Exhibit 10.4
Dated 1 July 2008
SOCIETE GENERALE
as Arranger, Facility Agent, Security Agent and Original Lender
WGN (GER) LLC
as Borrower
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AMENDMENT AGREEMENT
(Anderungsvertrag)
relating to the up to EUR 23,200,000 Facilities Agreement relating to the
Acquisition of Properties in Nagold and Waldaschaff, Germany, and related
Security Documents
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CONTENTS
CLAUSE PAGE
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1. Definitions and Interpretation..................................... 2
2. Amendments to the Facilities Agreement............................. 2
3. Amendments to the Accounts Pledge Agreement........................ 6
4. Amendments to the Security Assignment of Deeds of Guarantee........ 6
5. Amendments to the Global Assignment Agreement...................... 7
6. Amendments to the Security Purpose Agreement....................... 7
7. Adjusted Repeated Representations.................................. 7
8. Miscellaneous...................................................... 8
9. Further Assurance.................................................. 8
10. Costs and Expenses................................................. 8
11. Partial Invalidity................................................. 8
12. Amendments and Waivers............................................. 8
13. Governing Law and Jurisdiction..................................... 9
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This AMENDMENT AGREEMENT (the "AGREEMENT") is dated 1 July 2008 and made
between:
(1) WGN (GER) LLC, a Delaware limited liability company formed in and validly
existing under the laws of Delaware, having its registered offices at c/o
Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000 and its principal office at c/o W.P. Xxxxx & Co. LLC, 00
Xxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A. (the
"Borrower");
(2) SOCIETE GENERALE, a credit institution, incorporated in and validly
existing under the laws of France as a societe anonyme, registered with the
Registre du commerce et des societes of Paris under number 552 120 222,
having its registered office at 00, xxxxxxxxx Xxxxxxxxx, 00000 Xxxxx,
Xxxxxx as the mandated arranger of the Facility (as defined by reference
below) (the "ARRANGER");
(3) SOCIETE GENERALE as facility agent for the Finance Parties (the "FACILITY
AGENT");
(4) SOCIETE GENERALE (acting through its Frankfurt branch having its place of
business Xxxx Xxxxxxx Xxxxxxx 00-00, 00000 Xxxxxxxxx, Xxxxxxx) as security
agent for the Finance Parties (as defined by reference below) (the
"SECURITY AGENT"); and
(5) THE PERSON SET OUT IN SCHEDULE 1 OF THE FACILITIES AGREEMENT (AS DEFINED
BELOW) (ORIGINAL LENDER) (the "ORIGINAL LENDER").
WHEREAS:
(A) Pursuant to a facilities agreement, dated on or about 3 June 2008, entered
into between, inter alios, WGN (GER) LLC as borrower (the "BORROWER") and
Societe Generale as arranger, facility agent, security agent and original
lender (as amended, varied, novated, supplemented, superseded or extended
from time to time, the "FACILITIES AGREEMENT") the lender (the "ORIGINAL
LENDER") has agreed to grant term loan facilities in an aggregate amount of
up to EUR 23,200,000 to the Borrower for the refinancing of the acquisition
of the Properties (as defined by reference below).
(B) Pursuant to the Facilities Agreement, the Borrower has agreed to grant a
pledge over its accounts, to assign all of its right, title and interest
from time to time in and to each of the Deeds of Guarantee (as defined by
reference below) and the Receivables (as defined by reference below) and
has agreed to fulfil the obligation to provide a land charge as collateral
as security for the payment or discharge of the Secured Obligations (as
defined by reference below).
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(C) The Borrower and the Security Agent have, therefore, on 4 June 2008 entered
into a pledge over the Borrower's accounts (the "ACCOUNTS PLEDGE
AGREEMENT"), a security assignment of deeds of guarantee (the "SECURITY
ASSIGNMENT OF DEEDS OF GUARANTEE"), a global assignment agreement (the
"GLOBAL ASSIGNMENT AGREEMENT") and a security purpose agreement (the
"SECURITY PURPOSE AGREEMENT") (together the "SECURITY DOCUMENTS").
(D) The parties by entering into this Agreement intend to amend the Facilities
Agreement and each of the Security Documents.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Terms defined in the Facilities Agreement or in any of the Security
Documents shall, unless otherwise defined in this Agreement, have the same
meaning when used in this Agreement and the principles of construction set
out in the Facilities Agreement shall have effect as if set out in this
Agreement.
1.2 In this Agreement:
"EFFECTIVE DATE" means the 4 June 2008 as date on which the amendment shall
come into effect.
1.3 This Agreement is made in the English language. For the avoidance of doubt,
the English language version of this Agreement shall prevail over any
translation of this Agreement. However, where a German translation of a
word or phrase appears in the text of this Agreement, the German
translation of such word or phrase shall prevail to the extent legally
possible.
2. AMENDMENTS TO THE FACILITIES AGREEMENT
2.1 With effect from the Effective Date, the Facilities Agreement shall be
amended and restated so that the following amendments are made:
(a) the definition of "ACQUISITION FACILITY AVAILABILITY PERIOD" shall be
replaced in full as follows:
"ACQUISITION FACILITY AVAILABILITY PERIOD" means the period starting
from the opening of business in Frankfurt am Main, Germany, on the
Signing Date to close of business in Frankfurt am Main, Germany, on 29
August 2008.
(b) The definition of "NAGOLD PROPERTIES" shall be replaced in full as
follows:
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"NAGOLD PROPERTY" means the property registered in the land register
of Nagold at the local court (Amtsgericht) of Stuttgart, as follows:
folio (Xxxxx) 8802, plots (Flure) 2000/12, 2000/13, 2000/14, 2000/15,
2000/16, 2000/17, 2000/18, 2000/6, 1811/27, 1811/28, 1811/12 and
2000/78.
(c) Clause 7.1 (a) of the Facilities Agreement shall be replaced in full
as follows:
The Borrower shall repay the Loans made to it in instalments by
repaying on each Repayment Date an amount which reduces the amount of
all outstanding Loans under the Facilities on a pro rata basis by an
amount equal to the relevant fraction of the amount being the
aggregate sum of the Acquisition Loan as of the Signing Date and the
Capex Loans as of the date on which the Capex Fixed Rate is determined
as set out in the table below:
REPAYMENT DATE 25 % OF THE FOLLOWING FRACTION
-------------- ------------------------------
30 September 2008 2.85%
30 December 2008 2.85%
30 March 2009 2.85%
30 June 2009 2.85%
30 September 2009 3.00%
30 December 2009 3.00%
30 March 2010 3.00%
30 June 2010 3.00%
30 September 2010 3.14%
30 December 2010 3.14%
30 March 2011 3.14%
30 June 2011 3.14%
30 September 2011 3.29%
30 December 2011 3.29%
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30 March 2012 3.29%
30 June 2012 3.29%
30 September 2012 3.43%
30 December 2012 3.43%
30 March 2013 3.43%
30 June 2013 3.43%
30 September 2013 3.58%
30 December 2013 3.58%
30 March 2014 3.58%
30 June 2014 3.58%
30 September 2014 3.72%
30 December 2014 3.72%
30 March 2015 3.72%
30 June 2015 3.72%
(d) Clause 12.2 (a) of the Facilities Agreement shall be replaced in full
as follows:
The Borrower shall pay to the Facility Agent (for the account of each
Lender) a fee in euro at a rate of 50 per cent. p.a. of the Margin of
that Lender's Available Commitment for the relevant Availability
Period commencing on 15 July 2008.
(e) Schedule 2 Part I, section 10 of the Facilities Agreement shall be
replaced in full as follows:
10. OTHER DOCUMENTS AND EVIDENCE
(a) A copy of any other Authorisation or other document, opinion or
assurance which the Facility Agent considers to be necessary or
desirable (if it has notified the Borrower accordingly) in
connection with the entry into and performance of the
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transactions contemplated by any Finance Document or for the
validity and enforceability of any Finance Document.
(b) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clause 12 (Fees) and Clause 17 (Costs and
expenses) have been paid or shall be paid by the relevant
Utilisation Date.
(c) Evidence satisfactory to the Facility Agent that the equity
portion to be provided by or on behalf of the Borrower has been
provided and paid (e.g., by way of a transfer confirmation) in
accordance with a funds flow statement or otherwise in a manner
satisfactory to the Facility Agent.
(d) There being in the reasonable opinion of the Facility Agent no
material adverse change in the legal, financial or business
condition of the Borrower which, in the reasonable opinion of the
Arranger, reasonably based on objective circumstances, materially
adversely affect the syndication of the Facility.
(e) Evidence that any process agent referred to in any Finance
Document has accepted its appointment.
(f) The Acquisition Fixed rate is not more than 5.25 % (before
Margin) on the Quotation Date, to be reached, if necessary,
through payment of a premium by the Borrower to the Lender on the
Initial Utilisation Date at the latest (payment to be made on the
account as the Facility Agent may direct). The premium will be
calculated by the Lender using customary standards to determine
the reasonable market premium required for each basis point in
excess of 5.25 %.
(g) Payment of the upfront fee in the amount of EUR 232,000 to the
Facility Agent until (and including) 15 July 2008 in immediately
available funds to the account named OPER/CAF/DMT, account number
IBAN XX00 00000 00000 00000000000 00 and Swift code XXXXXXXXXXX.
(f) Schedule 5 of the Facilities Agreement shall be replaced in full as
follows:
Delivery of a duly completed 12 noon, three (3)
Utilisation Request (Clause 5.1 Business Days before
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(Delivery of a Utilisation Request) each Utilisation Date
Facility Agent notifies the Lenders 4.00 p.m., three (3) Business
of the Loan in accordance with Days before each Utilisation
Clause 5.5 (Lenders' participation) Date
EURIBOR is fixed Quotation Date as of
11:00 a.m. Brussels time
Disbursement of Loan proceeds Utilisation Date
2.2 The provisions of the Facilities Agreement shall, save as amended hereby,
continue in full force and effect.
3. AMENDMENTS TO THE ACCOUNTS PLEDGE AGREEMENT
In Clause 1.2 of the Accounts Pledge Agreement, the definition of
"PROPERTIES" shall be amended with effect from the Effective Date and read
on and from that date in its entirety as follows:
"PROPERTIES" means
(a) the property registered in the land register of Nagold at the local
court (Amtsgericht) of Nagold, as follows: folio (Xxxxx) 8802, plots
(Flurstucke) 2000/12, 2000/13, 2000/14, 2000/15, 2000/16, 2000/17,
2000/18, 2000/6, 1811/27, 1811/28, 1811/12 and 2000/78, and
(b) the property registered in the land register of Waldaschaff at the
local court (Amtsgericht) of Aschaffenburg, as follows: folio (Xxxxx)
7957, plots (Flurstucke) 2026, 2067, 2068, 2069, 2070, 2071, 2072,
2073, 2074, 2075, 2076, 2077, 2078, 2079, 2080, 2093, 2100, 2101,
2102, 2103, 2104, 2105, 2106, 2107, 15, 1700/55, 6392 and 2087/1;
4. AMENDMENTS TO THE SECURITY ASSIGNMENT OF DEEDS OF GUARANTEE
In Clause 1.1 of the Security Assignment of Deeds of Guarantee, the
definition of "PROPERTIES" shall be amended with effect from the Effective
Date and read on and from that date in its entirety as follows:
"PROPERTIES" means the property registered in the land register of Nagold
at the local court (Amtsgericht) of Nagold, as follows: folio (Xxxxx) 8802,
plots (Flurstucke) 2000/12, 2000/13, 2000/14, 2000/15, 2000/16, 2000/17,
2000/18, 2000/6, 1811/27, 1811/28, 1811/12 and 2000/78 and the property
registered in
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the land register of Waldaschaff at the local court (Amtsgericht) of
Aschaffenburg, as follows: folio (Xxxxx) 7957, plots (Flurstucke) 2026,
2067, 2068, 2069, 2070, 2071, 2072, 2073, 2074, 2075, 2076, 2077, 2078,
2079, 2080, 2093, 2100, 2101, 2102, 2103, 2104, 2105, 2106, 2107, 15,
1700/55, 6392 and 2087/1; and "PROPERTY" means any of them.
5. AMENDMENTS TO THE GLOBAL ASSIGNMENT AGREEMENT
In Clause 1.2 of the Global Assignment Agreement, the definition of
"PROPERTIES" shall be amended with effect from the Effective Date and read
on and from that date in its entirety as follows:
"PROPERTIES" means the property registered in the land register of Nagold
at the local court (Amtsgericht) of Nagold, as follows: folio (Xxxxx) 8802,
plots (Flurstucke) 2000/12, 2000/13, 2000/14, 2000/15, 2000/16, 2000/17,
2000/18, 2000/6, 1811/27, 1811/28, 1811/12 and 2000/78 and the property
registered in the land register of Waldaschaff at the local court
(Amtsgericht) of Aschaffenburg, as follows: folio (Xxxxx) 7957, plots
(Flurstucke) 2026, 2067, 2068, 2069, 2070, 2071, 2072, 2073, 2074, 2075,
2076, 2077, 2078, 2079, 2080, 2093, 2100, 2101, 2102, 2103, 2104, 2105,
2106, 2107, 15, 1700/55, 6392 and 2087/1; and "PROPERTY" means any of them.
6. AMENDMENTS TO THE SECURITY PURPOSE AGREEMENT
In Clause 1.2 of the Security Purpose Agreement, the definition of
"PROPERTIES" shall be amended with effect from the Effective Date and read
on and from that date in its entirety as follows:
"PROPERTIES" means the property registered in the land register of Nagold
at the local court (Amtsgericht) of Nagold, as follows: folio (Xxxxx) 8802,
plots (Flurstucke) 2000/12, 2000/13, 2000/14, 2000/15, 2000/16, 2000/17,
2000/18, 2000/6, 1811/27, 1811/28, 1811/12 and 2000/78 and the property
registered in the land register of Waldaschaff at the local court
(Amtsgericht) of Aschaffenburg, as follows: folio (Xxxxx) 7957, plots
(Flurstucke) 2026, 2067, 2068, 2069, 2070, 2071, 2072, 2073, 2074, 2075,
2076, 2077, 2078, 2079, 2080, 2093, 2100, 2101, 2102, 2103, 2104, 2105,
2106, 2107, 15, 1700/55, 6392 and 2087/1; and "PROPERTY" means any of them.
7. ADJUSTED REPEATED REPRESENTATIONS
On any date on which the Borrower makes the Repeated Representations, each
reference in Clause 18 of the Facilities Agreement to "this Agreement"
shall be deemed to include a reference to the Facilities Agreement as
amended by this Agreement.
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8. MISCELLANEOUS
8.1 Other than expressly mentioned in this Agreement the Facilities Agreement
and the Security Documents shall not be amended and shall remain
unaffected.
8.2 Clauses 13 (Tax Gross up and Indemnities), 15 (Other Indemnities), 26
(Changes to the Finance Parties), 27 (Changes to the Borrower) and 33
(Notices) of the Facilities Agreement shall apply to this Agreement mutatis
mutandis.
9. FURTHER ASSURANCE
The Borrower shall, at the reasonable request of the Facility Agent and at
its own expense, do all such acts and things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this
Agreement.
10. COSTS AND EXPENSES
All costs, charges, fees and expenses triggered by this Agreement or
reasonably incurred in connection with its preparation, execution,
amendments and enforcement (in each case including fees for legal advisers)
shall be borne by the Borrower.
11. PARTIAL INVALIDITY
If at any time, any one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under the law of any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective
to the extent necessary without affecting or impairing the validity,
legality and enforceability of the remaining provisions hereof or of such
provisions in any other jurisdiction. The invalid, illegal, or
unenforceable provision shall be deemed replaced with a valid, legal or
enforceable provision which comes as close as possible to the original
intent of the parties and the invalid, illegal or unenforceable provision.
Should a gap (Regelungslucke) become evident in this Agreement, such gap
shall, without affecting or impairing the validity, legality and
enforceability of the remaining provisions hereof, be deemed to be filled
with such provision as comes as close as possible to the original intent of
the parties.
12. AMENDMENTS AND WAIVERS
12.1 Changes and amendments to this Agreement including this Clause 12
(Amendments) shall be made in writing, unless notarial form by operation of
law is required. The parties to this Agreement may waive this form
requirement by written agreement only. No oral supplements to this
Agreement have been made.
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12.2 Neither the entry into this Agreement nor anything else in this Agreement
shall operate as a waiver of any Event of Default.
13. GOVERNING LAW AND JURISDICTION
13.1 This Agreement shall be governed by and construed in accordance with the
laws of the Federal Republic of Germany.
13.2 Xxx xxxxxxxx xxxxx (Xxxxxxxxxxx) xx Xxxxxxxxx xx Xxxx, Xxxxxxx, shall have
exclusive jurisdiction in respect of any dispute arising out of or in
connection with this Agreement. Deviating mandatory statutes relating to
jurisdiction shall remain unaffected hereby. The Facility Agent shall,
however, also be entitled to take legal action against the Borrower in any
other court of competent jurisdiction.
13.3 Further the taking of proceedings against the Borrower in any one or more
jurisdictions shall not preclude the taking of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted
by applicable law.
13.4 Without prejudice to any other mode of service allowed under any relevant
law, the Borrower:
(a) irrevocably appoints Xxxx Xxxxx LLP, attn: Xx. Xxxxxxx Xxxxxxxxxxx,
attorney-at-law, Xxxxxxxxxxxxxxxx 0, 00000 Xxxxxx, Xxxxxxx as its
agent for service of process in relation to any proceedings before the
German courts in connection with this Agreement;
(b) agrees that a failure by a process agent to notify the Borrower of the
process will not invalidate the proceedings concerned; and
(c) agrees that if the appointment of such process agent ceases to be
effective in respect of the Borrower, the Borrower will immediately
appoint a further person in Germany to accept service of process on
its behalf in Germany and, failing such appointment within fifteen
(15) days, the Facility Agent shall be entitled to appoint such person
by notice to the Borrower.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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EXECUTION PAGE
AMENDMENT AGREEMENT AGREEMENT
WGN (GER) LLC
as Borrower, Assignor and Pledgor
By: Conduit B.V., its managing member
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
SOCIETE GENERALE
as Original Lender
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxxx Xxxxxx Name:
Title: Director Title:
SOCIETE GENERALE
as Facility Agent
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxxx Xxxxxx Name:
Title: Director Title:
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SOCIETE GENERALE
as Arranger
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxxx Xxxxxx Name:
Title: Director Title:
SOCIETE GENERALE
as Security Agent
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxxx Xxxxxx Name:
Title: Director Title:
