputable firm of property
managing agents. A Management Agreement may not be materially amended without
the prior written consent of the Facility Agent, acting reasonably.


 


(b)                   Each Borrower
must procure that each Managing Agent whose appointment is not terminated prior
to the date hereof:


 


(i)                        enters
into a Management Agreement with the relevant Borrower in form and substance
reasonably satisfactory to the Facility Agent;


 


(ii)                     maintains
professional indemnity insurance with a cover (Deckungssumme)  per each occurrence (je
Versicherungsfall)  of
not less than EUR 3 million for damage to persons (Personenschäden), EUR 3 million for damage to
property (Sachschäden)  (without
fire and explosion damage), EUR 3 million for damage to property (Sachschäden)  caused by fire and explosion for
rented Properties and EUR 5 million for financial losses (Vermögensschäden);  in each case the aggregate cover for all
claims under the respective insurance within an insurance year shall be
available for damage to property and to persons with the simple amount as
specified above, and for financial losses with the double amount specified
above.


 


(iii)                  is notified by
the relevant Borrower of the Security Interests created by the Finance
Documents; and


 


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(iv)                 will use all
commercially reasonable endeavours to ensure that all Gross Rental Income will
be paid directly by the tenants into the Rent Collection Accounts without any
withholding, set-off or counterclaim.


 


(c)                    The Borrowers
must demand, or must procure that each Managing Agent demands, payment from the
Sellers without undue delay if and to the extent that the Sellers receive any
rent or other payments from the tenants in respect of a Property which was due
to the Borrowers.


 


(d)                   The Borrowers
must ensure that no Managing Agent receives any fees or other compensation or
similar payments except (i) as set out in the definition of “Permitted
Operating Costs” or (ii) from any Borrower’s General Account.


 


(e)                    If any
Managing Agent is in material default of its obligations under a Management
Agreement and, as a result, the relevant Borrower is entitled to terminate the
relevant Management Agreement, then, if the Facility Agent so requires, the
relevant Borrower must promptly use all reasonable endeavours to terminate the
relevant Management Agreement and appoint a new Managing Agent, whose identity
and terms of appointment are acceptable to the Facility Agent, as a
replacement.


 


22.4              Repair


 


(a)                    In this
Clause, Fixtures means all fixtures and fittings and fixed plant and machinery
on the Properties and Premises means all buildings and erections on the
Properties.


 


(b)                   To the extent
it is the obligation of any relevant Borrower or an Acquired Entity owned by
it, each relevant Borrower must keep, and to the extent it is the tenants’
obligation under the Property Lease each relevant Borrower or Acquired Entity,
as applicable, must ensure that the tenants keep:


 


(i)                        the
Premises in good and substantial repair and condition and adequately and
properly painted and decorated;


 


(ii)                     the Fixtures
and all plant, machinery, implements and other effects owned by it and which
are in or on the Premises or elsewhere in a good state of repair and in good
working order and condition; and


 


(iii)                  each Property
maintained and managed in accordance with the terms of the Property Lease;


 


in each case in
accordance with the standard of care of a prudent Borrower in the same business
as the Borrower.


 


(c)                    Each Borrower
must not change the principal use (Nutzungskonzept)  of any Property as described in the
relevant Valuation without the consent of the Facility Agent except as
contemplated in the relevant Business Plan.


 


(d)                   No Borrower may
effect any structural development, modification or alterations to its Property
without the prior written consent of the Facility Agent acting reasonably,
other than as set out in the relevant Business Plan.


 


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22.5              Insurances


 


(a)                    In this
Clause, insurance policy means an insurance policy required under this Clause.


 


(b)                   Each Borrower
must ensure that at all times from the relevant Closing Date:


 


(i)                        insurance
of the relevant Property and the plant and machinery on that Property
(including fixtures and improvements) on a full reinstatement basis (as
determined by the Valuation) together with a further amount equal to not less
than 10% thereof to cover site clearance costs, professional fees, and value
added tax on such costs;


 


(ii)                     third party
liability insurance; and


 


(iii)                  insurance
against public law liabilities and not less than two years’ loss of rent on all
occupational tenancies of each Property;


 


is in force in an amount,
form, and with an insurance company or underwriters which satisfies the
requirements stipulated herein.


 


(c)                    The Borrowers
must ensure that


 


(i)                        the
Security Agent on behalf of the Lenders is named as co-insured on all insurance
policies and is named as first loss payee. This undertaking shall not apply in
respect of third party liability insurance and public law liability insurance;
and


 


(ii)                     each
insurance contains a lender protection clause requiring the insurer to give
notice to the Security Agent before terminating the relevant insurance.


 


If these undertakings
have not been fulfilled at the time of the relevant Closing Date, each Borrower
must use its best endeavours to comply with them within 2 months of the
relevant Closing Date, and shall be obliged to comply with them by the 10th Business
Day following that date. In the event that the relevant Borrower (or an
Acquired Entity owned by such Borrower) is, on that date, not registered in the
Land Register as owner with respect to the relevant Property, the relevant
Borrower and the Security Agent on behalf of the Lenders may mutually agree
upon a later date with respect to the respective Property.


 


(d)                   (i)        All insurances required
under this Clause must be:


 


(A)                in an amount and
form acceptable to the Facility Agent (acting reasonably); and


 


(B)                  with an
insurance company or underwriter that has been assigned the relevant Requisite
Rating. Clause 22.5(c) para 2 of this Agreement shall apply mutatis mutandis.


 


(ii)                     If the
insurance company or underwriter is not assigned the relevant Requisite Rating,
the Borrowers shall put in place as soon as the Facility Agent may reasonably
require (in particular, giving due regard to rating


 


79

















 


requirements in
connection with a refinancing of the Loans), in any case without undue delay,
replacement insurances in accordance with this Clause with an insurance company
or underwriter which has the relevant Requisite Rating and is otherwise
acceptable to the Facility Agent (acting reasonably).


 


(e)                    Each Borrower
must use all commercially reasonable endeavours to ensure that the relevant
insurer will issue a certificate of third party interest in the insurance (Sicherungsbestatigung/Sicherungsschein). Each Borrower will also use its best
endeavours to ensure that the certificate issued by any insurer that benefits
from the prohibition of an assignment of claims in accordance with § 98 of the
German Insurance Contracts Act (Versicherungsvertragsgesetz)  also contains a waiver of such
prohibition of assignment for the benefit of the Security Agent.


 


(f)                      Each
Borrower must use all commercially reasonable endeavours to ensure that the
Facility Agent receives any information in connection with the insurances, and
copies of each insurance policy, which the Facility Agent may reasonably
require.


 


(g)                   Each Borrower
must notify the Facility Agent of any renewal or material variation or
cancellation of any insurance policy made or, to the knowledge of the relevant
Borrower, threatened or pending.


 


(h)                   Each Borrower
must not do or permit anything to be done, which may make void or voidable any
insurance policy.


 


(i)                       Each
Borrower must ensure that:


 


(i)                        each
premium for insurance is paid promptly and in any event prior to the date on
which it is due; and


 


(ii)                     all other
things necessary to keep each insurance policy in force are done.


 


(j)                       If any
Borrower fails to comply with any of its obligations under this Clause, the
Facility Agent may, upon advance written notice to the relevant Borrower and at
the expense of such Borrower, effect any insurance and take such other action
as the Facility Agent may reasonably consider necessary or desirable to prevent
or remedy any breach of this Clause.


 


(k)                  (i)                          Subject
to paragraph (iv) below and the terms of the Property Leases, if an Event of
Default is continuing, Insurance Proceeds received under Insurances (other than
Insurances for loss of rental income or business interruption) must, if the
Facility Agent so requires, be used to prepay the Loans.


 


(ii)                     Subject to
paragraph (i) above, the Borrowers must apply all Insurance Proceeds received
under Insurances (other than Insurances for loss of rental income or business
interruption) in respect of each Property towards replacing, restoring or
reinstating that Property.


 


(iii)                  The proceeds of
any business interruption insurance will be treated as Gross Rental Income and
applied in such manner as the Facility Agent (acting reasonably) requires to
have effect as if it were Gross Rental Income received over the period of the
loss of rent.


 


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(iv)                 Moneys received
under liability policies held by the Borrowers which are required by the
Borrowers to satisfy established liabilities of it to third parties, must be
used to satisfy these liabilities.


 


22.6              Environmental
Matters


 


(a)                    Each Borrower
must ensure that it (and each Acquired Entity owned by it) is, and has been, in
compliance with all Environmental Law and Environmental Approvals applicable to
it where failure to do so has a Material Adverse Effect.


 


(b)                   Each Borrower
must promptly upon becoming aware notify the Facility Agent of:


 


(i)                        any
Environmental Claim current, or to its knowledge, pending or threatened;


 


(ii)                     any
circumstances reasonably likely to result in an Environmental Claim; or


 


(iii)                  any suspension,
revocation or notification of any Environmental Approval.


 


(c)                    Each Borrower
must indemnify each Finance Party against any loss or liability which:


 


(i)                        that
Finance Party incurs as a result of any actual or alleged breach of any Environmental
Law by any Borrower or an Affiliate thereof; and


 


(ii)                     which would
not have arisen if a Finance Document had not been entered into,


 


unless it is caused by
that Finance Party’s gross negligence or wilful misconduct.


 


22.7              Planning


 


(a)                    Promptly upon
becoming aware of them, the Borrowers must supply the Facility Agent with
details of any notice, order, directive, designation, resolution or proposal
relating to a Property or the area in which it is situated, from a planning
authority or other person under the Planning/Zoning Laws.


 


(b)                   The Borrowers
must ensure that all buildings and erections on each Property will be
constructed, operated and maintained in all material respects in accordance
with applicable Planning/Zoning Laws.


 


22.8              Public Law Obligations


 


Promptly upon becoming
aware of any public law obligation, including without limitation construction,
maintenance or contribution obligations (Baulasten),  the Borrowers must supply the Facility
Agent with details of any notice, order, directive, designation, resolution or
proposal, relating to a Property or the area in which it is situated, from a
public authority or other competent person.


 


22.9              Title


 


Each Borrower shall:


 


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(a)                    promptly pay
all rent, assessments and outgoings in respect of each Property unless
contested in good faith;


 


(b)                   not create or
agree to the creation of, any covenant, agreement, stipulation, reservation,
condition, interest, right, or other matter materially adversely affecting any
Property (excluding, for the avoidance of doubt, anything permitted under this
Agreement) and shall use all reasonable endeavours to ensure that no such
matter subsists;


 


(c)                    duly and
punctually comply with, and indemnify the Finance Parties in respect of any
actual or alleged breach of, any covenant or stipulation (restrictive or
otherwise) affecting each Property to the extent that the Borrower is
responsible for complying with such covenant or stipulation;


 


(d)                   grant the
Finance Parties, or their lawyers, on request all facilities within its power
to enable them (at the expense of the Lenders if no Default is outstanding and
at the expense of the relevant Borrower if a Default is outstanding) to (i)
carry out investigations of title (Grundbucheinsicht)  to each Property and (ii) make such
enquiries in relation to any part of a Property as a prudent land chargee might
carry out;


 


(e)                    promptly upon
becoming aware of the same, notify the Facility Agent of any adverse claim by
any person in respect of the ownership of any Property or any interest in it or
of the construction of the buildings, and erections on any Property; and


 


(f)                      promptly
take all such steps (including, without limitation, the execution, completion
and delivery of documentation, returns, forms and certificates; the answering
of any questions or correspondence from any tax authority or any Land Registry;
the payment of any fees, stamp duty land tax, penalties and interest and the
delivery of any stamp duty land tax certificates received from any tax
authority to the Facility Agent as soon as received by it), as may be necessary
to enable the Security Interests expressed to be created by the Security
Documents to be validly registered at the appropriate Land Register.


 


22.10        Land Register Excerpts


 


Each Borrower must
procure that the Facility Agent and the Security Agent receive up to date
certified excerpts of the relevant Land Registers as soon as a Land Charge in
relation to a Property is registered in the relevant Land Register.


 


22.11        Inspection


 


Each Borrower must ensure
that, at the cost of each Finance Party or upon the occurrence and during the
continuance of an Event of Default at the costs of the relevant Borrower, each
Finance Party and any of its officers, employees and agents has access to the
Properties owned by it and the Properties owned by an Acquired Entity owned by
such Borrower at all reasonable times and on reasonable notice, subject to the
rights (if any) of any tenants of any relevant Property under the respective Property
Lease.


 


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22.12        Acquired Entities


 


Each Borrower shall
procure that any Acquired Entity owned by it fulfills all covenants set out in
this Clause 22 with respect to the Properties owned by such Acquired Entity as
if any such covenant were undertaken by the relevant Acquired Entity itself.


 


23.                  EVENTS OF
DEFAULT


 


Each of the events set
out in this Clause 23 (Events of Default)  is an Event of Default.


 


23.1              Non-payment


 


An Obligor does not pay
on the due date any amount payable by it under the Finance Documents in the
manner required under the Finance Documents unless the non-payment is remedied
within three (3) Business Days of the earlier of the Facility Agent giving a
notice to the Obligors’ Agent and the relevant Obligor becoming aware of the
non-payment.


 


23.2              Breach of other
Obligations


 


An Obligor does not
comply with any term of the Finance Documents (other than as referred to in
Clause 23.1 (Non-payment))  or of any Acquisition Document, and the
non-compliance (if capable of remedy) is not remedied within twenty (20)
Business Days of the earlier of the Facility Agent giving notice to the
Obligors’ Agent or the relevant Obligor, as applicable, becoming aware of the
non-compliance.


 


23.3              Misrepresentation


 


A representation made or
repeated by an Obligor in any Finance Document or in any document delivered by
or on behalf of the Obligors under any Finance Document is, irrespective of any
fault (verschuldensunabhängig)  except as otherwise expressly set out
herein, materially incorrect or materially misleading in any respect when made
or deemed to be repeated if such misrepresentation or misleading
representation, if capable of remedy, is not remedied within ten (10) Business
Days after the relevant Obligor having become aware thereof by notice of the
Facility Agent or otherwise.


 


23.4              Cross-Default


 


(a)                    Any Financial
Indebtedness of an Obligor (i) is not paid when due (after the expiry of any
originally applicable grace period) (ii) becomes prematurely due and payable
(iii) is placed on demand or (iv) is capable of being declared by a creditor to
be prematurely due and payable or being placed on demand, in each case, as a
result of an event of default (howsoever described); or


 


(b)                   any commitment
for the Financial Indebtedness of an Obligor is cancelled or suspended as a
result of an event of default (howsoever described).


 


23.5              Insolvency


 


(a)                    An Obligor or
a Fund Investor is, or is deemed for the purposes of any applicable law to be,
over-indebted (überschuldet),  unable to pay its debts as they fall due
(zahlungsunfähig),  commences negotiations with any one or
more of its creditors with


 


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a view to the general
readjustment or rescheduling of its indebtedness or files for insolvency under
the insolvency laws of the applicable jurisdiction; or


 


(b)                   the management
of an Obligor is required by law to file for insolvency; or


 


(c)                    a moratorium
or suspension of payments (surseance van
betaling)  is declared
in respect of any indebtedness of any Obligor or the Sponsor.


 


23.6              Insolvency
proceedings


 


Any corporate action or
legal proceedings (except on frivolous or vexatious grounds) is taken in
relation to:


 


(a)                    the suspension of payments, a moratorium of
any indebtedness, winding-up, dissolution, administration or reorganisation (by
way of voluntary arrangement, scheme of arrangement or otherwise) of the
Borrower;


 


(b)                   a composition, assignment or similar
arrangement with any of its creditors;


 


(c)                    the appointment of a liquidator, receiver
(curator), administrator, administrative receiver, compulsory manager or other
similar officer in respect of the Borrower or any substantial part of its
assets;


 


(d)                   the opening of insolvency proceedings under
the laws of the Netherlands (faillissementsaanvraag);
or


 


(e)                    any other analogous step or procedure is
taken or initiated in any jurisdiction.


 


23.7              Creditors’ Process


 


Any
attachment,
sequestration, distress, execution or analogous event affects any material
asset(s) of an Obligor and is not discharged within fifteen (15) Business Days,
in particular without limitation if forced auction proceedings (Zwangsversteigerungsverfahren)  or forced administration proceedings (Zwangsverwaltungsverfahren)  are commenced in respect of any of the
Properties.


 


23.8              Cessation of Business


 


Any
Borrower suspends or
ceases, or threatens to suspend or cease, to carry on all or a material part of
its business, except as a result of any disposal allowed under this Agreement.


 


23.9              Effectiveness of Transaction Documents


 


It
is or becomes unlawful for an Obligor to perform any of its obligations under
the Transaction Documents, any Transaction Document is (or is alleged by an
Obligor to be for any reason) invalid, ineffective or unenforceable and such
unlawfulness, invalidity, ineffectiveness or unenforceability has a Material Adverse Effect, or an Obligor
repudiates or rescinds or purports to repudiate or rescind a Transaction
Document.


 


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23.10        Ownership


 


Any
share in the capital of any Borrower or Acquired Entity is pledged or otherwise
encumbered, or subject to an attachment, other than pursuant to any Finance
Document.


 


23.11        Validity of Security


 


The
Security Agent ceases to have a valid and enforceable security right as created
under any of the Security Documents.


 


23.12        Disposals or encumbrances of Properties


 


(a)                    Any Borrower disposes of any of its assets if
that disposal is not permitted under this Agreement or is only permitted
pursuant to Clause 21.6 (b)(vi) (Disposals).


 


(b)                   Any Borrower creates or allows to exist a
Security Interest over any of its assets which is not permitted under this
Agreement or is only permitted pursuant to Clause 21.5(b)(iv) (Negative Pledge).


 


(c)                    Any Parent creates or allows to exist a
Security Interest over any of its shares in the Borrowers which is not
permitted under this Agreement or the Deed of Share Pledge.


 


23.13        Financial statements


 


Any
financial statements of any Obligor is qualified by the auditors to a material
extent which is reasonably likely to have a Material Adverse Effect.


 


23.14        Material Adverse Effect


 


Any
event or series of events occurs which is reasonably likely to have a Material
Adverse Effect.


 


23.15        Material Litigation


 


Any
material actual litigation, arbitration or administrative proceeding occurs
which is reasonably likely to be adversely determined and if so determined,
would have a Material Adverse Effect.


 


23.16        Breach of Financial Covenants


 


(a)                    Any breach of the Financial Covenant stipulated
in Clause 21.24(a) (Financial Covenants), unless such breach is remedied to the
satisfaction of the Facility Agent within ten (10) Business Days of the earlier
of the Obligors’ Agent receiving notice from the Facility Agent or the
Borrowers becoming aware of such breach, by either:


 


(i)                        effecting a partial prepayment of the
Facility pursuant to the terms hereof from funds available for such purpose to
the Borrowers;


 


(ii)                     depositing a sum of cash with the Facility
Agent, the interest on which will be treated as Gross Rental Income; or


 


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(iii)                  depositing a sum of cash (funded by Cash
Fundings) with the Facility Agent that is the equivalent to the shortfall in
the Net Rental Income required to comply with the ICR Covenant.


 


The deposit referred to
in (ii) and (iii) above shall be repaid to the relevant Borrower upon its
request by the Facility Agent provided that the required ICR can be met for two
consecutive Interest Payment Dates without the support of such remedies.


 


(b)                   Any breach of the Financial Covenant
stipulated in Clause 21.24(b) (Financial
Covenants), unless
such breach is remedied within ten (10) Business Days of the earlier of the
Obligors’ Agent receiving notice from the Facility Agent or the Borrowers
becoming aware of such breach, by either:


 


(i)                        effecting a partial prepayment of the
Facility pursuant to the terms hereof from funds available for such purpose to
the Borrowers; or


 


(ii)                     depositing a sum of cash (funded by Cash
Fundings) with the Facility Agent that is the equivalent to the calculated
shortfall.


 


The deposit referred to
in (ii) above shall be repaid to the relevant Borrower upon its request by the
Facility Agent provided that the required LTV can be met without the support of
such remedy.


 


23.17        Acceleration


 


If
an Event of Default is outstanding, the Facility Agent may, and must if so
instructed by the Majority Lenders by notice to the Obligors’ Agent:


 


(a)                    cancel all or any part of the Commitments;
and/or


 


(b)                   declare that all or part of any amounts
outstanding under this Agreement are immediately due and payable and/or payable
on demand.


 


Any
notice given under this Sub-Clause will take effect in accordance with its
terms and must be copied by the Facility Agent to each other Finance Party
(without prejudice to the validity of any such notice).


 


23.18        Post-enforcement Priority of Payments


 


At
any time following an acceleration of the Loans pursuant to Clause 23.17 (Acceleration)  and/or an enforcement of the claims under the Finance
Documents and/or any Security Interests under the Security Documents, the
proceeds thereof (net of enforcement costs and expenses) shall be applied in
the following order by the Security Agent (provided that all obligations of the
same order shall be discharged on a pro rata basis and the obligations of any
order shall only be discharged after the discharge in full of all obligations
of a higher order):


 


(i)                       first, any costs and expenses required to
operate the Properties;


 


(ii)                    second, to the Facility Agent and to the
Security Agent, all of the Agents’ fees, costs and expenses due and payable by
the Borrowers under the Finance Documents;


 


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(iii)                 third, to the Hedge Counterparty, all
scheduled payments (not being payments as a result of termination or closing out) due and payable by the
Borrowers under the Hedging Arrangements;


 


(iv)                fourth, to the Lenders, any accrued interest
under the Facility as well as fees and costs (other than pursuant to (ii)
above) due and payable by the Borrowers under the Finance Documents;


 


(v)                   fifth, pro rata and pari passu as between (A) and (B):


 


(A)                 to the Lenders,
towards the repayment of principal in respect of all outstanding Loans; and


 


(B)                   to the Hedge Counterparty, any payments (not
being payments referred to in subparagraph (vi) below) as a result of termination or closing out due but unpaid
under the Hedging Arrangements;


 


(vi)                sixth, to any termination payments under the
Hedging Arrangements of the Borrowers arising from:


 


(A)                 it becoming illegal for the Hedge
Counterparty to comply with its obligations under the applicable Hedging Arrangements; or


 


(B)                   an event of default relating to the relevant Hedge Counterparty;


 


(vii)             seventh, any other
amounts due and payable by the Borrowers under the Finance Documents.


 


24.                  THE AGENTS


 


24.1              Appointment and
Duties of the Agents


 


(a)                    Each Finance Party (other than the Security
Agent) herewith irrevocably appoints the Security Agent and the Security Agent
accepts to act as its agent under the Security Documents exempt from the
restrictions provided for in § 181 of the German Civil Code (Bürgerliches Gesetzbuch).


 


(b)                   Each Finance Party (other than the Facility
Agent) herewith irrevocably appoints the Facility Agent and the Facility Agent
accepts to act as its agent under the Facility Documents exempt from the
restrictions provided for in § 181 of the German Civil Code (Bürgerliches Gesetzbuch).


 


(c)                    The Agents have only those duties which are expressly specified in the Finance
Documents. Those duties are solely of a mechanical and administrative nature.


 


(d)                   Each Lender authorises each of the Agents to
exercise the rights, powers, authorities and discretions specifically given to it under or in connection with the
Finance Documents together with any other incidental rights, powers,
authorities and discretions.


 


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24.2              No fiduciary Duties


 


Except as specifically
provided in a Finance Document, nothing in the Finance Documents makes any of
the Agents a trustee or fiduciary for any other Party or any other person. The
Agents do not need to hold in trust any moneys paid to any of them for a Party
or be liable to account for interest on those moneys.


 


24.3              Individual Position of the Agents


 


Each of the Agents may:


 


(a)                    carry on any business with the Obligors or
their related entities (including acting as an agent or a trustee for any other financing); and


 


(b)                   retain any profits or remuneration it receives under the Finance Documents or in
relation to any other business it carries on with the Obligors or their related
entities.


 


24.4              Reliance


 


Each
of the Agents may:


 


(a)                    rely on any notice or document believed by it
to be genuine and correct and to have been signed by, or with the authority of, the proper person;


 


(b)                   rely on any statement made by any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify;


 


(c)                    engage, pay for and rely on professional
advisers selected by it (including those representing a Party other than the
respective Agent); and


 


(d)                   act under the Finance Documents through its personnel and agents.


 


24.5              Lenders’ Instructions


 


(a)                    Unless a contrary indication appears in a
Finance Document, each of the Agents shall act in accordance with any
instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from acting
or exercising any right, power, authority or discretion vested in it as Agent).


 


(b)                   Unless a contrary indication appears in a Finance
Document, any instructions given by the Majority Lenders will be binding on all
the Finance Parties.


 


(c)                    Each of the Agents is fully protected if it
acts on the instructions of the Lenders or the Majority Lenders (as the case
may be) in the exercise of any right, power or discretion or any matter not
expressly provided for in the Finance Documents. In the absence of
instructions, each Agent may act as it considers to be in the best interests of
the Lenders.


 


(d)                   Each Agent may assume that unless it has
received notice to the contrary, any right, power, authority or discretion
vested in any Party or the Lenders have not been exercised.


 


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(e)                    The Agents are not authorised to act on behalf of the Lenders (without first
obtaining the Lenders’ consent) in any legal or arbitration proceedings in
connection with any Finance Document.


 


(f)                      Each Agent may require the receipt of indemnity satisfactory to it, whether by
way of payment in advance or otherwise, against any liability or loss which it
may incur in complying with the instructions of the Lenders.


 


24.6              Responsibility


 


(a)                    None of the Agents is responsible to any
other Finance Party for the adequacy, accuracy or completeness of:


 


(i)                        any Finance Document or any other document; or


 


(ii)                     any statement or information (whether written or oral) made in or supplied in
connection with any Finance Document.


 


(b)                   Without affecting the responsibility of the
Borrowers for information supplied by it or on its behalf in connection with
any Finance Document, each of the Lenders confirms that it:


 


(i)                        has made, and will continue to make, its own
independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial
condition and affairs of each Borrower and its related entities and the nature
and extent of any recourse against any Party or its assets); and


 


(ii)                     has not relied exclusively on any information
provided to it by any of the Agents in connection with any Finance Document.


 


24.7              Exclusion of Liability


 


(a)                    The Agents are not liable or responsible to any
other Finance Party for any action taken or not taken by them in connection
with any Finance Document, unless directly caused by their gross negligence or
wilful misconduct.


 


(b)                   No Party (other than the respective Agent)
may take any proceedings against any officer, employee or agent of the Agents in respect of any
claim it might have against any of the Agents or in respect of any act or
omission of any kind by that officer, employee or agent in connection with any
Finance Document.


 


24.8              Default


 


(a)                    The Agents are not obliged to monitor or
enquire whether a Default has occurred. The Agents are not deemed to have
knowledge of the occurrence of a Default.


 


(b)                   If an Agent:


 


(i)                        receives notice from a Party referring to
this Agreement, describing a Default and stating that the event is a Default;
or


 


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(ii)                     is aware of
the non-payment of any principal or interest or any fee payable to the Lenders
under this Agreement,


 


it must promptly notify
the Lenders.


 


24.9              Information


 


(a)                    The respective
Agent must promptly forward to the person concerned the original or a copy of
any document which is delivered to that Agent by a Party for that person.


 


(b)                   Except where a
Finance Document specifically provides otherwise, none of the Agents is obliged
to review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.


 


(c)                    Except as
provided above, none of the Agents has a duty to:


 


(i)                        either
initially or on a continuing basis to provide the Lenders with any credit or
other information concerning the risks arising under or in connection with the
Finance Documents (including any information relating to the financial
condition or affairs of each Obligor or its related entities or the nature or
extent of recourse against any Party or its assets) whether coming into its
possession before, on or after the date of this Agreement; or


 


(ii)                     unless
specifically requested to do so by the Lenders in accordance with a Finance
Document, to request any certificate or other document from the Obligors.


 


(d)                   In acting as
Agents, the agency division of each Agent is treated as a separate entity from
its other divisions and departments. Any information acquired by any of the
Agents which, in its opinion, is acquired by it otherwise than in its capacity
as any of the Agents may be treated as confidential by that Agent and will not
be treated as information possessed by that Agent in its capacity as such.


 


(e)                    None of the
Agents is obliged to disclose to any person any confidential information
supplied to it by or on behalf of the Obligors solely for the purpose of
evaluating whether any waiver or amendment is required in respect of any term
of the Finance Documents.


 


(f)                      Each Obligor
irrevocably authorises each of the Agents to disclose to the other Finance
Parties any information which, in its opinion, is received by it in its
capacity as Agent.


 


24.10        Indemnities


 


(a)                    Without
limiting the liability of the Obligors under the Finance Documents, the Lenders
must indemnify each of the Agents for any loss or liability incurred by the
Agents in acting as Agents, except to the extent that the loss or liability is
caused by the respective Agent’s gross negligence or wilful misconduct.


 


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(b)                   Each Agent may
deduct from any amount received by it for the Lenders any amount due to such
Agent from the Lenders under a Finance Document but unpaid.


 


24.11        Compliance


 


Each Agent may refrain
from doing anything (including disclosing any information) which might, in its
opinion, constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person, and may do anything which, in its
opinion, is necessary or desirable to comply with any law or regulation.


 


24.12        Resignation of an Agent


 


(a)                    Each Agent may
resign and appoint:


 


(i)                        any of its
Affiliates; or


 


(ii)                     in the event
that all or any of the rights of the Lenders under a Finance Document are
securitised, the servicer or trustee or any similar person appointed in
relation to that securitisation,


 


as successor Agent (as
the case may be) by giving notice to the Lenders and the Obligors’ Agent.


 


(b)                   Alternatively,
each Agent may resign by giving notice to the Lenders, the other Agent and the
Obligors’ Agent, in which case the Lenders may appoint a successor Agent.


 


(c)                    If no
successor Agent has been appointed under paragraph (b) above within thirty (30)
days after notice of resignation was given, the respective Agent may appoint a
successor Agent.


 


(d)                   Any successor
Agent shall operate from a Facility Office in the European Union or the Channel
Islands.


 


(e)                    The person(s)
appointing a successor Agent must consult with the Borrowers prior to the
appointment, and demonstrate that no additional cost will be incurred by any
Obligor as a result of the appointment of such successor Agent.


 


(f)                      Subject as
otherwise provided in paragraph (g) below, the resignation of an Agent and the
appointment of a successor Agent will both become effective only when:


 


(i)                        the
successor Agent notifies all the Parties that it accepts its appointment; and


 


(ii)                     on giving the
notification, the successor Agent will succeed to the position of the retiring
Agent and the term Agent will mean the successor Agent.


 


(g)                   To the fullest
extent permitted by law, the resignation of an Agent and the appointment of a
successor Agent shall not become effective until:


 


(i)                        each of
the Finance Parties (other than the respective Agent) confirms that it is
satisfied with the credit rating of the proposed successor Agent; and


 


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(ii)                     in the event
of the appointment of a successor Security Agent, each of the Lenders confirms
that they are satisfied that all acts and things have been done which are
required in order to ensure that, upon the appointment of a successor Security
Agent becoming effective, the successor Security Agent will be the beneficiary of
effective and perfected security under those Security Documents (including any
replacement or re-executed version thereof) as may be required by the
appointment of a successor Security Agent to the same extent as the resigning
Security Agent. The Obligors shall do any act or thing necessary or desirable
in order to ensure that the Security Documents (including any replacement or
re-executed version thereof) shall provide at such date for effective and
perfected security in favour of the successor Security Agent and the other
Finance Parties.


 


(h)                   The retiring
Agent must, at its own cost, make available to the successor Agent such
documents and records and provide such assistance as the successor Agent may
reasonably request for the purposes of performing its functions as the Agent
under the Finance Documents.


 


(i)                       Upon its
resignation becoming effective, this Clause will continue to benefit the
retiring Agent in respect of any action taken or not taken by it in connection
with the Finance Documents while it was the Agent, and, subject to paragraph
(f) above, it will have no further obligations under any Finance Document.


 


(j)                       The Lenders
may, by notice to an Agent, require it to resign under paragraph (b) above.


 


24.13        Security Agent


 


(a)                    Save as
otherwise set forth in Clause 2.5 (Parallel
Debt)  the Security
Agent shall hold or, as the case may be due to legal restrictions, administer
the security constituted by the Security Documents on trust (als Treuhänder)  for the Finance Parties in accordance with the Finance
Documents.


 


(b)                   The Security
Agent shall not be liable for any failure, omission, or defect in registering,
protecting or perfecting the security constituted by any Security Document or
any security created thereby unless directly caused by its gross negligence or
wilful misconduct.


 


(c)                    The Security
Agent has no obligation to enquire into or check the title which the Obligors
may have to their property over which security is intended to be created by any
Security Documents or to insure any such property.


 


(d)                   If a disposal
of any asset subject to security created by a Security Document is made in the
following circumstances:


 


(i)                        the
Majority Lenders agree to the disposal;


 


(ii)                     the disposal
is allowed by the terms of the Finance Documents and will not result or could
not reasonably be expected to result in any breach of any term of any Finance
Document;


 


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(iii)                  the disposal is
being made at the request of the Security Agent in circumstances where any security
created by the Security Documents has become enforceable; or


 


(iv)                 the disposal is
being effected by enforcement of a Security Document,


 


the asset being disposed
of will be released from any security over it created by a Security Document.
However, the proceeds of any disposal (or an amount corresponding to them) must
be applied in accordance with the requirements of the Finance Documents (if
any).


 


(e)                    If the
Security Agent is satisfied that a disposal is allowed under paragraph (d)
above, the Security Agent must execute (at the request and reasonable expense
of the Borrowers) any document which is reasonably required to achieve that
release. Each other Finance Party hereby irrevocably authorises the Security
Agent to execute any such document.


 


(f)                      All amounts
received by the Security Agent under the Security Documents may be invested in
the name of, or under the control of, the Security Agent in any investments
selected by the Security Agent. Additionally, those moneys may be placed on
deposit in the name of, or under the control of, the Security Agent at any bank
or institution (including itself) and upon such terms as it may think fit.


 


24.14        Notice Period


 


Where this Agreement
specifies a minimum period of notice to be given to a Finance Party, the
Finance Party may, at discretion, accept a shorter notice period.


 


24.15        Enforcement Instructions


 


The Finance Parties
hereby agree that, to the extent permissible under applicable law, the Security
Documents shall be exclusively enforced by the Security Agent and the Finance
Parties hereby waive any rights they may have to enforce such security. This
Clause 24.15 (Enforcement Instructions)  is only for the benefit of the Finance
Parties and shall not constitute rights of the Obligors or result in a waiver
of rights or claims of the Finance Parties against the Obligors.


 


25.                  SHARING AMONG
FINANCE PARTIES


 


25.1              Payments to the
Finance Parties


 


If a Finance Party (a Recovering Finance Party) receives or
recovers any amount from or for the account of a Borrower (including by way of
set-off) other than in accordance with Clause 14 (Payments under the Finance Documents)  (including any interest earned on such
amount by the Recovering Finance Party) and applies that amount to a payment
due under the Finance Documents then:


 


(a)                    the Recovering
Finance Party shall, within three (3) Business Days, notify details of the
receipt or recovery to the Facility Agent;


 


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(b)                   the Facility
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Finance Party would have been paid had the receipt or
recovery been received or made by the Facility Agent and distributed in
accordance with Clause 14 (Payments under
the Finance Documents), without
taking account of any Tax which would be imposed on the Facility Agent in
relation to the receipt, recovery or distribution; and


 


(c)                    the Recovering
Finance Party shall, within three (3) Business Days of written demand by the
Facility Agent, pay to the Facility Agent an amount (the Sharing Payment) equal
to such receipt or recovery less any amount which the Facility Agent determines
may be retained by the Recovering Finance Party as its share of any payment to
be made, in accordance with Clause 14 (Payments
under the Finance Documents).


 


25.2              Redistribution of
Payments


 


The Facility Agent shall
treat the Sharing Payment as if it had been paid by the relevant Borrower and
distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 14 (Payments
under the Finance Documents).


 


25.3              Compensation for
Recovering Finance Party


 


Subject to the receipt of
a Sharing Payment by the Facility Agent, each Finance Party (other than the
Recovering Finance Party) hereby sells and assigns to the Recovering Finance
Party a portion of its claims for payments of principal, interest, fees or of
any other nature against the respective Relevant Party that corresponds to the
nature of the claim on which the Recovering Finance Party has received a
Sharing Payment. The amount of the claim assigned compared to the amount of the
Sharing Payment shall have the same proportion as the amount outstanding to the
assigning Finance Party to the total amounts outstanding under the Agreement.
The assignment under this Clause 25.3 shall only take effect at the moment a
Sharing Payment is received by the Facility Agent.


 


25.4              Reversal of
Redistribution


 


If any part of the
Sharing Payment received or recovered by a Recovering Finance Party becomes repayable
and is repaid by that Recovering Finance Party, then:


 


(a)                    each Finance
Party which has received a share of the relevant Sharing Payment pursuant to
Clause 25.2 (Redistribution of Payments)  shall, upon request of the Facility
Agent, pay to the Facility Agent for account of that Recovering Finance Party
an amount equal to its share of the Sharing Payment (together with an amount as
is necessary to reimburse that Recovering Finance Party for its proportion of
any interest on the Sharing Payment which that Recovering Finance Party is
required to pay); and


 


(b)                   the assignment
of participations under Clause 25.3 (Compensation for Recovering Finance Party)  shall become ineffective (auflösende
Bedingung).


 


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25.5              Exceptions


 


(a)                    This Clause 25
shall not apply to the extent that the Recovering Finance Party would not,
after making any payment pursuant to this Clause 25, have a valid and
enforceable claim against the Borrower.


 


(b)                   A Recovering
Finance Party is not obliged to share with any other Finance Party any amount
which the Recovering Finance Party has received or recovered as a result of
taking legal or arbitration proceedings, if:


 


(i)                        it
notified the other Finance Parties of the legal or arbitration proceedings; and


 


(ii)                     the other
Finance Party had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable having received
notice or did not take separate legal or arbitration proceedings.


 


26.                  FEES


 


26.1              Commitment and other
Fees


 


(a)                    No commitment
fee shall accrue:


 


(i)                        from the
date of this Agreement until 30 September 2007; and


 


(ii)                     in case of a
cancellation pursuant to Clause 2.3 (Voluntary
Cancellation).


 


(b)                   The Borrowers
shall pay to the Facility Agent (for the account of each respective Lender):


 


(i)                        from 1
October 2007 until 31 March 2008: a fee in Euro computed at the rate of 0.10
per cent. per annum on the respective Lender’s undrawn Available Commitment;


 


(ii)                     from 1 April
2008 until the expiry of the Availability Period: a fee in Euro computed at the
rate of 0.25 per cent. per annum on the respective Lender’s undrawn Available
Commitment.


 


(c)                    The accrued
commitment fee is payable quarterly in arrears on each Interest Payment Date
falling within the relevant period of time set out in Clause 24.1 (a).


 


(d)                   The Borrowers
shall further pay to the Facility Agent (for the account of each respective
Lender) such additional fees as are agreed in the Fee Letter.


 


26.2              Upfront Fee


 


On each Utilisation Date,
the Borrowers must pay an upfront fee in the amount and in the manner agreed in
a Fee Letter.


 


95

















 


26.3              Agency Fee


 


The Borrowers will pay to
the Facility Agent, for its own account:


 


(a)                    on (i) the
Initial Utilisation Date and (ii) each anniversary of the date of this
Agreement until the Facility terminates; and


 


(b)                   on the first
Interest Payment Date following a Property Substitution;


 


an agency fee in the
amount and in the manner agreed in a Fee Letter


 


27.                  INDEMNITIES


 


27.1              Currency Indemnity


 


The Obligors must, as an
independent obligation, indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of its receiving an
amount in respect of any of the Obligors’ liabilities under the Finance
Documents or any such liability being converted into a claim, proof, judgment
or order, in a currency other than the currency in which the amount is
expressed to be payable under the relevant Finance Document. Unless otherwise
required by law, each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency other than that in
which it is expressed to be payable.


 


27.2              Other Indemnities


 


Each Borrower must
indemnify each Finance Party against any loss or liability which the respective
Finance Party reasonably incurs as a consequence of:


 


(a)                    the occurrence
of any Event of Default;


 


(b)                   any failure by
a Borrower to pay any amount due under a Finance Document on its due date (or
where no due date is given, on the date so notified to the relevant Borrower),
including any resulting from any distribution or redistribution of any amount
among the Lenders under this Agreement;


 


(c)                    (other than by
reason of default by the respective Finance Party) a Loan or any portion
thereof not being drawn after a Request has been delivered; or


 


(d)                   the Loan (or
part of the Loan) not being prepaid in accordance with this Agreement.


 


provided that such
Finance Party has taken all steps it is required to take by operation of
mandatory law in order to mitigate such loss or liability.


 


The relevant Borrower’s
liability in each case includes any loss or expense on account of funds
borrowed, contracted for or utilised to fund any amount payable under any
Finance Document, any amount repaid or prepaid or the Loan.


 


Each Borrower must also
indemnify each Finance Party against any loss or liability incurred by that
Finance Party as a result of the Finance Party acting or relying on any notice
which the Finance Party reasonably believes to be genuine, correct and
appropriately authorised.


 


96














 


27.3              Break Costs


 


(a)                    Each Borrower
must pay to each of the Lenders its Break Costs (if any).


 


(b)                   Break Costs
means the amount (if any) determined by the respective Lender by which:


 


(i)                        the
interest payable under Clause 8 (Interest)  (including Margin and Mandatory Costs, if
any) which the Lender would have received for the period from the date of
receipt of the relevant repayment or prepayment to the last day of the period
ending on the next Interest Payment Date for the respective Loan or Overdue
Amount if the principal or Overdue Amount received had been paid on the last
day of the period ending on that Interest Payment Date;


 


exceeds


 


(ii)                     the amount
which the Lender would be able to obtain by placing an amount equal to the
amount of such repayment or prepayment on deposit with a leading bank in the
appropriate interbank market for a period starting on the Business Day
following receipt and ending on the last day of the period ending on the next
Interest Payment Date.


 


(c)                    Each Lender
must supply to the Facility Agent for the Borrowers details of the amount of
any Break Costs claimed by it under this sub-clause.


 


28.                  EXPENSES


 


28.1              Initial Costs


 


The Borrowers must pay to
the Facility Agent the amount of all costs and expenses (including but not
limited to reasonable legal fees, disbursements and other out of pocket
expenses such as fees of the Valuer, engineering consultants’ fees,
environmental consultants’ fees, accountants’ fees and the fees of other third
party report providers mandated by any of the Finance Parties together with
incurred disbursements and VAT or similar tax or duty thereon) incurred by a
Finance Party or any of its Affiliates in connection with the negotiation,
preparation, printing, execution, completion and syndication of the Finance
Documents and matters incidental thereto (which includes any notarisation and
registration fees in connection with the creation of the Land Charges), in each
case provided that the Borrowers have approved such expenses.


 


28.2              Subsequent Costs


 


The Borrowers must pay to
the Facility Agent the amount of all costs and expenses (including reasonable
legal fees or other payments and value added tax or similar tax or duty thereon
incurred by any of the Finance Parties or any of its Affiliates) and all matters
incidental thereto incurred by it in connection with (i) the negotiation,
preparation, printing and execution of any Finance Document executed after the
date of this Agreement and (ii) any amendment, waiver or consent requested by
or on behalf of the Borrowers. The Lenders must pay to each Borrower the amount
of all costs and expenses (including legal fees or other


 


97

















 


payments and value added
tax or similar tax or duty thereon incurred by it, but excluding any incidental
minor costs) and all matters incidental thereto incurred by it in connection
with any amendment, requested by or on behalf of the Lenders or any assistance
pursuant to Clause 21.20.


 


28.3              Enforcement Costs


 


The Borrowers must pay to
each Finance Party the amount of all costs, charges and expenses (including
reasonable legal fees) incurred by it in connection with the enforcement of, or
the preservation of any rights under, any Finance Document (in each case with
any applicable value added tax or other taxes).


 


28.4              Know your Customer


 


In the event of a Change
of Control the Borrowers must pay to the Lenders the costs, charges and
expenses (including reasonable legal fees) incurred by the Lenders in
connection with the “Know your customer” checks which the Lenders are required
to make under any applicable laws.


 


29.                  AMENDMENTS AND
WAIVERS


 


29.1              Amendment and
Waivers


 


(a)                    Subject to
paragraph (b) and (c) below any term of the Finance Documents may be amended or
waived only with the consent of the Majority Lenders and the Obligors’ Agent
and any such amendment or waiver shall be binding for all Parties. The Facility
Agent may effect on behalf of any of the Finance Parties, any amendment or
waiver permitted by this Clause 29.


 


(b)                   An amendment or
waiver that has the effect of changing or which relates to:


 


(i)                        The
definition of Majority Lenders;


 


(ii)                     an extension
of the date of payment of any amount under the Finance Documents;


 


(iii)                  a reduction of
the Margin or the amount of any payment of principal, interest, fees or
commission payable to a Lender under the Finance Documents;


 


(iv)                 an increase in
Commitments;


 


(v)                    the definition
of Security Documents or this Clause 29 (Amendment
and Waivers);


 


(vi)                 the release of
any Security created pursuant to any Security Documents (except as provided in
any Security Document); or


 


(vii)              the right of a
Lender to assign or transfer its rights or obligations under the Finance
Documents;


 


shall not be made without
the prior consent of all Lenders.


 


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(c)                    An amendment
or waiver which relates to the rights or obligations of an Agent may not be
effected without the consent of the relevant Agent.


 


29.2              Change of Currency


 


If a change in any
currency of a country occurs (including where there is more than one currency
or currency unit recognised at the same time as the lawful currency of a
country), the Finance Documents will be amended to the extent the Facility
Agent (acting reasonably and after consultation with the Obligors’ Agent)
determines it is necessary to reflect the change.


 


29.3              Waivers and Remedies
Cumulative


 


The rights of each Party
under the Finance Documents:


 


(a)                    may be
exercised as often as necessary;


 


(b)                   are cumulative
and not exclusive of its rights under the general law; and


 


(c)                    may be waived
only in writing and specifically.


 


Delay in exercising or
non-exercise of any right is not a waiver of that right.


 


30.                  CHANGES TO THE
PARTIES


 


30.1              Assignments and
Transfers by the Obligors


 


No Obligor may assign or
transfer any of its rights and obligations under the Finance Documents without
the prior consent of the Facility Agent in its absolute discretion, provided
that the Facility Agent shall not unreasonably withhold or delay its consent to
an assignment to another party to this Agreement. The foregoing sentence shall
not apply to the assignment of claims arising hereunder pursuant to the terms
of the relevant Acquisition Document to the sellers thereunder.


 


30.2              Assignments and
Transfers by the Lenders


 


(a)                    Any Lender
(the Existing Lender) may, subject
to the following provisions and the provisions set forth in Clause 21.20 above,
at any time split its share in the Loans or any part thereof into two or more
separate tranches and/or amend, vary or prioritise such tranches and fully or
partially syndicate, securitise or otherwise assign or transfer, including by
way of assumption of contract (Vertragsübernahme)  its rights and/or obligations under this
Agreement or grant sub-participations or separately transfer the credit risk
under the Loans (synthetic securitisation) to any bank, financial institution,
special purpose company or other entity which is regularly engaged in or
established for the purpose of making, purchasing or investing in loans,
securities or other financial assets which qualifies as a Qualifying Lender
(the New Lender),  provided
that any part or tranche part so assigned or transferred has a nominal value of
at least EUR 50,000 (or equivalent in another currency) or is assigned or
transferred for a consideration of at least EUR 50,000.


 


(b)                   Each of the
Obligors explicitly consents to any of the above.


 


99

















 


(c)                    Each of the
Obligors hereby explicitly gives its consent that the Lenders also have the
right to assign the repayment claim, the interest claims and any other claims
arising under this Agreement to other credit institutions and/or financial
investors and/or special purpose vehicles. In addition, the Obligors and the
Lenders agree that the Lenders have the right to disclose information about the
Loans and/or the Obligors, in particular its name, address, the amount of
Loans, term, interest rate, loan history and security (including land register
excerpts) to the aforementioned persons or entities as well as to other
parties, in particular to rating agencies and credit enhancers, for the purpose
of such assignment or transfer in connection with the Lenders’ refinancing.


 


(d)                   Upon transfer
of some or all of an Existing Lender’s rights and obligations to a New Lender
by assumption of contract (Vertragsübernahme)  substantially in the form set forth in
Schedule 7 (Form of Transfer Certificate), such New Lender shall become a Party
as a Lender.


 


(e)                    The Existing
Lender shall as soon as reasonably practicable notify the Obligors’ Agent of
any assignment or transfer pursuant to this Clause 30.2.


 


(f)                      Partial
transfers by way of assignment or assumption of contract (including in relation
to any proposed syndication of the Facility by the Existing Lender) are
permitted and, if such a partial assignment or transfer were to occur, the
Obligors agree that they will, at the reasonable cost of the Lenders,
co-operate and assist with the taking of any action or execution of
documentation required to amend, restate or re-execute any of the Finance
Documents in order to reflect the fact that there will, as a result, be more
than one Lender under the Facility.


 


31.                  DISCLOSURE OF
INFORMATION


 


(a)                    Each of the
Finance Parties is only entitled to disclose information provided to it by the
Obligors (which may include copies of Transaction Documents):


 


(i)                        to an
Affiliate, any proposed New Lender or any other entity with whom it may enter,
or has entered into, any kind of assignment, transfer, participation,
delegation or other agreement in relation to this Agreement (including in
connection with securitisation, in line with customary market practice for
public disclosure);


 


(ii)                     which is
publicly available, other than as a result of a breach by the respective
Finance Party of this Clause;


 


(iii)                  in connection
with any legal or arbitration proceedings,


 


(iv)                 if required to do
so under any law or regulation or by any governmental, banking, taxation or
other regulatory authority;


 


(v)                    to its
professional advisers;


 


(vi)                 to a Rating
Agency or to any stock exchange, listing authority or similar body or to any
other person in connection with or in contemplation of any transfer or
assignment of, or issuance of securities in respect of, the respective


 


100

















 


Lender’s rights and
obligations under this Agreement or other transaction having a similar effect
and in connection with its ongoing reporting obligations thereunder, in line
with customary market practice for public disclosure;


 


(vii)              to any transferee of
a Commitment in connection with a syndication (subject to the execution of a
customary confidentiality agreement);


 


(viii)           to any related entity
of an Obligor; or


 


(ix)                   with the
consent of an Obligor.


 


(b)                   Paragraph (a)
above supersedes any previous confidentiality undertaking given by the
respective Finance Party prior to the date of this Agreement.


 


(c)                    Each Finance
Party may share with its Affiliates and their respective Affiliates any
information relating to the Obligors and their Affiliates (including without
limitation any non-public customer information regarding the creditworthiness
of the Obligors and their Affiliates) in order to comply with regulatory,
corporate, accounting and administrative requirements.


 


(d)                   Notwithstanding
anything to the contrary contained herein, no Lender shall be obliged to
disclose to the Obligors any information relating to its tax status or tax
affairs in general.


 


32.                  PRESCRIPTION


 


The prescription period (Verjährungsfrist)  for the Parties’ obligations under this
Agreement shall be five (5) years from the date the respective payment became
due (fällig).


 


33.                  SEVERABILITY AND
SURVIVAL OF THE TRANSACTION DOCUMENTS


 


If a term of a Finance
Document is or becomes illegal, invalid or unenforceable in any jurisdiction,
that will not affect the legality, validity or enforceability in that
jurisdiction of any other term of the Finance Documents or the legality,
validity or enforceability in other jurisdictions of that or any other term of
the Finance Documents. The same applies if this Agreement does not contain a
provision necessary to achieve the economic purpose as expressed herein (Regelungslücke).


 


34.                  COUNTERPARTS


 


Each Finance Document may
be executed (manually or by facsimile) in any number of counterparts. This has
the same effect as if the signatures on the counterparts were on a single copy
of the Finance Document.


 


101

















 


35.                  NOTICES


 


35.1              In writing


 


(a)                    Any
communication in connection with a Finance Document must be in writing and,
unless otherwise stated, may be given by e-mail or other electronic
communication, in any case followed by overnight courier or fax.


 


(b)                   For the purpose
of the Finance Documents, an electronic communication will be treated as being
in writing.


 


(c)                    Unless it is
agreed to the contrary, any consent, waiver or agreement required under a
Finance Document must be given in writing.


 


35.2              Contact Details


 


(a)                    Except as
provided below, the contact details of each Party for all communications in
connection with the Finance Documents are those notified by that Party for this
purpose to the Facility Agent on or before the date it becomes a Party.


 


(b)                   The contact
details of the Obligors’ Agent for this purpose shall be notified to the
Facility Agent on or about the date hereof.


 


(c)                    The contact
details of the Facility Agent for this purpose are:


 


	
  Address:

  	
  EUROHYPO
  Aktiengesellschaft

  
	
   

  	
  Debt Capital Markets

  
	
   

  	
  Head of Admin &
  Servicing / Agency

  
	
   

  	
  Helfmann-Park 5

  
	
   

  	
  65760 Eschborn

  
	
   

  	
  Germany

  
	
   

  	
   

  
	
  Fax number:

  	
  +49 69 2548 88407

  
	
  E-mail:

  	
  arndt.schulze@eurohypo.com

  
	
  Phone
  number:

  	
  +49
  69 2548 28407

  
	
  Attention:

  	
  Mr
  Arndt Schulze

  



 


(d)                   Any Party may
change its contact details by giving five Business Days’ notice to the Facility
Agent or (in the case of the Facility Agent) to the other Parties.


 


(e)                    Where a Party
nominates a particular department or officer to receive a communication, a
communication will not be effective if it fails to specify that department or
officer.


 


35.3              Effectiveness


 


A communication given
hereunder but received on a non-working day or after business hours in the
place of receipt will only be deemed to be given on the next working day in
that place. A communication to a Finance Party will only be effective on actual
receipt by it and by any person to whom that communication is intended to be
copied.


 


102

















 


35.4              Communication


 


(a)                    All
communications under the Finance Documents to or from an Obligor must be sent
through the Facility Agent.


 


(b)                   All
communications under the Finance Documents to or from an Obligor must be sent
through the Obligors’ Agent.


 


(c)                    Any
communication given to the Obligors’ Agent in connection with a Finance
Document will be deemed to have been given also to the other Obligors.


 


(d)                   Any
communication given to the Facility Agent in connection with a Finance Document
will be deemed to have been given also to the other Finance Parties.


 


(e)                    The Facility
Agent may assume that any communication made by the Obligors’ Agent is made
with the consent of each other Obligor and any Obligor may assume that that any
communication made by the Facility Agent is made with the consent of the
Lenders.


 


36.                  LANGUAGE


 


Any notice given in
connection with a Finance Document must be in English. Any other document
(other than a CP Document or a document relating to a Property, where such
document is originally issued in a language other than English) provided in
connection with a Finance Document must be in the English language or (unless
the Facility Agent otherwise agrees) accompanied by a certified English
translation. In this case, the English translation prevails unless the document
is a statutory or other official document.


 


37.                  GOVERNING
LAW/JURISDICTION


 


(a)                    This Agreement
is governed by German law.


 


(b)                   Subject to the
provisions below, the district court (Landgericht)  in Frankfurt/Main, Germany has
non-exclusive jurisdiction to settle any dispute in connection with any Finance
Document.


 


(c)                    The German
courts are the most appropriate and convenient courts to settle any such
dispute and the Obligors waive objection to those courts on the grounds of
inconvenient forum or otherwise in relation to proceedings in connection with
any Finance Document. However, to the extent allowed by law, each Finance Party
may take proceedings in any other court and concurrent proceedings in any
number of jurisdictions.


 


38.                  CONCLUSION


 


(a)                    This Agreement
may be concluded by an exchange of telefaxes (whereby an exchange of signature
pages suffices).


 


(b)                   In relation to
the necessary receipt of the signed signature pages (Zugang der Faxseiten) by each Party, it shall be sufficient
that each Party transmits its signed


 


103

















 


signature pages to
Hengeler Mueller, Frankfurt office, telefax number +49 (0)69 725773 (the “Recipient”).
This Agreement shall be deemed concluded with the receipt of the last signature
page by the Recipient.


 


(c)                    For the
purposes of sub-paragraph (b) above, each Party authorizes the Recipient to
receive on its behalf the signature pages from all other Parties. For the
avoidance of doubt, the Recipient shall have no further duties in connection
with its function as Recipient (in particular, but not limited to, the
Recipient is under no obligation to check the genuineness of the signatures or
the authorization of the signatories).


 


(d)                   For information
purposes only, the Recipient will fax all received signature pages to all
Parties.


 


(e)                    For purposes
of proof and confirmation only, each Party may request that one or several
copies of this Agreement shall be originally signed by the Parties.


 


THIS AGREEMENT has been
entered into on the date stated at the beginning of this Agreement.


 


[Signatures follow on signature pages below]


 


104

















 


SCHEDULE 1


 


BORROWERS AND OBLIGORS


 


Part A: Borrowers


 


(1)                     IWG 9. Objektgesellschaft B.V., a private
company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid)  incorporated
under the laws of the Netherlands, registered in the trade register of the
chamber of commerce for Amsterdam under registration number 34272300, whose
registered office is Willemsparkweg 68, 1071 HK, Amsterdam, the Netherlands;


 


(2)                     IWG 10. Objektgesellschaft B.V., a private company
with limited liability (besloten vennootschap met beperkte aansprakelijkheid)  incorporated under the laws of the
Netherlands, registered in the trade register of the chamber of commerce for
Amsterdam under registration number 34272292, whose registered office is
Willemsparkweg 68, 1071 HK, Amsterdam, the Netherlands; and


 


(3)                     IWG 11. Objektgesellschaft B.V., a private
company with limited liability (besloten vennootschap met beperkte aansprakelijkheid)  incorporated under the laws of the
Netherlands, registered in the trade register of the chamber of commerce for
Amsterdam under registration number 34272296, whose registered office is
Willemsparkweg 68, 1071 HK, Amsterdam, the Netherlands.


 


Part B: Additional Obligors


 


(1)                     DeWAG Holdings S.à r.l., a limited
liability company  (société à
responsabilité limitée)  incorporated
under the laws of Luxembourg, registered in the commercial register of the
Grand Duchy of Luxembourg under registration number B-125494 whose registered
office is at 46A, Avenue John F. Kennedy, L-1855 Luxembourg (the Parent 1);  and


 


(2)                     DeWAG LT Holdings S.à r.l., a limited
liability company  (société à
responsabilité limitée)  incorporated
under the laws of Luxembourg, registered in the commercial register of the
Grand Duchy of Luxembourg under registration number B-127315 whose registered
office is at 46 A, Avenue John F. Kennedy, L-1855 Luxembourg (the Parent 2, Parent 1 and Parent 2 together the Parents).


 


105

















 


SCHEDULE 2


 


CONDITIONS PRECEDENT DOCUMENTS


 


Part I

Conditions Precedent Documents 

to be submitted on or prior to the Initial Utilisation Date


 


The
Obligors and the Shareholders


 


1.                          A
certified copy of the articles of association or incorporation of each Obligor.


 


2.                          A
certified commercial register excerpt in respect of each Obligor dated not
earlier than 15 days prior to the date of this Agreement.


 


3.                          Copies
of resolutions of the shareholders of each Obligor (other than any Parent),
respectively, approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is expressed to be a party.


 


4.                          Copies
of resolutions of the board of directors of each Obligor, approving the terms
of, and the transactions contemplated by, the Finance Documents to which it is
expressed to be a party and authorising a person or persons to execute any
Finance Document to which it is or is expressed to be a party or to sign or
send any document or notice in connection with any Finance Document on behalf
of that Obligor.


 


5.                          A
specimen of the signature of each person authorised on behalf of each Obligor
to execute any Finance Document to which it is or is expressed to be a party or
to sign or send any document or notice in connection with any Finance Document,
and a copy of the applicable legally binding document appointing such persons
or other suitable evidence of such appointment, unless already provided
pursuant to this Agreement.


 


6.                          A duly
executed original of a director’s certificate of each Obligor:


 


(a)                    confirming in
the case of each Borrower, that


 


(i)                        utilising
the Total Commitments in full would not breach any statutory limit binding on
it; and


 


(ii)                     payment of
fees and expenses due and payable by it under the Finance Documents has been
made or will be made;


 


(b)                   certifying that
each document provided by it and specified in this Schedule is correct,
complete and in full force and effect as at a date no earlier than the date of
the certificate;


 


(c)                    confirming
that no public consents, approvals, authorisations are required by any Borrower
to operate its business and/or to fulfil its obligations, in each case as set
out in the Finance Documents; and


 


106

















 


(d)                   confirming with
respect to all Borrowers (considered together), that the Financial Covenants
are complied with.


 


7.                          Notification
to the Facility Agent of the identities (including addresses and/or corporate
details, if appropriate) of all Obligors and such other evidence as the
Facility Agent or the Lenders may require as to the ownership/capital structure
of the Borrowers and satisfactory completion by the Lenders of any other checks
(in particular, identity checks, applicable anti-money laundering and “know
your customer” checks).


 


Financial
information


 


8.                          With
respect to each Obligor, its audited most recent financial statements.


 


9.                          The
funds flow statement, agreed by the Borrowers and the Facility Agent, in
relation to the Acquisition of the relevant Properties.


 


10.                    Evidence that
sufficient funds are available to each Borrower as detailed in the funds flow
statement.


 


11.                    Evidence that
(i) Cash Funding by the Sponsor of at least 25% of the cost of the relevant
Acquisition has been made and (ii) the aggregate of drawn and undrawn capital
commitments available to the Fund amount to at least EUR 150,000,000, in each
case on terms satisfactory to the Facility Agent.


 


12.                    A copy of the
relevant Business Plan.


 


13.                    Evidence of
the establishment of the Accounts in accordance with the provisions of this
Agreement and copies of the bank mandates for the Accounts.


 


Insurance


 


14.                    Evidence that
the insurance cover in force in respect of the relevant Properties complies
with the terms of this Agreement.


 


15.                    Evidence that
the insurance cover in force in respect of the Managing Agent complies with the
terms of the relevant Management Agreement.


 


Property


 


In relation to each
relevant Property:


 


16.                    A copy of each
Report, each together with a duly executed original of the reliance letter
addressed to the Facility Agent (on behalf of the Lenders) (each in a form
agreed by the Facility Agent).


 


17.                    A copy of the
Management Agreement with respect to each Property, executed by the relevant
Borrower (or any Acquired Entity owned by it) and the Managing Agent.


 


18.                    Evidence that
all Security Interests (other than Security Interests created under a Security
Document and Permitted Encumbrances) affecting the Borrowers’ interests (or the
interests of


 


107

















 


any Acquired Entity, as
the case may be) in the relevant Properties have been, or will be, discharged
in connection with the disbursement.


 


19.                    Officially
certified excerpt from the Land Register (öffentlich beglaubigter Grundbuchauszug)  (dated not earlier than the date
five (5) Business Days before the respective Request) relating to the Property.


 


20.                    Site plans for
each Property and their surroundings.


 


21.                    Copies of all
land register maps (Flurkarten)  for the Property, dated no earlier than two (2)
months prior to the Initial Utilisation Date.


 


22.                    Copies of the
letters from the register of public easements (Baulastenverzeichnis)  for the Property (to the extent
available in the relevant federal state (Bundesland), dated no earlier than two (2) months prior to the
Initial Utilisation Date.


 


23.                    Copies of
letters from the register regarding contaminated soils (Auszug aus dem Altlastenkataster)  for the Property, dated no earlier
than two (2) months prior to the Initial Utilisation Date.


 


24.                    Either
(unless, in case of a Share Deal, the officially certified excerpt from the
Land Register to be delivered under item number 19 above evidences the
ownership in respect of any relevant Property by the respective Eligible Entity
that is to be acquired pursuant to such Share Deal):


 


(a)                    evidence of
the entry of a priority notice (Auflassungsvormerkung)  for the benefit of the relevant
Borrower for the Properties in the relevant Land Registers ranking only after
the Land Charges and those rights and encumbrances which may rank prior to the
priority notice in favour of the relevant Borrower as permitted by this
Agreement until the Land Charges have been registered; or


 


(b)                   a certified
copy of a notarial confirmation (Notarbestätigung), containing, among others, the
following confirmations:


 


(i)                        the notary
filed the Land Registry application forms for the registration of a priority
notice (Auflassungsvormerkung)  in
favour of the relevant Borrower with the relevant Land Registry in respect of
each Property at least five (5) Business Days prior to the date of the notarial
confirmation;


 


(ii)                     the payment
of all court costs associated with the registration of such priority notices (Auflassungsvormerkungen)  is secured; and


 


(iii)                  the notary
double checked the Land Registry files and records at least five Business Days
after the filing of the applications for registration of each priority notice
and confirms that in relation to the Property the due registration of a
priority notice (Auflassungsvormerkung)  in favour of the relevant Borrower
is secured.


 


108

















 


25.                    Either:


 


(a)                    registration
of the Land Charge in the relevant Land Register in respect of each Property
and a copy of the deletion consents (Löschungsbewilligungen)  and all other deletion consents in
the form required by the competent Land Registry necessary for the deletion of
all encumbrances in sections II and III of the relevant Land Register which are
not Permitted Encumbrances under the terms of this Agreement; or


 


(b)                   alternatively
copies of all necessary Land Registry application forms for the creation of the
Land Charge encumbering each Property (including evidence for payment or cover
of the applicable Land Registry fees) and a certified copy of a notarial
confirmation (Notarbestäigung), containing, among others, the following
confirmations:


 


(i)                        the notary
notarised the documents necessary for the creation of the Land Charge and filed
the Land Registry application forms for the registration of the Land Charges
with the competent Land Registry also in the name of the Security Agent at
least five days prior to the date of the notarial confirmation;


 


(ii)                     the notary
double checked the Land Registry files and records at least five Business Days
after the filing of the applications for registration of the Land Charge and
confirms that there are no prior applications for registrations of other
encumbrances, subject to any Permitted Encumbrance; and


 


(iii)                  all consents
necessary for the encumbrance with and enforcement of each of the
aforementioned Land Charges, if any, have been granted in due form.


 


26.                    Receipt by the
Facility Agent of a certified copy of a notarial confirmation referring to each
Property containing the following confirmations by the Notary Public:


 


(a)                    he has
received all documents (e.g. deletion consents (Löschungsbewilligungen))  in the form required by the
relevant Land Registry (only subject to repayment of the outstanding amounts)
necessary for the deletion of


 


(i)                        all
encumbrances registered in section III of the relevant Land Register; and


 


(ii)                     all
encumbrances in section II of the relevant Land Register which are not
disclosed in the relevant Acquisition Document; and


 


(b)                   that he has
applied or will apply for deletion of the aforementioned encumbrances and will
submit all necessary documents to the competent Land Registry promptly after he
has received the confirmation by the respective creditor that all payments
required in order to fulfill the escrow instructions for the deletion of the
existing charges in respect of the respective Property have been made.


 


27.                    A copy of the
duly executed relevant Acquisition Document (in a form agreed by the Facility
Agent) and a certified copy of the confirmation by the acting notary that all
conditions to completion (Kaufpreisfalligkeit)  of the relevant Acquisition have
been fulfilled.


 


109

















 


Security
and other Finance Documents


 


Signed/executed copies of
the following documents:


 


28.                    Powers of
Attorney from each Borrower and the Parent, duly authorising the Dutch civil-law
notary to execute the Deeds of Share Pledge.


 


29.                    Each Deed of
Share Pledge.


 


30.                    Each agreement
on the security purpose of Land Charges or amendments thereto comprising an
agreement determining the security purpose of the Security Interest created
under a Land Charge entered into or to be entered into by the relevant Borrower
(or any Acquired Entity owned by it), the Original Lender and/or the other
Finance Parties in form and substance satisfactory to the Security Agent, in
respect of each relevant Property.


 


31.                    Publicly
certified copies of the Deeds of Land Charge (Grundschuldbestellungsurkunde)  in respect of each relevant
Property in form and substance satisfactory to the Security Agent.


 


32.                    A global
assignment agreement governed by the laws of any applicable jurisdiction in the
agreed form providing for a security assignment (Sicherungsabtretung)  by each of the Borrowers of all of
its present and future rights and claims, including, without limitation, under
or in connection with:


 


(a)                    any Lease
Agreement;


 


(b)                   any Management
Agreement;


 


(c)                    any Hedging
Arrangement;


 


(d)                   any Acquisition
Document; and


 


(e)                    any Insurance;


 


in favour of the Security
Agent, together with any notifications to be given or acknowledgments to be
received pursuant to the global assignment agreement.


 


33.                    A duly
executed original of the first ranking pledge over all relevant Accounts and
notice of such pledge.


 


34.                    The
Subordination Agreement.


 


35.                    Each Duty of
Care Declaration.


 


36.                    Each Fee
Letter.


 


Legal/Tax
opinions


 


37.                    A legal
opinion (in a form agreed by the Facility Agent) of Hengeler Mueller, legal
advisers to the Arranger and the Facility Agent, regarding the validity and
enforceability of the relevant Finance Documents governed by German law.


 


110

















 


38.                    A legal
opinion (in a form agreed by the Facility Agent) of Loyens & Loeff, legal
advisers to the Borrowers, regarding in particular the corporate existence,
capacity and authority of each Borrower to enter into, and the due execution
of, the Finance Documents to which it is a party.


 


39.                    A legal opinion (in a form agreed by the
Facility Agent) of Nauta Dutilh, legal advisers to the Arranger and the
Facility Agent, regarding validity and enforceability of the Finance Documents
governed by Dutch law.


 


40.                    A tax opinion (in a form agreed by the
Facility Agent) of Linklaters LLP Germany (with respect to German tax law) and
Deloitte (with respect to Dutch and Luxembourg tax law and any other tax law of
the tax residence of any Acquired Entity) regarding Tax Deductions in
connection with the Finance Documents.


 


41.                    The Tax Structure Memo of Linklaters LLP
Germany and Deloitte together with a duly executed original of a reliance
letter (both in a form agreed by the Facility Agent).


 


Other documents and
evidence


 


42.                    Evidence that all governmental or regulatory
consents and approvals and licences required by law have been obtained.


 


43.                    Evidence of the payment of all outstanding
arrangement fees and any outstanding fees of Hengeler Mueller and the other
advisors of the Arranger and the Agents.


 


111

















 


Part II

Conditions Precedent Documents

to be submitted on or prior to each subsequent Utilisation Date with respect to
the relevant

Acquisition and/or the relevant Utilisation.


 


The Obligors and the
Shareholders


 


Either:


 


A.                      If and to the extent applicable, a duly
executed original of a director’s certificate of each relevant Obligor,
certifying that no changes or amendments have occurred since the preceding
Utilisation Date in respect of the documents relating to it and listed under
numbers 1 through 7 of this Part II of Schedule 2 (Conditions Precedent
Documents); or


 


B.                        To the extent an alteration or change has
occurred since the preceding Utilisation Date:


 


1.                          A certified copy of the articles of
association of each Obligor,


 


2.                          A certified commercial register excerpt in
respect of each Obligor dated not earlier than 15 days prior to the date of the
relevant Utilisation.


 


3.                          Copies of resolutions of the shareholders of
each Obligor, respectively, approving the terms of, and the transactions
contemplated by, the Finance Documents to which it is expressed to be a party.


 


4.                          Copies of resolutions of the board of
directors of each Obligor incorporated in the Netherlands, approving the terms
of, and the transactions contemplated by, the Finance Documents to which it is
expressed to be a party and authorising a person or persons to execute any
Finance Document to which it is or is expressed to be a party or to sign or
send any document or notice in connection with any Finance Document on behalf
of that Obligor.


 


5.                          A specimen of the signature of each person
authorised on behalf of each Obligor to execute any Finance Document to which
it is or is expressed to be a party or to sign or send any document or notice
in connection with any Finance Document, and a copy of the applicable legally
binding document appointing such persons or other suitable evidence of such
appointment, if not already provided pursuant to this Agreement.


 


6.                          A duly executed original of a director’s
certificate of each Obligor:


 


(a)                    confirming in
the case of each Borrower, that


 


(i)                        utilising
the Total Commitments in full would not breach any statutory limit binding on
it; and


 


(ii)                     payment of
fees and expenses due and payable by it under the Finance Documents has been
made or will be made;


 


112

















 


(b)                   certifying that each document provided by it
and specified in this Schedule is correct, complete and in full force and
effect as at a date no earlier than the date of the certificate;


 


(c)                    confirming that no public consents,
approvals, authorisations are required by any Borrower to operate its business
and/or to fulfil its obligations, in each case as set out in the Finance
Documents; and


 


(d)                   confirming with respect to all Borrowers (considered
together), that the Financial Covenants are complied with.


 


7.                          Notification to the Facility Agent of the
identities (including addresses and/or corporate details, if appropriate) of
all Obligors and Shareholders and such other evidence as the Facility Agent or
the Lenders may require as to the ownership/capital structure of the Borrowers
and satisfactory completion by the Lenders of any other checks (in particular,
identity checks, applicable anti-money laundering and “know your customer”
checks).


 


Financial information


 


8.                          With respect to each Obligor, its audited
most recent financial statements.


 


9.                          The funds flow statement, agreed by the
Borrowers and the Facility Agent, in relation to the Acquisition of the
relevant Properties.


 


10.                    Evidence that sufficient funds are available
to each Borrower as detailed in the funds flow statement.


 


11.                    Evidence that (i) Cash Funding by the Sponsor
of at least 25% of the cost of the relevant Acquisition has been made and (ii)
the aggregate of drawn and undrawn capital commitments available to the Fund
amount to at least EUR 150,000,000, in each case on terms satisfactory to the
Facility Agent.


 


12.                    A copy of the relevant Business Plan.


 


13.                    Evidence of the establishment of the Accounts
in accordance with the provisions of this Agreement and copies of the bank
mandates for the Accounts.


 


Insurance


 


14.                    Evidence that the insurance cover in force in
respect of the relevant Properties complies with the terms of this Agreement.


 


15.                    Evidence that the insurance cover in force in
respect of any newly appointed Managing Agent complies with the terms of the
relevant Management Agreement.


 


Property


 


In relation to each relevant
Property:


 


113

















 


16.                    A copy of each
Report, each together with a duly executed original of the reliance letter
addressed to the Facility Agent (on behalf of the Lenders) (each in a form
agreed by the Facility Agent).


 


17.                    A copy of the Management Agreement with
respect to each Property, executed by the relevant Borrower (or any Acquired
Entity owned by it) and the relevant Managing Agent.


 


18.                    Evidence that all Security Interests (other
than Security Interests created under a Security Document and Permitted
Encumbrances) affecting the Borrowers’ interests (or the interests of any
Acquired, as the case may be) in the relevant Properties have been, or will be,
discharged in connection with the disbursement.


 


19.                    Officially certified excerpt from the Land
Register (öffentlich beglaubigter
Grundbuchauszug)  (dated
not earlier than the date five (5) Business Days before the respective Request)
relating to the Property.


 


20.                    Site plans for each Property and their
surroundings.


 


21.                    Copies of all land register maps (Flurkarten)  for the Property, dated no earlier than two (2) months prior to the respective Utilisation Date.


 


22.                    Copies of the letters from the register of public
easements (Baulastenverzeichnis)  for the Property, dated no earlier than
two (2) months prior to the respective Utilisation Date.


 


23.                    Copies of letters from the register regarding
contaminated soils (Auszug aus dem Altlastenkataster)  for the Property, dated
no earlier than two (2) months prior to the respective Utilisation Date.


 


24.                    Either (unless, in case of a Share Deal, the
officially certified excerpt from the Land Register to be delivered under item number 19 above evidences the
ownership in respect of any relevant Property by the respective Eligible Entity
that is to be acquired pursuant to such Share Deal):


 


(a)                    evidence of
the entry of a priority notice (Auflassungsvormerkung)  for the benefit of the relevant Borrower
for the Properties in the relevant Land Registers ranking only after the Land
Charges and those rights and encumbrances which may rank prior to the priority
notice in favour of the relevant Borrower as permitted by this Agreement until
the Land Charges have been registered; or


 


(b)                   a certified copy of a notarial confirmation (Notarbestätigung), containing, among others, the following
confirmations:


 


(i)                        the notary
filed the Land Register application forms for the registration of a priority
notice (Auflassungsvormerkung)  in favour of the relevant Borrower with
the relevant Land Register in respect of each Property at least five (5)
Business Days prior to the date of the notarial confirmation;


 


(ii)                     the payment of all court costs associated
with the registration of such priority notices (Auflassungsvormerkungen)  is
secured; and


 


114

















 


(iii)                  the notary double checked the Land Register files and records at least five
Business Days after the filing of the applications for registration of each
priority notice and confirms that in relation to the Property the due
registration of a priority notice (Auflassungsvormerkung)  in favour of the relevant Borrower is
secured.


 


25.                    Either:


 


(a)                    registration of the Land Charge in the
relevant Land Register in respect of each Property and a copy of the deletion
consents (Löschungsbewilligungen)  and all other deletion consents in the form required by the competent Land
Registry necessary for the deletion of all encumbrances in sections II and III
of the relevant Land Register which are not Permitted Encumbrances under the
terms of this Agreement; or


 


(b)                   alternatively copies of all necessary Land
Registry application forms for the creation of the Land Charge encumbering each Property (including
evidence for payment or cover of the applicable Land Registry fees) and a
certified copy of a notarial confirmation (Notarbestätigung),  containing, among others, the following
confirmations:


 


(i)                        the notary notarised the documents necessary for the creation of the Land Charge
and filed the Land Registry application forms for the registration of the Land
Charges with the competent Land Registry also in the name of the Security Agent
at least five days prior to the date of the notarial confirmation;


 


(ii)                     the notary double checked the Land Register
files and records at least five Business Days after the filing of the applications for registration of the Land
Charge and confirms that there are no prior applications for registrations of
other encumbrances, subject to any Permitted Encumbrances; and


 


(iii)                  all consents necessary for the encumbrance with and enforcement of each of the
aforementioned Land Charges, if any, have been granted in due form.


 


26.                    Receipt by the Facility Agent of a certified
copy of a notarial confirmation referring to each Property containing the following confirmations by
the Notary Public:


 


(a)                    he has received all documents (e.g. deletion
consents (Löschungsbewilligungen))  in the form required by the relevant Land
Register (only subject to repayment of the outstanding amounts) necessary for
the deletion of


 


(i)                        all encumbrances registered in section III of the relevant
Land Register; and


 


(ii)                     all encumbrances in section II of the relevant Land Register
which are not disclosed in the relevant Acquisition Document; and


 


(b)                   that he has applied or will apply for
deletion of the aforementioned encumbrances and will submit all necessary
documents to the competent Land Register promptly after he has received the confirmation by the respective creditor
that all payments required in order to fulfill the escrow instructions for the
deletion of the existing charges in respect of the respective Property have
been made.


 


115

















 


27.                    A copy of the duly executed relevant
Acquisition Document (in a form agreed by the Facility Agent) and a certified
copy of the confirmation by the acting notary that all conditions to completion
(Kaufpreisfalligkeit) of the relevant Acquisition have been fulfilled.


 


Security and other
Finance Documents


 


Signed/executed copies of
the following documents:


 


28.                    [Powers of Attorney from each Borrower and
the Parent, authorising the Dutch civil-law notary to execute the Deeds of
Share Pledge.] [only if new Borrower]


 


29.                    [Each Deed of Share Pledge.] [only if new Borrower]


 


30.                    Each agreement on the security purpose of Land
Charges or amendments thereto comprising an agreement determining the security
purpose of the Security Interest created under a Land Charge entered into or to
be entered into by the relevant Borrower (or any Acquired Entity owned by it),
the Original Lender and/or the other Finance Parties in form and substance
satisfactory to the Security Agent, in respect of each relevant Property.


 


31.                    Publicly certified copies of the Deeds of Land Charge
(Grundschuldbestellungsurkunde)  in respect of each relevant Property in
form and substance satisfactory to the Security Agent.


 


32.                    A global assignment agreement governed by the laws of any applicable
jurisdiction in the agreed form providing for a security assignment (Sicherungsabtretung)  by each of the Borrowers of all of its
present and future rights and claims, including, without limitation, under or
in connection with:


 


(a)                    any Lease Agreement;


 


(b)                   any Management Agreement;


 


(c)                    any Hedging Arrangement;


 


(d)                   any Acquisition Document; and


 


(e)                    any Insurance;


 


in favour of the Security
Agent, together with any notifications to be given or acknowledgments to be
received pursuant to the global assignment agreement.


 


33.                    [A duly executed original of the first
ranking pledge over all relevant Accounts and notice of such pledge.] [only if new Accounts]


 


34.                    The Subordination Agreement.


 


35.                    Each Duty of Care Declaration.


 


36.                    Each Fee Letter.


 


116














 


Legal/Tax opinions


 


37.                    A legal
opinion (in a form agreed by the Facility Agent) of Hengeler Mueller, legal
advisers to the Arranger and the Facility Agent, regarding the validity and
enforceability of the relevant Finance Documents governed by German law.


 


38.                    A legal
opinion (in a form agreed by the Facility Agent) of Loyens & Loeff, legal
advisers to the Borrowers, regarding in particular the corporate existence,
capacity and authority of each Borrower to enter into, and the due execution
of, the Transaction Documents to which it is a party.


 


39.                    A legal
opinion (in a form agreed by the Facility Agent) of Nauta Dutilh, legal
advisers to the Arranger and the Facility Agent, regarding the validity and
enforceability of the Finance Documents governed by Dutch law.


 


40.                    In case of a
Share Deal: A bring down letter of Linklaters LLP Germany (with respect to
German tax law) and Deloitte (with respect to Dutch and Luxembourg tax law and
any other tax law of the tax residence of any Acquired Entity) confirming that
the tax opinion as required in Schedule 2 Part 1 No. 40 of this Agreement is
still correct and up to date and/or if this was not the case an amendment to
such tax opinion (in a form agreed by the Facility Agent).


 


41.                    In case of a
Share Deal: a Tax Structure Memo of Linklaters LLP Germany and Deloitte
together with a duly executed original of a reliance letter (both in a form
agreed by the Facility Agent) providing a true and fair description of all tax
aspects relevant in the envisaged transaction. In case of an asset deal: a
bring down letter of Linklaters LLP Germany and Deloitte confirming that the
tax considerations as described in the Tax Structure Memo provided in
connection with this Credit Facility Agreement are still a true and fair
summary of all tax aspects relevant in the envisaged transaction and/or if this
was not the case an amendment to such Tax Structure Memo.


 


Other documents and
evidence


 


42.                    Evidence that
all governmental or regulatory consents and approvals and licences required by
law have been obtained.


 


43.                    Evidence of
the payment of all outstanding arrangement fees and any outstanding fees of
Hengeler Mueller and the other advisors of the Arranger and the Agents.


 


117

















 


Part III 

Further Conditions Precedent Documents


 


1.                          A duly
executed original Compliance Certificate of the Obligors’ Agent that on the
relevant Utilisation Date, no Event of Default would arise under Clause 23.16 (Breach of Financial Covenants).


 


2.                          With
respect to each Utilisation other than the Utilisation on the Initial
Utilisation Date, such other documents as the Facility Agent in its reasonable
discretion may request in connection with the Finance Documents.


 


118

















 


Part IV

Additional Conditions Precedent Documents

to be submitted on or prior to the relevant Utilisation Date

if the Utilisation is related to a Share Deal


 


1.                          A
certified copy of the articles of association or equivalent document of each
Eligible Entity.


 


2.                          A
certified commercial register excerpt in respect of each Eligible Entity dated
not earlier than 15 days prior to the date of the relevant Utilisation (or
equivalent if an Eligible Entity is located in a jurisdiction other than
Germany).


 


3.                          Copies
of resolutions of the shareholders of each Eligible Entity, respectively,
approving the terms of, and the transactions contemplated by, the Finance
Documents to which it is expressed to be a party.


 


4.                          Copies
of resolutions of the board of directors of each Eligible Entity approving the
terms of, and the transactions contemplated by, the Finance Documents to which
it is expressed to be a party and authorising a person or persons to execute
any Finance Document to which it is or is expressed to be a party or to sign or
send any document or notice in connection with any Finance Document on behalf
of that Eligible Entity.


 


5.                          A
specimen of the signature of each person authorised on behalf of each Eligible
Entity to execute any Finance Document to which it is or is expressed to be a
party or to sign or send any document or notice in connection with any Finance
Document, and a copy of the applicable legally binding document appointing such
persons or other suitable evidence of such appointment, if not already provided
pursuant to this Agreement.


 


6.                          With
respect to each Eligible Entity, its audited most recent financial statements.


 


7.                          Any and
all Entity Security Documents as relevant with respect to each Eligible Entity
together with any notifications to be given or acknowledgments to be received
pursuant to the relevant Entity Security Documents.


 


8.                          A duly
executed original of a director’s certificate of each Eligible Entity,
certifying that each document provided by it and specified in this Schedule is
correct, complete and in full force and effect as at a date no earlier than the
date of the certificate.


 


9.                          A tax
and accounting opinion (in a form agreed by the Facility Agent) of a reputable
law firm regarding the relevant Transaction Documents and the fulfilment of the
criteria set out under lit (b) of the Entity Eligibility Criteria set out in
Schedule 6.


 


10.                    A due
diligence report of a reputable law firm regarding the criteria set out under
lit. (a), (c) and (d) of the Entity Eligibility Criteria set out in Schedule 6.


 


119

















 


SCHEDULE 3


 


FORM OF REQUEST


 


 


	
  To:

  	
  EUROHYPO Aktiengesellschaft, as Lender

  
	
   

  	
   

  
	
  From:

  	
  [         ]
  as Borrower

  
	
   

  	
   

  
	
  Date:

  	
  [•]

  



 


EUR 550,000,000 Credit Agreement dated 6 June 2007 (the
Agreement)


 


1.                          We refer
to the Agreement. This is a Request.


 


2.                          We wish
to borrow a Loan on the following terms:


 


(a)                    Proposed
Utilisation Date: [a Business Day falling within the Availability Period] (or,
if that is not a Business Day, the next Business Day);


 


(b)                   Amount: EUR [•]
or, if less, the Available Facility.


 


3.                          Purpose:
Financing of the acquisition of the residential [property] [properties]
specified in the Annex attached hereto.


 


4.                          Our
payment instructions are: [•].


 


5.                          We
confirm that each condition precedent under the Agreement which must be
satisfied on the date of this Request is so satisfied (including, without
limitation, that no Default has occurred or will occur as a result of the
Utilisation) and that each of the representations in Clause 19 (Representations)  of the Agreement are true and
accurate as at the date of the proposed Utilisation Date.


 


6.                          We
confirm that you may deduct from the proceeds of the Loan (although the amount
of the Loan will remain the amount requested above):


 


(a)                    [the outstanding
balance of the fees payable under the Fee Letters being EUR [•];


 


(b)                   any other fees
due and payable at the Utilisation Date pursuant to a Fee Letter or pursuant to
Clause 26 (Fees);


 


(c)                    Lenders’
counsel’s fees; and


 


(d)                   the fees of the
Valuer.](1)


 


This Request is
irrevocable.


 










(1) Delete as
appropriate.


 


120

















 


	
   

  	
   

  
	
   

  	
   

  
	
  For
  and on behalf of

  	
   

  
	
   

  	
   

  
	
  [Borrower]

  	
   

  
	
   

  	
   

  
	
  by:

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


121

















 


ANNEX


 


RELEVANT PROPERTIES


 


	
  Property Description

  	
   

  	
  Allocated Loan

  Amount

  	
   

  	
  Release Price

  Percentage

  	
   

  	
  Owner

  	
   

  
	
   

  	
   

  	
  (in EUR million)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


122

















 


SCHEDULE 4


 


PROPERTY ELIGIBILITY CRITERIA


 


I.                            Any
property acquired by any Borrower shall fulfil each of the following criteria:


 


(i)                       It is
located in Germany.


 


(ii)                    It is a residential and multifamily property,
or a residential property with ancillary commercial use which does not generate
more than on average 15% of its income from non-residential use.


 


(iii)                 It is mainly located in a city or part of a
city with a population of more than 100,000 inhabitants or within commuting distance of
agglomeration areas and the following characteristics:


 


•                             mainly
average or below average unemployment rates or areas with strong residential
demand;


 


•                             does not materially adversely affect the
overall geographic diversity of the portfolios securing the Facility.


 


(iv)                It has good to acceptable access to local
infrastructure (transport connections, utilities, schools, hospitals etc.).


 


(v)                   It has good to acceptable quality of construction (or an appropriate plan to
address any outstanding issues in the relevant Business Plan):


 


•                             no material structural problems and
significant defects or damages;


 


•                             up to 5 storeys or equipped with elevator(s);


 


•                             residential units with balconies considered a
plus.


 


(vi)                It is well maintained or has demonstrable
capability to raise rents through better maintenance and similar asset
management measures.


 


(vii)             Administration and asset management is provided or to be
provided by professional residential property management.


 


II.                        The
following location, portfolio and property characteristics shall be deemed
undesirable (unless there is an appropriate plan to address any outstanding
issues in the relevant Business Plan if this applicable):


 


(a)                    Undesirable location and portfolio characteristics:


 


(i)                        Areas with
materially above average unemployment rates;


 


(ii)                     unbalanced social structure;


 


123

















 


(iii)                  structural vacancy and/or vacancy level above
the lower of (i) 10% and (ii) average vacancy for the city or area (on average,
vacancy may be higher for individual properties within a portfolio). Higher vacancy
levels may be mitigated by strong Business Plan (e.g. renovation, lease management, other asset management
initiatives);


 


(iv)                 scattered property not suitable for efficient
administration, so that Net Operating Income and/or saleability is materially adversely
affected;


 


(v)                    creates strong geographic concentration
within the overall portfolio securing the Facility, unless location and quality of properties is outstanding.


 


(b)                   Undesirable property characteristics:


 


(i)                        Very large housing estate (high condominium blocks, etc.), unless well maintained
and in good location (for the definition of good location please see I. above);


 


(ii)                     very small apartments (up to 10% under 45 m2) if difficult to let or
sell due to their size and/or layout unless the location has a specific demand
for smaller apartments (agglomeration areas and university cities);


 


(iii)                  building damage and/or state of disrepair (significant maintenance backlog);


 


(iv)                 conversion areas without satisfactory environmental survey
and or expert opinion.


 


124

















 


SCHEDULE 5


 


PROPERTY INFORMATION


 


A management report in
respect of the Properties including the following information:


 


(a)                    overview of
the Properties in aggregated and individual format;


 


(b)                   schedule specifying each property, showing
the lettable area, actual and expected rent, service charges, value added tax
and any other amounts payable in that period by that tenant (in each case
including details of any arrears) as well as for commercial areas greater than
200 square meters any break options and rent review dates;


 


(c)                    vacancies;


 


(d)                   copies of all material correspondence
regarding any insurance proceeds in excess of EUR 100,000 with insurance
brokers handling the Insurance to the extent performed;


 


(e)                    summaries of any material repairs required with
respect to each Property (actual and as specified in the relevant Business
Plan);


 


(f)                      summaries of any capital expenditure in excess of EUR
100,000 with respect to each Property within the past three months in
comparison to the relevant Business Plan;


 


(g)                   details of all Properties disposed of during that
quarterly period (including the disposal proceeds received by the respective
Borrower);


 


(h)                   quarterly statement regarding material legal cases
dealt within the legal department of DeWAG; and


 


(i)                       leasing and strategy report including details
of marketing budget, marketing strategy and implementation of marketing strategy for the Properties as
a whole and in relation to certain areas upon reasonable request of the
Facility Agent.


 


125

















 


SCHEDULE 6


 


ENTITY ELIGIBILITY CRITERIA


 


Any legal entity the
shares in which are acquired by a Borrower by way of a Share Deal shall fulfil
each of the following criteria:


 


(a)                     It is the
legal owner of one or more Eligible Properties.


 


(b)                    It creates
legal, valid and enforceable first ranking Security Interests in favour of the
Security Agent equivalent to the Security Interests created or to be created
under or pursuant to the Security Documents without any limitation language
resulting from (i) capital maintenance rules pursuant to Sections 57 of the
German Stock Corporation Act (Aktiengesetz)  or 30 and foll, of the German Act on Limited
Liability Companies (GmbH-Gesetz)  or similar provisions of any other jurisdiction or
(ii) any taxation laws or regulations.


 


(c)                     With respect
to it, all representations set out in Clause 19 are, adjusted as appropriate,
correct and not misleading in any material respect. It is capable to fulfil all
covenants and undertakings set out in Clauses 20, 21 and 22 to the extent
applicable to it.


 


(d)                    It does not
have any actual or contingent liabilities other than as permitted under the
Finance Documents.


 


126

















 


SCHEDULE 7


 


FORM OF TRANSFER CERTIFICATE


 


	
  From:

  	
  [THE EXISTING LENDER] (the Existing Lender)

  
	
   

  	
   

  
	
  To:

  	
  [THE NEW LENDER] (the New Lender)

  
	
   

  	
   

  
	
  Date:

  	
  [•]

  



 


EUR
550,000,000 Credit Agreement dated 6 June 2007 (the Agreement)


 


We refer to the Agreement
and in particular Clause 30 (Changes to the Parties). This is a Transfer Certificate.
By signing and countersigning, respectively, this Transfer Certificate, each of
the Existing Lender and the New Lender agree to the transfer as described
below.


 


1.                          The
Existing Lender hereby transfers (Vertragsübernahme)  to the New Lender the Existing
Lender’s rights and obligations referred to in the Schedule below in accordance
with the terms of the Agreement.


 


2.                          The
proposed Transfer Date is [•].


 


3.                          The
administrative details of the New Lender for the purposes of the Agreement are
set out in the Schedule.


 


4.                          The
Existing Lender consents to the transfer of all obligations on behalf of the
Borrowers in accordance with Clause 30 (Changes to the Parties).


 


5.                          This
Transfer Certificate is governed by German law.


 


127

















 


THE SCHEDULE


 


Rights and obligations to be transferred


 


 


[insert relevant details,
including applicable Commitment (or part)] 

Administrative details of the New Lender


 


[insert details of Facility
Office, address for notices and payment details etc.]


 


 


	
  [EXISTING LENDER]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  
	
   

  
	
  [NEW LENDER]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  



 


128

















 


SCHEDULE 8


 


COMPLIANCE CERTIFICATE


 


	
  From:

  	
  [Obligors’ Agent]

  
	
   

  	
   

  
	
   

  	
   

  	
  Date:  [     ]

  
	
   

  	
   

  
	
  To:

  	
  EUROHYPO Aktiengesellschaft

  Debt Capital Markets

  Head of Admin & Servicing / Agency

  Helfmann-Park 5

  65760 Eschborn

  Germany

  



 


EUR 550,000,000 Credit Agreement dated 6 June 2007 and made
between ourselves as borrower and yourselves as original lender, facility agent
and security agent (the Loan Agreement)


 


Dear
Sirs,


 


We
refer to the Loan Agreement. Terms defined in the Loan Agreement have the same
meaning when used in this letter. This certificate is a Compliance Certificate.


 


1.                          We
confirm on behalf of the Borrowers that on [   ] the ICR is
[   ].


 


2.                          We
confirm on behalf of the Borrowers that on [   ] the LTV is [   ].


 


3.                          We
hereby confirm that the above ICR and LTV ratios have been calculated in
accordance with the terms of the Agreement.


 


Yours faithfully,


 


For and on behalf of:


 


[  ]


 


represented by:


 


[  ]


 


 


	
   

  	
   

  
	
  Name:

  
	
  Title:

  



 


129

















 


SCHEDULE 9


 


CALCULATION OF THE MANDATORY COSTS


 


1.                         General


 


The Mandatory Cost is the
weighted average of the rates for each Lender calculated below by the Facility
Agent on the first day of an Interest Period. The Facility Agent must
distribute each amount of Mandatory Cost among the Lenders on the basis of the
rate for each Lender.


 


2.                         For a
Lender lending from a Facility Office in the U.K.


 


(A)                The relevant rate
for a Lender lending from a Facility Office in the U.K. is calculated in
accordance with the following formula:


 


	
  Ex0.01

  	
   per cent. per annum

  
	
  300

  



 


where on the day
of application of the formula:


 


E                            is
designed to compensate Lenders for amounts payable under the fees rules and is
calculated by the Facility Agent as being the average of the most recent rates
of charge supplied by the Reference Banks to the Facility Agent pursuant to paragraph (D) below and expressed
in pounds per £1,000,000.


 


(B)                  For the purposes
of this paragraph 2:


 


(i)                        fees rules means the then current rules on
periodic fees in the Supervision Manual of the FSA Handbook; and


 


(ii)                     tariff base has the meaning given to it in
the fees rules.


 


(C)                  Each rate
calculated in accordance with the formula is, if necessary, rounded upward to
four decimal places.


 


(D)                 Each Reference
Bank must supply to the Facility Agent the rate of charge payable by that
Reference Bank to the Financial Services Authority under the fees rules
(calculated by that Reference Bank as being the average of the rates of charge
within fee-block Category Al (Deposit
acceptors)  applicable
to that Reference Bank but, for this purpose, applying any applicable discount
and ignoring any minimum fee required under the fees rules) and expressed in
pounds per £1 million of the tariff base of that Reference Bank. Each Reference
Bank must promptly notify the Facility Agent of any change to the rate of charge.


 


(E)                   Each Lender and
each Reference Bank must supply to the Facility Agent the information required
by it to make a calculation of the rate for that Lender or Reference Bank. The
Facility Agent may assume that this information is correct in all respects. If
a Lender or a Reference Bank fails to do so, the Facility Agent may assume that
the Lender’s or that Reference Bank’s obligations in respect of cash ratio
deposits, special deposits and the fees rules are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility Office in
the U.K. The Facility


 


130

















 


Agent has no liability to
any Party if its calculation over or under compensates any Lender.


 


3.                         For a
Lender lending from a Facility Office in a Participating Member State


 


(A)                The relevant rate
for a Lender lending from a Facility Office in a Participating Member State is
the percentage rate per annum notified by that Lender to the Facility Agent as
its cost of complying with the minimum reserve requirements of the European
Central Bank.


 


(B)                  If a Lender
fails to specify a rate under paragraph (A) above, the Facility Agent will
assume that the Lender has not incurred any such cost.


 


4.                         Changes


 


The
Facility Agent may, after consultation with the Obligors’ Agent and the
Lenders, notify all the Parties of any amendment to this Schedule which is
required to reflect:


 


(A)                any change in law
or regulation; or


 


(B)                  any requirement
imposed by the Bank of England, the Financial Services Authority or the
European Central Bank (or, in any case, any successor authority).


 


Any
notification will be, in the absence of manifest error, conclusive and binding
on all the Parties.


 


131

















 


SCHEDULE 10


 


FORM OF TAX CONFIRMATION


 


	
  BESCHEINIGUNG
  ZUR VORLAGE BEIM

  FINANZAMT FÜR ZWECKE DES § 8A KSTG

  	
   

  	
  CERTIFICATION FOR PRESENTATION TO THE TAX 

  OFFICE FOR THE PURPOSES OF SECTION 8A OF 

  GERMANY’S CORPORATION TAX LAW



  
	
  Sie hatten die
                                 
  (“Bank/Sparkasse”) gebeten, zur
  Vorlage beim Finanzamt für Zwecke des § 8a KStG eine Bescheinigung
  auszustellen.

  	
   

  	
  You have asked
                        
  (“Bank/Savings Bank”) to issue a
  Certification for presentation to the Tax Office for the purposes of the Corporation
  Tax Law.

  
	
  Hierzu erklären
  wir, dass uns bezüglich der [Bezeichnung
  des Kreditvertrages]  (die
  “Finanzierung”) an die [Bezeichnung der Kreditnehmer]  als Kreditnehmer (zusammen “Kreditnehmer”),

  	
   

  	
  We hereby
  declare that regarding the mixed limit/loan/short-term operating credit line           
  (contract number; loan number; account number) of        
  (date of the conclusion of the contract) in the amount of EUR           
  (“Loan”) to the [XY] (“Borrower”),

  
	
  keine
  Sicherheiten an Kapitalforderungen von anderen Personen als dem Kreditnehmer
  gewährt wurden.

  	
   

  	
  No
  securities on capital claims of persons other than the Borrower have been
  granted.

  
	
  die
  nachfolgend aufgeführten Sicherheiten von anderen Personen als dem
  Kreditnehmer gewährt wurden:

  	
   

  	
  The
  following securities have been granted by persons other than the Borrower:

  
	
  1. Dingliche Sicherheiten

  Pfandrechte
  (z.B. an Einlagen)

  	
   

  	
  1. Security in rem

  Pledges / Liens (e.g. of
  deposits)

  
	
  Sicherungsabtretungen (z.B. Einzelabtretung von
  Forderungen)

  	
   

  	
  Assignments (e.g.
  assignments of receivables)

  
	
  2. Personalsicherheiten (z.B.  Bürgschaft, Garantie,
  Schuldmitübernahme)

  	
   

  	
  2. Personal security  (e.g. surety,
  guarantee; assumption of debt)

  
	
  verbunden mit folgenden/r:

  dinglichen Sicherheiten (z.B. an Einlagen)

  	
   

  	
  linked
  with the following:

  Securities
  in rem (e.g. on deposits)

  
	
  Sicherangsabtretungen (z.B. Einzelabtretung von
  Forderungen; Global-Mantelabtretung von Forderungen)

  	
   

  	
  Assignments
  (e.g. assignments of receivables; global assignments)

  



 


132

















 


	
  Unterwerfung unter die sofortige Zwangsvollstreckung
  mit dem gesamten Vermögen oder hinsichtlich einzelner Vermögensgegenstände

  	
   

  	
  Submission to immediate foreclosure in respect of
  all or certain assets

  
	
  vereinbarten Verfügungsbeschränkungen

  	
   

  	
  Agreed restraints on disposal

  
	
  sonstigen Vereinbarungen (z.B.: Pfandrechte nach den
  Allgemeinen Gesehäftsbedingungen)

  	
   

  	
  Other agreements (e.g. pledges/liens under the
  General Standard Terms and Conditions)

  
	
  3. Sonstige Sicherheiten der o.g. Art, auf die
  während des bestehenden Darlchensverhältnisses

  	
   

  	
  3. Securities as mentioned above that have been
  waived during the term of the loan

  
	
  Sonstige Anmerkungen4

  	
   

  	
  Other comments

  
	
  Die Bescheinigung enthält nur solche Angaben, die
  dem bei der Bank/Sparkasse mit der vorgenannten Finanzierung vertrauten
  Personenkreis bekannt sind.

  	
   

  	
  This Certification is based solely on information
  that is known to the employees of the Bank/Savings Bank who have worked on
  the Loan.

  
	
  Die Bank/Sparkasse übernimmt mit dieser Erklärung -
  bereits aus rechtlichen Gründen – keine Beratung in steuerlichen
  Angelegenheiten. Insbesondere steht die Bank/Sparkasse nicht für einen
  steuerlichen Erfolg ein, der mit dieser Bescheinigung angestrebt wird.

  	
   

  	
  In providing this Certification, the Bank/Savings
  Bank – in the first place for legal reasons is not offering any consultancy
  services on tax matters. In particular, the Bank/Savings Bank will not be
  responsible or liable for the Borrower’s success in obtaining any tax
  benefits which are the objective of this Certification.

  
	
   

  	
   

  	
   

  
	
  Mit freundlichen GrüBen

  	
   

  	
  Yours sincerely,

  
	
   

  	
   

  	
   

  
	
  Bank/Sparkasse

  	
   

  	
  Bank/Savings Bank

  



 


 


133

















 


SIGNATURE PAGE


 


	
  1.

  	
  IWG 9. Objektgesellchaft B.V.

  as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Dana Hamilton

  	
   

  
	
   

  	
  By: DANA HAMILTON

  
	
   

  	
  Title: Authorised Signatory

  
	
   

  	
   

  	
   

  
	
  2.

  	
  IWG 10. Objektgesellchaft B.V.

  as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Dana Hamilton

  	
   

  
	
   

  	
  By: DANA HAMILTON

  
	
   

  	
  Title: Authorised Signatory

  
	
   

  	
   

  	
   

  
	
  3.

  	
  IWG 11. Objektgesellschaft B.V.

  as  a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Dana Hamilton

  	
   

  
	
   

  	
  By: DANA HAMILTON

  
	
   

  	
  Title: Authorised Signatory

  
	
   

  	
   

  	
   

  
	
  4.

  	
  DeWAG Holdings S.à r.l.

  as Parent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Dana Hamilton

  	
   

  
	
   

  	
  By: DANA HAMILTON

  
	
   

  	
  Title: DIRECTOR

  
	
   

  	
   

  	
   

  
	
  5.

  	
  DeWAG LT Holdings S.à r.l.

  as  Parent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Dana Hamilton

  	
   

  
	
   

  	
  By: DANA HAMILTON

  
	
   

  	
  Title: DIRECTOR

  
				



 


134

















 


	
  6.

  	
  EUROHYPO
  Aktiengesellschaft

  as Original
  Lender, Arranger, Facility Agent 

  and Security Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Benedikt Kiesl

  	
   

  	
  /s/ H. Pitz

  
	
   

  	
  By: Dr. Benedikt Kiesl

  	
  By:

  	
  gez. H. Pitz

  
	
   

  	
  Title: Managing Director

  	
  Title:

  	
   

  



 


135