As filed with the Securities and Exchange Commission on January 12, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
InterXion Holding N.V.
(Exact name of Registrant as specified in its charter)
Not Applicable
(Translation of Registrants name into English)
The Netherlands | 4813 | Not Applicable | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
+31 20 880 7600
(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
United States
(212) 894-8940
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Jeffrey C. Cohen | David Beveridge | |
Scott I. Sonnenblick | Michael Schiavone | |
Linklaters LLP | Shearman & Sterling LLP | |
1345 Avenue of the Americas | 599 Lexington Avenue | |
New York, N.Y. 10105 | New York, N.Y. 10022 | |
Phone: (212) 903-9000 | Phone: (212) 848-4000 | |
Fax: (212) 903-9100 | Fax: (212) 848-7179 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
CALCULATION OF REGISTRATION FEE
Title Of Each Class Of Securities To Be Registered |
Proposed Maximum
Aggregate Offering Price(1) |
Amount Of
Registration Fee |
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Ordinary shares, with a nominal value of 0.10 each |
$325,000,000 | $37,733 | ||
(1) | Estimated solely for the purposes of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains two forms of prospectus: one to be used in connection with an initial public offering by InterXion Holding N.V. of ordinary shares to new investors (the IPO Prospectus) and one to be used in connection with an offering by InterXion Holding N.V. of ordinary shares to holders of 2002 Series A Preference Shares in respect of the liquidation price of the 2002 Series A Preference Shares (the Preferred Shares Liquidation Price Prospectus) pursuant to the terms of the 2002 Series A Preference Shares.
The form of the IPO Prospectus immediately follows this note. Following the IPO Prospectus are alternate sections for the Preferred Shares Liquidation Price Prospectus: the front and back cover pages; SummaryThe Offering; Use of Proceeds; Capitalization; Principal Shareholders (replacing the Principal and Selling Shareholders section in the IPO Prospectus); Plan of Distribution (replacing the Underwriting section in the IPO Prospectus); and Legal Matters.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state or jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 12, 2011
PRELIMINARY PROSPECTUS | CONFIDENTIAL |
18,550,000 Ordinary Shares
InterXion Holding N.V.
(a limited liability company incorporated under the laws of The Netherlands)
$ per Ordinary Share
This is the initial public offering of our ordinary shares. We are selling 16,250,000 ordinary shares and the selling shareholders named in this prospectus are selling 2,300,000 ordinary shares. We will not receive any proceeds from the sale of the ordinary shares by the selling shareholders. We currently expect the initial public offering price to be between $11.00 and $13.00 per ordinary share.
The selling shareholders have granted the underwriters an option to purchase up to 2,782,500 additional ordinary shares to cover over-allotments.
We have applied to list our ordinary shares on the New York Stock Exchange under the symbol INXN.
Investing in our ordinary shares involves risks. See Risk Factors beginning on page 12.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Per
Ordinary Share |
Total | |||||||
Public Offering Price |
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Underwriting Discount |
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Proceeds to InterXion Holding N.V. (before expenses) |
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Proceeds to the selling shareholders (before expenses) |
The underwriters expect to deliver the ordinary shares to purchasers on or about , 2011 through the book-entry facilities of The Depository Trust Company.
BofA Merrill Lynch | Citi | Barclays Capital |
Jefferies Credit Suisse RBC Capital Markets Piper Jaffray
Oppenheimer & Co. Evercore Partners Guggenheim Securities, LLC ABN AMRO
The date of this prospectus is , 2011
We and the selling shareholders have not, and the underwriters have not, authorized anyone to provide you with any information different from that contained in this Prospectus. We and the selling shareholders do not, and the underwriters do not, take any responsibility for, and can provide no assurances as to, the reliability of any information that others may provide you. We and the selling shareholders are not, and the underwriters are not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information contained in this prospectus (the Prospectus) is accurate only as of the date on the front cover of the Prospectus or other date stated in the Prospectus. Our business, financial condition, results of operations and prospects
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F-1 |
i
This summary highlights selected information about us and the ordinary shares and should be read as an introduction to the more detailed information appearing elsewhere in this Prospectus. This summary does not contain all the information you should consider before investing in the ordinary shares. You should read the entire Prospectus carefully for a more complete understanding of our business and this offering, including Risk Factors, Managements Discussion and Analysis of Financial Condition and Results of Operations and our audited and unaudited consolidated financial information and related notes contained herein.
Solely for convenience, this Prospectus contains translation of certain euro amounts into U.S. dollars based on the noon buying rate of 1.00 to U.S. $1.3601 and 1.00 to U.S. $1.4332 in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 and December 31, 2009, respectively. These translation rates should not be construed as representations that the euro amounts have been, could have been or could be converted into U.S. dollars at that or any other rate. See Exchange Rate Information.
Overview
We are a leading provider of carrier-neutral colocation data center services in Europe. We support over 1,100 customers through 28 data centers in 11 countries enabling them to protect, connect, process and distribute their most valuable information. Within our data centers, we enable our customers to connect to a broad range of telecommunications carriers, Internet service providers and other customers. Our data centers act as content and connectivity hubs that facilitate the processing, storage, sharing and distribution of data, content, applications and media among carriers and customers, creating an environment that we refer to as a community of interest.
Our core offering of carrier-neutral colocation services includes space, power, cooling and a secure environment in which to house our customers computing, network, storage and IT infrastructure. We enable our customers to reduce operational and capital costs while improving application performance and flexibility. We supplement our core colocation offering with a number of additional services, including network monitoring, remote monitoring of customer equipment, systems management, engineering support services, cross connects, data backup and storage.
We are headquartered near Amsterdam, The Netherlands, and we operate in major metropolitan areas, including London, Frankfurt, Paris, Amsterdam and Madrid, the main data center markets in Europe. Our data centers are located in close proximity to the intersection of telecommunications fiber routes, and we house more than 350 carriers and Internet service providers and 18 European Internet exchanges. Our data centers allow our customers to lower their telecommunications costs and reduce latency, thereby improving the response time of their applications. This high level of connectivity fosters the development of communities of interest.
For the nine months ended September 30, 2010, our total revenue was 152.8 million, our operating profit was 34.3 million and our Adjusted EBITDA, a non-GAAP financial measure, was 57.8 million, compared to 126.6 million in revenue, 24.5 million in operating profit and 45.8 million in Adjusted EBITDA in the nine months ended September 30, 2009. Over 90% of our revenue is Recurring Revenue, and typically 60-70% of our new bookings in any given year are generated from existing customers. See Presentation of Financial and Other InformationAdditional Key Performance Indicators.
For the year ended December 31, 2009, our total revenue was 171.7 million, our operating profit was 32.0 million and our Adjusted EBITDA was 62.7 million, compared to 138.2 million in revenue, 32.2 million in operating profit and 48.3 million in Adjusted EBITDA in the year ended December 31, 2008. See Presentation of Financial and Other InformationAdditional Key Performance Indicators.
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For the years ended December 31, 2009, 2008 and 2007, our net income was 26.5 million, 37.4 million and 13.6 million, respectively.
Industry Overview
Growth in Internet traffic, cloud computing and the use of customer-facing hosted applications are driving significant demand for high quality carrier-neutral colocation data center services. This demand results from the need for either more space or more power, or both. According to the Cisco Visual Networking Index, Global IP traffic is expected to grow at a compound annual growth rate of 34% from 2009 to 2014. This growth is driven by, among other factors, decreased cost of Internet access, increased broadband penetration, increased usage of high-bandwidth content, increased number of wireless access points and growing availability of Internet and network based applications.
Increased Internet traffic drives demand for data center services as customers need a secure environment in which to locate additional processing, networking and computer equipment, such as servers, switches, routers and storage equipment, to support this traffic. In addition, the continued growth in adoption of unified communications, videoconferencing, as well as telepresence, will continue to drive the need for hosted applications with high connectivity requirements.
Significant barriers to entry exist in the carrier-neutral colocation market, including the scarcity of adequate locations, the cost and requirements of data center development, the time and resources required to develop communities of interest, the difficulty of establishing a reputable brand, associated track record and the inherently high switching costs for customers and carriers.
International Data Corporation, or IDC, projects the market for carrier-neutral colocation data center services in the United Kingdom, France, Germany and The Netherlands to grow from 922 million in 2009 to 2.245 billion in 2014, a compound annual growth rate of 19%. According to Tier1 Research, the shortfall in supply versus demand for data center capacity in Europe will continue for the next three years.
Pricing is determined by a number of factors, including the availability of data center capacity, the type and quality of space required (from standard cabinet space to customized suites), power requirements, the prevailing market spot price of data center capacity, the length of contract term, data center location, proximity and the reputation of the data center provider.
Competitive Strengths
Leading European Carrier-Neutral Colocation Data Center Services Provider with Broad, Strategic Footprint
We are a leading carrier-neutral colocation data center services provider in Europe based on our geographic footprint, high level of connectivity and established brand. Through our 28 data centers in 11 countries, we operate more data centers in more countries than any other data center provider in Europe. Our data centers are located near key business hubs and in close proximity to the interconnection points of telecommunications fiber routes and power sources, which enables us to provide our customers with high levels of connectivity and the requisite power to meet their needs.
Strong, High Value Communities of Interest
Our carrier-neutral colocation data center model, which houses 18 European Internet exchanges, together with more than 350 carriers and Internet service providers, creates critical exchange points for Internet and data traffic. These exchange points attract enterprises, media and content providers, IT services providers and other
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groups wanting to access these diverse networks and other enterprises in a single location versus connecting these parties in multiple locations. This high level of connectivity fosters the development of value-added communities of interest within our customer segments. These communities of interest then attract additional carriers and customers which makes them increasingly more valuable.
Superior Levels of Connectivity
Our data centers provide our customers with connectivity to more than 350 individual carriers and Internet service providers as well as 18 European Internet exchanges. We believe this level of connectivity is unmatched by our competitors and attracts customers to our data centers. Our high level of connectivity enables customers to select the most cost-effective, reliable and convenient carriers at each data center and to migrate efficiently between carriers, thereby lowering their telecommunications costs and reducing latency.
Uniform, High Quality Data Centers and Customer Service
We design, build and operate each of our data centers according to uniform designs, processes and standards, which results in the construction and operation of high quality data centers. Having grown organically rather than through acquisitions, the uniformity of our data centers satisfies an important requirement for customers who seek consistency across multiple locations. This consistency also allows us to reduce cost, complexity and the risks associated with building and operating multiple data centers. All of our data centers are accredited as compliant with the Information Security Management Systems Standard ISO 27001. Through our European customer service center and strong country teams, we are able to deliver uniform quality and service to our customers, including consistent account and service management, reporting and billing. We also have local service delivery and assurance teams with strong in country management to ensure local knowledge and responsiveness. Our best-in-class customer service drives customer loyalty and contributes to our low customer churn rate.
Strong Value Proposition for Our Customers
Our carrier-neutral colocation service is a compelling value proposition versus building in-house, or outsourcing to a carrier-operated data center. Our customers save significant costs of building and maintaining a data center as well as the telecommunication costs required to access multiple networks and other participants in the communities of interest. Our carrier-neutral proposition also provides greater flexibility for enterprises to expand to meet their data center needs and deliver better performance as a result of lower network latency and excellent customer service.
Attractive Financial Model
Our recurring revenue model and largely fixed cost base provide us with significant visibility into future financial performance. In the last several years, our Recurring Revenue has consistently been over 90% of our total revenue. Our long-term contracts and high renewal rates further contribute to our revenue visibility. The terms of our initial customer contracts are typically three to five years and have automatic, one-year renewals. Our cost base consists primarily of personnel, power and property. While our personnel and property costs are largely fixed, our contracts provide us with the ability to adjust customer pricing for power in order to recover any increases in power costs. Our recurring revenue model provides significant predictability of future revenue, and our largely fixed cost base produces strong operating leverage. We enjoy long-standing relationships with our customers and have high customer retention, as evidenced by our low Average Monthly Churn rate, which was 0.6% in the nine months ended September 30, 2010. Although we generally expect our costs of sales and general and administrative costs to grow over time, we expect these costs to decrease as a percentage of revenue.
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Strategy
Target New Customers in High Growth Segments to Further Develop our Communities of Interest
We will continue to target new customers in high growth market segments, including financial services, cloud and managed services providers, digital media and carriers. Winning new customers in these target markets enables us to expand existing, and build new, high value communities of interest within our data centers. Communities of interest are particularly important to customers in each of these market segments. For example, customers in the digital media segment benefit from the close proximity to content delivery network providers and Internet exchanges in order to rapidly deliver content to consumers. We expect the high value and reduced cost benefits of our communities of interest to continue to attract new customers, which will lead to decreased customer acquisition costs for us.
Increase Share of Spend from Existing Customers
We focus on increasing revenue from our existing customers in our target market segments. New revenue from our existing customers comprises a substantial portion of our new business, generating approximately 70% of our new bookings. Our sales and marketing teams focus on proactively working with customers to identify expansion opportunities in new or existing markets.
Maintain Connectivity Leadership
We seek to increase the number of carriers in each of our data centers by expanding the presence of our existing carriers into additional data centers and targeting new carriers. We also will continue to develop our relationships with Internet exchanges and work to increase the number of Internet service providers in these exchanges. In countries where there is no significant Internet exchange, we will work with Internet service providers and other parties to create the appropriate Internet exchange. Our carrier sales and business development team will continue to work with our existing carriers and Internet service providers, and target new carriers and Internet service providers, to maximize our share of their data center spend, and to achieve the highest level of connectivity in each of our data centers.
Continue to Deliver Best-in-Class Customer Service
We will continue to provide a high level of customer service in order to maximize customer satisfaction and minimize churn. Our European Customer Service Centre operates 24 hours a day, 365 days a year, providing continual monitoring and troubleshooting and giving our customers one call access to full, multilingual technical support, thereby reducing our customers internal support costs. In addition, we will continue to develop our customer tools, which include an online customer portal to provide our customers with real-time access to information. We will continue to invest in our local service delivery and assurance teams, which provide flexibility and responsiveness to customer needs.
Disciplined Expansion and Conservative Financial Management
We plan to invest in our data center capacity, while maintaining our disciplined investment approach and prudent financial policy. We will continue to determine the size of our expansions based on selling patterns, pipeline and trends in existing demand as well as working with our customers to identify future capacity requirements. We only begin new expansions once we have identified customers and we have the capital to fully fund the build out. Our expansions are done in phases in order to manage the timing and scale of our capital expenditure obligations, reduce risk and improve our return on capital. Finally, we will continue to manage our capital deployment and financial management decisions based on adherence to our target internal rate of return on new expansions and target leverage ratios.
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Summary Risk Factors
Investing in our ordinary shares involves a high degree of risk. You should consider carefully the risks and uncertainties summarized below, the risks described under Risk Factors, the other information contained in this Prospectus and our consolidated financial statements and the related notes included elsewhere herein before you decide whether to invest in our ordinary shares.
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We cannot easily reduce our operating expenses in the short term, which could have a material adverse effect on our business in the event of a slowdown in demand for our services or a decrease in revenue for any reason. |
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If we are unable to expand our existing data centers or locate and secure suitable sites for additional data centers on commercially acceptable terms our ability to grow our business may be limited. |
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We face significant competition and we may not be able to compete successfully against current and future competitors. |
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Our services may have a long sales cycle that may materially adversely affect our business, financial condition and results of operations. |
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A general lack of electrical power resources sufficient to meet our customers demands may impair our ability to utilize fully the available space at our existing data centers or our plans to open new data centers. |
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Our operating results have fluctuated in the past and may fluctuate in the future, which may make it difficult to evaluate our business and prospects. |
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We are dependent on third-party suppliers for equipment, technology and other services. |
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We depend on the ongoing service of our personnel and senior management team and may not be able to attract, train and retain a sufficient number of qualified personnel to maintain and grow our business. |
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Our failure to meet the performance standards under our service level agreements may subject us to liability to our customers, which could have a material adverse effect on our reputation, business, financial condition or results of operations. |
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If we do not keep pace with technological changes, evolving industry standards and customer requirements, our competitive position will suffer. |
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There has been no public market for our ordinary shares prior to this offering, and you may not be able to resell our shares at or above the price you paid, or at all. |
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The market price for our ordinary shares may be volatile. |
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A substantial portion of our total outstanding ordinary shares may be sold into the market at any time. Such future sales or issuances, or perceived future sales or issuances, could adversely affect the price of our shares. |
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You may not be able to exercise pre-emptive rights. |
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We have never paid, do not currently intend to pay and may not be able to pay any dividends on our ordinary shares. |
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Your rights and responsibilities as a shareholder will be governed by Dutch law and will differ in some respects from the rights and responsibilities of shareholders under U.S. law, and your shareholder rights under Dutch law may not be as clearly established as shareholder rights are established under the laws of some U.S. jurisdictions. |
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The interests of our principal shareholders may be inconsistent with your interests. |
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Corporate Information
We were incorporated on April 6, 1998 as a private company with limited liability ( besloten venootschap met beperkte aansprakelijkheid , or B.V.) under the laws of The Netherlands. On January 11, 2000, we were converted from a B.V. to a limited liability company ( naamloze venootschap , or N.V.) under the laws of The Netherlands.
Our corporate seat is in Amsterdam, The Netherlands. We are registered with the Trade Register of the Chamber of Commerce in Amsterdam under number 33301892. Our executive offices are located at Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands. Our telephone number is +31 20 880 7600. Our website address is www.interxion.com. Information included or referred to on, or otherwise accessible through, our website is not intended to form a part of or be incorporated by reference into this Prospectus.
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The Offering
Offering Price Per Ordinary Share: |
We currently estimate the initial public offering price will be between U.S. $11.00 and U.S. $13.00. |
Ordinary Shares Offered by Us: |
16,250,000 ordinary shares. |
Ordinary Shares Offered by the Selling Shareholders: |
2,300,000 ordinary shares. |
Ordinary Shares Outstanding Immediately After This Offering: |
64,988,477 ordinary shares. |
The number of ordinary shares to be outstanding after this offering is based upon the number of shares outstanding as of September 30, 2010. Except as otherwise indicated, all information in this Prospectus assumes:
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a five-to-one reverse stock split that is expected to occur on or before the closing of this offering and the related issuance of a certain number of ordinary shares to ensure that each shareholder holds a number of shares divisible by five, as required for the five-to-one reverse stock split. All shares numbers referred to as post five-to-one reverse stock split are approximate numbers; |
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the automatic one-to-one conversion of all of our 2002 Series A preference shares (the Preferred Shares) into ordinary shares prior to the closing of this offering (as of September 30, 2010 there were 174,039,207 Preferred Shares outstanding). For these purposes it is assumed that after giving effect to the reverse stock split and the related issuance of ordinary shares referred to above, the automatic one-for-one conversion would result in 34,807,842 ordinary shares. See Capitalization; |
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the issuance of 3,754,606 ordinary shares offered to holders of Preferred Shares, which is the maximum number of ordinary shares to which holders of our Preferred Shares are entitled in lieu of cash for such Preferred Shares (the Preferred Shares Liquidation Price Offering), based on the midpoint of the estimated range of the initial public offering price and an assumed exchange rate of 1.00 to U.S. $1.2944, representing the exchange rate in effect on January 7, 2011; |
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no issue of any of the 4,128,486 ordinary shares (as of January 7, 2011) issuable upon the exercise of options outstanding under our 2008 equity incentive plan at a weighted average exercise price of 3.13 per share, assuming the exercise by the selling shareholders of options to acquire 604,790 ordinary shares in connection with the sale of such shares in this offering, or 4,733,276 ordinary shares without such exercise, in each case after giving effect to the five-to-one reverse stock split referred to above. If the reverse stock split did not occur, these ordinary shares would be 20,642,428 after giving effect to the exercise of options described above and 23,666,380 without giving effect to the exercise of such options; |
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no issue of any of the 873,371 additional ordinary shares (as of January 7, 2011) reserved for issuance under our 2008 equity incentive plan or 4,400,000 additional ordinary shares to be reserved for issuance under our 2011 equity incentive plan (after giving effect to the five-to-one reverse stock split referred to above). These figures would be 4,366,851 and 22,000,000 if the reverse stock split did not occur; and |
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no exercise by the underwriters of their over-allotment option. |
Option to Purchase Additional Ordinary Shares: |
The selling shareholders have granted the underwriters an option, exercisable for 30 days from the date of this Prospectus, to purchase up to an aggregate of 2,782,500 additional ordinary shares. |
Concurrent Preferred Shares Liquidation Price Offering: |
Concurrently with this offering, we are offering ordinary shares directly to holders of our Preferred Shares in respect of the liquidation price of their Preferred Shares, based on the initial public offering price. |
Pursuant to the fifth amended and restated shareholders agreement dated as of December 24, 2009, Preferred Share holders are entitled to a 0.20 liquidation price per Preferred Share which they may elect to receive in cash or in ordinary shares. If a holder elects to receive payment in ordinary shares, such holder will receive approximately 0.11 ordinary shares in respect of each Preferred Share, assuming an offering price of U.S.$12.00 per ordinary share, the midpoint of the estimated range of the initial public offering price, and an exchange rate of 1.00 to U.S.$1.2944, representing the exchange rate in effect on January 7, 2011.
We will not receive any proceeds from the concurrent Preferred Shares Liquidation Price Offering.
Use of Proceeds: |
We estimate that we will receive net proceeds from this offering of approximately U.S. $176.6 million, assuming an initial public offering price of U.S. $12.00 per ordinary share, being the midpoint of the estimated range of the initial public offering price, after deducting underwriting discounts and estimated aggregate offering expenses payable by us. |
We intend to use the net proceeds from this offering primarily for general corporate purposes, including, without limitation, capital expenditures, including the construction of new data centers.
We will not receive any proceeds from the sale of ordinary shares offered by the selling shareholders. The selling shareholders include certain members of our senior management.
See Use of Proceeds for additional information.
Risk Factors: |
See Risk Factors and other information included in this Prospectus for a discussion of the risks you should carefully consider before deciding to invest in our ordinary shares. |
Listing: |
We have applied to list the ordinary shares on the New York Stock Exchange, or NYSE, under the symbol INXN. |
Payment and Settlement |
The ordinary shares are expected to be delivered against payment on , 2011. They will be deposited with a custodian for, and registered in the name of a nominee of, The Depository Trust Company, or DTC, in New York, New York. Initially, beneficial interests in the ordinary shares will be shown on, and transfer of these beneficial interests, will be effected through, records maintained by DTC and its direct and indirect participants. |
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Summary Financial Information
The following summary income statement, cash flow statement and other financial data for the years ended December 31, 2009, 2008 and 2007 and balance sheet data as of December 31, 2009 have been derived from our audited consolidated financial statements, which are included elsewhere in this Prospectus. The following summary income statement, cash flow statement and other financial data for the nine months ended September 30, 2010 and 2009 and balance sheet data as of September 30, 2010 have been derived from our unaudited consolidated interim financial statements included elsewhere in this Prospectus, which have been prepared on a basis substantially consistent with our annual audited consolidated financial statements. Our audited consolidated financial statements have been prepared and presented in accordance with IFRS as issued by the International Accounting Standards Board and have been audited by KPMG Accountants N.V., an independent registered public accounting firm.
You should read the summary financial information in conjunction with our consolidated financial statements and related notes, Selected Financial Data and Managements Discussion and Analysis of Financial Condition and Results of Operations included elsewhere in this Prospectus. Our historical results do not necessarily indicate our expected results for any future periods.
Nine months ended September 30, |
Year ended
December 31, |
Year ended December 31, | ||||||||||||||||||||||||||
2010 (1) | 2010 | 2009 | 2009 (1) | 2009 | 2008 | 2007 (2)(3) | ||||||||||||||||||||||
(U.S. $000,
except per share amounts) |
(000, except per share
amounts) |
(U.S. $000,
except per share amounts) |
(000, except per share
amounts) |
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Income statement data |
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Revenue |
207,856 | 152,824 | 126,611 | 246,035 | 171,668 | 138,180 | 100,450 | |||||||||||||||||||||
Cost of sales |
(92,306 | ) | (67,867 | ) | (58,163 | ) | (112,575 | ) | (78,548 | ) | (63,069 | ) | (51,998 | ) | ||||||||||||||
Gross profit |
115,550 | 84,957 | 68,448 | 133,460 | 93,120 | 75,111 | 48,452 | |||||||||||||||||||||
Other income |
399 | 293 | 629 | 1,069 | 746 | 2,291 | 988 | |||||||||||||||||||||
Sales and marketing costs |
(15,317 | ) | (11,262 | ) | (8,439 | ) | (16,128 | ) | (11,253 | ) | (9,862 | ) | (7,297 | ) | ||||||||||||||
General and administrative costs |
(54,019 | ) | (39,717 | ) | (36,180 | ) | (72,560 | ) | (50,628 | ) | (35,352 | ) | (34,837 | ) | ||||||||||||||
Operating profit |
46,612 | 34,271 | 24,458 | 45,841 | 31,985 | 32,188 | 7,306 | |||||||||||||||||||||
Net finance expense |
(31,719 | ) | (23,321 | ) | (4,387 | ) | (8,955 | ) | (6,248 | ) | (3,713 | ) | (4,126 | ) | ||||||||||||||
Profit before taxation |
14,893 | 10,950 | 20,071 | 36,886 | 25,737 | 28,475 | 3,180 | |||||||||||||||||||||
Income tax benefit (expense) |
(7,864 | ) | (5,782 | ) | (4,642 | ) | 1,025 | 715 | 8,899 | 10,405 | ||||||||||||||||||
Net income |
7,029 | 5,168 | 15,429 | 37,911 | 26,452 | 37,374 | 13,585 | |||||||||||||||||||||
Basic earnings per share |
0.03 | 0.02 | 0.07 | 0.17 | 0.12 | 0.17 | 0.06 | |||||||||||||||||||||
Cash flow statement data |
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Net cash flows from operating activities |
65,976 | 48,508 | 37,293 | 73,635 | 51,378 | 35,991 | (4) | 24,756 | ||||||||||||||||||||
Net cash flows from investing activities |
(109,708 | ) | (80,662 | ) | (75,987 | ) | (144,680 | ) | (100,949 | ) | (92,252 | ) | (49,548 | ) | ||||||||||||||
Net cash flows from financing activities |
41,630 | 30,608 | 20,510 | 28,326 | 19,764 | 82,057 | 45,419 | |||||||||||||||||||||
Capital expenditures (5) |
(107,602 | ) | (79,113 | ) | (74,986 | ) | (143,290 | ) | (99,979 | ) | (91,123 | ) | (48,838 | ) |
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As
of
September 30, 2010 (1) |
As of
September 30, 2010 |
As
of
December 31, 2009 (1) |
As of
December 31, 2009 |
|||||||||||||
(U.S. $000) | (000) | (U.S. $000) | (000) | |||||||||||||
Balance sheet data |
||||||||||||||||
Trade and other current assets |
78,653 | 57,829 | 79,700 | 55,610 | ||||||||||||
Cash and cash equivalents (6) |
41,608 | 30,592 | 45,867 | 32,003 | ||||||||||||
Current assets |
120,261 | 88,421 | 125,567 | 87,613 | ||||||||||||
Non-current assets |
511,727 | 376,242 | 459,207 | 320,407 | ||||||||||||
Total assets |
631,988 | 464,663 | 584,774 | 408,020 | ||||||||||||
Shareholders equity |
194,900 | 143,298 | 192,589 | 134,377 | ||||||||||||
Current liabilities |
139,430 | 102,515 | 173,265 | 120,894 | ||||||||||||
Non-current liabilities |
297,658 | 218,850 | 218,920 | 152,749 | ||||||||||||
Total liabilities |
437,088 | 321,365 | 392,185 | 273,643 | ||||||||||||
Total liabilities and shareholders equity |
631,988 | 464,663 | 584,774 | 408,020 | ||||||||||||
Nine months ended September 30, |
Year ended
December 31, |
Year ended December 31, | ||||||||||||||||||||||||||
2010 (1) | 2010 | 2009 | 2009 (1) | 2009 | 2008 | 2007 (2)(3) | ||||||||||||||||||||||
(U.S. $000) | (000) | (U.S. $000) | (000) | |||||||||||||||||||||||||
Other financial data |
||||||||||||||||||||||||||||
Operating profit |
46,612 | 34,271 | 24,458 | 45,841 | 31,985 | 32,188 | 7,306 | |||||||||||||||||||||
Depreciation, amortization and impairments |
30,579 | 22,483 | 15,195 | 31,473 | 21,960 | 15,083 | 11,657 | |||||||||||||||||||||
EBITDA |
77,191 | 56,754 | 39,653 | 77,314 | 53,945 | 47,271 | 18,963 | |||||||||||||||||||||
Share-based payments |
1,454 | 1,069 | 605 | 1,362 | 950 | 1,660 | 1,399 | |||||||||||||||||||||
Exceptional expenses |
||||||||||||||||||||||||||||
Increase/(decrease) in provision for onerous lease contracts (a) |
399 | 293 | 1,371 | 5,379 | 3,753 | 1,611 | 8,139 | |||||||||||||||||||||
Abandoned transaction costs |
| | 4,841 | 6,938 | 4,841 | | | |||||||||||||||||||||
Personnel costs |
| | | | | | 1,454 | |||||||||||||||||||||
Exceptional income |
(399 | ) | (293 | ) | (629 | ) | (1,069 | ) | (746 | ) | (2,291 | ) | (988 | ) | ||||||||||||||
Adjusted EBITDA |
78,645 | 57,823 | 45,841 | 89,924 | 62,743 | 48,251 | 28,967 | |||||||||||||||||||||
Adjusted EBITDA margin (7) |
38 | % | 38 | % | 36 | % | 37 | % | 37 | % | 35 | % | 29 | % |
Notes:
(1) | The Income statement data, Cash flow statement data and Other financial data for the nine months ended September 30, 2010 and the year ended December 31, 2009, as well as the Balance sheet data as of September 30, 2010 and December 31, 2009 have been translated into U.S. dollars for your convenience based on the noon buying rate of 1.00 to U.S. $1.3601 and 1.00 to U.S. $1.4332 in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 and December 31, 2009, respectively. See Exchange Rate Information for additional information. |
(2) | In fiscal year 2008, income not related to our core activities was reclassified to the line item Other income. Fiscal year 2007 figures have been adjusted to reflect the same reclassification. |
(3) |
In fiscal year 2007, the useful economic lives of certain data center assets were increased from 10 to 15 years, in accordance with industry practice. This change of accounting estimate was applied from January 1, 2007. This extension in the useful economic lives of certain data center assets resulted in an estimated |
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decrease in depreciation of 3.6 million during the fiscal year 2007. Additionally, fiscal year 2007 figures have been adjusted to reflect the impairment of 1,885,000 in the Depreciation, amortization and impairments line item instead of in the Exceptional general and administrative costs line item. |
(4) | The 2008 net cash flows from operating activities include a reclassification for foreign exchange results on working capital balances. |
(5) | Capital expenditures represent payments to acquire tangible fixed assets as recorded on our consolidated statement of cash flows as Purchase of property, plant and equipment. |
(6) | Cash and cash equivalents includes 4.4 million and 3.9 million as of September 30, 2010 and December 31, 2009, respectively, which is restricted and held as collateral to support the issuance of bank guarantees on behalf of a number of subsidiary companies. |
(7) | EBITDA is defined as operating profit plus depreciation, amortization and impairment of assets. We define Adjusted EBITDA as EBITDA adjusted to exclude share-based payments and exceptional and non-recurring items and include share of profits (losses) of non-group companies. Adjusted EBITDA margin is defined as Adjusted EBITDA as a percentage of revenue. We present EBITDA, Adjusted EBITDA and Adjusted EBITDA margin as additional information because we understand that they are measures used by certain investors and because they are used in our financial covenants in our 50 million revolving credit facility and 260 million 9.50% Senior Secured Notes due 2017. However, other companies may present EBITDA, Adjusted EBITDA and Adjusted EBITDA margin differently than we do. EBITDA, Adjusted EBITDA and Adjusted EBITDA margin are not measures of financial performance under IFRS and should not be considered as an alternative to operating profit or as a measure of liquidity or an alternative to net income as indicators of our operating performance or any other measure of performance derived in accordance with IFRS. |
See Managements Discussion and Analysis of Financial Condition and Results of OperationsEBITDA and Adjusted EBITDA for a more detailed description.
(8) | Increase (decrease) in provision for onerous lease contracts does not reflect the deduction of income from subleases on unused data center sites. The income from subleases is presented as Exceptional income. |
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An investment in the ordinary shares involves a high degree of risk. In addition to the other information contained in this Prospectus, you should carefully consider the following risk factors before purchasing the ordinary shares. If any of the possible events described below occurs, our business, financial condition, results of operations or prospects could be adversely affected. If that happens the value of the ordinary shares may decline and you could lose all or part of your investment.
The risks and uncertainties below are those known to us and that we currently believe may materially affect us.
Risks Related to our Business
We cannot easily reduce our operating expenses in the short term, which could have a material adverse effect on our business in the event of a slowdown in demand for our services or a decrease in revenue for any reason.
Our operating expenses primarily consist of personnel, power and property costs. Personnel and property costs cannot be easily reduced in the short term. Therefore, we are unlikely to be able to reduce significantly our expenses in response to a slowdown in demand for our services or any decrease in revenue. The terms of our leases with landlords for facilities that serve as data centers are typically for 10 to 15 years (excluding our extension options) and do not provide us with an early termination right, while our colocation contracts with customers are initially typically for only three to five years. Fifty-three percent of our Monthly Recurring Revenue for the nine months ended September 30, 2010 was generated by contracts with terms of one year or less remaining. Our personnel costs are fixed due to our contracts with our employees having set notice periods and local law limitations in relation to the termination of employment contracts. In respect of our power costs, there is a minimum level of power required to keep our data centers running irrespective of the number of customers using them so our power costs may exceed the amount of revenue derived from power. We could have higher than expected levels of unused capacity in our data centers if, among other things:
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our existing customers contracts are not renewed and such customers are not replaced by new customers; |
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internet and telecommunications equipment becomes smaller and more compact in the future; |
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there is an unexpected slowdown in demand for our services; or |
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we are unable to terminate or amend our leases when we have underutilized space at a data center. |
If we have higher than expected levels of unused space at a data center at any given time, we may be required to operate a data center at a loss for a period of time. If we have higher than expected levels of unused capacity in our data centers and we are unable to reduce our expenses accordingly, our business, financial condition and results of operations would be materially adversely affected.
Our inability to utilize the capacity of newly planned data centers and data center expansions in line with our business plan would have a material adverse effect on our business, financial condition and results of operations.
Historically, we have made significant investments in our property, plant and equipment in order to expand our data center footprint and total Equipped Space as we have grown our business. In the year ended December 31, 2009, we invested 100.0 million in property, plant and equipment and have invested 79.1 million in the first nine months of 2010. As of September 30, 2010, we were committed to an additional 18.6 million in capital commitments that we expect to be fully deployed during the remainder of 2010.
We expect to continue to invest as we expand our data center footprint and increase our Equipped Space based on demand in our target markets. We expect our investment in property, plant and equipment in 2010 to be
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comparable to our 2009 investment, subject to continued customer demand. Our total annual investment in property, plant and equipment includes maintenance and replacement capital expenditures. Although in any one year the amount of maintenance and replacement capital expenditures may vary, we expect that long term such expenses will be between 6% and 8% of total revenue.
We typically lease space for a data center and begin building it out before we have entered into agreements with customers to cover the capacity of the data center. In some cases, we enter into lease agreements for data centers or begin expansions at our existing data centers without any pre-existing customer commitments to use the additional space that will be created. If we open a new data center or complete an expansion at an existing data center, we will be required to pay substantial up-front and ongoing costs associated with that data center, including leasehold improvements, basic overhead costs and rental payments regardless of whether or not we have any agreements with customers to fill the space.
As a result of our expansion plans, we will incur capital expenditures, and as a result, higher depreciation, and other operating expenses that will negatively impact our cash flow and profitability unless and until these new and expanded data centers generate enough revenue to exceed their operating costs and related capital expenditures.
We incurred substantial losses during the period of 2001 to 2003 as a result of high churn and other factors. There can be no guarantee that we will be able to sustain or increase our profitability if our planned expansion is not successful or if there is not sufficient customer demand in the future to realize expected returns on these investments. Any such development would have a material adverse effect on our business, financial condition and results of operations.
If we are unable to expand our existing data centers or locate and secure suitable sites for additional data centers on commercially acceptable terms our ability to grow our business may be limited.
Our ability to meet the growing needs of our existing customers and to attract new customers depends on our ability to add capacity by expanding existing data centers or by locating and securing suitable sites for additional data centers that meet our specifications, such as proximity to numerous network service providers, access to a significant supply of electrical power and the ability to sustain heavy floor loading. We have reached high utilization levels at some of our data centers and therefore any increase in these locations would need to be accomplished through the lease of additional property that satisfies our requirements. Property meeting our specifications may be scarce in our target markets. If we are unable to identify and enter into leases on commercially acceptable terms on a timely basis for any reason including due to competition from other companies seeking similar sites who may have greater financial resources than us, or are unable to expand our space in our current data centers, our rate of growth may be substantially impaired. Please see Industry OverviewBarriers to EntryScarcity of Adequate Locations.
Our capital expenditures, together with ongoing operating expenses and obligations to service our debt, will be a drain on our cash flow and may decrease our cash balances. The capital markets in the recent past have been and may again become limited for external financing opportunities. Additional debt or equity financing, especially in the current credit-constrained climate, may not be available when needed or, if available, may not be available on satisfactory terms. Our inability to obtain needed debt and/or equity financing or to generate sufficient cash from operations may require us to prioritize projects or curtail capital expenditures which could adversely affect our results of operations.
Failure to renew or maintain real estate leases for our existing data centers on commercially acceptable terms, or at all, could harm our business.
We do not own the property on which our data centers are located and instead lease all of our data center space. We generally enter leases for initial periods of 10 to 15 years (excluding renewal options). The majority of
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our leases are subject to an annual inflation-linked increase in rent and, on renewal (or earlier in some cases), the rent we pay may be reset to the current market rate. There is, therefore, a risk that there will be significant rent increases when the rent is reviewed. Our leases in France, Ireland, Belgium and the United Kingdom do not contain contractual options to renew or extend the lease, and we have exhausted or may in the future exhaust such options in other leases. With respect to our leases in France, certain landlords may terminate our leases following the expiration of the original lease period (being 12 years from the commencement date), and the other leases in France may be terminated by the landlords at the end of each three year period upon giving six months prior notice in the event the landlord wishes to carry out construction works to the building. The non-renewal of leases for our existing data center locations, or the renewal of such leases on less favorable terms, is a potentially significant risk to our ongoing operations. We would incur significant costs if we were forced to vacate one of our data centers due to the high costs of relocating our own and our customers equipment, installing the necessary infrastructure in a new data center and, as required by most of our leases, reinstating the vacated data center to its original state. In addition, if we were forced to vacate a data center, we could lose customers that chose our services based on location. If we fail to renew any of our leases, or the renewal of any of our leases is on less favorable terms and we fail to increase revenues sufficiently to offset the higher rental costs, this could have a material adverse effect on our business, financial condition and results of operations.
Our leases may obligate us to make payments beyond our use of the property.
Our leases generally do not give us the right to terminate without penalty. Accordingly, we may incur costs under leases of data center space that is not or no longer is Revenue Generating Space. Some of our leases do not give us the right to sublet, and even if we have that right we may not be able to sublet the space on favorable terms or at all. We have incurred moderate costs in relation to such onerous lease contracts in recent years.
We may experience unforeseen delays and expenses when fitting out and upgrading data centers, and the costs could be greater than anticipated.
As we attempt to grow our business, substantial management effort and financial resources are employed by us in fitting out new, and upgrading existing, data centers. In addition, we periodically upgrade and replace certain equipment at our data centers. We may experience unforeseen delays and expenses in connection with a particular client project or data center build-out. In addition, unexpected technological changes could affect customer requirements and we may not have built such requirements into our data centers and may not have budgeted for the financial resources necessary to build out or redesign the space to meet such new requirements. Furthermore, the redesign of existing space is difficult to implement in practice as it normally requires moving existing customers. Although we have budgeted for expected build-out and equipment expenses, additional expenses in the event of unforeseen delays, cost overruns, unanticipated expenses, regulatory changes, unexpected technological changes and increases in the price of equipment may negatively affect our business, financial condition and results of operations.
No assurance can be given that we will complete the build-out of new data centers or expansions of existing data centers within the proposed timeframe and cost parameters or at all. Any such failure could have a material adverse effect on our business, financial condition and results of operations.
We face significant competition and we may not be able to compete successfully against current and future competitors.
Our market is highly competitive. Most companies operate their own data centers and in many cases continue to invest in data center capacity, although there is a trend towards outsourcing. We compete against other carrier-neutral colocation data center service providers, such as Equinix, Telecity and Telehouse. We also compete with other types of data centers, including carrier-operated colocation, wholesale and IT outsourcers and managed services provider data centers. The cost, operational risk and inconvenience involved in relocating a customers networking and computing equipment to another data center are significant and have the effect of protecting a competitors data center from significant levels of customer churn.
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Further, the growth of the European data center market has encouraged new, larger companies to consider entering the market, in particular those from the United States who are active in this sector. This growth and other factors have also led to increasing alliances and consolidation among existing competitors, such as the announced acquisition of Switch & Data by Equinix. Many of these companies may have significantly greater financial, marketing and other resources than we do. Some of our competitors may be willing to, and due to greater financial resources, may be better able to adopt aggressive pricing policies, including the provision of discounted data center services as an encouragement for customers to utilize their other services. Certain of our competitors may also provide our target customers with additional benefits, including bundled communications services, and may do so in a manner that is more attractive to potential customers than obtaining space in our data centers.
While not currently a direct competitive threat to us, wholesale providers of data center space might change their business plan to compete with us directly or open new data centers, thus making large amounts of capacity available at a single point in time and facilitating the entry into the market or expansion of our direct competitors. Wholesale providers of data center space may compete with us for the acquisition of new sites, thereby increasing the average rental prices for suitable sites.
In addition, corporations that have already invested substantial resources in in-house data center operations may be reluctant to outsource these services to a third party, or may choose to acquire space within a wholesale providers data center, which would allow them to manage the equipment themselves. If existing customers were to conclude that they could provide the same service in-house at a lower cost, with greater reliability, with increased security or for other reasons, they might move such services in-house and we would lose customers and business.
We may also see increased competition for data center space and customers from wholesale data center providers, such as large real estate companies. Rather than leasing available space to large single tenants, real estate companies, including certain of our landlords, may decide to convert the space instead to smaller square foot units designed for multi-tenant colocation use. In addition to the risk of losing customers to wholesale data center providers, this could also reduce the amount of space available to us for expansion in the future. As a result of such competition, we could suffer from downward pricing pressure and the loss of customers (and potential customers), which would have a material adverse effect on our business, financial condition and results of operations.
Please see Industry OverviewTypes of Data Centers and BusinessCompetition.
Our services may have a long sales cycle that may materially adversely affect our business, financial condition and results of operations.
A customers decision to take space in one of our data centers typically involves a significant commitment of resources by us and by potential customers, who often require internal approvals. In addition, some customers will be reluctant to commit to locating in our data centers until they are confident that the data center has adequate available carrier connections and network density. As a result, we may have a long sales cycle lasting anywhere from three months for smaller customers to periods in excess of one year for some of our larger customers. Furthermore, we may expend significant time and resources in pursuing a particular sale or customer that does not result in revenue.
The current slowdown in global economies and their delayed recovery may further impact this long sales cycle by making it extremely difficult for customers to accurately forecast and plan future business activities. This could cause customers to slow spending, or delay decision-making, on our services, which would delay and lengthen our sales cycle.
Delays due to the length of our sales cycle may have a material adverse effect on our business, financial condition and results of operations.
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Our business is dependent on the adequate supply of electrical power and could be harmed by prolonged electrical power outages or increases in the cost of power.
The operation of each of our data centers requires an extremely large amount of power and we are among the largest power consumers in certain cities in which we operate data centers. We cannot be certain that there will be adequate power in all of the locations in which we operate, or intend to open additional data centers. We attempt to limit exposure to system downtime caused by power outages by using back-up generators and uninterrupted power supply systems, or UPS systems; however, we may not be able to limit our exposure entirely even with these protections in place. We also cannot guarantee that the generators will always provide sufficient power or restore power in time to avoid loss of or damage to our customers and our equipment. Any loss of services or damage to equipment resulting from a temporary loss of or reduction in power at any of our data centers could harm our customers, reduce customers confidence in our services, impair our ability to attract new customers and retain existing customers, and result in us incurring financial obligations to our customers as they might be eligible for service credits pursuant to their service level agreements with us. Our customers may also seek damages from us.
In addition, we are susceptible to fluctuations in power costs in all of the locations in which we operate. Clients have two options with respect to power usage: either (i) to pay for power usage in plugs in advance (typically included in the total cabinet price), which are contractually defined amounts of power per month, for which the customer must pay in full, regardless of how much power is actually used; or (ii) to pay for their actual power usage in arrears on a metered basis. Approximately 60% of our customers by revenue pay for electricity on a metered basis while the remainder of our customers pay for power plugs. While we are contractually able to recover power cost increases from our customers, some portion of the increased costs may not be recovered or recovered in a delayed fashion based on commercial reasons at the discretion of local management and as a result, may have a negative impact on our results of operations.
Although we have not experienced any power outages that have had a material impact on our financial condition in the past, power outages or increases in the cost of power to us could have a material adverse effect on our business, financial condition and results of operations.
A general lack of electrical power resources sufficient to meet our customers demands may impair our ability to utilize fully the available space at our existing data centers or our plans to open new data centers.
In each of our markets, we rely on third parties to provide a sufficient amount of power for current and future customers. Power and cooling requirements are generally growing on a per customer basis. Some of our customers are increasing and may continue to increase their use of high-density electrical power equipment, such as blade servers, which can significantly increase the demand for power per customer and cooling requirements for our data centers. Future demand for electrical power and cooling may exceed the designed electrical power and cooling infrastructure in our data centers. As the electrical power infrastructure is typically one of the most important limiting factors in our data centers, our ability to utilize available space fully may be limited. This, as well as any inability to secure sufficient power resources from third-party providers, could have a negative impact on the effective available capacity of a given data center and limit our ability to grow our business.
The ability to increase the power capacity or power infrastructure of a data center, should we decide to, is dependent on several factors including, but not limited to, the local utilitys ability and willingness to provide additional power, the length of time required to provide such power and/or whether it is feasible to upgrade the electrical infrastructure and cooling systems of a data center to deliver additional power to customers.
The availability of sufficient power may also pose a risk to the successful development of future data centers. In cities where we intend to open new data centers, we may face delays in obtaining sufficient power to operate our data centers. Our ability to secure adequate power sources will depend on several factors, including whether the local power supply is at or close to its limit, whether new connections for our data center would
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require the local power company to install a new substation or feeder and whether new connections for our data center would increase the overall risks of blackouts or power outages in a given geographic area.
If we are unable to utilize fully the physical space available within our data centers or successfully develop additional data centers or expand existing data centers due to restrictions on available electrical power or cooling, we may be unable to accept new customers or increase the services provided to existing customers, which may have a material adverse effect on our business, results of operations and financial condition.
A significant percentage of our Monthly Recurring Revenue is generated by contracts with terms of one year or less remaining. If such contracts are not renewed, or if their pricing terms are negotiated downwards, our business, financial condition and results of operations would be materially adversely affected.
The majority of our customer contracts are entered into on a fixed-term basis for periods from three to five years, which, unless terminated in advance, are automatically renewed for subsequent one-year periods. Please see BusinessCustomer Contracts. For the nine months ended September 30, 2010, 53% of our Monthly Recurring Revenue was generated by contracts with terms of one year or less remaining. Consequently, a large part of our customer base could either terminate their contracts with us at relatively short notice, or seek to re-negotiate the pricing of such contracts downwards, which, if either were to occur, would have a material adverse effect on our business, financial condition and results of operations.
Our inability to use all or part of our deferred tax assets could cause us to pay taxes at an earlier date and in greater amounts than expected.
As at September 30, 2010, we had 35.6 million of recognized and 11.7 million of unrecognized, deferred tax assets. We cannot assure you that we will generate sufficient profit in the relevant jurisdictions to utilize these deferred tax assets fully. In addition, applicable law could change in one or more jurisdictions in which we have deferred tax assets, rendering such assets unusable. Either such event would cause us to pay taxes in greater amounts than would otherwise occur, which may have a material adverse effect on our results of operations.
Our operating results have fluctuated in the past and may fluctuate in the future, which may make it difficult to evaluate our business and prospects.
Our operating results have fluctuated in the past and may continue to fluctuate in the future, due to a variety of factors, which include:
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demand for our services; |
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competition from other data center operators; |
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the cost and availability of power; |
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the introduction of new services by us and/or our competitors; |
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data center expansion by us and/or our competitors; |
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changes in our pricing policies and those of our competitors; |
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a change in our customer retention rates; |
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economic conditions affecting the Internet, telecommunications and e-commerce industries; and |
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changes in general economic conditions. |
Any of the foregoing factors, or other factors discussed elsewhere in this Prospectus, could have a material adverse effect on our business, results of operations and financial condition. Although we have experienced
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growth in revenues during the past three financial years, this growth rate is not necessarily indicative of future operating results. In addition, a relatively large portion of our expenses cannot be reduced in the short-term, particularly personnel and property costs and part of our power costs, which means that our results of operations are particularly sensitive to fluctuations in revenues. As such, comparisons to prior reporting periods should not be relied upon as indications of our future performance. In addition, our operating results in one or more future periods may fail to meet the expectations of securities analysts or investors. If this happens, the market price of our ordinary shares may decline significantly.
We are dependent on third-party suppliers for equipment, technology and other services.
We contract with third parties for the supply of equipment (including generators, UPS systems and cabinet equipment) on which we are dependent to operate our business. Poor performance by, or any inability of, our suppliers to provide necessary equipment, products and services could have a negative effect on our reputation and harm our business.
We depend on the ongoing service of our personnel and senior management team and may not be able to attract, train and retain a sufficient number of qualified personnel to maintain and grow our business.
Our success depends upon our ability to attract, retain and motivate highly-skilled employees, including the data center personnel who are integral to the establishment and running of our data centers, as well as sales and marketing personnel who play a large role in attracting and retaining customers. Due to several factors, including the rapid growth of the Internet, there is aggressive competition for experienced data center employees. We compete intensely with other companies to recruit and hire from this limited pool. In addition, the training of new employees requires a large amount of our time and resources. If we cannot attract, train and retain qualified personnel, we may be unable to expand our business in line with our strategy, compete for new customers or retain existing customers, which could cause our business, financial condition and results of operations to suffer.
Our future performance also depends to a significant degree upon the continued contributions of our senior management team. The loss of any member of our senior management team could significantly harm us. To the extent that the services of members of our senior management team would be unavailable to us for any reason, we would be required to hire other personnel to manage and operate our company. There can be no assurance that we would be able to locate or employ such personnel on acceptable terms or on a timely basis.
Our failure to maintain competitive compensation packages, including equity incentives, may be disruptive to our business. If one or more of our key personnel resigns from our company to join or form a competitor, the loss of such personnel and any resulting loss of existing or potential customers to any such competitor could harm our business, financial condition and results of operations. In addition, we may be unable to prevent the unauthorized disclosure or use of our technical knowledge, practices or procedures by departed personnel.
Disruptions to our physical infrastructure could lead to significant costs, reduce our revenues and harm our business reputation and financial results.
Our business depends on providing customers with highly reliable and secure services. A number of factors may disrupt our ability to provide services to our customers, including:
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human error; |
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power loss; |
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physical or electronic security breaches; |
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terrorist acts; |
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interruptions to the fiber network; |
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hardware and software defects; |
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fire, earthquake, flood and other natural disasters; |
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improper maintenance by our landlords; and |
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sabotage and vandalism. |
Disruptions at one or more of our data centers, whether or not within our control, could result in service interruptions or significant equipment damage, leading to significant costs and revenue reductions. Please see Risks Related to our IndustryTerrorist activity throughout the world and military action to counter terrorism could adversely impact our business.
Substantial indebtedness could adversely affect our financial condition and our ability to operate our business, and we may not be able to generate sufficient cash flows to meet our debt service obligations.
We may incur substantial indebtedness in the future, which could have important consequences. For example, it could:
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make it more difficult for us to satisfy our debt obligations; |
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restrict us from making strategic acquisitions; |
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limit our flexibility in planning for, or reacting to, changes in our business and future business opportunities, thereby placing us at a competitive disadvantage if our competitors are not as highly leveraged; |
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increase our vulnerability to general adverse economic and industry conditions; or |
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require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness if we do not maintain specified financial ratios, thereby reducing the availability of our cash flow. |
If we increase our indebtedness by borrowing under our revolving credit facility or incur other new indebtedness, the risks described above would increase.
Our insurance may not be adequate to cover all losses.
The insurance we maintain covers material damage to property, business interruption and third-party liability. This insurance contains limitations on the total coverage for damage due to catastrophic events, such as flooding or terrorism. In addition, there is an overall cap on our general insurance coverage of 34 million in any one year. There is, therefore, a risk that if one or more data centers were damaged, the total amount of the loss would not be recoverable by us. As we have multiple data centers in close proximity to each other located in Amsterdam, Frankfurt, Paris and Dublin, this increases the chance of us suffering uninsured losses.
Also, our insurance policies include customary exclusions, deductibles and other conditions that could limit our ability to recover losses. In addition, some of our policies are subject to limitations involving co-payments and policy limits that may not be sufficient to cover losses. If we experience a loss that is uninsured or that exceeds policy limits, or if customers consider that there is a significant risk that such an event will occur, this may negatively affect our reputation, business, financial condition and results of operations.
Our failure to meet the performance standards under our service level agreements may subject us to liability to our customers, which could have a material adverse effect on our reputation, business, financial condition or results of operations.
We have service level agreements with substantially all of our customers in which we provide various guarantees regarding our level of service. Our inability to provide services consistent with these guarantees may
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lead to large losses for our customers, who consequently may be entitled to service credits for their accounts or to terminate their relationship with us. We have issued service credits to customers in the past due to our failure to meet service level commitments, as was the case in connection with an outage in some cabinets in one of our Paris data centers in 2009, and we may do so in the future. We cannot be sure that our customers will accept these service credits as compensation in the future. Our failure or inability to meet a customers expectations or any deficiency in the services we provide to customers could result in a claim against us for substantial damages. Provisions contained in our agreements with customers attempting to limit damages, including provisions to limit liability for damages, may not be enforceable in all instances or may otherwise fail to protect us for liability damages.
We could be subject to costs, as well as claims, litigation or other potential liability, in connection with risks associated with the security of our data centers.
One of our key service offerings is our high level of physical premises security. Many of our customers entrust their key strategic IT services and applications to us due, in part, to the level of security we offer. A party who is able to breach our security could physically damage our and our customers equipment and/or misappropriate either our proprietary information or the information of our customers or cause interruptions or malfunctions in our operations.
There can be no assurance that the security of any of our data centers will not be breached or the equipment and information of our customers put at risk. Any security breach could have a serious effect on our reputation and could prevent new customers from choosing our services and lead to customers terminating their contracts early and seeking to recover losses suffered, which could have a material adverse effect on our business, financial condition and results of operations. We may incur significant additional costs to protect against physical premises security breaches or to alleviate problems caused by such breaches.
We face risks relating to foreign currency exchange rate fluctuations.
Our reporting currency for purposes of our financial statements is the euro. However, we also incur revenues and operating costs in non-euro denominated currencies, such as British pounds, Swiss francs, Danish kroner and Swedish krona. We recognize foreign currency gains or losses arising from our operations in the period incurred. As a result, currency fluctuations between the euro and the non-euro currencies in which we do business will cause us to incur foreign currency translation gains and losses. We cannot predict the effects of exchange rate fluctuations upon our future operating results because of the number of currencies involved, the variability of currency exposure and the potential volatility of currency exchange rates. We do not currently engage in foreign exchange hedging transactions to manage the risk of our foreign currency exposure.
The slowdown in global economies and their delayed recovery may have an impact on our business and financial condition in ways that we currently cannot predict.
The slowdown and delayed recovery in the global financial markets could continue to have an adverse effect on our business and our financial condition. If the market conditions continue to remain weak or uncertain, some of our customers may have difficulty paying us and we may experience increased churn in our customer base. Our sales cycle could also continue to be lengthened as customers slow spending, or delay decision-making, on our services, which could adversely affect our revenue growth. Finally, we could also experience pricing pressure as a result of economic conditions if our competitors lower prices and attempt to lure away our customers.
Additionally, our ability to access the capital markets may be severely restricted at a time when we would like, or need, to do so, which could have an impact on our flexibility to pursue additional expansion opportunities and maintain our desired level of revenue growth in the future.
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Risks Related to our Industry
The European data center industry has suffered from over-capacity in the past, and a substantial increase in the supply of new data center capacity and/or a general decrease in demand for data center services could have an adverse impact on industry pricing and profit margins.
Between 2001 and 2004, the European data center industry suffered from overcapacity due to difficult telecommunications and technology market conditions when the value of many new Internet-based companies fell after a period of significant growth. During the period of growth, many customers contracted to use more space than they needed and in the downturn in the market that followed, the number of Internet-related business failures increased significantly, resulting in high levels of customer churn due to the termination or non-renewal of contracts.
A substantial increase in the supply of new data center capacity in the European data center market and/or a general decrease in demand, or in the rate of increase in demand, for data center services could have an adverse impact on industry pricing and profit margins. If there is not sufficient customer demand for data center services, our business, financial condition and operating results would be adversely affected.
If we do not keep pace with technological changes, evolving industry standards and customer requirements, our competitive position will suffer.
The Internet and telecommunications industries are characterized by rapidly changing technology, evolving industry standards and changing customer needs. Accordingly, our future success will depend, in part, on our ability to meet the challenge of these changes. Among the most important challenges that we may face are the need to: continue to develop our strategic and technical expertise, influence and respond to emerging industry standards and other technological changes, enhance our current services and develop new services that meet changing customer needs.
All of these challenges must be met in a timely and cost-effective manner. Some of our competitors may have greater financial resources, which would allow them to react better or more quickly to changes than we may be able to. We may not effectively meet these challenges as rapidly as our competitors or at all and our failure to do so could harm our business.
Terrorist activity throughout the world and military action to counter terrorism could adversely impact our business.
Due to the high volume of important data that passes through data centers, there is a real risk that terrorists seeking to damage financial and technological infrastructure view data centers generally, and those in concentrated areas specifically, as potential targets. These factors may increase our costs due to the need to provide enhanced security, which would have a material adverse effect on our business, financial condition and results of operations if we were unable to pass such costs on to our customers. These circumstances may also adversely affect the ability of companies, including ourselves, to raise capital. We may not have adequate property and liability insurance to cover terrorist attacks.
In addition, we depend heavily on the physical infrastructure (particularly as it relates to power) that exists in the markets in which we operate. Any damage to such infrastructure, particularly in the major European markets such as Amsterdam, Frankfurt, London, Madrid and Paris, where we derive a substantial amount of our revenue and which are likely to be more prone to terrorist activities, may materially and adversely affect our business.
Our carrier neutral business model depends on the presence of numerous telecommunications carrier networks in our data centers.
The presence of diverse telecommunications carriers fiber networks in our data centers is critical to our ability to retain and attract new customers. We are not a telecommunications carrier and as such we rely on third
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parties to provide our non-carrier customers with carrier services. We cannot assure you that the carriers operating within our data centers will not cease to do so. For example, as a result of strategic decisions or consolidations, some carriers may decide to downsize or terminate connectivity within our data centers, which could have an adverse effect on our business, financial condition and results of operations.
We may be subject to reputational damage and legal action in connection with the information disseminated by our customers.
We may face potential direct and indirect liability for claims of defamation, negligence, copyright, patent or trademark infringement and other claims, as well as reputational damage, based on the nature and content of the materials disseminated from our data centers, including on the grounds of allegations of the illegality of certain activities carried out by customers through their equipment located in our data centers. For example, lawsuits may be brought against us claiming that content distributed by our customers may be regulated or banned. Our general liability insurance may not cover any such claim or may not be adequate to protect us against all liability that may be imposed. In addition, on a limited number of occasions in the past, businesses, organizations and individuals have sent unsolicited commercial e-mails (spam), which may be viewed as offensive by recipients, from servers hosted at our data centers to a number of people, typically to advertise products or services. We have in the past received, and may in the future receive, letters from recipients of information transmitted by our customers objecting to spam. Although our contracts with our customers prohibit them from spamming, there can be no assurance that customers will not engage in this practice, which could subject us to claims for damages, damage our reputation and have a material adverse effect on our business.
Risks Related to Regulation
Laws and government regulations governing Internet-related services, related communication services and information technology and electronic commerce, across the European countries in which we operate, continue to evolve and, depending on the evolution of such regulations, may adversely affect our business.
Laws and governmental regulations governing Internet-related services, related communications services and information technology and electronic commerce continue to evolve. This is true across the various European countries in which we operate. In particular, the laws regarding privacy and those regarding gambling and other activities that certain countries deem illegal are continuing to evolve.
Changes in laws or regulations (or the interpretation of such laws or regulations) or national or EU policy affecting our activities and/or those of our customers and competitors, including regulation of prices and interconnection arrangements, regulation of access arrangements to types of infrastructure, regulation of privacy requirements through the protection of personal data and regulation of activity considered illegal through rules affecting data center and managed service providers could materially adversely affect our results by decreasing revenue, increasing costs or impairing our ability to offer services.
The industry in which we operate is subject to environmental and health and safety laws and regulations and may be subject to more stringent efficiency, environmental and health and safety laws and regulations in the future.
We are subject to various environmental and health and safety laws and regulations, including those relating to the generation, storage, handling and disposal of hazardous substances and technological equipment, the maintenance of warehouse facilities and the generation and use of electricity. Certain of these laws and regulations are capable of imposing liability for the entire cost of the investigation and remediation of contaminated sites, without regard to fault or the lawfulness of the disposal activity, on former owners and operators of real property and persons who have disposed of or released hazardous substances at any location. Compliance with these laws and regulations could impose substantial ongoing compliance costs and operating restrictions on us.
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Hazardous substances or regulated materials of which we are not aware may be present at data centers leased and operated by us. If any such contaminants are discovered at our data centers, we may be responsible under applicable laws, regulations or leases for any required removal or clean-up or other action at substantial cost.
Our facilities contain tanks and other containers for the storage of diesel fuel and significant quantities of lead acid batteries to provide back-up power. We cannot guarantee that our environmental compliance program will be able to prevent leaks or spills in these or other technical installations.
In addition, as consumers of substantial amounts of electricity, we may be affected by the new UK Carbon Reduction Commitment Energy Efficiency Scheme, or the Scheme. The CRC Energy Efficiency Scheme Order 2010 entered into force on March 22, 2010 introducing a mandatory cap and trade scheme from April 1, 2010 applying to organizations, including our own, whose mandatory half hourly metered electricity consumption is greater than 6,000 MWh in the qualification period (which for the first phase of the CRC is calendar year 2008). Potential impacts on our data centers in the UK include the costs associated with improving energy efficiency and the administrative costs of participating in the Scheme. We will be required to purchase emissions allowances from the UK Government to cover our direct and indirect emissions in April of each year of the Scheme beginning in April 2011 (as the first year of the Scheme is a reporting year only). The revenue generated by the sale/auction of allowances is then recycled back to participants based on their percentage of emissions plus or minus a bonus/penalty based on their performance under the Scheme relative to other Scheme participants (as set out in the CRC league table). The cost of the Scheme depends on our ability to implement energy efficiency improvements during the term of the Scheme. The cost could increase in the later years of the Scheme, as allowances will be auctioned after the initial three-year introductory phase (as opposed to sold at a fixed price of £12/tonne), the rate of the bonus/penalty payments will increase from +/- 10% to +/-50% from the first to the fifth year of the Scheme, and the technical opportunities to improve energy efficiency may become more limited and expensive once the most cost effective improvements have already been made.
Our data centers may also be adversely affected by any future application of additional regulation relating to energy usage, for example seeking to reduce the power consumption of companies and fees or levies in this regard (including the EU Energy End-Use Efficiency and Energy Services Directive (Directive 2006/32/EC)). It is possible that the resulting legislation will mean that service providers that consume energy, such as us, may incur increased energy costs, and/or caps on energy use. In addition, further to the Copenhagen Accord in respect of international climate change negotiations agreed at the UN Climate Change Summit in December 2009, the European Union has announced its commitment to reduce the greenhouse gas emissions across the European Union by 20% compared to 1990 levels (rising to 30% if other developed countries commit to comparable emission reduction targets and developing countries contribute adequately according to their responsibilities and respective capabilities). It is expected that this commitment may give rise to future domestic legislation relating to energy efficiency across the jurisdictions in which we have data centers and this may affect our business.
Non-compliance with, or liabilities under, existing or future environmental or health and safety laws and regulations, including failure to hold requisite permits, or the adoption of more stringent requirements in the future, could result in fines, penalties, third-party claims and other costs that could have a material adverse effect on us.
Risks Related to the Offering
Because the initial public offering price is substantially higher than our net tangible book value per ordinary share, you will incur immediate and substantial dilution.
The initial public offering price per ordinary share is substantially higher than the net tangible book value per ordinary share prior to the offering. Accordingly, if you purchase our ordinary shares in this offering, you will incur immediate dilution of approximately U.S. $7.34 in the net tangible book value per ordinary share from the price you pay for our ordinary shares, representing the difference between:
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the assumed initial public offering price of U.S.$12.00 per ordinary share (the midpoint of the estimated initial public offering price range set forth on the front cover of this Prospectus), and |
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the pro forma as adjusted net tangible book value per ordinary share of U.S.$4.66 as of September 30, 2010. |
You may find additional information in the section entitled Dilution in this Prospectus. If we issue additional shares in the future, you may experience further dilution. In addition, you may experience further dilution to the extent that ordinary shares are issued upon the exercise of share options. All of the ordinary shares issuable upon the exercise of our outstanding share options will be issued at a purchase price on a per share basis that is less than the initial public offering price per share in this offering.
There has been no public market for our ordinary shares prior to this offering, and you may not be able to resell our shares at or above the price you paid, or at all.
Prior to this initial public offering, there has been no public market for our ordinary shares. Our ordinary shares are expected to be approved for listing on the NYSE. If an active trading market for our ordinary shares does not develop after this offering, the market price and liquidity of our ordinary shares may be materially and adversely affected. The initial public offering price for our ordinary shares is determined by negotiations between us and the underwriters and may bear no relationship to the market price for our ordinary shares after this initial public offering. We cannot assure you that an active trading market for our ordinary shares will develop or that the market price of our ordinary shares will not decline below the initial public offering price.
The market price for our ordinary shares may be volatile.
The market price for our shares is likely to be highly volatile and subject to wide fluctuations in response to factors including, but not limited to, the following:
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announcements of new products and services by us or our competitors; |
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technological breakthroughs in the data center, networking or computing industries; |
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news regarding any gain or loss of customers by us; |
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news regarding recruitment or loss of key personnel by us or our competitors; |
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announcements of competitive developments, acquisitions or strategic alliances in our industry; |
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changes in the general condition of the global economy and financial markets; |
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general market conditions or other developments affecting us or our industry; |
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the operating and stock price performance of other companies, other industries and other events or factors beyond our control; |
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cost and availability of power and cooling capacity; |
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cost and availability of additional space inventory either through lease or acquisition in our target markets; |
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regulatory developments in our target markets affecting us, our customers or our competitors; |
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changes in demand for interconnection and colocation products and services in general or at our facilities in particular; |
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actual or anticipated fluctuations in our quarterly results of operations; |
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changes in financial projections or estimates about our financial or operational performance by securities research analysts; |
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changes in the economic performance or market valuations of other data center companies; |
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release or expiry of lock-up or other transfer restrictions on our outstanding ordinary shares; and |
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sales or perceived sales of additional ordinary shares. |
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In addition, the securities market has from time to time experienced significant price and volume fluctuations that are not related to the operating performance of particular companies. These market fluctuations may also have a material adverse effect on the market price of our ordinary shares.
A substantial portion of our total outstanding ordinary shares may be sold into the market at any time. Such future sales or issuances, or perceived future sales or issuances, could adversely affect the price of our shares.
If our existing shareholders sell, or are perceived as intending to sell, substantial amounts of our ordinary shares, including those issued upon the exercise of our outstanding share options, following this offering, the market price of our ordinary shares could fall. Such sales, or perceived potential sales, by our existing shareholders might make it more difficult for us to issue new equity or equity-related securities in the future at a time and price we deem appropriate. The ordinary shares offered in this offering will be eligible for immediate resale in the public market without restrictions. Shares held by our existing shareholders may also be sold in the public market in the future if registered under the Securities Act of 1933, as amended (the Securities Act), or if such shares qualify for an exemption from registration, including by reason of Rules 144 or 701 under the Securities Act, and subject to the 150-day lock-up period described below. Additionally, we intend to register all of our ordinary shares that we may issue under our employee stock ownership plans. Once we register those shares, they can be freely sold in the public market upon issuance, unless pursuant to their terms these stock awards have transfer restrictions attached to them. In connection with this offering, we have agreed with the underwriters not to sell or transfer any ordinary shares or securities convertible into, exchangeable for, exercisable for or repayable with ordinary shares, for 150 days after the date of this Prospectus without first obtaining the written consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and Barclays Capital Inc. Our executive officers and directors and our other existing security holders and option holders have agreed with the underwriters not to sell or transfer any ordinary shares or securities convertible into, exchangeable for, exercisable for or repayable with ordinary shares, for 150 days after the date of this Prospectus without first obtaining the written consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc. If any existing shareholder or shareholders sell a substantial amount of shares after the expiration of the lock-up period, the prevailing market price for our shares could be adversely affected. See Underwriting and Shares Eligible for Future Sale for additional information regarding resale restrictions.
You may not be able to exercise pre-emptive rights.
Holders of our ordinary shares will generally have a preferential subscription right, or pre-emptive right, to subscribe on a pro rata basis for issuances of ordinary shares or the granting of rights to subscribe for ordinary shares, unless explicitly provided otherwise in a resolution by our general meeting of shareholders, or, if so designated by our general meeting of shareholders, by our board of directors. In a general meeting of our shareholders to be held prior to the completion of this offering, a proposal will be submitted to designate our board of directors as the corporate body with the power to limit or exclude pre-emptive rights in respect of any issue and/or grant rights to subscribe for ordinary shares. Such designation will be limited to our authorized share capital from time to time and will be effective for a period of five years. As a result, we may issue additional shares for future acquisitions or other purposes while excluding any pre-emptive rights. If we issue additional shares without pre-emptive rights, your ownership interests in our company would be diluted and this in turn could have a material adverse effect on the price of our shares.
We may need additional capital and may sell additional ordinary shares or other equity securities or incur indebtedness, which could result in additional dilution to our shareholders or increase our debt service obligations.
We believe that our current cash, anticipated cash flow from operations and proceeds from our high yield note issuance will be sufficient to meet our anticipated cash needs for the next 12 months. We may, however,
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require additional cash resources due to changed business conditions or other future developments, including any investments or acquisitions we may decide to pursue. If these resources are insufficient to satisfy our cash requirements, we may seek to sell additional equity or debt securities or utilize our existing or obtain a new credit facility. The sale of additional equity securities could result in additional dilution to our shareholders. The incurrence of indebtedness would limit our ability to pay dividends or require us to seek consents for the payment of dividends, increase our vulnerability to general adverse economic and industry conditions, limit our ability to pursue our business strategies, require us to dedicate a substantial portion of our cash flow from operations to service our debt, thereby reducing the availability of our cash flow to fund capital expenditure, working capital requirements and other general corporate needs, and limit our flexibility in planning for, or reacting to, changes in our business and our industry. We cannot assure you that financing will be available in amounts or on terms acceptable to us, if at all.
We have never paid, do not currently intend to pay and may not be able to pay any dividends on our ordinary shares.
We have never declared or paid any dividends on our ordinary shares and currently do not plan to declare dividends on our ordinary shares in the foreseeable future. If we were to choose to declare dividends in the future, the payment of cash dividends on our shares is restricted under the terms of the agreements governing our indebtedness. In addition, because we are a holding company, our ability to pay cash dividends on our ordinary shares may be limited by restrictions on our ability to obtain sufficient funds through dividends from subsidiaries, including restrictions under the terms of the agreements governing our and our subsidiaries indebtedness. In that regard, our wholly-owned subsidiaries are limited in their ability to pay dividends or otherwise make distributions to us. Under Dutch law, we may only pay dividends out of profits as shown in our adopted annual accounts. We will only be able to declare and pay dividends to the extent our equity exceeds the sum of the paid and called up portion of our ordinary share capital and the reserves that must be maintained in accordance with provisions of Dutch law and our articles of association. Our board of directors will have the discretion to determine to what extent profits shall be retained by way of a reserve. The remaining profits will be at the disposal of our general meeting of shareholders for distribution of a dividend or to be added to the reserves or for such other purposes as our general meeting of shareholders decides. Our board of directors, in determining to what extent profits shall be retained by way of a reserve, will consider our ability to declare and pay dividends in light of our future operations and earnings, capital expenditure requirements, general financial conditions, legal and contractual restrictions and other factors that it may deem relevant. You should refer to the Dividend Policy section in this Prospectus for additional information regarding our current dividend policy.
Your rights and responsibilities as a shareholder will be governed by Dutch law and will differ in some respects from the rights and responsibilities of shareholders under U.S. law, and your shareholder rights under Dutch law may not be as clearly established as shareholder rights are established under the laws of some U.S. jurisdictions.
Our corporate affairs are governed by our articles of association and by the laws governing companies incorporated in The Netherlands. The rights of our shareholders and the responsibilities of members of our board of directors under Dutch law may not be as clearly established as under the laws of some U.S. jurisdictions. In the performance of its duties, our board of directors will be required by Dutch law to consider the interests of our company, our shareholders, our employees and other stakeholders in all cases with reasonableness and fairness. It is possible that some of these parties will have interests that are different from, or in addition to, your interests as a shareholder. We anticipate that all of our shareholder meetings will take place in The Netherlands.
In addition, the rights of holders of ordinary shares and many of the rights of shareholders as they relate to, for example, the exercise of shareholder rights, are governed by Dutch law and our articles of association and differ from the rights of shareholders under U.S. law. For example, Dutch law does not grant appraisal rights to a companys shareholders who wish to challenge the consideration to be paid upon a merger or consolidation of the company. See Description of Capital Stock.
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The provisions of Dutch corporate law and our articles of association have the effect of concentrating control over certain corporate decisions and transactions in the hands of our board of directors. As a result, holders of our shares may have more difficulty in protecting their interests in the face of actions by members of our board of directors than if we were incorporated in the United States. See Description of Capital Stock.
The interests of our principal shareholders may be inconsistent with your interests.
Following this offering, private equity investment funds affiliated with Baker Capital will indirectly own 47.5%, on a fully diluted basis, of our equity. Upon completion of this offering, we will also enter into a shareholders agreement with affiliates of Baker Capital. For so long as Baker Capital or its affiliates continue to be the owner of shares representing more than 25% of our outstanding ordinary shares, Baker Capital will have the right to designate for nomination a majority of the members of our board of directors, including the right to nominate the chairman of our board of directors. Please see Related Party TransactionsShareholders Agreement with Baker Capital. As a result, these shareholders have, and will continue to have, directly or indirectly, the power, among other things, to affect our legal and capital structure and our day-to-day operations, as well as the ability to elect and change our management and to approve other changes to our operation. The interests of Baker Capital and its affiliates could conflict with your interests, particularly if we encounter financial difficulties or are unable to pay our debts when due. Affiliates of Baker Capital also have an interest in pursuing acquisitions, divestitures, financings or other transactions that, in their judgment, could enhance their equity investments, although such transactions might involve risks to you as a holder of ordinary shares. In addition, Baker Capital or its affiliates may, in the future, own businesses that directly compete with ours or do business with us. The concentration of ownership may further have the effect of delaying, preventing or deterring a change of control of our company, could deprive our shareholders of an opportunity to receive a premium for their ordinary shares as part of a sale of our company and might ultimately affect the market price of our ordinary shares.
We are a foreign private issuer and, as a result, as permitted by the listing requirements of the NYSE, we may rely on certain home country governance practices rather than the corporate governance requirements of the NYSE.
We intend to comply with the corporate governance rules of the NYSE. However, as a foreign private issuer, we are permitted by the listing requirements of the NYSE to rely on home country governance requirements and certain exemptions thereunder rather than relying on the corporate governance requirements of the NYSE. For an overview of our corporate governance principles, see ManagementCorporate Governance. Accordingly, you may not have the same protections afforded to stockholders of companies that are not foreign private issuers.
You may be unable to enforce judgments obtained in U.S. courts against us.
We are incorporated under the laws of The Netherlands, and all or a substantial portion of our assets are located outside of the United States and certain of our directors and officers and certain other persons named in this Prospectus are, and will continue to be, non-residents of the United States. As a result, although we have appointed an agent for service of process in the United States, it may be difficult or impossible for United States investors to effect service of process within the United States upon us or our non-U.S. resident directors and officers or to enforce in the United States any judgment against us or them including for civil liabilities under the United States securities laws. Therefore, any judgment obtained in any United States federal or state court against us may have to be enforced in the courts of The Netherlands, or such other foreign jurisdiction, as applicable. Because there is no treaty or other applicable convention between the United States and The Netherlands with respect to legal judgments, a judgment rendered by any United States federal or state court will not be enforced by the courts of The Netherlands unless the underlying claim is relitigated before a Dutch court. Under current practice, however, a Dutch court will generally grant the same judgment without a review of the merits of the underlying claim (i) if that judgment resulted from legal proceedings compatible with Dutch notions of due process, (ii) if that judgment does not contravene public policy of The Netherlands and (iii) if the jurisdiction of
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the United States federal or state court has been based on grounds that are internationally acceptable. Investors should not assume, however, that the courts of The Netherlands, or such other foreign jurisdiction, would enforce judgments of United States courts obtained against us predicated upon the civil liability provisions of the United States securities laws or that such courts would enforce, in original actions, liabilities against us predicated solely upon such laws. See Enforceability of Civil Liabilities.
We have broad discretion over the use of proceeds we receive in this offering and may not apply the proceeds in ways that increase the value of your investment.
We intend to use the net proceeds from this offering primarily for general corporate purposes, including without limitation, capital expenditures relating to the expansion of existing data centers and the construction of new data centers. Our management will have broad discretion in the application of these net proceeds and, as a result, you will have to rely upon the judgment of our management with respect to the use of these proceeds, with only limited information concerning managements specific intentions. Our management may spend a portion or all of these net proceeds from this offering in ways that our shareholders may not desire or that may not yield a favorable return. The failure by our management to apply these funds effectively could harm our business. Pending their use, we may invest the net proceeds from this offering in a manner that does not produce income or in assets that lose value. See Use of Proceeds.
We will incur increased costs as a result of being a public company.
As a public company, we will incur significant legal, accounting and other expenses that we did not incur as a private company. We will incur costs associated with our public company reporting requirements. In addition, the Sarbanes-Oxley Act and related rules implemented by the U.S. Securities and Exchange Commission (the SEC) and the NYSE have imposed increased regulation and required enhanced corporate governance practices for public companies. Our efforts to comply with evolving laws, regulations and standards in this regard are likely to result in increased general and administrative expenses and a diversion of management time and attention from revenue generating activities to compliance activities. We also expect these new rules and regulations to make it more difficult and more expensive for us to obtain director and officer liability insurance, and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified candidates to serve on our board of directors or as executive officers.
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This Prospectus includes forward-looking statements. All statements other than statements of historical fact included in this Prospectus regarding our business, financial condition, results of operations and certain of our plans, objectives, assumptions, projections, expectations or beliefs with respect to these items and statements regarding other future events or prospects, are forward-looking statements. These statements include, without limitation, those concerning: our strategy and our ability to achieve it; expectations regarding sales, profitability and growth; plans for the construction of new data centers; our possible or assumed future results of operations; research and development, capital expenditure and investment plans; adequacy of capital; and financing plans. The words aim, may, will, expect, anticipate, believe, future, continue, help, estimate, plan, schedule, intend, should, shall or the negative or other variations thereof as well as other statements regarding matters that are not historical fact, are or may constitute forward-looking statements.
In addition, this Prospectus includes forward-looking statements relating to our potential exposure to various types of market risks, such as foreign exchange rate risk, interest rate risks and other risks related to financial assets and liabilities. We have based these forward-looking statements on our managements current view with respect to future events and financial performance. These views reflect the best judgment of our management but involve a number of risks and uncertainties which could cause actual results to differ materially from those predicted in our forward-looking statements and from past results, performance or achievements. Although we believe that the estimates reflected in the forward-looking statements are reasonable, such estimates may prove to be incorrect. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from these expressed or implied by these forward-looking statements. These factors include, among other things:
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operating expenses cannot be easily reduced in the short term; |
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inability to utilize the capacity of newly planned data centers and data center expansions; |
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significant competition; |
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cost and supply of electrical power; |
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data center industry over-capacity; and |
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performance under service level agreements. |
These risks and others described under Risk Factors are not exhaustive. Other sections of this Prospectus describe additional factors that could adversely affect our business, financial condition or results of operations. We urge you to read the sections of this Prospectus entitled Risk Factors, Managements Discussion and Analysis of Financial Condition and Results of Operation, Industry Overview and Business for a more complete discussion of the factors that could affect our future performance and the industry in which we operate. Additionally, new risk factors can emerge from time to time, and it is not possible for us to predict all such risk factors, nor can we assess the impact of all such risk factors to differ materially from those contained in any forward-looking statements. Given these risks and uncertainties, you should not place undue reliance on forward-looking statements as a prediction of actual results.
All forward-looking statements included in this Prospectus are based on information available to us on the date of this Prospectus. We undertake no obligation to update publicly or revise any forward-looking statement, whether as a result of new information, future events or otherwise, except as may be required by applicable law. All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained throughout this Prospectus.
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MARKET, ECONOMIC AND INDUSTRY DATA
Information regarding markets, market size, market share, market position, growth rates and other industry data pertaining to our business contained in this Prospectus consists of estimates based on data and reports compiled by professional organizations and analysts, on data from other external sources, and on our knowledge of our sales and markets. In many cases, there is no readily available external information (whether from trade associations, government bodies or other organizations) to validate market-related analyses and estimates, requiring us to rely on internally developed estimates. While we have compiled, extracted and reproduced market or other industry data from external sources which we believe to be reliable, including third parties or industry or general publications, neither we nor the underwriters have independently verified that data. Similarly, our internal estimates have not been verified by any independent sources.
30
PRESENTATION OF FINANCIAL AND OTHER INFORMATION
Presentation of Financial Information
Unless otherwise indicated, the financial information in this Prospectus has been prepared in accordance with International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board. The significant IFRS accounting policies applied to our financial information in this Prospectus have been applied consistently.
Financial Information
The financial information included in Financial Statements is covered by the auditors report included therein which was prepared in accordance with standards issued by the Public Company Accounting Oversight Board (United States).
EBITDA and Adjusted EBITDA
In this Prospectus we refer to our EBITDA and Adjusted EBITDA. We define EBITDA as operating profit plus depreciation, amortization and impairment of assets. We define Adjusted EBITDA as EBITDA adjusted to exclude share-based payments and exceptional and non-recurring items and include share of profits (losses) of non-group companies. For a reconciliation of EBITDA and Adjusted EBITDA to operating profit/(loss), see Managements Discussion and Analysis of Financial Condition and Results of OperationsEBITDA and Adjusted EBITDA. EBITDA, Adjusted EBITDA and other key performance indicators may not be indicative of our historical results of operations, nor are they meant to be predictive of future results.
Additional Key Performance Indicators
In addition to EBITDA and Adjusted EBITDA, our management also uses the following key performance indicators as measures to evaluate our performance:
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Equipped Space: the amount of data center space that, on the relevant date, is equipped and either sold or could be sold, without making any additional investments to common infrastructure. Equipped Space at a particular data center may decrease if either (a) the power requirements of customers at such data center change so that all or a portion of the remaining space can no longer be sold as the space does not have enough power and/or common infrastructure to support it without further investment or (b) if the design and layout of a data center changes to meet among others, fire regulations or customer requirements, and necessitates the introduction of common space which cannot be sold to individual customers, such as corridors; |
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Utilization Rate: on the relevant date, Revenue Generating Space as a percentage of Equipped Space; Revenue Generating Space is defined as the amount of Equipped Space that is billed on the relevant date. Some Equipped Space is not fully utilized due to customers specific requirements regarding the layout of their equipment. In practice, therefore, Utilization Rate does not reach 100%; |
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Recurring Revenue Percentage: Recurring Revenue during the relevant period as a percentage of total revenue in the same period. Recurring Revenue comprises revenue that is incurred monthly from colocation and associated power charges, office space, amortized set-up fees and certain recurring managed services (but excluding any ad hoc managed services) provided by us directly or through third parties. Rents received for the sublease of unused sites are excluded. Monthly Recurring Revenue is the contracted Recurring Revenue over a full month excluding power usage revenues, amortized set-up fees and the sub-leasing of office space; and |
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Average Monthly Churn: the simple average of the Churn Percentage in each month of the relevant period. Churn Percentage in a month is the contracted Monthly Recurring Revenue which came to an end during the month as a percentage of the total contracted Monthly Recurring Revenue at the beginning of the month. |
31
EBITDA, Adjusted EBITDA, Recurring Revenue and Average Monthly Churn are all non-GAAP measures. Together with the other key performance indicators listed above, they serve as additional indicators of our operating performance and are not required by, or presented in accordance with, IFRS. They are not intended as a replacement for, or alternatives to, measures such as cash flows from operating activities and operating profit as defined and required under IFRS. We believe that EBITDA, Adjusted EBITDA and our other key performance indicators are measures commonly used by analysts, investors and peers in our industry. Accordingly, we have disclosed this information to permit a more complete analysis of our operating performance. EBITDA, Adjusted EBITDA and our other key performance indicators, as we calculate them, may not be comparable to similarly titled measures reported by other companies. For a reconciliation of EBITDA and Adjusted EBITDA to operating profit/(loss), see Managements Discussion and Analysis of Financial Condition and Results of OperationsEBITDA and Adjusted EBITDA. EBITDA, Adjusted EBITDA and our other key performance indicators listed above may not be indicative of our historical results of operations, nor are they meant to be predictive of future results.
Currency Presentation and Convenience Translations
Unless otherwise indicated, all references in this Prospectus to euro or are to the currency introduced at the start of the third stage of the European Economic and Monetary Union pursuant to the Treaty establishing the European Community, as amended. All references to dollars, $, U.S. $ or U.S. dollars are to the lawful currency of the United States. We prepare our financial statements in euro.
Solely for convenience, this Prospectus contains translation of certain euro amounts into U.S. dollars based on the noon buying rate of 1.00 to U.S. $1.3601 and 1.00 to U.S. $1.4332 in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 and December 31, 2009, respectively. These translation rates should not be construed as representations that the euro amounts have been, could have been or could be converted into U.S. dollars at that or any other rate. See Exchange Rate Information.
Metric Convenience Conversion
This Prospectus contains certain metric measurements and for your convenience, we provide the conversion of metric units into U.S. customary units. The standard conversion relevant for this Prospectus is approximately 1 meter = 3.281 feet or 1 square meter = 10.764 square feet.
Rounding
Certain financial data in this Prospectus, including financial, statistical and operating information have been subject to rounding adjustment. Accordingly, in certain instances, the sum of the numbers in a column or a row in tables contained in this Prospectus may not conform exactly to the total figure given for that column or row. Percentages in tables have been rounded and accordingly may not add up to 100%.
No Incorporation of Website Information
The contents of our website do not form part of this Prospectus.
32
We publish our financial statements in euro. The conversion of euro into U.S. dollars in this Prospectus is solely for the convenience of readers. Exchange rates of euro into U.S. dollars are based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York. Unless otherwise noted, all translations from euro to U.S. dollars and from U.S. dollars to euro in this Prospectus were made at a rate of 1.00 to U.S. $1.3601, the noon buying rate in effect as of September 30, 2010. We make no representation that any euro or U.S. dollar amounts could have been, or could be, converted into U.S. dollars or euro, as the case may be, at any particular rate, the rates stated below, or at all.
The following table sets forth information concerning exchange rates between the euro and the U.S. dollar for the periods indicated.
Low | High | |||||||
(U.S. $ per 1.00) | ||||||||
Month ended: |
||||||||
July 31, 2010 |
1.2464 | 1.3069 | ||||||
August 31, 2010 |
1.2652 | 1.3282 | ||||||
September 30, 2010 |
1.2708 | 1.3638 | ||||||
October 31, 2010 |
1.3688 | 1.4066 | ||||||
November 30, 2010 |
1.3036 | 1.4224 | ||||||
December 31, 2010 |
1.3089 | 1.3395 | ||||||
January (through January 7) |
1.2944 | 1.3371 |
Average
for
Period (1) |
||||
(U.S. $ per
1.00) |
||||
Year ended December 31,: |
||||
2005 |
1.2400 | |||
2006 |
1.2661 | |||
2007 |
1.3797 | |||
2008 |
1.4695 | |||
2009 |
1.3955 | |||
2010 |
1.3211 |
Source: Federal Reserve Bank of New York
Note:
(1) | Annual averages are calculated from month-end rates. Monthly averages are calculated using the average of the daily rates during the relevant period. |
On January 7, 2011, the noon buying rate was 1.00 to U.S. $1.2944.
33
We estimate that we will receive net proceeds from this offering of approximately U.S. $176.6 million, assuming an initial public offering price of U.S. $12.00 per ordinary share, being the midpoint of the estimated range of the initial public offering price after deducting underwriting discounts and estimated aggregate offering expenses payable by us. A U.S. $1.00 increase (decrease) in the assumed public offering price of U.S. $12.00 per ordinary share would increase (decrease) the net proceeds to us from this offering by U.S. $15.3 million, after deducting underwriting discounts and estimated aggregate offering expenses payable by us and assuming no other change to the number of ordinary shares offered by us as set forth on the cover page of this Prospectus. We will not receive any proceeds from the sale of ordinary shares being offered by the selling shareholders, which includes members of our senior management (including any ordinary shares sold by the selling shareholders pursuant to the underwriters option to purchase additional ordinary shares), although we will receive the exercise price in respect of any options to purchase ordinary shares that are exercised by selling shareholders in connection with this offering.
We intend to use the net proceeds from this offering primarily for general corporate purposes, including, without limitation, capital expenditures relating to expansion of existing data centers and construction of new data centers.
34
The following table sets forth on a consolidated basis, our cash and cash equivalents and our capitalization as of September 30, 2010:
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on an actual basis; |
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on an adjusted basis to give effect to the November 2010 offering of 60 million 9.50% Senior Secured Notes due 2017 (the Additional Notes); and |
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on an adjusted basis to give effect to: |
|
the offering of the Additional Notes; |
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the sale of 16,250,000 ordinary shares by us in this offering at an assumed initial public offering price of U.S. $12.00 per ordinary share, the midpoint of the range set forth on the cover page of this Prospectus, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us; |
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a five-to-one reverse stock split that is expected to occur on or before the closing of this offering and assuming no related issuance of ordinary shares to ensure that each shareholder holds a number of shares divisible by five, as required for the five-to-one reverse stock split, which will be effected by way of an amendment of our articles of association (see Description of Capital StockArticles of Association and Dutch law); |
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the automatic one-to-one conversion of 174,039,207 Preferred Shares into ordinary shares prior to the closing of this offering, which will be effected by way of an amendment of our articles of association (see Description of Capital StockArticles of Association and Dutch Law). For these purposes it is assumed that after giving effect to the reverse stock split and the related issuance of ordinary shares referred to above, the automatic one-for-one conversion would result in 34,807,842 ordinary shares; and |
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the issuance of 3,754,606 ordinary shares by us in the Preferred Shares Liquidation Price Offering, for these purposes assumed to be the maximum number of ordinary shares to which holders of our Preferred Shares are entitled in the Preferred Shares Liquidation Price Offering, at an assumed initial public offering price of U.S. $12.00 per ordinary share, the midpoint of the range set forth on the cover page of this Prospectus, assuming an exchange rate of 1.00 to U.S. $1.2944 based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of January 7, 2011. |
You should read the following table in conjunction with Use of Proceeds, Managements Discussion and Analysis of Financial Condition and Results of Operations and our historical consolidated financial statements and related notes included elsewhere in this Prospectus.
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As of September 30, 2010 | ||||||||||||
Actual |
As Adjusted for
the offering of the Additional Notes |
As Further
Adjusted |
||||||||||
(000) | ||||||||||||
Cash and cash equivalents |
30,592 | (1) | 92,712 | (2) | 224,546 | (3) | ||||||
Debt (including current portion) |
||||||||||||
Finance lease liabilities |
871 | 871 | 871 | |||||||||
9.50% Notes due 2017 |
193,023 | (4) | 255,143 | (5) | 255,143 | (5) | ||||||
Other loans |
4,538 | 4,538 | 4,538 | |||||||||
Debt excluding revolving credit facility deferred financing costs (6) |
198,432 | 260,552 | 260,552 | |||||||||
Revolving credit facility deferred financing costs (6) |
(1,206 | ) | (1,206 | ) | (1,206 | ) | ||||||
Total debt |
197,226 | 259,346 | 259,346 | |||||||||
Shareholders equity |
||||||||||||
Share capital |
4,434 | 4,434 | 6,434 | |||||||||
Share premium (7) |
320,457 | 320,457 | 448,291 | |||||||||
Foreign currency translation reserve |
3,097 | 3,097 | 3,097 | |||||||||
Accumulated deficit (8) |
(184,690 | ) | (184,690 | ) | (184,690 | ) | ||||||
Total shareholders equity (8) |
143,298 | 143,298 | 273,132 | |||||||||
Total capitalization |
340,524 | 402,644 | 532,478 | |||||||||
Notes:
(1) | Cash and cash equivalents includes 4.4 million which is restricted and held as collateral to support the issuance of bank guarantees on behalf of a number of subsidiary companies. To the extent all holders of Preferred Shares elect payment in cash of the liquidation price of their Preferred Shares, Cash and cash equivalents as adjusted would be decreased by 34,807,842. |
(2) | As adjusted Cash and cash equivalents includes the net proceeds of the Additional Notes, after deducting underwriting discounts and commissions and our offering fees and expenses. |
(3) | As further adjusted Cash and cash equivalents includes the net proceeds of the Additional Notes and the net proceeds of this offering, after deducting underwriting discounts and commissions and our offering fees and expenses in excess of 2.0 million, which amount has been deducted and is reflected in Actual Cash and cash equivalents as of September 30, 2010. |
(4) | The net proceeds of the 200 million 9.50% Senior Secured Notes due 2017 (the Original Notes) are shown after deducting underwriting discounts and commissions and our offering fees and expenses. |
(5) | As adjusted and As further adjusted 9.50% Notes due 2017 includes the net proceeds of the Additional Notes, after deducting underwriting discounts and commissions and our offering fees and expenses. |
(6) | We reported deferred financing costs of 1.2 million in connection with entering into our revolving credit facility, which is currently undrawn. |
(7) | Share premium has been translated for convenience only based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 for euro into U.S. dollars of 1.00 = U.S. $1.3601. See Exchange Rate Information for additional information. |
(8) | Adjustment represents the write-off of deferred financing fees and related refinancing premium in respect of our credit facilities that were refinanced with the proceeds of the Original Notes. |
36
If you invest in our ordinary shares you will be diluted to the extent of the difference between the public offering price per ordinary share and the net tangible book value per ordinary share immediately after the completion of this offering. Net tangible book value represents the amount of our total assets less our total liabilities, excluding net deferred tax assets, deferred finance costs and intangible assets, divided by, the total number of our ordinary and Preferred Shares outstanding at September 30, 2010.
At September 30, 2010, we had a net tangible book value of U.S. $127.3 million, corresponding to a net tangible book value of U.S. $0.57 per ordinary share (based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 for euro into U.S. dollars of 1.00 = U.S. $1.3601).
After giving effect to (i) the issue and sale by us of ordinary shares offered by us in this offering, (ii) the automatic one-to-one conversion of Preferred Shares into ordinary shares, (iii) the five-to-one reverse stock split that is expected to occur on or before the closing of this offering and assuming no related issuance of ordinary shares to ensure that each shareholder holds a number of shares divisible by five, as required for the five-to-one reverse stock split, and (iv) the issue of 3,754,606 ordinary shares, which is the maximum number of ordinary shares to which holders of our Preferred Shares are entitled in the Preferred Shares Liquidation Price Offering, and assuming an offering price of U.S. $12.00 per ordinary share, the midpoint of the price range set forth on the cover page of this Prospectus, and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us, our net tangible book value estimated at September 30, 2010 would have been approximately U.S. $303.9 million, representing U.S. $4.66 per ordinary share. See SummaryThe Offering. This represents an immediate increase in net tangible book value of U.S. $1.79 per ordinary share to existing shareholders and an immediate dilution in net tangible book value of U.S. $7.34 per ordinary share to new investors purchasing shares in this offering. Dilution for this purpose represents the difference between the price per ordinary share paid by these purchasers and net tangible book value per ordinary share immediately after the completion of the offerings.
The following table illustrates this dilution to new investors purchasing ordinary shares in the global offering:
(1) | Translated for convenience only based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 for euro into U.S. dollars of 1.00 = U.S. $1.3601. See Exchange Rate Information for additional information. |
(2) | Percentage of dilution for new investors is calculated by dividing the dilution in net tangible book value for new investors by the price of the offering. |
Each U.S. $1.00 increase (decrease) in the offering price per ordinary share, would increase (decrease) the net tangible book value after this offering by U.S. $0.26 per ordinary share and the dilution to investors in the offering by U.S. $0.26 per ordinary share, assuming that the number of shares offered in the offering, as set forth on the cover page of this Prospectus, remains the same.
37
The following table sets forth, as of September 30, 2010, on the same basis described above:
|
the total number of ordinary shares owned by existing shareholders and to be owned by new investors purchasing ordinary shares in this offering; |
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the total consideration paid by our existing shareholders and to be paid by new investors purchasing ordinary shares in this offering; and |
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the average price per ordinary share paid by existing shareholders and to be paid by new investors purchasing ordinary shares in this offering. |
The table excludes the impact of the following items:
|
4,107,774 ordinary shares issuable upon the exercise of options outstanding under our 2008 equity incentive plan, as of September 30, 2010 (after giving effect to the five-to-one reverse stock split); and |
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897,721 additional ordinary shares reserved for issuance under our 2008 equity incentive plan, as of September 30, 2010 (after giving effect to the five-to-one reverse stock split). |
Ordinary
Shares
Purchased (1) |
Total Consideration |
Average
Price Per Ordinary Share |
||||||||||||||||||
Number | Percent | Amount | Percent | |||||||||||||||||
Existing shareholders |
48,738,477 | 75.0 | $ | 441,884,249 | (2) | 69.4 | $ | 9.07 | ||||||||||||
New shareholders |
16,250,000 | 25.0 | $ | 195,000,000 | 30.6 | $ | 12.00 | |||||||||||||
Total |
64,988,477 | 100 | % | $ | 636,884,249 | 100 | % | $ | 9.80 | |||||||||||
(1) | The number of ordinary shares disclosed for the existing shareholders includes (i) the automatic one-to-one conversion of Preferred Shares to ordinary shares, (ii) the five-to-one reverse stock split that is expected to occur on or before the closing of this offering and assuming no related issuance of ordinary shares to ensure that each shareholder holds a number of shares divisible by five, as required for the five-to-one reverse stock split, (iii) the issuance of 604,790 ordinary shares upon the assumed exercise of options in connection with this offering, and (iv) the issuance of 3,754,606 ordinary shares, the maximum number of ordinary shares to which holders of our Preferred Shares are entitled in the Preferred Shares Liquidation Price Offering based on the midpoint of the price range set forth on the cover page of this Prospectus and assuming an exchange rate of 1.00 to U.S. $1.2944 based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of January 7, 2011. See SummaryThe Offering. |
(2) | Total consideration paid by existing shareholders is based on share capital and share premium as of September 30, 2010, includes all share-based compensation through September 30, 2010 and is based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 for euro into U.S. dollars of 1.00 = U.S. $1.3601. |
38
We have never declared or paid cash dividends on our ordinary shares. We currently intend to retain any future earnings to fund the development and growth of our business and we do not currently anticipate paying dividends on our ordinary shares. Our board of directors will have the discretion to determine to what extent profits shall be retained by way of a reserve. Our board of directors, in determining to what extent profits shall be retained by way of a reserve, will consider our ability to declare and pay dividends in light of our future operations and earnings, capital expenditure requirements, general financial conditions, legal and contractual restrictions and other factors that it may deem relevant. In addition, our outstanding 260 million 9.50% Senior Secured Notes due 2017 and our credit agreements limit our ability to pay dividends and we may in the future become subject to debt instruments or other agreements that further limit our ability to pay dividends. The remaining profits will be at the disposal of our general meeting of shareholders for distribution of a dividend or to be added to the reserves or for such other purposes as our general meeting of shareholders decides. To the extent we pay dividends in euro, the amount of U.S. dollars realized by shareholders will vary depending on the rate of exchange between U.S. dollars and euro. Shareholders will bear any costs related to the conversion of euro into U.S. dollars.
We are a holding company incorporated in The Netherlands. Under Dutch law, we may only pay dividends subject to our ability to service our debts as they fall due in the ordinary course of our business and subject to Dutch law and our articles of association. See Description of Capital StockDividends and Distributions. We rely on dividends paid to us by our wholly-owned subsidiaries in the United Kingdom, France, Germany, Austria, The Netherlands, Ireland, Spain, Sweden, Switzerland, Belgium and Denmark to fund the payment of dividends, if any, to our shareholders.
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The following selected financial data as of and for the years ended December 31, 2009, 2008 and 2007 have been derived from our audited consolidated financial statements, which are included elsewhere in this Prospectus. The selected financial data as of and for the years ended December 31, 2006 and 2005 have been derived from our audited consolidated financial statements not included in this Prospectus. The following selected financial data for the nine months ended September 30, 2010 and 2009 and as of September 30, 2010 have been derived from our unaudited consolidated interim financial statements included elsewhere in this Prospectus, which have been prepared on a basis consistent with our annual audited consolidated financial statements. Our audited consolidated financial statements included in this Prospectus have been prepared and presented in accordance with IFRS as issued by the International Accounting Standards Board and have been audited by KPMG Accountants N.V., an independent registered public accounting firm.
You should read the selected financial data in conjunction with our consolidated financial statements and related notes and Managements Discussion and Analysis of Financial Condition and Results of Operations included elsewhere in this Prospectus. Our historical results do not necessarily indicate our expected results for any future periods.
Nine months ended September 30, |
Year
ended December 31, |
Year ended December 31, | ||||||||||||||||||||||||||||||||||
2010 (1) | 2010 | 2009 | 2009 (1) | 2009 | 2008 | 2007 (2)(3) | 2006 (2) | 2005 (2) | ||||||||||||||||||||||||||||
(U.S.
$000, except per share amounts) |
(000, except per
share amounts) |
(U.S.
$000, except per share amounts) |
(000, except per share amounts) | |||||||||||||||||||||||||||||||||
Income statement data |
||||||||||||||||||||||||||||||||||||
Revenue |
207,856 | 152,824 | 126,611 | 246,035 | 171,668 | 138,180 | 100,450 | 74,142 | 57,971 | |||||||||||||||||||||||||||
Cost of sales |
(92,306 | ) | (67,867 | ) | (58,163 | ) | (112,575 | ) | (78,548 | ) | (63,069 | ) | (51,998 | ) | (43,719 | ) | (35,965 | ) | ||||||||||||||||||
Gross profit |
115,550 | 84,957 | 68,448 | 133,460 | 93,120 | 75,111 | 48,452 | 30,423 | 22,006 | |||||||||||||||||||||||||||
Other income |
399 | 293 | 629 | 1,069 | 746 | 2,291 | 988 | 549 | 568 | |||||||||||||||||||||||||||
Sales and marketing costs |
(15,317 | ) | (11,262 | ) | (8,439 | ) | (16,128 | ) | (11,253 | ) | (9,862 | ) | (7,297 | ) | (6,715 | ) | (4,610 | ) | ||||||||||||||||||
General and administrative costs |
(54,020 | ) | (39,717 | ) | (36,180 | ) | (72,560 | ) | (50,628 | ) | (35,352 | ) | (34,837 | ) | (26,664 | ) | (12,918 | ) | ||||||||||||||||||
Operating profit/(loss) |
46,612 | 34,271 | 24,458 | 45,841 | 31,985 | 32,188 | 7,306 | (2,407 | ) | 5,046 | ||||||||||||||||||||||||||
Net finance expense |
(31,719 | ) | (23,321 | ) | (4,387 | ) | (8,955 | ) | (6,248 | ) | (3,713 | ) | (4,126 | ) | (697 | ) | (254 | ) | ||||||||||||||||||
Profit/(loss) before taxation |
14,893 | 10,950 | 20,071 | 36,886 | 25,737 | 28,475 | 3,180 | (3,104 | ) | 4,792 | ||||||||||||||||||||||||||
Income tax benefit (expense) |
(7,864 | ) | (5,782 | ) | (4,642 | ) | 1,025 | 715 | 8,899 | 10,405 | 3,736 | 14,319 | ||||||||||||||||||||||||
Net income |
7,029 | 5,168 | 15,429 | 37,911 | 26,452 | 37,374 | 13,585 | 632 | 19,111 | |||||||||||||||||||||||||||
Basic earnings per share |
0.03 | 0.02 | 0.07 | 0.17 | 0.12 | 0.17 | 0.06 | 0.00 | 0.11 | |||||||||||||||||||||||||||
Cash flow statement data |
||||||||||||||||||||||||||||||||||||
Net cash flows from operating activities |
65,976 | 48,508 | 37,293 | 73,635 | 51,378 | 35,991 | (4) | 24,756 | 14,797 | 7,787 | ||||||||||||||||||||||||||
Net cash flows from investing activities |
(109,708 | ) | (80,662 | ) | (75,987 | ) | (144,680 | ) | (100,949 | ) | (92,252 | ) | (49,548 | ) | (19,726 | ) | (4,868 | ) | ||||||||||||||||||
Net cash flows from financing activities |
41,630 | 30,608 | 20,510 | 28,326 | 19,764 | 82,057 | 45,419 | 9,485 | 150 | |||||||||||||||||||||||||||
Capital expenditures (5) |
(107,602 | ) | (79,113 | ) | (74,986 | ) | (143,290 | ) | (99,979 | ) | (91,123 | ) | (48,838 | ) | (18,377 | ) | (4,868 | ) |
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Nine months ended September 30, |
Year
ended December 31, |
Year ended December 31, | ||||||||||||||||||||||||||||||
2010 (1) | 2010 | 2009 (1) | 2009 | 2008 | 2007 (2)(3) | 2006 (2) | 2005 (2) | |||||||||||||||||||||||||
(U.S.
$000) |
(000) |
(U.S.
$000) |
(000) | |||||||||||||||||||||||||||||
Balance sheet data |
||||||||||||||||||||||||||||||||
Trade and other current assets |
78,653 | 57,829 | 79,700 | 55,610 | 49,874 | 29,313 | 20,758 | 13,727 | ||||||||||||||||||||||||
Cash and cash equivalents (6) |
41,608 | 30,592 | 45,867 | 32,003 | 61,775 | 35,848 | 15,042 | 10,374 | ||||||||||||||||||||||||
Current assets |
120,261 | 88,421 | 125,567 | 87,613 | 111,649 | 65,161 | 35,800 | 24,101 | ||||||||||||||||||||||||
Non-current assets (3) |
511,727 | 376,242 | 459,207 | 320,407 | 250,307 | 145,016 | 99,641 | 81,191 | ||||||||||||||||||||||||
Total assets |
631,988 | 464,663 | 584,774 | 408,020 | 361,956 | 210,177 | 135,441 | 105,292 | ||||||||||||||||||||||||
Shareholders equity |
194,900 | 143,298 | 192,589 | 134,377 | 104,926 | 69,158 | 37,942 | 36,994 | ||||||||||||||||||||||||
Current liabilities |
139,430 | 102,515 | 173,265 | 120,894 | 122,322 | 74,271 | 58,463 | 38,090 | ||||||||||||||||||||||||
Non-current liabilities |
297,658 | 218,850 | 218,920 | 152,749 | 134,708 | 66,748 | 39,036 | 30,208 | ||||||||||||||||||||||||
Total liabilities |
437,088 | 321,365 | 392,185 | 273,643 | 257,030 | 141,019 | 97,499 | 68,298 | ||||||||||||||||||||||||
Total liabilities and shareholders equity |
631,988 | 464,663 | 584,774 | 408,020 | 361,956 | 210,177 | 135,441 | 105,292 | ||||||||||||||||||||||||
Notes:
(1) | The Income statement data, Cash flow statement data and Balance sheet data as of and for the nine months ended September 30, 2010 and the year ended December 31, 2009 have been translated for convenience only based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 and December 31, 2009 for euro into U.S. dollars of 1.00 = U.S. $1.3601 and 1.00 = U.S. $1.4332, respectively. See Exchange Rate Information for additional information. |
(2) | In fiscal year 2008, income not related to our core activities was reclassified to the line item Other income. Fiscal years 2007, 2006 and 2005 figures have been adjusted to reflect the same reclassification. |
(3) | In fiscal year 2007, the useful economic lives of certain data center assets were increased from 10 to 15 years. This change of accounting estimate was applied from January 1, 2007. This extension in the useful economic lives of certain data center assets resulted in an estimated decrease in depreciation of 3.6 million during the fiscal year 2007. Additionally, fiscal year 2007 figures have been adjusted to reflect the impairment of 1,885,000 in the Depreciation, amortization and impairments line item instead of in the Exceptional general and administrative costs line item. |
(4) | The 2008 Net cash flows from operating activities include a reclassification for foreign exchange results on working capital balances. |
(5) | Capital expenditures represent payments to acquire tangible fixed assets as recorded on our consolidated statement of cash flows as Purchase of property, plant and equipment. |
(6) | Cash and cash equivalents includes 4.4 million, 3.9 million, 3.9 million, 3.6 million and 3.4 million as of September 30, 2010, December 31, 2009, December 31, 2008, December 31, 2007 and December 31, 2006, respectively, which is restricted and held as collateral to support the issuance of bank guarantees on behalf of a number of subsidiary companies. |
41
MANAGEMENTS DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following information should be read in conjunction with the consolidated financial statements and notes thereto and with the financial information presented in the section entitled Selected Financial Data included elsewhere in this Prospectus. The following discussion contains forward-looking statements that reflect our plans, estimates and beliefs. Such statements are based upon current expectations that involve risks and uncertainties. Any statements contained herein that are not statements of historical fact may be deemed to be forward-looking statements. For example, the words believes, anticipates, plans, expects, intends and similar expressions are intended to identify forward-looking statements. Our actual results could differ materially from those discussed in these forward-looking statements. Factors that might cause such a discrepancy include, but are not limited to, those discussed in Liquidity and Capital Resources below and Risk Factors above. All forward-looking statements in this Prospectus are based on information available to us as of the date of this Prospectus and we assume no obligation to update any such forward-looking statements.
Overview
We are a leading carrier-neutral colocation data center services provider in Europe. Our core offering is carrier-neutral colocation services, which we sell to over 1,100 customers. Within our data centers, we enable our customers to connect to a broad range of telecommunications carriers, Internet service providers and other customers. Our data centers act as content and connectivity hubs that facilitate the processing, storage, sharing and distribution of data, content, applications and media among carriers and customers, creating an environment that we refer to as a community of interest.
Our core offering is carrier-neutral colocation services, which includes space, uninterrupted power and a secure environment in which to house our customers computing, network, storage and IT infrastructure. Our carrier-neutral colocation services enable our customers to reduce operational and capital expenses while improving application performance and flexibility. We supplement our core colocation offering with a number of additional services, including network monitoring, remote monitoring of customer equipment, systems management, engineering support services, cross connects, data backup and storage.
We are headquartered near Amsterdam, The Netherlands, and deliver our services through 28 data centers in 11 countries strategically located in major metropolitan areas, including London, Frankfurt, Paris, Amsterdam and Madrid, which are the main data center markets in Europe. Because our data centers are located in close proximity to the intersection of telecommunications fiber routes and power sources, we are able to provide our customers with high levels of connectivity and the requisite power to meet their needs.
Our data centers house connections to more than 350 carriers and Internet service providers and 18 European Internet exchanges, which allows our customers to lower their telecommunications costs and, by reducing latency, improve the response time of their applications. This connectivity to carriers and Internet service providers, and to other customers, fosters the development of value-added communities of interest, which are important to customers in each of our segments: network providers, managed services providers, enterprises, financial services and digital media. Development of our communities of interest generates network effects for our customers that enrich the value and attractiveness of the community to both existing and potential customers.
Growth in Internet traffic, cloud computing and the use of customer-facing hosted applications are driving significant demand for high quality carrier-neutral colocation data center services. This demand results from the need for either more space or more power, or both. These needs, in turn, are driven by, among other factors, decreased cost of Internet access, increased broadband penetration, increased usage of high-bandwidth content, increased number of wireless access points and growing availability of Internet and network based applications. If the global economys recovery stalls or is reversed, global IP traffic may grow at a lesser rate, which could lead to a slowdown in the increase in demand for our services.
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Our ability to meet the demand for high quality carrier-neutral colocation data center services depends on our ability to add capacity by expanding existing data centers or by locating and securing suitable sites for additional data centers that meet our specifications, such as proximity to numerous network service providers, access to a significant supply of electrical power and the ability to sustain heavy floor loading.
Our market is highly competitive. Most companies operate their own data centers and in many cases continue to invest in data center capacity, although there is a trend towards outsourcing. We compete against other carrier-neutral colocation data center service providers, such as Equinix, Telecity and Telehouse. We also compete with other types of data centers, including carrier-operated colocation, wholesale and IT outsourcers and managed services provider data centers. The cost, operational risk and inconvenience involved in relocating a customers networking and computing equipment to another data center are significant and have the effect of protecting a competitors data center from significant levels of customer churn.
Key Aspects of Our Financial Model
We offer carrier-neutral colocation services to our customers. Our revenues are mostly recurring in nature and in the last several years, Recurring Revenue has consistently represented over 90% of our total revenue. Our contracted Recurring Revenue model together with low levels of Average Monthly Churn provide significant predictability of future revenue.
Revenue
We enter into contracts with our customers for initial terms of generally three to five years, with annual price escalators and with automatic one-year renewals after the end of the initial term. Our customer contracts provide for a fixed monthly recurring fee for our colocation, managed services and, in the case of cabinets, fixed amounts of power pre-purchased at a fixed price. These fees are billed monthly, quarterly or bi-annually in advance, together with fees for other services such as the provision of metered power (based on a price per kilowatt hour actually consumed), billed monthly in arrears, or fees for services such as remote hands and eyes support, billed on an as-incurred basis.
The following table presents our future committed revenues expected to be generated from our fixed-term customer contracts as of December 31, 2009, 2008 and 2007.
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Within 1 year |
101,235 | 84,074 | 67,439 | |||||||||
Between 1 to 5 years |
96,392 | 90,204 | 81,142 | |||||||||
After 5 years |
16,093 | 7,553 | 9,590 | |||||||||
213,720 | 181,831 | 158,171 | ||||||||||
We recognize revenue when it is probable that future economic benefits will be realized and these benefits can be measured reliably. Revenues are measured at the fair value of the consideration received or receivable.
Revenues from contracts with multiple-element arrangements (e.g. installations and setup, equipment sales, data center and managed services) are recognized based on the residual value method, provided the delivered elements have value to customers on a stand-alone basis.
Colocation revenues are earned by providing data center services to customers at our data centers. Colocation revenues are recognized in profit or loss on a straight-line basis over the term of the customer contract. Incentives granted are recognized as an integral part of the total income, over the term of the customer contract. Customers are usually invoiced quarterly in advance and income is recognized on a straight-line basis over the quarter.
43
Power revenues vary with the amount of power our customers use and are generally matched with corresponding power costs. At the start of the contract, we also bill our customers in advance a fee for the installation and set-up of their contracted space within our data centers. The revenue from this initial set-up fee is recognized over the term of the customer contract and also recorded as Recurring Revenue.
Other services revenue relates mainly to managed services and connectivity. Revenue from other services is recognized when the services are rendered.
Deferred revenues relating to invoicing in advance and initial set-up fees are carried on the balance sheet. Deferred revenues due to be recognized after more than one year are held in non-current liabilities.
Recurring Revenue comprises revenue that is incurred monthly from colocation and associated power charges, office space, amortized set-up fees and certain recurring managed services (but excluding any ad hoc managed services) provided by us directly or through third parties. Rents received for the sublease of unused sites are excluded.
Costs
Our cost base consists primarily of personnel, power and property costs.
We employ the majority of our personnel in operations and support roles that operate our data centers 24 hours a day, 365 days a year. As of September 30, 2010 we employed 326 full-time employees: 182 in operations and support; 64 in sales and marketing; and 80 in general and administrative. A data center typically requires a fixed number of personnel to run, irrespective of customer utilization. Increases in operations and support personnel occur when we bring new data centers into service. Our approach is, where possible, to locate new data centers close to our existing data centers. In addition to other benefits of proximity, in some cases it also allows us to leverage existing personnel within a data center campus.
In 2008 and 2009, we invested resources in sales and marketing personnel to engage with our existing and potential customers on an industry basis. This has enabled us to establish closer relationships with our customers thereby allowing us to understand and anticipate their needs and to forecast demand and helping us plan the scope and timing of our expansion activities.
Our customers equipment consumes significant amounts of power and generates heat. In recent years the amount of power consumed by an individual piece of equipment, or power density, has increased as processing capacity has increased. In maintaining the correct ambient conditions for the equipment to operate most effectively, our cooling and air conditioning infrastructure also consume significant amounts of power. Our power costs are variable and directly dependent on the amount of power consumed by our customers equipment. Our power costs also increase as the Utilization Rate of a data center increases. Increases in power costs due to increased usage by our customers are generally matched by corresponding increases in power revenues.
The unit price we pay for our power also has an impact on our power costs. We generally enter into contracts with local utility companies to purchase power at fixed prices for periods of one or two years. Within substantially all of our customer contracts, we have the right to adjust at any time the price we charge for our power services to allow us to recover increases in the unit price we pay.
We do not own any data centers and instead lease all of our data center space. We generally seek to secure property leases for terms of 20 to 25 years. Where possible, we try to mitigate the long-term financial commitment by contracting for initial lease terms of 10 to 15 years with tenant-only rights to extend the lease with multiple 5-year increments, or alternatively through tenant-only rights to terminate the lease in year 10 or year 15. Our leases generally have fixed annual rent increases over the full term of the lease.
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Larger increases in our property costs occur when we bring new data centers into service. Bringing new data centers into service also has the effect of temporarily reducing our overall Utilization Rate while the utilization of the new data center increases as we sell to customers.
In addition, we enter into annual maintenance contracts with our major plant and equipment suppliers. This cost increases as new maintenance contracts are entered into in support of new data center operations.
Operating Leverage
Due to the relatively fixed nature of our costs, we generally experience margin expansion as our Utilization Rate at existing data centers increases. Our margins and the rate of margin expansion will vary based upon the scope and scale of our capacity expansions, which affects our overall Utilization Rate.
Exceptional Items
We disclose exceptional items separately as Other income and Exceptional expenses to enable a better understanding of our financial performance.
Exceptional income and expense that we have disclosed separately in the last three annual financial periods have included abandoned transaction costs, net insurance compensation benefits from a large insurance claim and movements in the provision for onerous lease contracts. Onerous lease contracts are those in which we expect losses to be incurred in respect of unused data center sites over the term of the lease contract. Provisions for these leases are based upon the present value of the future contracted payout under these leases, and movements in the provision for onerous lease contracts are reflected on our income statement. These movements arise principally from changes in the underlying discount rate and are treated as exceptional items. We sublease portions of these unused sites to third parties and treat the income from these subleases as exceptional income.
The provision for onerous lease contracts principally relates to two unused data center sites in Germany, one in Munich terminating in March 2016 and one in Dusseldorf terminating in August 2016.
Net Finance Expense
Towards the end of 2006, we started an expansion program of our data centers based on customer demand. This expansion program, closely matched to both customer demand and available capital resources, has continued since that time. We do not commit to a phase of an expansion or construction of a data center unless we have cash and committed capital available to complete the phase. Since 2006, we have raised debt capital to fund our expansion program, and this has contributed to increases in our finance expense. During the period of construction of a data center, we capitalize the borrowing costs as part of the construction costs of the data center.
We fund the expansion programs within operating entities principally through intra-group loans and since 2008, exchange differences arising, if any, on net investments including receivables from or payable to a foreign operation, are recognized directly in the foreign currency translation reserve within equity in accordance with IAS 21. Prior to 2008, these exchange differences were recognized as net finance expense or income.
We discuss our capital expenditures and our capital expansion program below in Liquidity and Capital Resources.
Income Tax Expense
Since inception we have generated significant tax loss carry forwards in all of our jurisdictions. In 2006, we became net income positive and began offsetting our tax loss carry forwards against taxable profits. We have recognized deferred tax assets, and will continue to recognize deferred tax assets progressively as our profitability increases. We expect to be able to continue to use our tax loss carry forwards to mitigate cash taxes going forward.
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Segment Reporting
We report our financials in two segments, which we have determined based on our management and internal reporting structure: the first being France, Germany, The Netherlands and UK and the second being the Rest of Europe, which comprises our operations in Austria, Belgium, Denmark, Ireland, Spain, Sweden and Switzerland. Segment results, assets and liabilities include items directly attributable to a segment as well as those that can be allocated on a reasonable basis. Unallocated items are presented as corporate and other and comprise mainly general and administrative expenses, assets and liabilities associated with our headquarters operations, provisions for onerous contracts (relating to the discounted amount of future losses expected to be incurred in respect of unused data center sites over the term of the relevant leases, as further explained below) and revenue and expenses related to such onerous contracts, loans and borrowings and related expenses and income tax assets and liabilities. Segment capital expenditure is the total cost directly attributable to a segment incurred during the period to acquire property, plant and equipment.
Results of Operations
The following table presents our operating results for the nine months ended September 30, 2010 and 2009 and the years ended December 31, 2009, 2008 and 2007:
Nine months ended September 30, |
Year
ended December 31, |
Year ended December 31, | ||||||||||||||||||||||||||
2010 (1) | 2010 | 2009 | 2009 (1) | 2009 | 2008 | 2007 (2)(3) | ||||||||||||||||||||||
(U.S.
$000, except per share amounts) |
(000, except per share
amounts) |
(U.S.
$000, except per share amounts) |
(000, except per share
amounts) |
|||||||||||||||||||||||||
Revenue |
207,856 | 152,824 | 126,611 | 246,035 | 171,668 | 138,180 | 100,450 | |||||||||||||||||||||
Cost of sales |
(92,306 | ) | (67,867 | ) | (58,163 | ) | (112,575 | ) | (78,548 | ) | (63,069 | ) | (51,998 | ) | ||||||||||||||
Gross profit |
115,550 | 84,957 | 68,448 | 133,460 | 93,120 | 75,111 | 48,452 | |||||||||||||||||||||
Other income |
399 | 293 | 629 | 1,069 | 746 | 2,291 | 988 | |||||||||||||||||||||
Sales and marketing costs |
(15,317 | ) | (11,262 | ) | (8,439 | ) | (16,128 | ) | (11,253 | ) | (9,862 | ) | (7,297 | ) | ||||||||||||||
General and administrative costs |
||||||||||||||||||||||||||||
Depreciation, amortization and impairments |
(30,579 | ) | (22,483 | ) | (15,195 | ) | (31,473 | ) | (21,960 | ) | (15,083 | ) | (11,657 | ) | ||||||||||||||
Exceptional expenses |
(399 | ) | (293 | ) | (6,212 | ) | (12,317 | ) | (8,594 | ) | (1,611 | ) | (9,593 | ) | ||||||||||||||
Share-based payments |
(1,454 | ) | (1,069 | ) | (605 | ) | (1,362 | ) | (950 | ) | (1,660 | ) | (1,399 | ) | ||||||||||||||
Other general and administrative costs |
(21,587 | ) | (15,872 | ) | (14,168 | ) | (27,408 | ) | (19,124 | ) | (16,998 | ) | (12,188 | ) | ||||||||||||||
General and administrative costs |
(54,020 | ) | (39,717 | ) | (36,180 | ) | (72,560 | ) | (50,628 | ) | (35,352 | ) | (34,837 | ) | ||||||||||||||
Operating profit |
46,612 | 34,271 | 24,458 | 45,841 | 31,985 | 32,188 | 7,306 | |||||||||||||||||||||
Net finance expense |
(31,719 | ) | (23,321 | ) | (4,387 | ) | (8,955 | ) | (6,248 | ) | (3,713 | ) | (4,126 | ) | ||||||||||||||
Profit before taxation |
14,893 | 10,950 | 20,071 | 36,886 | 25,737 | 28,475 | 3,180 | |||||||||||||||||||||
Income tax benefit (expense) |
(7,864 | ) | (5,782 | ) | (4,642 | ) | 1,025 | 715 | 8,899 | 10,405 | ||||||||||||||||||
Net income |
7,029 | 5,168 | 15,429 | 37,911 | 26,452 | 37,374 | 13,585 | |||||||||||||||||||||
Basic earnings per share |
0.03 | 0.02 | 0.07 | 0.17 | 0.12 | 0.17 | 0.06 | |||||||||||||||||||||
Adjusted EBITDA (4) |
78,645 | 57,823 | 45,841 | 89,924 | 62,743 | 48,251 | 28,967 |
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The following table presents our operating results as a percentage of revenues for the nine months ended September 30, 2010 and 2009 and the years ended December 31, 2009, 2008, and 2007:
Nine months ended
September 30, |
Year ended December 31, | |||||||||||||||||||
2010 | 2009 | 2009 | 2008 | 2007 (2)(3) | ||||||||||||||||
Revenue |
100 | % | 100 | % | 100 | % | 100 | % | 100 | % | ||||||||||
Cost of sales |
(44 | ) | (46 | ) | (46 | ) | (46 | ) | (52 | ) | ||||||||||
Gross profit |
56 | 54 | 54 | 54 | 48 | |||||||||||||||
Other income |
0 | 0 | 0 | 2 | 1 | |||||||||||||||
Sales and marketing costs |
(7 | ) | (7 | ) | (7 | ) | (7 | ) | (7 | ) | ||||||||||
General & administrative costs |
||||||||||||||||||||
Depreciation, amortization and impairments |
(15 | ) | (12 | ) | (13 | ) | (11 | ) | (12 | ) | ||||||||||
Exceptional expenses |
0 | (5 | ) | (5 | ) | (1 | ) | (10 | ) | |||||||||||
Share-based payments |
(1 | ) | 0 | (1 | ) | (1 | ) | (1 | ) | |||||||||||
Other general and administrative costs |
(10 | ) | (11 | ) | (11 | ) | (12 | ) | (12 | ) | ||||||||||
General and administrative costs |
(26 | ) | (29 | ) | (29 | ) | (26 | ) | (35 | ) | ||||||||||
Operating profit |
22 | 19 | 19 | 23 | 7 | |||||||||||||||
Net finance expense |
(15 | ) | (3 | ) | (4 | ) | (3 | ) | (4 | ) | ||||||||||
Profit before taxation |
7 | 16 | 15 | 21 | 3 | |||||||||||||||
Income tax benefit (expense) |
(4 | ) | (4 | ) | 0 | 6 | 10 | |||||||||||||
Net income |
3 | % | 12 | % | 15 | % | 27 | % | 14 | % | ||||||||||
Adjusted EBITDA margin (4) |
38 | % | 36 | % | 37 | % | 35 | % | 29 | % |
Notes:
(1) | The operating results for the nine months ended September 30, 2010 and the year ended December 31, 2009 have been translated for convenience only based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 and December 31, 2009 for euro into U.S. dollars of 1.00 = U.S. $1.3601 and 1.00 = U.S. $1.4332, respectively. See Exchange Rate Information for additional information. |
(2) | In fiscal year 2008, income not related to our core activities were reclassified to the line item Other income. Fiscal year 2007 figures have been adjusted to reflect the same reclassification. |
(3) | In fiscal year 2007, the useful economic lives of certain data center assets were increased from 10 to 15 years. This change of accounting estimate was applied from January 1, 2007. This extension in the useful economic lives of certain data center assets resulted in an estimated decrease in depreciation of 3.6 million during the fiscal year 2007. Additionally, fiscal year 2007 figures have been adjusted to reflect the impairment of 1,885,000 in the Depreciation, amortization and impairments line item instead of in the Exceptional general and administrative costs line item. |
(4) | EBITDA is defined as operating profit plus depreciation, amortization and impairment of assets. We define Adjusted EBITDA as EBITDA adjusted to exclude share-based payments and exceptional and non-recurring items and include share of profits (losses) of non-group companies. Adjusted EBITDA margin is defined as Adjusted EBITDA as a percentage of revenue. We present EBITDA, Adjusted EBITDA and Adjusted EBITDA margin as additional information because we understand that they are measures used by certain investors and because they are used in our financial covenants in our 50 million revolving credit facility and 260 million 9.50% Senior Secured Notes due 2017. However, other companies may present EBITDA, Adjusted EBITDA and Adjusted EBITDA margin differently than we do. EBITDA, Adjusted EBITDA and Adjusted EBITDA margin are not measures of financial performance under IFRS and should not be considered as an alternative to operating profit or as a measure of liquidity or an alternative to net income as indicators of our operating performance or any other measure of performance derived in accordance with IFRS. See EBITDA and Adjusted EBITDA for a more detailed description. |
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The following table presents a reconciliation of EBITDA and Adjusted EBITDA to operating profit according to our income statement, the most directly comparable IFRS performance measure, for the periods indicated:
Nine months ended September 30, |
Year
ended December 31, |
Year ended December 31, | ||||||||||||||||||||||||||
2010 (1) | 2010 | 2009 | 2009 (1) * | 2009 | 2008 | 2007 (2)(3) * | ||||||||||||||||||||||
(U.S. $000) | (000) | (U.S. $000) | (000) | |||||||||||||||||||||||||
Other financial data |
||||||||||||||||||||||||||||
Operating profit |
46,612 | 34,271 | 24,458 | 45,841 | 31,985 | 32,188 | 7,306 | |||||||||||||||||||||
Depreciation, amortization and impairments |
30,579 | 22,483 | 15,195 | 31,473 | 21,960 | 15,083 | 11,657 | |||||||||||||||||||||
EBITDA |
77,191 | 56,754 | 39,653 | 77,314 | 53,945 | 47,271 | 18,963 | |||||||||||||||||||||
Share-based payments |
1,454 | 1,069 | 605 | 1,362 | 950 | 1,660 | 1,399 | |||||||||||||||||||||
Exceptional expenses |
||||||||||||||||||||||||||||
Increase/(decrease) in provision for onerous lease contracts (a) |
399 | 293 | 1,371 | 5,379 | 3,753 | 1,611 | 8,139 | |||||||||||||||||||||
Abandoned transaction costs |
| | 4,841 | 6,938 | 4,841 | | | |||||||||||||||||||||
Personnel costs |
| | | | | | 1,454 | |||||||||||||||||||||
Exceptional income |
(399 | ) | (293 | ) | (629 | ) | (1,069 | ) | (746 | ) | (2,291 | ) | (988 | ) | ||||||||||||||
Adjusted EBITDA* |
78,645 | 57,823 | 45,841 | 89,924 | 62,743 | 48,251 | 28,967 | |||||||||||||||||||||
Note:
* | References are to the footnotes above. |
(a) | Increase (decrease) in provision for onerous lease contracts does not reflect the deduction of income from subleases on unused data center sites. |
The following table sets forth some of our key performance indicators as of the dates indicated:
As of September 30, | As of December 31, | |||||||||||||||||||
2010 | 2009 | 2009 | 2008 | 2007 | ||||||||||||||||
Equipped Space (1) (square meters) |
59,600 | 50,800 | 54,800 | 43,200 | 36,600 | |||||||||||||||
Utilization Rate (2) |
71 | % | 72 | % | 70 | % | 77 | % | 74 | % |
Notes:
(1) | Equipped Space is the amount of data center space that, on the date indicated, is equipped and either sold or could be sold, without making any additional investments to common infrastructure. Equipped Space at a particular data center may decrease if either (a) the power requirements of customers at such data center change so that all or a portion of the remaining space can no longer be sold as the space does not have enough power and/or common infrastructure to support it without further investment or (b) if the design and layout of a data center changes to meet among others, fire regulations or customer requirements, and necessitates the introduction of common space which cannot be sold to individual customers, such as corridors. |
(2) | Utilization Rate is, on the relevant date, Revenue Generating Space as a percentage of Equipped Space; some Equipped Space is not fully utilized due to customers specific requirements regarding the layout of their equipment. In practice, therefore, Utilization Rate may not reach 100%. |
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Nine Months Ended September 30, 2010 and 2009
Revenue
Our revenue for the nine months ended September 30, 2010 and 2009 was as follows:
Nine months ended September 30, | Change | |||||||||||||||||||||||
2010 | % | 2009 | % | | % | |||||||||||||||||||
(000, except percentages) | ||||||||||||||||||||||||
Revenue |
||||||||||||||||||||||||
Recurring revenue |
141,551 | 93 | 118,850 | 94 | 22,701 | 19 | ||||||||||||||||||
Non-recurring revenue |
11,273 | 7 | 7,761 | 6 | 3,512 | 45 | ||||||||||||||||||
152,824 | 100 | 126,611 | 100 | 26,213 | 21 | |||||||||||||||||||
Revenue increased to 152.8 million for the nine months ended September 30, 2010 from 126.6 million for the nine months ended September 30, 2009, an increase of 21%. Recurring revenue increased by 19% and non-recurring revenue increased by 45% from the nine months ended September 30, 2009 to the nine months ended September 30, 2010. The period over period growth in recurring revenue was primarily attributed to an increase of approximately 5,600 square meters in Revenue Generating Space as a result of sales to both existing and new customers in all of our regions. During the nine months ended September 30, 2010, we recorded approximately 4.1 million of revenue from our new data centers in Dublin and Frankfurt as well as expansions to existing data centers in Amsterdam, London and Zurich.
Cost of Sales
Cost of sales increased to 67.9 million for the nine months ended September 30, 2010 from 58.2 million for the nine months ended September 30, 2009, an increase of 17%. Cost of sales was 44% of revenue for the nine months ended September 30, 2010 and 46% of revenue for the nine months ended September 30, 2009.
The increase in cost of sales was due to increased costs associated with our overall revenue growth and data center expansion projects, including (i) an increase of 1.2 million in utility costs as a result of increased customer installations, (ii) 1.8 million in higher compensation costs, (iii) 2.3 million in external installation and service costs as a result of increased non-recurring revenue, and (iv) an increase of 2.7 million in property costs. Equipped Space increased by approximately 4,700 square meters during the nine months ended September 30, 2010 as a result of new data centers in Dublin and Frankfurt as well as expansions to existing data centers in Amsterdam, London and Zurich. We expect cost of sales as a percent of revenue to decrease as we increase utilization at our existing facilities. This decrease may be partially offset by the impact of lower utilization in new data centers we open as part of our data center expansion projects.
Sales and Marketing Costs
Our sales and marketing costs increased to 11.3 million for the nine months ended September 30, 2010 from 8.4 million for the nine months ended September 30, 2009, an increase of 33%. Sales and marketing costs were 7% of revenue for each of the nine months ended September 30, 2010 and September 30, 2009.
The increase in sales and marketing costs was primarily a result of increases in employee headcount and related expenses and continued investment in industry-focused customer development and acquisition approach activities. We generally expect sales and marketing costs to continue to increase as we invest in growth and as we further invest in our segmented marketing approach.
General and Administrative Costs
General and administrative costs consist of depreciation, amortization and impairments, exceptional expenses, share based payments and other general and administrative costs.
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Depreciation, Amortization and Impairments
Depreciation, amortization and impairments increased to 22.5 million for the nine months ended September 30, 2010 from 15.2 million for the nine months ended September 30, 2009, an increase of 48%. Depreciation, amortization and impairments was 15% of revenue for the nine months ended September 30, 2010 and 12% of revenue for the nine months ended September 30, 2009. This increase was due to new data centers and data center expansion and the related increase in depreciation and amortization.
Exceptional Expenses
Exceptional expenses comprise of significant items which are separately disclosed by virtue of their size, nature or incidence to enable a better understanding of our financial performance. In the nine months ended September 30, 2010, we recorded 0.3 million of exceptional expenses consisting solely of an increase in the provision we have made for our onerous leases. The increase in the provision for onerous lease contracts was related to two unused data center sites in Germany, one in Munich terminating in March 2016 and one in Dusseldorf terminating in August 2016.
In determining Adjusted EBITDA we also add back share-based payments. For the nine months ended September 30, 2010 we recorded share-based payments of 1.1 million as compared to 0.6 million for the nine months ended September 30, 2009.
Other General and Administrative Costs
Other general and administrative costs increased from 14.2 million for the nine month period ended September 30, 2009 to 15.9 million for the nine month period ended September 30, 2010, an increase of 12%. Other general and administrative costs were 11% of revenue for the nine month period ended September 30, 2009 and 10% of revenue for the nine month period ended September 30, 2010.
The increase in the other general and administrative costs was primarily due to higher compensation costs, including general salaries, bonuses and headcount growth and increased professional services costs for audit, legal and tax services.
Net Finance Expense
Net finance expense increased to 23.3 million for the nine months ended September 30, 2010 from 4.4 million for the nine months ended September 30, 2009. Net finance expense was 15% of revenue for the nine months ended September 30, 2010 and 3% of revenue for the nine months ended September 30, 2009. The increase in net finance expense for the nine months ended September 30, 2010 was due to a one-time finance expense of 10.2 million and higher interest expenses of 8.5 million associated with the Original Notes. The one-time finance expense was the result of expensing termination fees, the costs associated with unwinding interest rate hedges and the write-off of deferred financing fees related to our previous credit facilities.
During the nine months ended September 30, 2010 and 2009, we capitalized 1.8 million and 1.5 million, respectively, of interest relating to borrowing costs associated with construction in progress.
Other Income
Other income represents income that we do not consider part of our core business, including income from the sublease of parts of our onerous lease contracts. Other income decreased to 0.3 million for the nine months ended September 30, 2010 from 0.6 million for the nine months ended September 30, 2009.
Income Taxes
Income tax expense increased to 5.8 million for the nine months ended September 30, 2010 from 4.6 million for the nine months ended September 30, 2009. Income tax expense was 4% of revenue for the nine months ended September 30, 2010 and 4% of revenue for the nine months ended September 30, 2009.
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Our consolidated effective tax rate of 53% in respect of continuing operations for the nine months ended September 30, 2010 was affected by refinancing costs, incurred in the first quarter and treated as non-tax deductable. Our effective tax rate for the nine months ended September 30, 2009 was 23%.
We recorded current tax expenses of 1.5 million for the nine months ended September 30, 2010 and 0.4 million
for the nine months ended September 30, 2009. We recorded deferred tax expenses of 4.2 million for the nine months ended September 30, 2010 and 4.2 million for the nine months ended September 30, 2009, arising
Years Ended December 31, 2009 and 2008
Revenue
Our revenue for the years ended December 31, 2009 and 2008 was as follows:
Year ended December 31, | Change | |||||||||||||||||||||||
2009 | % | 2008 | % | | % | |||||||||||||||||||
(000, except percentages) | ||||||||||||||||||||||||
Revenue |
||||||||||||||||||||||||
Recurring revenue |
161,314 | 94 | 127,307 | 92 | 34,007 | 27 | ||||||||||||||||||
Non-recurring revenue |
10,354 | 6 | 10,873 | 8 | (519 | ) | (5 | ) | ||||||||||||||||
171,668 | 100 | 138,180 | 100 | 33,488 | 24 | |||||||||||||||||||
Revenue increased to 171.7 million for the year ended December 31, 2009 from 138.2 million for the year ended December 31, 2008, an increase of 24%. Recurring revenue increased by 27% and non-recurring revenue decreased by 5% from the year ended December 31, 2008 to the year ended December 31, 2009. The period over period growth in recurring revenue was primarily the result of an increase of approximately 5,100 square meters in Revenue Generating Space as a result of sales to both existing and new customers in all of our regions. During the year ended December 31, 2009, we recorded approximately 5.1 million of revenue from our new data center in Paris as well as expansions to existing data centers in Brussels, Copenhagen, London, Madrid and Paris.
Cost of Sales
Cost of sales increased to 78.5 million for the year ended December 31, 2009 from 63.1 million for the year ended December 31, 2008, an increase of 24%. Cost of sales was 46% of revenue for each of years ended December 31, 2009 and 2008. The increase in cost of sales was due to increased costs associated with our overall revenue growth and data center expansion projects, including (i) an increase of 9.5 million in utility costs as a result of increased customer installations, (ii) 3.0 million in higher compensation costs and (iii) an increase of 1.9 million in property costs. Equipped Space increased by approximately 11,600 square meters during the year ended December 31, 2009 as a result of a new data center in Paris as well as expansions to existing data centers in Brussels, Copenhagen, London, Madrid and Paris. We expect cost of sales as a percent of revenue to decrease as we increase utilization at our existing facilities. This decrease may be partially offset by the impact of lower utilization in new data centers we open as part of our data center expansion projects.
Sales and Marketing Costs
Our sales and marketing costs increased to 11.3 million for the year ended December 31, 2009 from 9.9 million for the year ended December 31, 2008, an increase of 14%. Sales and marketing costs were 7% of revenue for each of the years ended December 31, 2009 and 2008.
The increase in sales and marketing costs was primarily a result of an increase of 1.0 million in compensation costs due to increases in employee headcount as we have continued to invest in our industry-focused customer development and acquisition approach.
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General and Administrative Costs
General and administrative costs consist of depreciation, amortization and impairments, exceptional expenses, share-based payments and other general and administrative costs.
Depreciation, Amortization and Impairments
Depreciation, amortization and impairments increased to 22.0 million for the year ended December 31, 2009 from 15.1 million for the year ended December 31, 2008, an increase of 46%. Depreciation, amortization and impairments was 13% of revenue for the year ended December 31, 2009 and 11% of revenue for the year ended December 31, 2008. This increase was due to new data centers and data center expansion and the related increase in depreciation and amortization.
Exceptional Expenses
Exceptional expenses comprise significant items which are separately disclosed by virtue of their size, nature or incidence to enable a better understanding of our financial performance. In the year ended December 31, 2009, we recorded 8.6 million of exceptional expenses comprising two items: (i) 4.8 million of legal, professional and other fees relating to an abandoned transaction and (ii) 3.8 million relating to an increase in the provision we have made for our onerous leases. The provision increased due to a reduction in the discount rate and increased costs associated with onerous leases relating to two unused data center sites in Germany, one in Munich terminating in March 2016 and one in Dusseldorf terminating in August 2016.
In determining Adjusted EBITDA we also add back share-based payments. For the year ended December 31, 2009 we recorded share-based payments of 1.0 million.
Other General and Administrative Costs
Other general and administrative costs increased to 19.1 million for the year ended December 31, 2009 from 17.0 million for the year ended December 31, 2008, an increase of 13%. Other general and administrative costs were 11% of revenue for the year ended December 31, 2009 and 12% of revenue for the year ended December 31, 2008. The increase in the other general and administrative costs was due to an increase of 1.9 million in compensation costs resulting from headcount growth.
Going forward, we expect our general and administrative costs to increase as we continue to scale our operations to support our growth; however, as a percentage of revenue, we expect them to decrease.
Net Finance Expense
Net finance expense for the year ended December 31, 2009 primarily consists of a 6.2 million net interest expense. Net finance expense increased to 6.2 million for the year ended December 31, 2009 from 3.7 million for the year ended December 31, 2008, an increase of 68%. Net finance expense was 4% of revenue for the year ended December 31, 2009 and 3% of revenue for the year ended December 31, 2008. The increase in net finance expense for the year December 31, 2009 was due primarily to greater amounts drawn on our credit facilities.
During the years ended December 31, 2009 and 2008, we capitalized 2.0 million and 1.9 million, respectively, of finance expense to construction in progress.
Other Income
Other income represents income that we do not consider part of our core business, including income from the sublease of parts of our onerous lease contracts. Additionally, we reported a net insurance compensation benefit of 0.3 million for the year ended December 31, 2009 and 1.8 million for the year ended December 31, 2008 as a result of fire damage incurred in 2008.
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Income Taxes
Income tax benefit decreased to 0.7 million for the year ended December 31, 2009 from 8.9 million for the year ended December 31, 2008. Income tax benefit was 0% of revenue for the year ended December 31, 2009 and 6% of revenue for the year ended December 31, 2008.
We recorded current tax expenses of 0.7 million for the year ended December 31, 2009 and 0.3 million for the year ended December 31, 2008. We recorded deferred tax benefits of 1.4 million for the year ended December 31, 2009 and 9.2 million for the year ended December 31, 2008, arising primarily from the recognition of deferred tax assets on loss carry-forwards.
Years Ended December 31, 2008 and 2007
Revenue
Our revenue for the fiscal years ended December 31, 2008 and 2007 was as follows:
Year ended December 31, | Change | |||||||||||||||||||||||
2008 | % | 2007 | % | | % | |||||||||||||||||||
(000, except percentages) | ||||||||||||||||||||||||
Revenue |
||||||||||||||||||||||||
Recurring revenue |
127,307 | 92 | 91,591 | 91 | 35,716 | 39 | ||||||||||||||||||
Non-recurring revenue |
10,873 | 8 | 8,859 | 9 | 2,014 | 23 | ||||||||||||||||||
138,180 | 100 | 100,450 | 100 | 37,730 | 38 | |||||||||||||||||||
Revenue increased to 138.2 million for the year ended December 31, 2008 from 100.5 million for the year ended December 31, 2007, an increase of 38%. Recurring revenue increased by 39% and non-recurring revenue increased by 23% from the year ended December 31, 2007 to the year ended December 31, 2008. The year on year growth in recurring revenue was primarily the result of an increase of approximately 6,100 square meters in sales of Revenue Generating Space to both existing and new customers in all of our regions. During the year ended December 31, 2008, we recorded approximately 12.2 million of revenue from our new data centers in Frankfurt and Amsterdam as well as expansions to existing data centers in Brussels, Copenhagen, Dusseldorf, London, Madrid, Vienna and Zurich.
Cost of Sales
Cost of sales increased to 63.1 million for the year ended December 31, 2008 from 52.0 million for the year ended December 31, 2007, an increase of 21%. Cost of sales was 46% of revenue for the year ended December 31, 2008 and 52% of revenue for the year ended December 31, 2007.
The increase in cost of sales was due to our overall revenue growth and data center expansion projects, including (i) an increase of 4.5 million in utility costs as a result of increased customer installations, (ii) 2.1 million in higher compensation costs and (iii) an increase of 1.2 million in property costs. Equipped Space increased by approximately 6,600 square meters during the year ended December 31, 2008 as a result of new data centers in Frankfurt and Amsterdam as well as expansions to existing data centers in Brussels, Copenhagen, Dusseldorf, London, Madrid, Vienna and Zurich.
Sales and Marketing Costs
Our sales and marketing costs increased to 9.9 million for the year ended December 31, 2008 from 7.3 million for the year ended December 31, 2007, an increase of 35%. Sales and marketing costs were 7% of revenue for each of the years ended December 31, 2008 and 2007.
The increase in sales and marketing costs was primarily a result of an increase of 1.6 million in compensation costs due to increases in employee headcount resulting from our launch in late 2007 of our industry-focused customer development and acquisition approach.
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General and Administrative Costs
General and administrative costs consist of depreciation, amortization and impairments, exceptional expenses, share-based payments and other general and administrative costs.
Depreciation, Amortization and Impairments
Depreciation, amortization and impairments increased to 15.1 million for the year ended December 31, 2008 from 11.7 million for the year ended December 31, 2007, an increase of 29%. The increase was due to new data centers and data center expansions and the related increase in depreciation and amortization. Depreciation, amortization and impairments was 11% of revenue for the year ended December 31, 2008 and 12% of revenue for the year ended December 31, 2007. The extension in the economic lifetime of certain data center assets in 2007 resulted in an estimated decrease in depreciation of 3.6 million for the year ended December 31, 2007.
Exceptional Expenses
Exceptional expenses comprise significant items which are separately disclosed by virtue of their size, nature or incidence to enable a better understanding of our financial performance. In the year ended December 31, 2008, we recorded 1.6 million of exceptional expenses relating to an increase in our provision for onerous leases. The provision increased primarily due to a reduction in the discount rate. In the year ended December 31, 2007, we recorded 9.6 million of exceptional expenses comprising two items: (i) 1.5 million of exceptional and one-off personnel costs which were incurred in changing both our CEO and CFO and (ii) 8.1 million relating to an increase in our provision for onerous leases. Following a detailed review of our onerous leases, we reduced the estimated benefit of the future sublease income of our unused sites and as a result increased our provision.
In determining Adjusted EBITDA we also add back share-based payments. For the years ended December 31, 2008 and December 31, 2007 we recorded share-based payments of 1.7 million and of 1.4 million, respectively.
Other General and Administrative Costs
Other general and administrative costs increased to 17.0 million for the year ended December 31, 2008 from 12.2 million for the year ended December 31, 2007, an increase of 39%. Other general and administrative costs were 12% of revenue for each of the years ended December 31, 2008 and 2007.
The increase in the other general and administrative costs was due to an increase of 3.5 million in compensation costs resulting from headcount growth and an increase of 0.5 million in professional services costs for audit, legal and tax services.
Net Finance Expense
Net finance expense decreased to 3.7 million for the year ended December 31, 2008 from 4.1 million for the year ended December 31, 2007, a decrease of 10%. Net finance expense was 3% of revenue for the year ended December 31, 2008 and 4% of revenue for the year ended December 31, 2007. The decrease in net finance expense for the year ended December 31, 2008 was due primarily to a reduction in foreign currency losses from 2.2 million in the year ended December 31, 2007 to a nominal gain in the year ended December 31, 2008.
The decrease in net finance expense was partially offset by an increase in finance expense resulting from greater amounts drawn on our credit facilities. Finance expense was 4.9 million for the year ended December 31, 2008 as compared to 4.5 million for the year ended December 31, 2007. Finance expense for the year ended December 31, 2008 primarily consists of interest expense on bank and other loans. During the years ended December 31, 2008 and 2007, we capitalized 1.9 million and 0.7 million, respectively, of finance expense to data center construction in progress.
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Other Income
We reported a net insurance compensation benefit of 1.8 million for the year ended December 31, 2008, all of which was reported in the last quarter of 2008, as a result of fire damage to our Copenhagen data center. This benefit represents the difference between the net book value and replacement value of the equipment damaged. As of December 31, 2007 we reported 0.5 million of income as a result of the release of certain loan repayment obligations.
Income Taxes
Income tax expense decreased to a net income tax benefit of 8.9 million for the year ended December 31, 2008 from a net income tax benefit of 10.4 million for the year ended December 31, 2007, a decrease of 14%. Income tax benefit was 6% of revenue for the year ended December 31, 2008 and 10% of revenue for the year ended December 31, 2007.
We recorded current tax expenses of 0.3 million in each of the years ended
December 31, 2008 and 2007 and deferred tax benefits of 9.2 million and 10.7 million, in the years ended December 31, 2008 and 2007, respectively, arising primarily from the recognition of deferred tax assets on loss
Liquidity and Capital Resources
As of December 31, 2009, our total indebtedness consisted of (i) 152.5 million (aggregate principal amount) incurred under our previously existing 180 million secured credit facilities with a syndicate of banks and (ii) other debt and finance lease obligations totaling 6.2 million.
In February 2010, we issued 200 million 9.50% Senior Secured Notes due 2017 (the Original Notes), which are guaranteed by some of our subsidiaries. We used a portion of the proceeds of the notes offering to repay all amounts outstanding under our 180 million bank credit facilities. We also entered into a new 60 million revolving credit facility with a syndicate of banks. The revolving credit facility is currently undrawn and we have reduced the amount available for drawing to 50 million. See Description of Certain IndebtednessRevolving Credit FacilityFinancial Covenants and 9.50% Senior Secured Notes due 2017Covenants.
In November 2010, we issued 60 million 9.50% Senior Secured Notes due 2017 as additional notes (the Additional Notes) under the indenture pursuant to which we issued the Original Notes.
As of September 30, 2010, our total indebtedness consisted of (i) 200 million of our 9.50% Senior Secured Notes due 2017 of which we used 159.0 million of the proceeds to repay all amounts outstanding under our 180 million bank credit facilities and (ii) other debt and finance lease obligations totaling 5.4 million.
Historically, we have made significant investments in our property, plant and equipment in order to expand our data center footprint and total Equipped Space as we have grown our business. In the year ended December 31, 2009, we invested 100.0 million in property, plant and equipment. In the nine months ended September 30, 2010, we invested 79.1 million in property, plant and equipment of which 74.3 million was attributed to expansion capital expenditures and the remainder to ongoing capital expenditures. As of September 30, 2010, we were committed to 18.6 million in capital commitments that we expect to be substantially deployed during the remainder of 2010.
We expect to continue to invest as we expand our data center footprint and increase our Equipped Space based on demand in our target markets. We expect our 2010 investment in property, plant and equipment in 2010 to be comparable to our 2009 investment, subject to continued customer demand. Our total annual investment in property, plant and equipment includes maintenance and replacement capital expenditures. Although in any one year the amount of maintenance and replacement capital expenditures may vary, we expect that long-term such expenses will be between 6% and 8% of total revenue.
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As of September 30, 2010, we had 30.6 million of cash and cash equivalents
of which 4.4 million was restricted cash, mostly denominated in euro. As of December 31, 2009, we had 32.0 million of cash and cash equivalents of which 3.9 million was restricted cash, mostly denominated in
Sources and Uses of Cash
Nine months ended
September 30, |
Year ended December 31, | |||||||||||||||||||
2010 | 2009 | 2009 | 2008 | 2007 | ||||||||||||||||
(000) | ||||||||||||||||||||
Net cash provided by operating activities |
48,508 | 37,293 | 51,378 | 35,991 | 24,756 | |||||||||||||||
Net cash used in investing activities |
(80,662 | ) | (75,987 | ) | (100,949 | ) | (92,252 | ) | (49,548 | ) | ||||||||||
Net cash provided by financing activities |
30,608 | 20,510 | 19,764 | 82,057 | 45,419 |
Operating Activities
The increase in net cash flows from operating activities in the nine months ended September 30, 2010 was primarily due to improved operating performance of the company and an increase in movements in trade and other receivables as compared to the nine months ended September 30, 2009. The increase in net cash flows from operating activities in the year ended December 31, 2009 was primarily due to improved operating results as discussed above, strong collections of accounts receivable and management of vendor payments. The increase in net cash flows from operating activities in the year ended December 31, 2008 over the year ended December 31, 2007 was primarily due to improved operating results as discussed above, strong collections of accounts receivable and management of vendor payments. We expect that we will continue to generate cash from our operating activities during the remainder of 2010 and in 2011.
Investing Activities
The increase in net cash used in investing activities in the nine month period ended September 30, 2010 was primarily due to capital expenditures in the expansion of existing or construction of new data centers. The increase in net cash used in investing activities in the year ended December 31, 2009 was primarily due to capital expenditures in the expansion of existing or construction of new data centers. The increase in net cash used in investing activities in the years ended December 31, 2008 and 2007 was also primarily due to capital expenditures in the expansion of existing data centers or construction of new data centers. We expect that our net cash used in investing activities will be comparable to our 2009 investment, subject to continued customer demand.
Financing Activities
Net cash flows from financing activities during the nine month period ended September 30, 2010 was primarily the result of 190.8 million in gross proceeds from the issuance of the Original Notes (and after deducting deferred financing fees related to the Revolving Credit Facility), which was partly offset by repayment of our previously outstanding credit facility and associated costs and fees. Net cash flows from financing activities during the nine month period ended September 30, 2009 was primarily the result of 22.2 million in gross proceeds from our existing credit facilities.
Net cash flows from financing activities during the year ended December 31, 2009 was primarily the result of 22.2 million in gross proceeds drawn under our prior credit facilities. Net cash flows from financing activities during the year ended December 31, 2008 was primarily due to loan drawdowns for ongoing expansion projects. Net cash flows from financing activities during 2007 were primarily due to loan drawdowns for ongoing expansion projects.
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EBITDA and Adjusted EBITDA
EBITDA for the nine months ended September 30, 2010 was 56.8 million, as against 39.7 million for the nine months ended September 30, 2009, representing 37% and 31% of revenue, respectively. Adjusted EBITDA for the nine months ended September 30, 2010 was 57.8 million, as against 45.8 million for the nine months ended September 30, 2009, representing 38% and 36% of revenue, respectively.
EBITDA for the year ended December 31, 2009 was 53.9 million, 47.3 million for the year ended December 31, 2008, and 19.0 million for the year ended December 31, 2007, representing 31%, 34% and 19% of revenue, respectively. Adjusted EBITDA for the year ended December 31, 2009 was 62.7 million, 48.3 million for the year ended December 31, 2008 and 29.0 million for the year ended December 31, 2007, representing 37%, 35% and 29% of revenue, respectively.
We present EBITDA and Adjusted EBITDA as additional information because we understand that they are measures used by certain investors and because they are used in our financial covenants in our 50 million revolving credit facility and 260 million 9.50% Senior Secured Notes due 2017. See Description of Certain IndebtednessRevolving Credit FacilityFinancial Covenants and 9.50% Senior Secured Notes due 2017Covenants.
Failure to comply with the financial covenants in our 50 million revolving credit facility would result in an event of default, which may cause all amounts outstanding under the facility to become immediately due and payable. Acceleration of such outstanding amounts under the facility may lead to an event of default under the indenture governing our 260 million 9.50% Senior Secured Notes. Failure to satisfy the financial covenants in the indenture would result in our inability to incur additional debt under certain circumstances.
EBITDA is defined as operating profit plus depreciation, amortization and impairment of assets. We define Adjusted EBITDA as EBITDA adjusted to exclude share-based payments and exceptional and non-recurring items and include share of profits (losses) of non-group companies. However, other companies may present EBITDA and Adjusted EBITDA differently than we do. EBITDA and Adjusted EBITDA are not measures of financial performance under IFRS and should not be considered as an alternative to operating profit or as a measure of liquidity or an alternative to net income as indicators of our operating performance or any other measure of performance derived in accordance with IFRS.
The following table presents a reconciliation of EBITDA and Adjusted EBITDA to operating profit according to our income statement, for the periods indicated:
Nine months ended
September 30, |
Year ended December 31, | |||||||||||||||||||
2010 | 2009 | 2009 | 2008 | 2007 | ||||||||||||||||
(000) | (000) | |||||||||||||||||||
Operating profit |
34,271 | 24,458 | 31,985 | 32,188 | 7,306 | |||||||||||||||
Depreciation, amortization and impairments |
22,483 | 15,195 | 21,960 | 15,083 | 11,657 | |||||||||||||||
EBITDA |
56,754 | 39,653 | 53,945 | 47,271 | 18,963 | |||||||||||||||
Share-based payments |
1,069 | 605 | 950 | 1,660 | 1,399 | |||||||||||||||
Exceptional expenses |
||||||||||||||||||||
Increase/(decrease) in provision for onerous lease contracts (1) |
293 | 1,371 | 3,753 | 1,611 | 8,139 | |||||||||||||||
Abandoned transaction costs |
| 4,841 | 4,841 | | | |||||||||||||||
Personnel costs |
| | | | 1,454 | |||||||||||||||
Exceptional income (2) |
(293 | ) | (1,371 | ) | (746 | ) | (2,291 | ) | (988 | ) | ||||||||||
Adjusted EBITDA |
57,823 | 45,841 | 62,743 | 48,251 | 28,967 | |||||||||||||||
Notes:
(1) | Increase in provision for onerous lease contracts does not reflect the deduction of income from subleases on unused data center sites. |
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(2) | Exceptional income is reported within Other income. Exceptional expenses comprise significant items which are separately disclosed by virtue of their size, nature or incidence to enable a better understanding of our financial performance. Other income represents income that we do not consider part of our core business including income from the sublease of parts of our onerous lease contracts. |
Contractual Obligations and Off-Balance Sheet Arrangements
We lease a majority of our data centers and certain equipment under non-cancellable lease agreements. The following represents our debt maturities, financings, leases and other contractual commitments as of September 30, 2010:
Three
months of 2010 |
2011-2014 |
2015 and
thereafter |
Total | |||||||||||||
(000) | ||||||||||||||||
Credit facilities (1) |
562 | 2,371 | 201,605 | 204,538 | ||||||||||||
Financial leases |
118 | 753 | | 871 | ||||||||||||
Operating leases in relation to onerous lease contracts |
770 | 12,316 | 4,423 | 17,509 | ||||||||||||
Operating leases |
4,589 | 74,415 | 127,501 | 206,506 | ||||||||||||
Other contractual commitments |
5,575 | 22,400 | | 27,975 | ||||||||||||
Capital commitments |
18,610 | | | 18,610 |
Note:
(1) | Our prior credit facilities were repaid in February 2010 and replaced with a new 60 million revolving credit facility, which is currently undrawn and which we amended and reduced to 50 million in November 2010. This new credit facility terminates on January 31, 2013. In November 2010, we issued 60 million 9.50% Senior Secured Notes due 2017 guaranteed by certain of our subsidiaries. |
In connection with 13 of our data center leases, we entered into 15 irrevocable bank guarantees totaling 4.4 million with Fortis Bank Nederland (now ABN AMRO), La Caixa and Sparkasse. These bank guarantees were provided in lieu of cash deposits and automatically renew in successive one-year periods until the final lease expiration date. The bank guarantees are cash collateralized and the collateral is reflected as restricted cash on our balance sheet. These contingent commitments are not reflected in the table above.
Primarily as a result of our various data center expansion projects, as of September 30, 2010, we were contractually committed for 18.6 million of unaccrued capital expenditures, primarily for data center equipment not yet delivered and labor not yet provided, in connection with the work necessary to complete construction and open these data centers prior to making them available to customers for installation. This amount, which is expected to be paid during the remainder of 2010 and 2011, is reflected in the table above as Capital commitments.
We have other non-capital purchase commitments in place as of September 30, 2010, such as commitments to purchase power in select locations, primarily in Germany through the remainder of 2010, 2011 and 2012 and other open purchase orders, which contractually bind us for goods or services to be delivered or provided during the remainder of 2010 and beyond. Such other purchase commitments as of September 30, 2010, which total 28.0 million, are also reflected in the table above as Other contractual commitments.
In addition, although we are not contractually obligated to do so, we expect to incur additional capital expenditures consistent with our various data center expansion projects during the remainder of 2010 in order to complete the work needed to open these data centers. These non-contractual capital expenditures are not reflected in the table above. Please see BusinessStrategyDisciplined Expansion and Conservative Financial Management.
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Critical Accounting Estimates
Basis of Measurement
We present our financial statements in thousand of euro. They are prepared under the historical cost convention except for certain financial instruments. The financial statements are presented on the going-concern basis. Our functional currency is the euro.
The accounting policies set out below have been applied consistently by us and our wholly-owned subsidiaries and to all periods presented in these consolidated financial statements.
Use of Estimates and Judgments
The preparation of financial statements in conformity with IFRS requires management to make judgments, estimates and assumptions that affect the application of accounting policies and the reported amounts of assets, liabilities, income and expenses. Actual results may differ from these estimates. Estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to accounting estimates are recognized in the period in which the estimates are revised and in any future periods affected.
In particular, information about significant areas of estimation uncertainty and critical judgments in applying accounting policies that have the most significant effect on amounts recognized in the financial statements are discussed below.
Property, Plant and Equipment Depreciation
Estimated remaining useful lives and residual values are reviewed annually. The carrying values of property, plant and equipment are also reviewed for impairment where there has been a triggering event by assessing the present value of estimated future cash flows and net realizable value compared with net book value. The calculation of estimated future cash flows and residual values is based on our best estimates of future prices, output and costs and is therefore subjective.
Costs of Site Restoration
Liabilities in respect of obligations to restore premises to their original condition are estimated at the commencement of the lease. The actual cost of these may be different depending upon whether the Group renews the lease.
Provision for Onerous Lease Contracts
Provision is made for the discounted amount of future losses expected to be incurred in respect of unused data center sites over the term of the leases. Where unused sites have been sublet or partly sublet, management has taken account of the contracted rental income to be received over the minimum sublease term in arriving at the amount of future losses. Currently, the provision for onerous lease contracts principally relates to two unused data center sites in Germany, one in Munich terminating in March 2016 and one in Dusseldorf terminating in August 2016.
Deferred Taxation
Provision is made for deferred taxation at the rates of tax prevailing at the period end dates unless future rates have been substantively enacted. Deferred tax assets are recognized where it is probable that they will be recovered based on estimates of future taxable profits for each tax jurisdiction. The actual profitability may be different depending upon local financial performance in each tax jurisdiction.
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Fair Value of Option Grants
From time to time, we grant stock options to our employees. We obtained retrospective valuations from independent and unrelated valuation specialists to assist us in estimating the fair values of the ordinary shares underlying our options.
The independent valuation specialist retained during all of 2007 and part of 2008 employed the discounted cash flow method using assumptions for our growth rate, tax rate and exit multiple. The assumptions used were as follows:
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the illiquidity discount rate was an assumed 20%, which was based on market studies on public to private discount rates; |
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the control premium discount rate was an assumed 5% and also derived from market studies; |
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the weighted average cost of capital was 14%; |
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the terminal growth rate was 3%; and |
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the normalized tax rate was 30%. |
The independent valuation specialist retained beginning in mid-2008 employed the guideline company method, which uses market-based multiples as the base for valuation. These multiples are adjusted for the illiquidity of our ordinary shares, certain control aspects of our ordinary shares and a liquidation preference attached to outstanding preferred share capital. We replaced the discounted cash flow method with the guideline company method in response to the Dutch tax authoritys preference for a more transparent and external metric-based valuation method.
In order to develop market-based multiples, we and the independent valuation specialist referred to four publicly-traded companies that we and the specialist agreed were comparable peers that operate in industries similar to our own. An average implied EBITDA multiple (enterprise value/EBITDA) was calculated among the guideline companies. This multiple was then used to determine our enterprise value.
Once our enterprise value was determined, under both the discounted cash flow method and the guideline company method, adjustments were made for net debt, including the liquidation of all Preferred Shares pursuant to the Preferred Share Liquidation Price Offering and onerous lease contracts, to determine our equity value. This equity value was then divided by the total number of outstanding ordinary shares, assuming that all Preferred Shares are converted into ordinary shares and all options are exercised. This per share figure was then discounted, as noted above, to account for the illiquidity of the share value, control premium and liquidation preferences.
We believe that the overall approach is consistent with the principles and guidance set forth in IFRS 2.
All fair market valuations of the ordinary shares were made by us with reliance in part on the findings of the independent valuation specialists and such valuations progressively increased throughout the fiscal year 2009. As of our last option grant on September 17, 2010, the fair value of our underlying ordinary shares was estimated to be 2.42. The estimated public offering price for our ordinary shares is approximately $12.00 per share, the midpoint of the preliminary range of $11.00 to $13.00.
The estimated fair value of the ordinary shares was based in part on the following EBITDA multiples:
Valuation Date |
EBITDA
Multiple |
|||
March 31, 2009 |
10.44 | |||
June 30, 2009 |
11.94 | |||
September 30, 2009 |
11.48 | |||
December 31, 2009 |
13.02 | |||
May 31, 2010 |
13.25 | |||
June 30, 2010 |
13.68 | |||
September 30, 2010 |
14.40 |
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The increase in share price valuation during the year ended December 31, 2009 was caused by 1) an increase in the share prices of the publicly-traded companies used as guideline companies in determining the EBITDA multiple and 2) the financial performance of both ourselves as well as these guideline companies.
The difference in the estimated fair value of the underlying ordinary shares and the estimated public offering price is attributable to discounts in the estimated fair value for illiquidity of the unlisted ordinary shares and increased market demand and positive financial performance since the last valuation.
The following table outlines the option grants and related valuations during the 12 months ended September 30, 2010, which is the date of the most recent balance sheet included in this Prospectus. The table below does not reflect the five-to-one reverse stock split, which is expected to occur on or before the closing of this offering.
Grant Date |
Number of
options |
Option
Exercise Price(s) |
Estimated
Fair Value of Ordinary shares on Grant Date |
Intrinsic Value per
Option on Grant Date |
||||||||||||
(in euro) | ||||||||||||||||
October 1, 2009 |
60,000 | 1.00 | 1.72 | 0.72 | ||||||||||||
December 15, 2009 |
500,000 | 1.00 | 1.72 | 0.72 | ||||||||||||
February 10, 2010 |
1,190,000 | 1.00 | 2.04 | 1.04 | ||||||||||||
July 14, 2010 |
340,000 | 1.30 | 2.33 | 1.03 | ||||||||||||
September 17, 2010 |
300,000 | 1.30 | 2.42 | 1.12 | ||||||||||||
September 17, 2010 |
20,000 | 1.50 | 2.42 | 0.92 |
Recent Accounting Pronouncements
The following new standards, amendments to standards and interpretations set out below have been issued but are not effective for the financial year ending December 31, 2009 and have not been applied in preparing the financial statements for the years ended December 31, 2009, 2008 and 2007:
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IFRS 3R, Business combinations |
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IFRS 2, Share-based payment; group cash-settled share-based payment transactions; |
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IFRS 5, Non-current assets held for sale and discontinued operations; |
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IAS 39, Financial Instruments: Recognition and Measurement (April 2009 revisions); |
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IFRS 9, Financial Instruments; |
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IFRIC 9, Reassessment of Embedded Derivatives; |
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IFRIC 17, Distributions of Non-Cash Assets to Owners, effective annual periods beginning on or after July 1, 2009; and |
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IFRIC 19, Extinguishing financial liabilities with equity instruments, effective annual periods beginning on or after July 1, 2010. |
These new standards and interpretations, with the exception of IFRIC 19, are mandatory for our 2010 financial statements. Following an internal review it is not anticipated that the adoption of these standards and interpretations will have a material financial impact on the financial statements in the period of initial application and the subsequent reporting periods. See Financial StatementsNotes to the 2009 Consolidated Financial Statements.
Quantitative and Qualitative Disclosures about Market Risk
Interest Rate Risk
Under our credit facilities, interest is based on a floating rate index. The interest expense on the remainder of our outstanding indebtedness is based on a fixed rate.
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Foreign Exchange Risk
Our reporting currency for purposes of our financial statements is the euro. However, we also incur revenue and operating costs in non-euro denominated currencies, such as British pounds, Swiss francs, Danish kroner and Swedish krona. We recognize foreign currency gains or losses arising from our operations in the period incurred. As a result, currency fluctuations between the euro and the non-euro currencies in which we do business will cause us to incur foreign currency translation gains and losses. We cannot predict the effects of exchange rate fluctuations upon our future operating results because of the number of currencies involved, the variability of currency exposure and the potential volatility of currency exchange rates. We have determined that the impact of a near-term 10% appreciation or depreciation of non-euro denominated currencies relative to the euro would not have a significant effect on our financial position, results of operations, or cash flows.
We do not maintain any derivative instruments to mitigate the exposure to translation and transaction risk. Our foreign exchange transaction gains and losses are included in our results of operations and were not material for all periods presented. We do not currently engage in foreign exchange hedging transactions to manage the risk of our foreign currency exposure.
Commodity Price Risk
We are a significant user of electricity and have exposure to increases in electricity prices. In recent years, we have seen significant increases in electricity prices. We use independent consultants to monitor price changes in electricity and negotiate fixed-price term agreements with the power supply companies where possible.
Approximately 60% of our customers by revenue pay for electricity on a metered basis while the remainder of our customers pay for power plugs. While we are contractually able to recover power cost increases from our customers, some portion of the increased costs may not be recovered. In addition, some portion of the increased costs may be recovered in a delayed fashion based on commercial reasons at the discretion of local management.
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Data centers are highly specialized facilities that house critical network, storage and information technology equipment and act as content and connectivity hubs to facilitate the processing, storage, sharing and distribution of data, content, applications and media. The networking and computing equipment housed in data centers includes servers, switches, storage devices, routers and fiber optic transmission gear. This equipment has specific power, cooling, connectivity and security requirements that are fulfilled by these specialized facilities.
A data center generally consists of space for cabinets that house IT equipment, uninterruptible power supply systems, including backup generators and batteries, cooling equipment, fire suppression systems, security, staging areas and office space. The space in a data center can be divided into cages within a room or entirely separate suites. The equipment housed in a data center consumes significant power, generates substantial heat and is particularly sensitive to power fluctuations as well as changes in temperature and humidity. As a result, control of the data center environment by means of uninterrupted power, ventilation, air conditioning, heating, fire suppression and monitoring is critical. Data centers also often have raised flooring to accommodate air circulation, cooling ducts and vents and power cabling, as well as ceiling mounted cable trays for additional wiring and overhead fire suppression systems. Due to the critical nature of the customer equipment it houses and the data it stores and processes, a data center requires continuous operations and high levels of physical security, which can include measures such as biometric access control within security zones, reinforced weight bearing floors, and redundant or backup power supplies.
Whereas data centers were historically utilized primarily for space, and acted essentially as warehouses for data storage, data centers today are increasingly used for data processing in support of hosting applications that require network connectivity. Data centers that provide access to connectivity with multiple carriers can improve application resilience and reliability, together with network latency, or distance related delays, for customers. Carriers and customers use these data centers that provide access to multiple carriers for interconnection and trading of network services and to access potential customers, creating an environment that we refer to as a community of interest.
History of the European Data Center Industry
Between 1998 and 2001, data center operators in Europe invested heavily in building new facilities to meet the growing demand of emerging Internet-based businesses. Demand for carrier-neutral colocation data centers was driven primarily by carriers and Internet service providers, purchasing data center space to support anticipated demand, as opposed to actual demand.
Between 2001 and 2004, the industry suffered from overcapacity as demand from emerging Internet-based businesses did not materialize as expected. During this period, there was limited, if any, new network neutral colocation data center capacity built and the industry rationalized and consolidated existing capacity.
The data center services industry has matured significantly since 2001. The customer base has expanded from primarily emerging Internet companies and carriers to an increasingly wide variety of established businesses seeking to house their IT and telecommunications infrastructure and gain access to multiple carriers. These businesses increasingly utilize data centers not only as sites for data storage but also as computing centers to process data and operate customer-facing applications. This diverse and established customer base has driven significant demand for carrier-neutral data center services.
The data centers themselves have likewise experienced a fundamental shift. Since the late 1990s, a growing portion of the data center industry has evolved from providing services for equipment mainly designed for warehousing data to a place where real-time data gathering and data processing takes place. The growing sophistication and adoption of Internet-based applications such as cloud computing, or software-as-a-service, have been important contributors to this trend. The software complexity of these Internet-enabled or web-facing
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applications requires ever greater processing power in order to operate at speeds that provide response times that are acceptable to end users (whether people or machines). Today, this processing power is delivered by servers that reside in temperature controlled data centers with clean and uninterrupted power and network connectivity. Robust and redundant network connectivity is essential in order to ensure that the application and critical information in the data center can be delivered reliably and promptly to end users.
Types of Data Centers
There are five primary types of data centers: in-house, IT outsourcers and managed services provider, wholesale, carrier-operated and carrier-neutral colocation.
In-House Data Centers
Many companies own and operate some or all of their own data centers. According to IDC, as of March 2009, in-house data centers represent 88% of capacity in Europe. We expect the rate of outsourcing in Europe to increase due to the adoption of new technology and services. Companies may select in-house data centers for regulatory, or other industry specific reasons, or because they have significant scale such that it is more cost effective. In-house data centers often lack the flexibility, sufficient power, or benefit of access to multiple carriers, making them less suited to customer facing applications. Companies that own and operate their own data centers include Dell, Wal-Mart and FedEx.
IT Outsourcers and Managed Services Provider Data Centers
In general, IT outsourcers and managed service providers do not sell colocation space as a stand-alone offering, but include access to data center services as part of a managed service offering or customer solution. Unlike wholesale or colocation providers, IT outsourcers and managed services providers typically own and manage the servers, and utilize the equipment that is housed in the data center. IT outsourcers and managed services providers in Europe include HP, IBM, Logica, Rackspace, Sungard and Terremark.
Wholesale Data Centers
Wholesale data center providers are typically real estate companies that offer customers access to a large building shell with basic cooling and power infrastructure. Such data centers generally have fewer connectivity options, and lower customer density, and are therefore less likely to benefit from communities of interest. Wholesale data centers provide relatively few services in addition to basic cooling and power. Examples of wholesale data center providers include Digital Realty Trust, Dupont Fabros Technology and Global Switch.
Carrier-Operated Data Centers
Carrier-operated data centers offer colocation services, typically requiring customers to use their networks or allow interconnection with only a limited number of other carriers. Carrier-operated data centers do not offer their customers the cost efficiencies associated with access to multiple carriers. Carriers that operate their own data centers in Europe include AT&T, BT, Cable & Wireless, Colt Telecom, Savvis and Verizon.
Carrier-Neutral Colocation Data Centers
Carrier-neutral colocation data centers are not owned by carriers and enable customers to connect to multiple carriers. Carrier-neutral colocation providers allow customers to select the most cost-effective, reliable and convenient carriers and to migrate effectively among carriers. Carriers and colocation customers use these data centers for interconnection and trading of content and services and to access potential customers, creating a community of interest.
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Carrier-neutral colocation data centers offer high network resilience delivered by multiple providers and close proximity to application users. This offers customers an environment well-suited for the deployment of network-centric applications, such as software-as-a-service, or SaaS, and cloud-based applications that are accessed over a network. Carrier-neutral colocation data centers offer space, power, cooling, and connectivity and often offer complementary services, such as network monitoring, remote monitoring of customer equipment, cross connects, security, on-site engineering, technical support and storage backup. Carrier-neutral colocation data center providers in Europe include Equinix, InterXion, Telecity, and Telehouse.
Shift to Outsourcing
As data centers have shifted from mere warehouses for data storage to more advanced facilities requiring network connectivity and greater power, the market has shifted from in-house data centers to outsourced data centers as a result of the complexity and high cost of building, maintaining and operating these more advanced data center facilities. Building and fitting out a data center takes significant time and requires a large upfront investment in equipment and materials, which many companies are not willing or able to make. Outsourced data centers allow customers to convert fixed costs into variable costs, based on space, power use and the use of ancillary services. The growing focus on mission critical applications, business continuity, disaster recovery planning and increased regulatory requirements is also driving businesses to process and store more information in secure, off-site facilities.
The choice between in-house and carrier-neutral data centers is dependent upon the specific application and performance levels required by the user. In-house data centers will continue to be a solution for non-real-time back office applications, whereas real-time applications, like cloud computing services, by contrast, increasingly require the services offered by carrier-neutral data centers.
Demand Drivers for Data Centers
Growth in Internet traffic, cloud computing and the use of customer-facing hosted applications are driving significant demand for high quality carrier-neutral colocation data center services. This demand results from the need for either more space or more power, or both. According to the Cisco Visual Networking Index, Global IP traffic is expected to grow at a compound annual growth rate of 34% from 2009 to 2014. This growth is driven by, among other factors, decreased cost of Internet access, increased broadband penetration, increased usage of high-bandwidth content, increased number of wireless access points and growing availability of Internet and network based applications.
Increased Internet traffic drives demand for data center services as customers need a secure environment in which to locate additional processing, networking and computer equipment, such as servers, switches, routers and storage equipment, to support this traffic. In addition the continued growth in adoption of unified communications, videoconferencing, as well as telepresence, will continue to drive the need for hosted applications with high connectivity requirements.
Cloud computing services, which are applications delivered over networks, are also driving significant demand for data center services. According to IDC, the market for IT cloud services is expected to grow from $16.5 billion in 2009 to $55.5 billion in 2014, representing a 27.4% compound annual growth rate. Cloud applications require stable, scalable platforms in multiple geographies on which to operate and low latency access to end users. Because these requirements have become increasingly difficult and complex for in-house data center solutions to provide, we believe they will continue to drive demand for outsourced data centers, particularly carrier-neutral data centers on account of the network connectivity that they provide.
IDC projects the market for carrier-neutral colocation data center services in the United Kingdom, France, Germany and The Netherlands to grow from 922 million in 2009 to 2.245 billion in 2014, a compound annual growth rate of 19%.
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Supply Considerations
During the period 2001 to 2004, there was limited, if any, new carrier-neutral colocation data center capacity built and the industry rationalized and consolidated existing capacity. This combined with the growing demand for data center capacity, has led to a significant supply/demand imbalance. A number of factors contribute to the difficulty of bringing new capacity online. New data centers require significant upfront capital expenditures for which financing can be difficult to obtain. Carrier-neutral colocation data centers also require locations with adequate power, connectivity and proximity to major metropolitan areas, which are in limited supply in Europe. Data center construction requires extensive planning, and also adherence to local regulatory procedures and requirements, which can be difficult to navigate without knowledge of local governments, and attainment of permits, which can be difficult to attain. Data center development and construction is also particularly time consuming and can take from 12 to 24 months from planning to completion. Finally, power availability is now becoming a key limiting factor of supply within the data center industry. As new server speeds continue to increase, providing greater processing power, increased data center power and cooling capabilities are needed to run and cool these servers. Locations with adequate power are in limited supply in Europe.
According to Tier1 Research, the shortfall in supply versus demand for data center capacity in Europe will continue for the next three years.
Barriers to Entry
Significant barriers to entry exist in the carrier-neutral colocation market, including the scarcity of adequate locations, the cost and requirements of data center development, the time and resources required to develop communities of interest, the difficulty of establishing a reputable brand, associated track record and the inherently high switching costs for customers and carriers.
Scarcity of Adequate Locations
Carrier-neutral colocation data centers are typically located in major metropolitan areas in close proximity to the intersection of the major fiber routes of carriers and Internet service providers. We believe such locations are in scarce supply in Europe. Once occupied, data center sites are typically subject to long leases, so existing sites infrequently become available. Furthermore, the introduction of more complex servers with higher power consumption, such as blade servers, has resulted in power availability becoming a key limitation in identifying suitable locations. A data centers power requirements are substantial and supply is limited by availability at the local substation level.
Cost and Requirements of Data Center Development
Building a data center requires significant time, cost, technical expertise, regulatory compliance and attainment of permits. Attractive returns generally are not achievable until some time after the facility is completed, typically not until the data center is fully equipped with connectivity and utilized by customers.
Time and Resources Required to Develop Communities of Interest
The communities of interest generated by the carrier-neutral model are difficult and costly to replicate. Carriers are reluctant to invest resources to connect to data centers that lack existing customer and carrier presence. Conversely, customers do not realize the benefits or cost savings of access to communities of interest when moving to data centers that lack existing customer and carrier presence.
Difficulty of Establishing Reputable Brand
Existing data center providers have established brand names and reputations, which are difficult for new entrants to create. Without an established and strong brand, reputation and track record, it is difficult for a
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potential new competitor to attract carriers, which are needed to provide the connectivity to attract customers and create a valuable community of interest. Even if a data center provider is able to attract carriers, it is still difficult to entice high value customers to entrust their critical applications to the data center provider without an established track record.
High Switching Costs
Once a customer outsources its data center needs, it is difficult for that customer to change its data center provider. The cost, operational risk and inconvenience involved in relocating to another data center are significant. It is also costly, time consuming and complex for carriers to switch between data centers, as it typically requires the build-up of dual infrastructures running in parallel, the provision of several hundreds of circuits prior to connection of the new site to customers and the decommissioning of the existing site. In addition, carriers choose a data center in part based on their ability to interconnect easily with a large number of other carriers in the data center, which creates a network effect that deters carriers from switching data centers.
Pricing
Pricing is determined by a number of factors, including the availability of data center capacity, the type and quality of space required (from standard cabinet space to customized suites), power requirements, the prevailing market spot price of data center capacity, the length of contract term, data center location, proximity and the reputation of the data center provider.
Customer contracts for carrier-neutral colocation services typically range from one to ten years and include price escalators that adjust for inflation.
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Overview
We are a leading provider of carrier-neutral colocation data center services in Europe. We support over 1,100 customers through 28 data centers in 11 countries enabling them to protect, connect, process and distribute their most valuable information. Within our data centers, we enable our customers to connect to a broad range of telecommunications carriers, Internet service providers and other customers. Our data centers act as content and connectivity hubs that facilitate the processing, storage, sharing and distribution of data, content, applications and media among carriers and customers, creating an environment that we refer to as a community of interest.
Our core offering of carrier-neutral colocation services includes space, power, cooling and a secure environment in which to house our customers computing, network, storage and IT infrastructure. We enable our customers to reduce operational and capital costs while improving application performance and flexibility. We supplement our core colocation offering with a number of additional services, including network monitoring, remote monitoring of customer equipment, systems management, engineering support services, cross connects, data backup and storage.
We are headquartered near Amsterdam, The Netherlands, and we operate in major metropolitan areas, including London, Frankfurt, Paris, Amsterdam and Madrid, the main data center markets in Europe. Our data centers are located in close proximity to the intersection of telecommunications fiber routes, and we house more than 350 carriers and Internet service providers and 18 European Internet exchanges. Our data centers allow our customers to lower their telecommunications costs and reduce latency, thereby improving the response time of their applications. This high level of connectivity fosters the development of communities of interest.
For the nine months ended September 30, 2010, our total revenue was 152.8 million, our operating profit was 34.3 million and our Adjusted EBITDA, a non-GAAP financial measure, was 57.8 million, compared to 126.6 million in revenue, 24.5 million in operating profit and 45.8 million in Adjusted EBITDA in the nine months ended September 30, 2009. Over 90% of our revenue is Recurring Revenue, and typically 60-70% of our new bookings in any given year are generated from existing customers. See Presentation of Financial and Other InformationAdditional Key Performance Indicators.
For the year ended December 31, 2009, our total revenue was 171.7 million, our operating profit was 32.0 million and our Adjusted EBITDA was 62.7 million, compared to 138.2 million in revenue, 32.2 million in operating profit and 48.3 million in Adjusted EBITDA in the year ended December 31, 2008. See Presentation of Financial and Other InformationAdditional Key Performance Indicators.
For the years ended December 31, 2009, 2008 and 2007, our net income was 26.5 million, 37.4 million and 13.6 million, respectively.
Competitive Strengths
Leading European Carrier-Neutral Colocation Data Center Services Provider with Broad, Strategic Footprint
We are a leading carrier-neutral colocation data center services provider in Europe based on our geographic footprint, high level of connectivity and established brand. Through our 28 data centers in 11 countries, we operate more data centers in more countries than any other data center provider in Europe. Our data centers are located near key business hubs and in close proximity to the interconnection points of telecommunications fiber routes and power sources, which enables us to provide our customers with high levels of connectivity and the requisite power to meet their needs.
Strong, High Value Communities of Interest
Our carrier-neutral colocation data center model, which houses 18 European Internet exchanges, together with more than 350 carriers and Internet service providers, creates critical exchange points for Internet and data
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traffic. These exchange points attract enterprises, media and content providers, IT services providers and other groups wanting to access these diverse networks and other enterprises in a single location versus connecting these parties in multiple locations. This high level of connectivity fosters the development of value-added communities of interest within our customer segments. These communities of interest then attract additional carriers and customers which makes them increasingly more valuable.
Superior Levels of Connectivity
Our data centers provide our customers with connectivity to more than 350 individual carriers and Internet service providers as well as 18 European Internet exchanges. We believe this level of connectivity is unmatched by our competitors and attracts customers to our data centers. Our high level of connectivity enables customers to select the most cost-effective, reliable and convenient carriers at each data center and to migrate efficiently between carriers, thereby lowering their telecommunications costs and reducing latency.
Uniform, High Quality Data Centers and Customer Service
We design, build and operate each of our data centers according to uniform designs, processes and standards, which results in the construction and operation of high quality data centers. Having grown organically rather than through acquisitions, the uniformity of our data centers satisfies an important requirement for customers who seek consistency across multiple locations. This consistency also allows us to reduce cost, complexity and the risks associated with building and operating multiple data centers. All of our data centers are accredited as compliant with the Information Security Management Systems Standard ISO 27001. Through our European customer service center and strong country teams, we are able to deliver uniform quality and service to our customers, including consistent account and service management, reporting and billing. We also have local service delivery and assurance teams with strong in country management to ensure local knowledge and responsiveness. Our best-in-class customer service drives customer loyalty and contributes to our low customer churn rate.
Strong Value Proposition for Our Customers
Our carrier-neutral colocation service is a compelling value proposition versus building in-house, or outsourcing to a carrier-operated data center. Our customers save significant costs of building and maintaining a data center as well as the telecommunication costs required to access multiple networks and other participants in the communities of interest. Our carrier-neutral proposition also provides greater flexibility for enterprises to expand to meet their data center needs and deliver better performance as a result of lower network latency and excellent customer service.
Attractive Financial Model
Our recurring revenue model and largely fixed cost base provide us with significant visibility into future financial performance. In the last several years, our Recurring Revenue has consistently been over 90% of our total revenue. Our long-term contracts and high renewal rates further contribute to our revenue visibility. The terms of our initial customer contracts are typically three to five years and have automatic, one-year renewals. Our cost base consists primarily of personnel, power and property. While our personnel and property costs are largely fixed, our contracts provide us with the ability to adjust customer pricing for power in order to recover any increases in power costs. Our recurring revenue model provides significant predictability of future revenue, and our largely fixed cost base produces strong operating leverage. We enjoy long-standing relationships with our customers and have high customer retention, as evidenced by our low Average Monthly Churn rate, which was 0.5% in the year ended December 31, 2009. Although we generally expect our costs of sales and general and administrative costs to grow over time, we expect these costs to decrease as a percentage of revenue.
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Strategy
Target New Customers in High Growth Segments to Further Develop our Communities of Interest
We will continue to target new customers in high growth market segments, including financial services, cloud and managed services providers, digital media and carriers. Winning new customers in these target markets enables us to expand existing, and build new, high value communities of interest within our data centers. Communities of interest are particularly important to customers in each of these market segments. For example, customers in the digital media segment benefit from the close proximity to content delivery network providers and Internet exchanges in order to rapidly deliver content to consumers. We expect the high value and reduced cost benefits of our communities of interest to continue to attract new customers, which will lead to decreased customer acquisition costs for us.
Increase Share of Spend from Existing Customers
We focus on increasing revenue from our existing customers in our target market segments. New revenue from our existing customers comprises a substantial portion of our new business, generating approximately 70% of our new bookings. Our sales and marketing teams focus on proactively working with customers to identify expansion opportunities in new or existing markets.
Maintain Connectivity Leadership
We seek to increase the number of carriers in each of our data centers by expanding the presence of our existing carriers into additional data centers and targeting new carriers. We also will continue to develop our relationships with Internet exchanges and work to increase the number of Internet service providers in these exchanges. In countries where there is no significant Internet exchange, we will work with Internet service providers and other parties to create the appropriate Internet exchange. Our carrier sales and business development team will continue to work with our existing carriers and Internet service providers, and target new carriers and Internet service providers, to maximize our share of their data center spend, and to achieve the highest level of connectivity in each of our data centers.
Continue to Deliver Best-in-Class Customer Service
We will continue to provide a high level of customer service in order to maximize customer satisfaction and minimize churn. Our European Customer Service Centre operates 24 hours a day, 365 days a year, providing continual monitoring and troubleshooting and giving our customers one call access to full, multilingual technical support, thereby reducing our customers internal support costs. In addition, we will continue to develop our customer tools, which include an online customer portal to provide our customers with real-time access to information. We will continue to invest in our local service delivery and assurance teams, which provide flexibility and responsiveness to customer needs.
Disciplined Expansion and Conservative Financial Management
We plan to invest in our data center capacity, while maintaining our disciplined investment approach and prudent financial policy. We will continue to determine the size of our expansions based on selling patterns, pipeline and trends in existing demand as well as working with our customers to identify future capacity requirements. We only begin new expansions once we have identified customers and we have the capital to fully fund the build out. Our expansions are done in phases in order to manage the timing and scale of our capital expenditure obligations, reduce risk and improve our return on capital. Finally, we will continue to manage our capital deployment and financial management decisions based on adherence to our target internal rate of return on new expansions and target leverage ratios.
Our Services
We offer carrier-neutral colocation and managed services to our customers.
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Colocation
Our colocation services provide clients with the space and power to deploy IT infrastructure in our world-class data centers. Through a number of redundant subsystems, including power, fiber and cooling, we are able to provide our customers with highly reliable services. Our colocation services are scalable, allowing our customers to upgrade space, connectivity and services as their requirements evolve. Our data centers employ a wide range of physical security features, including biometric scanners, man traps, smoke detection, fire suppression systems, and secure access. We provide colocation services including:
Space
Each of our data centers houses our customers IT infrastructure in a highly connected facility, designed and outfitted to ensure a high level of network reliability. This service provides space and power to our clients to deploy their own IT infrastructure. Customers can choose individual cabinets or a secure cage depending on their space and security requirements.
Power
Each of our data centers is equipped to offer our customers high power availability, including power backup in case of outage as the availability of power is essential to the operation of a data center. The vast majority of our data centers have redundant grid connections and all of our data centers have a power backup installation in case of outage. Generators in combination with uninterrupted power supply, or UPS, system, endeavor to ensure maximum availability. We provide a full range of output voltages and currents and we offer our customers a choice of guaranteed levels of availability between 99.9% and 99.999%.
Connectivity
We provide connectivity services that allow our customers to connect their IT infrastructure. These services offer connectivity with more than 350 telecommunications carriers and allow our customers to reduce costs while enhancing the reliability and performance associated with the exchange of Internet and other data traffic. Our connectivity options offer our customers a key strategic advantage by providing direct, high-speed connections to peers, partners, customers and some of the most important sources of IP data, content and distribution in the world.
Cross Connect
We install and manage physical connections running from our customers equipment to the equipment of our telecommunications carrier, Internet service providers and Internet exchange customers as well as other customers. Cross connects are physically secured in dedicated areas called Meet-Me rooms. Our staff test and install cables and patches and maintain cable trays and patch panels according to industry best practice.
Availability Monitoring
We assist our customers in evaluating their Internet service providers. We inspect our customers Internet connections and notify customers of defects. Our technicians are available to make repairs as requested.
Managed Services
In addition to providing colocation services, we provide a number of additional managed services, including systems monitoring, systems management, engineering support services, data back-up and storage. Some managed services are only performed on an ad hoc basis, as and when requested by the customer, while others are more recurring in nature. These services are provided either by us directly, or in conjunction with third parties.
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Customers
We categorize our customers into five industry groups: digital media and distribution, enterprises, financial services, managed services providers and network providers. We have over 1,100 customers. The majority of our customers have contracts with us for a three to five year term. In the last several years, our existing customers have consistently provided over 90% of total revenues, while 70% of our new bookings were generated from existing customers.
In the nine months ended September 30, 2010, 34% of our Monthly Recurring Revenue came from our top 20 customers, 24% of our Monthly Recurring Revenue came from our top 10 customers and no single customer accounted for more than 5% of our Monthly Recurring Revenue.
The following table sets forth some of our representative customers by segment:
Digital Media and
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Enterprises |
Financial Services |
Managed Service
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Network Providers |
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Akamai Internap Netlog RTL Interactive LBI Lost Boys |
Sociedad Estatal Correos y Telegrafos, S.A. Canon Grupo Ferrovial DSV Fomento de Construcciones y Contratas, S.A. |
LeasePlan Group
ABN Amro Bank N.V.
Trading Technologies Sungard Fixnetix |
Hewlett-Packard IBM Terremark Siemens ControlCircle |
AT&T British Telecom Bouygues Telecom Interoute Communications Colt |
In addition, we have proximity hosting relationships with exchanges, such as the London Stock Exchange for whom we act as an accredited provider.
Customer service is provided centrally via our European Customer Service Centre located in London. The European Customer Service Centre supports five European languages (Dutch, English, French, German and Spanish) and is run by technical support staff and operates 24 hours a day, 365 days a year, in order to provide rapid and cost-effective technical and business support to all of our clients. In addition to its service desk functions, the European Customer Service Centre monitors and manages the performance of our data centers and takes care of network monitoring and other network operations center functions. The European Customer Service Centre arranges, as necessary, local engineering support, rapid response (out of hours emergency assistance), backup and restore and other managed services. There is also a customer relationship management system in place to electronically log each issue that the European Customer Service Centre is requested to address to ensure efficient and timely support.
Customer Contracts
Our customers typically sign contracts for the provision of colocation space together with basic service level agreements that provide for support services and other managed services. Unless customers notify us of their intention to terminate 90 days in advance of the end of the contract period, contracts (a majority of which are for three to five years) typically renew perpetually and automatically for successive one year periods. However, where beneficial to us we will, prior to the expiry of a customer contract, seek to re-negotiate and re-sign with a customer (generally for a minimum one-year period). Our contracts generally allow us the option to increase prices in accordance with local price indices in each jurisdiction and we are able to adjust the amount charged for power at any time and as frequently as necessary during the life of the contract to account for any increases in power costs we are charged by our suppliers.
Contracts for colocation services are priced on the basis of a monthly recurring fee reflecting charges for space, power used in the common parts of the data center, power plugs and metered power usage, with related
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infrastructure and implementation costs included in an initial set-up fee. Clients have two options with respect to power usage: either (i) to pay for power usage in plugs in advance (typically included in the total cabinet price), which are contractually defined amounts of power per month, for which the customer must pay in full, regardless of how much power is actually used; or (ii) to pay for their actual power usage in arrears on a metered basis. The first option (power plugs) is usually sold in shared areas of our data centers where customers pay per cabinet. The second option (metered power usage) is usually sold to customers taking dedicated space such as a cage, suite or private room where they are charged on a per square meter basis.
As with colocation services, our managed services are typically contracted on the basis of an annual contract (or longer where appropriate) and the fee generally consists of monthly recurring charges and usage based charges as appropriate, and may also include an initial set-up fee. If managed services are ad hoc in nature, they are invoiced on completion of the service.
Each new customer contract we enter into provides that in the event of a power outage or other equivalent service level agreement breach (e.g. for crossing a temperature or humidity benchmark), the customer will receive a service credit in the form of a reduction in its next service fee payment, the credit being on a sliding scale to reflect the seriousness of the breach. Our customer contracts typically exclude liability for consequential or indirect loss suffered as a result of a service level agreement breach and for force majeure. Historically, our penalty payments under our service level agreements have been minimal.
Customer Accounts
Fees are typically invoiced quarterly in advance, with the exception of metered power usage which is invoiced monthly in arrears. On new contracts, we generally require deposits, which we are able to use to cover any non-payment of invoices. If accounts are not paid on time, we seek recovery through the court system.
Sales and Marketing
Our sales and marketing teams focus on proactively identifying customers who may be candidates to purchase additional space in existing and new data centers.
Sales
Our sales force markets our services to all customer segments and is organized by country. We sell our products and services through a direct sales force, Major Accounts Team and by attending tradeshows, networking events and industry seminars. Our direct sales force comprises 23 people across Europe while our Major Accounts Team focuses on maximizing revenues across our European footprint from our largest customers and on identifying and developing new major accounts.
Marketing
Our marketing organization is responsible for identifying target customer segments, development of the value proposition that will enable us to succeed in our chosen segments, building and communicating a distinct brand, driving qualified leads into the sales pipeline and ensuring strategic alignment with key partners. Our marketing team supports our strategic priorities through the following primary objectives:
Customer Segmentation
Identification of the high-growth customer segments that we wish to target and development of the value proposition to enable success in our chosen markets. Working with our sales team, our marketing organization is also responsible for business development of key accounts in each segment.
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Brand Management and Positioning
This includes brand identity unification, positioning at the corporate and country levels, the development of methodology, marketing assets and brand awareness programs for all of our business units.
Lead Generation
Utilizing online marketing, targeted advertising, direct marketing, event marketing and public relations programs and strategies to design and execute successful lead-generation campaigns leveraging telemarketing and direct sales to grow our pipeline and deliver our revenue goals.
Employees
As of September 30, 2010 we had a total of 326 employees (full time equivalents, excluding contractors and interim staff) of which 182 employees worked in operations and support, 64 employees worked in sales and marketing and 80 employees in general and administrative. Geographically, 238 of our employees were based in our country operations and 88 employees worked from our headquarters near Amsterdam and corporate offices in London as of September 30, 2010. We believe that relations with our employees are good. Except for collective rights granted by local law, none of our employees are subject to collective bargaining agreements.
Leases
Our leases typically have an initial term of between 10 and 15 years in length. Most of our leases have an option to extend for a minimum of five years except for our data centers in the United Kingdom, Ireland and Belgium, where there is no right to renew, and France where other provisions apply. The leases on three of our data centers, representing less than 15% of our data center space, will expire prior to 2018. We expect to be able to renew these leases at market rates.
Data Center Operations
We have 28 carrier-neutral data centers in 13 metropolitan areas in 11 countries, representing approximately 67,000 square meters of maximum equippable space (as of September 30, 2010). We lease all of our premises.
All of our data centers are located in Europe and all of our revenues are generated in Europe. For more information on the geographic breakdown of our revenues, see Note 5 of our 2009 consolidated financial statements, included elsewhere herein.
We select sites for our data centers based primarily on expected customer demand, availability of power and access to telecommunications fiber routes. Most of our data centers are stand-alone structures, close to power sub-stations and telecommunication networks in light industrial areas outside of city centers, rather than residential areas where more prohibitive environmental regulations exist. Data center design and development is a highly complex process. Data center construction requires extensive planning and must navigate regulatory procedures which can vary by jurisdiction. We have developed extensive technical experience in building data centers in Europe and we are well-positioned to bring new data centers to market rapidly to meet customer demand.
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The following table presents the key characteristics of our data centers.
Country |
Location |
Ready for service
|
Maximum
Equippable Space as of September 30, 2010 |
|||||
Square Meters | ||||||||
Austria |
Vienna | Third Quarter, 2000 | 5,100 | |||||
Belgium |
Brussels | Third Quarter, 2000 | 4,800 | |||||
Denmark |
Copenhagen | Third Quarter, 2000 | 3,500 | |||||
France |
Paris1 | First Quarter, 2000 | 1,400 | |||||
France |
Paris2 | Third Quarter, 2001 | 3,000 | |||||
France |
Paris3 | Third Quarter, 2007 | 2,000 | |||||
France |
Paris4 | Third Quarter, 2007 | 1,300 | |||||
France |
Paris5 | Fourth Quarter, 2009 | 4,100 | |||||
France |
Paris6 | Third Quarter, 2009 | 1,400 | |||||
Germany |
Dusseldorf | Second Quarter, 2000 | 2,800 | |||||
Germany |
Frankfurt1 | First Quarter, 1999 | 500 | |||||
Germany |
Frankfurt2 | Fourth Quarter, 1999 | 1,100 | |||||
Germany |
Frankfurt3 | First Quarter, 2000 | 2,100 | |||||
Germany |
Frankfurt4 | First Quarter, 2001 | 1,400 | |||||
Germany |
Frankfurt5 | Third Quarter, 2008 | 1,700 | |||||
Germany |
Frankfurt6 | Second Quarter, 2010 | 1,600 | |||||
Ireland |
Dublin1 | Second Quarter, 2001 | 1,100 | |||||
Ireland |
Dublin2 | First Quarter, 2010 | 1,700 | |||||
The Netherlands |
Amsterdam1 | First Quarter, 1998 | 600 | |||||
The Netherlands |
Amsterdam2 | First Quarter, 1999 | 700 | |||||
The Netherlands |
Amsterdam3 | Fourth Quarter, 1999 | 3,100 | |||||
The Netherlands |
Amsterdam4* | Fourth Quarter, 2000 | * | |||||
The Netherlands |
Amsterdam5 | Fourth Quarter, 2008 | 4,500 | |||||
The Netherlands |
Hilversum | Third Quarter, 2001 | 800 | |||||
Spain |
Madrid | Third Quarter, 2000 | 4,000 | |||||
Sweden |
Stockholm | Third Quarter, 2000 | 1,700 | |||||
Switzerland |
Zurich | Fourth Quarter, 2000 | 6,400 | |||||
UK |
London | Third Quarter, 2000 | 4,600 | |||||
Total |
67,000 | |||||||
Note:
* | The maximum equippable space of Amsterdam4 is included in the maximum equippable space of Amsterdam1. |
Competition
We compete with all providers of data center services including in-house and outsourced data centers. Our chief competitors among each of the types of competition are listed below.
Carrier-Neutral Colocation Data Centers
Carrier-neutral colocation data centers in Europe include Equinix, Telecity and Telehouse. These companies are our chief competitors.
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IT Outsourcers and Managed Services Provider Data Centers
IT outsourcers and managed services providers in Europe include HP, IBM, Logica, Rackspace, Sungard and Terremark.
Wholesale Data Centers
Competitor wholesale data center providers include Digital Realty Trust and Global Switch.
Carrier-Operated Data Centers
Carriers that operate their own data centers in Europe include AT&T, BT, Cable & Wireless, Colt Telecom, Savvis and Verizon.
Please see Risk FactorsWe face significant competition and we may not be able to compete successfully against current and future competitors and Industry Overview.
Litigation
We have not been party to any legal proceedings, governmental or arbitration proceedings during the 12 months preceding the date of this Prospectus which may have, or have had in the recent past, a significant effect on our financial position.
Regulation
Although we are not subject to any financial regulations (such as outsourcing requirements, MiFID or Basel II), our financial services customers commonly are. In their contracts with us, these financial services customers impose access, audit and inspection rights to those parts of our data centers that contain their equipment so that they can satisfy their regulatory requirements.
Data centers, as consumers of substantial amounts of electricity, may be affected by the new UK Carbon Reduction Commitment Energy Efficiency Scheme, or the Scheme. The CRC Energy Efficiency Scheme Order 2010 entered into force on March 22, 2010 introducing a mandatory cap and trade scheme from April 1, 2010 applying to organizations, including our own, whose mandatory half hourly metered electricity consumption is greater than 6,000 MWh in the qualification period (which for the first phase of the CRC is calendar year 2008). Potential impacts on our data centers in the UK include the costs associated with improving energy efficiency and the administrative costs of participating in the Scheme. We will be required to purchase emissions allowances from the UK Government to cover our direct and indirect emissions in April of each year of the Scheme beginning in April 2011 (as the first year of the Scheme is a reporting year only). The revenue generated by the sale/auction of allowances is then recycled back to participants based on their percentage of emissions plus or minus a bonus/penalty based on their performance under the Scheme relative to other Scheme participants (as set out in the CRC league table). The cost of the Scheme depends on our ability to implement energy efficiency improvements during the term of the Scheme. The cost could increase in the later years of the Scheme, as allowances will be auctioned after the initial three-year introductory phase (as opposed to sold at a fixed price of £12/tonne), the rate of the bonus/penalty payments will increase from +/- 10% to +/-50% from the first to the fifth year of the Scheme, and the technical opportunities to improve energy efficiency may become more limited and expensive once the most cost effective improvements have already been made. Data centers may also be adversely affected by any future application of additional regulation relating to energy usage, for example seeking to reduce the power consumption of companies and fees or levies in this regard (including the EU Energy End-Use Efficiency and Energy Services Directive (Directive 2006/32/EC)). It is possible that the resulting legislation will mean that service providers that consume energy, such as us, may incur increased energy costs, and/or caps on energy use. In addition, further to the Copenhagen Accord in respect of international
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climate change negotiations agreed at the UN Climate Change Summit in December 2009, the European Union has announced its commitment to reduce the greenhouse gas emissions across the European Union by 20% compared to 1990 levels (rising to 30% if other developed countries commit to comparable emission reduction targets and developing countries contribute adequately according to their responsibilities and respective capabilities). It is expected that this commitment may give rise to future domestic legislation relating to energy efficiency across the jurisdictions in which we have data centers and this may affect our business.
As an operator of data centers which act as content and connectivity hubs facilitating the storage, sharing and distribution of data, content and media for customers, we have in place an Acceptable Use Policy which applies to all of our customers using Internet connectivity services provided by us and which requires our customers to respect all legislation pertaining to the use of Internet services, including email.
We are subject to telecommunications regulation in the various European jurisdictions in which we presently operate, most notably the EU Regulatory Framework. Under these regulations, we are not required to obtain licenses for the provision of our services. However, we may be required to notify the national telecommunications regulator in certain European jurisdictions about these services. We have made the necessary notifications for such jurisdictions.
By operating data centers, we will process personal data under the EU Data Protection Directive (95/46/EC). We are not directly subject to this regulation in most European jurisdictions as we only process this data on behalf of our customers. However, in some jurisdictions this may impose additional obligations on us, such as an obligation to take reasonable steps to protect that information.
Insurance
We have in place valid insurance coverage up to a level which we consider to be reasonable and against the type of risks usually insured by companies carrying on the same or similar types of business as ours in the markets in which we operate. Our insurance broadly falls under the following four categories: professional indemnity, general third party liability, directors and officers liability and property damage insurance and business interruption insurance.
Our History
European Telecom Exchange BV was incorporated on April 6, 1998, which (after being renamed InterXion Holding B.V. on June 12, 1998) was converted into InterXion Holding N.V. on January 11, 2000. From inception onwards we have grown our colocation business organically. We have developed our current footprint (both in terms of countries and cities) between 1999 and 2001 and now operate in 11 countries and 13 cities. Following the industry downturn beginning in 2001 as a result of a sharp decline in demand for Internet-based businesses, we restructured to refocus on a broader and more stable customer base. We have since focused on shifting our customer base from primarily emerging Internet companies and carriers to a wide variety of established businesses seeking to house their IT infrastructure.
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Introduction
We currently have a two-tier board structure consisting of a management board ( bestuur ) (our Management Board) and a supervisory board ( raad van commissarissen ) (our Supervisory Board). Our Management Board is responsible for the day-to-day management of our operations and is supervised by our Supervisory Board. Prior to the completion of this offering, we will amend our articles of association to restructure our current board from the two-tiered structure to a one-tier board structure (the Board) comprising directors with the title Executive Directors and directors with the title Non-Executive Directors (together with the Executive Directors, the Directors). We expect that within one year of listing, a majority of our Directors will be independent as required by the NYSE listed company rules.
Below we set out certain information concerning the members of our Board and our Senior Management. When we discuss our Board and our articles of association in the remainder of this
Management section, we refer to our Board and our articles of association as we expect it to be in place and them to read after the amendments to our current articles of association described in Description of Capital
Senior Management and Board of Directors
The following table lists the names, positions and ages of the members of our Senior Management and our Directors as of the closing of this offering:
Name |
Age |
Position |
Term Expiration Date (1) | |||||
David Ruberg |
64 |
President, Chief Executive Officer, Vice-Chairman and Executive Director |
2013 | |||||
M.V. Josh Joshi |
43 | Chief Financial Officer | ||||||
Anthony Foy |
51 | Group Managing Director | ||||||
Kevin Dean |
47 | Chief Marketing Officer | ||||||
Peter Cladingbowl |
45 |
Senior Vice President, Engineering and Operations Support |
||||||
Jaap Camman |
44 | Senior Vice President, Legal | ||||||
Marc de Leeuw |
51 | Vice President, Human Resources | ||||||
John C. Baker |
61 | Chairman and Non-Executive Director | 2013 | |||||
Robert M. Manning |
51 | Non-Executive Director | 2012 | |||||
Peter E.D. Ekelund |
56 | Non-Executive Director | 2011 | |||||
Cees van Luijk |
61 | Non-Executive Director | 2012 | |||||
Paul Schröder |
56 | Non-Executive Director | 2011 | |||||
Jean F.H.P. Mandeville |
50 | Non-Executive Director | 2013 |
Note:
(1) | The term of office expires at the annual general meeting of our shareholders held in the year indicated. |
The business address of all members of our Senior Management and of our Directors is at our registered offices located at Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands.
The principal functions and experience of each of the members of our Senior Management and our Directors as of the closing of this offering are set out below:
David Ruberg, President, Chief Executive Officer, Vice-Chairman and Executive Director
David Ruberg joined us as President and Chief Executive Officer in November 2007 after holding the position of Chairman of our Supervisory Board from August 2002. From January 2002 until October 2007 he
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was affiliated with Baker Capital, a private equity firm. From April 1993 until October 2001 he was Chairman, President and CEO of Intermedia Communications, a NASDAQ listed broadband communications services provider, as well as Chairman of its majority-owned subsidiary, Digex, Inc., a NASDAQ listed managed web hosting company. Prior to Intermedia, he was general manager of Data Generals PC and Systems Integration Division. He began his career as a scientist at AT&T Bell Labs, contributing to the development of operating systems and computer languages. David serves on the boards of Adaptix, Inc., Broadview Networks, and QSC AG. He holds a Bachelors Degree from Middlebury College and a Masters in Computer and Communication Sciences from the University of Michigan.
M.V. Josh Joshi, Chief Financial Officer
Josh Joshi joined us as Chief Financial Officer in August 2007. From June 2006 to December 2006 he was CFO of Leisure and Gaming plc, an online gaming and gambling business, and from April 2003 to May 2006 he was CFO of TeleCity plc, a pan European carrier-neutral data center business, both publicly traded companies on the London Stock Exchange. He was one of the founders and CFO of private-equity-backed Storm Telecommunications Limited, a U.S. and pan European data and network service provider. In his early career, Josh spent 8 years in professional practice, predominantly with Arthur Andersen. Josh holds a Bachelors Degree in Civil Engineering from Imperial College, London and is a Chartered Accountant.
Anthony Foy, Group Managing Director
Anthony Foy has served as our Group Managing Director and Executive Vice President Sales since July 2001. From 1997 to 2001 he served as General Manager and Senior Vice President International for Broadbase Software, a NASDAQ listed e-commerce infrastructure platform for on-line customer relationship management, marketing and business intelligence. From 1995 to 1997, Mr. Foy served as Director of International Sales and Business Development for Red Brick Software, a NASDAQ listed developer of relational database software for high volume decision support applications. From 1991 to 1995 he served as International Sales and Marketing Manager for ATP. Mr. Foy graduated from the Monterey Institute of International Studies in Monterey, California, where he earned a BA and MA in International Policy Studies.
Kevin Dean, Chief Marketing Officer
Kevin Dean was appointed Senior Vice President Marketing and Chief Marketing Officer in December 2009. From 2003 to 2009 he served as Marketing Director for COLT Telecommunications, a FTSE 200 listed European voice, data and hosting company. From 1994 to 2003 he worked at Cable and Wireless, a FTSE 200 listed global telecommunications company, holding a number of positions including General Manager sector marketing and business development, Director Marketing and Vice President Marketing Analysis, Planning and Strategy. Mr. Dean graduated from Manchester Metropolitan University with a Degree in Applied Physics, and subsequently earned an MBA from the Open Business School and is a Chartered Marketer.
Peter Cladingbowl, Senior Vice President, Engineering and Operations Support
Peter Cladingbowl joined us as Senior Vice President, Engineering and Operations Support in August of 2010. Prior to joining us, Peter was the Vice President Operations EMEA at Global Crossing. Previous roles at Global Crossing, where he spent a total of 12 years, included CIO EMEA and Director of Business Operations. Peter also has substantial operational and general management experience in manufacturing and started his career as a geophysical engineer in the off-shore oil industry. He holds a BSc (Mechanical Engineering) from the University of Cape Town, South Africa.
Jaap Camman, Senior Vice President, Legal
Jaap Camman is responsible for all legal and corporate affairs across the InterXion group. He joined us in November 1999 as Manager Legal and has been our Executive Vice President Legal since July 2002. Before
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joining us, he worked for the Dutch Government from February 1994 until October 1999. His latest position was Deputy Head of the Insurance Division within The Netherlands Ministry of Finance. Jaap holds a Law Degree from Utrecht University.
Marc de Leeuw, Vice President, Human Resources
Marc de Leeuw has led our Human Resources Department since January 2009. Before joining us, he ran a small human resources consultancy out of Holland and Poland from August 2007 until December 2008. From February 2005 until July 2007 he was a member of the European senior management team of ACN in Amsterdam as their Director HR & Facilities. From May 2002 until July 2004 Marc headed the Human Resources team for Network Appliance in EMEA, and from July 2000 until April 2002 he was Vice President Human Resources for the Sales and Marketing organization at KPNQwest. From July 1997 until June 2000 Marc headed the Human Resources function for Sylvan Learning Systems in EMEA.
John C. Baker, Chairman and Non-Executive Director
Mr. Baker joined our Supervisory Board in 2007 and currently serves as Chairman. Mr. Baker founded Baker Capital in 1995. Mr. Baker serves on the supervisory board of QSC AG and Voltaire Limited and is a graduate of Harvard College and Harvard Business School.
Robert M. Manning, Non-Executive Director
Mr. Manning joined our Supervisory Board in 2002. Mr. Manning is a general partner with Baker Capital. Prior to joining Baker Capital, Mr. Manning was CFO of Intermedia Communications, Inc., an integrated communications service provider, from 1996 to 2001, and a director of its majority-owned subsidiary Digex, Inc., a provider of complex, managed, web hosting services, from 1998 to 2001. Prior to Intermedia, Mr. Manning was a founding executive of DMX, Inc., the first satellite- and cable-delivered digital radio network, from 1990 to 1996. Prior to DMX, Mr. Manning worked as an investment banker to the cable television and communications industries. Mr. Manning is a graduate of Williams College.
Peter E.D. Ekelund, Non-Executive Director
Mr. Ekelund joined our Supervisory Board in 2007. He has worked with Baker Capital since 2006. Prior to this, Mr. Ekelund was Managing Director of AB Novestra, a Stockholm based public investment company with portfolio companies in Scandinavia and the United States. Mr. Ekelund was also the chairman of Framfab between 1997 and 1999 and the Managing Director of FilmNet Benelux, a pay television company between 1988 and 1992. He also worked as the business development manager of Nethold, B.V., the parent of FilmNet between 1992 and 1997. Mr. Ekelund received his degree in business administration from the Stockholm School of Economics.
Cees van Luijk, Non-Executive Director
Mr. C.G. van Luijk joined our Supervisory Board in 2002. He has been chairman since 2003 and co-managing partner of Capital-C Ventures, a Benelux-focused technology venture capital firm. Mr. Van Luijk was formerly the CEO of Getronics between 1999 and 2001 and prior to that a member of the Global Leadership Team of PricewaterhouseCoopers. Mr. Van Luijk is a Certified Public Accountant in The Netherlands and holds a Masters Degree in Business Economics from the Erasmus University Rotterdam.
Paul Schröder, Non-Executive Director
Mr. Schröder joined our Supervisory Board in September 2009. He was a director of Residex Ventures B.V., which became Capital C-Ventures B.V. He has been a managing partner at Capital-C Ventures since 2006. He was
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formerly a senior investment manager at Atlas Ventures and Managing Partner at KPN Ventures B.V., the corporate venture capital arm for Telecom investments of the Royal Dutch KPN. After that position, he became CEO and Managing Partner of Residex B.V. one of the founding shareholders of InterXion in 1998 and the captive private equity arm of Eureko/Achmea. Residex B.V. divested its interest in InterXion to Parc-IT B.V. in 2006. Mr. Schröder holds a degree in Business Administration and Civil Law.
Jean F.H.P. Mandeville, Non-Executive Director
Mr. Jean F. H. P. Mandeville has been nominated to serve on our board of directors. From October 2008 to December 2010, Mr. Mandeville served as Chief Financial Officer and board member of MACH S.à.r.l. He served as an Executive Vice President and Chief Financial Officer of Global Crossing Holdings Ltd/Global Crossing Ltd., from February 2005 to September 2008. Mr. Mandeville joined Global Crossing in February 2005, where he was responsible for all of its financial operations. He served as Chief Financial Officer of Singapore Technologies Telemedia Pte. Ltd./ST Telemedia from July 2002 to January 2005. Mr. Mandeville was a Senior Consultant with Coopers & Lybrand, Belgium from 1989 to 1992. In 1992, he joined British Telecom and served in various capacities covering all sectors of the telecommunications market (including wireline, wireless and multi-media) in Europe, Asia and the Americas. From 1992 to June 2002, Mr. Mandeville served in various capacities at British Telecom PLC, including President of Asia Pacific from July 2000 to June 2002, Director of International Development Asia Pacific from June 1999 to July 2000 and General Manager, Special Projects from January 1998 to July 1999. He graduated from the University Saint-Ignatius Antwerp with a Masters in Applied Economics in 1982 and a Special degree in Sea Law in 1985.
Board Powers and Function
Our Board is responsible for the overall conduct of our business and has the powers, authorities and duties vested in it by and pursuant to the relevant laws of The Netherlands and our articles of association. In all its dealings, our Board shall be guided by the interests of our group as a whole, including but not limited to our shareholders. Our Board has the final responsibility for the management, direction and performance of us and our group. Our Executive Director will be responsible for the day-to-day management of the company. Our Non-Executive Directors will supervise the Executive Director and our general affairs and provide general advice to the Executive Director.
Our Board may assign the titles of chief executive officer (Chief Executive Officer or CEO) and/or President to the Executive Directors, which titles may, and upon completion of this offering will, accrue to the same Executive Director.
Our CEO will be the general manager of our business, subject to the control of our Board, and will be entrusted with all of our Boards powers, authorities and discretions (including the power to sub-delegate) delegated by the full Board from time to time by a resolution of our Board. Matters expressly delegated to our CEO will be validly resolved upon by our CEO and no further resolutions, approvals or other involvement of our Board will be required. Our Board may also delegate authorities to its committees. Upon any such delegation our Board shall supervise the execution of its responsibilities by our CEO and/or our Board committees. It remains ultimately responsible for the fulfillment of its duties by them.
Our articles of association will provide that in the event we have a conflict of interest with one or more Directors, we may still be represented by the Board or an Executive Director. In the event of a conflict of interest, however, our general meeting of shareholders has the power to designate one or more other persons to represent us. Directors who have a conflict of interest are not prohibited from participating in Board meetings or the decision making process.
Board Meetings and Decisions
We expect that all resolutions of our Board will be adopted by an absolute majority of votes cast in a meeting at which at least the majority of the Directors are present or represented. A member of the Board may
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authorize another member of the Board to represent him/her at the Board meeting and vote on his/her behalf. Each Director will be entitled to one vote (provided that, for the avoidance of doubt, a member representing one or more absent members of the Board by written power of attorney will be entitled to cast the vote of each such absent member). If there is a tie, the Chairman will have the casting vote.
Our Board will meet as often as it deems necessary or appropriate or upon the request of any member of our Board. Our Board will adopt rules which contain additional requirements for our decision-making process, the convening of meetings and, through separate resolution by our Board, details on the assignment of duties and a division of responsibilities between Executive Directors and Non-Executive Directors. Our Board shall appoint one of the Directors as Chairman and one of more Directors as Vice-Chairman of the Board. Our Board will be further assisted by a corporate secretary. The corporate secretary may be a member of our Board or our Senior Management and is appointed by our Board.
Composition of Board
We expect that within one year of listing, a majority of our Directors will be independent as required by the NYSE listed company rules.
Our Board will consist of a minimum of one Executive Director and a minimum of three Non-Executive Directors, provided that our Board will be comprised of a maximum of 7 (seven) members. The number of Executive Directors and Non-Executive Directors will be determined by our general meeting of shareholders, provided that the majority of our Board must consist of Non-Executive Directors. Only natural persons can be Non-Executive Directors. The Executive Directors and Non-Executive Directors as such will be appointed by our general meeting of shareholders, provided that our Board will be classified, with respect to the term for which each member of our Board will severally be appointed and serve as member of our Board, into three classes, as nearly equal in number as reasonably possible.
The initial class I Directors will serve for a term expiring at the annual general meeting of shareholders to be held in 2011, the initial class II Directors will serve for a term expiring at the annual general meeting of shareholders to be held in 2012, and the initial class III Directors will serve for a term expiring at the annual general meeting of shareholders to be held in 2013. At each annual general meeting of shareholders, Directors appointed to succeed those Directors whose terms expire will be appointed to serve for a term of office to expire at the third succeeding annual general meeting of shareholders after their appointment. Notwithstanding the foregoing, the Directors appointed to each class will continue to serve their term in office until their successors are duly appointed and qualified or until their earlier resignation, death or removal. If a vacancy occurs, any Director so appointed to fill that vacancy will serve its term in office for the remainder of the full term of the class of Directors in which the vacancy occurred.
Our Board will have nomination rights with respect to the appointment of a Director. Any nomination by our Board may consist of one or more candidates per vacant seat. If a nomination consists of a list of two or more candidates, it will be binding and the appointment to the vacant seat concerned will be from the persons placed on the binding list of candidates and will be effected through election. Notwithstanding the foregoing, our general meeting of shareholders may, at all times, by a resolution passed with a two-thirds majority of the votes cast representing more than half of our issued and outstanding capital, resolve that such list of candidates will not be binding. See Related Party TransactionsShareholders Agreement with Baker Capital for nomination rights granted to Baker Capital.
Directors may be suspended or dismissed at any time by our general meeting of shareholders. A resolution to suspend or dismiss a Director will have to be adopted by at least a two-thirds majority of the votes cast, provided such majority represents more than half of our issued and outstanding share capital. Currently, Dutch law does not allow Directors to be suspended by our Board; however, Dutch law is expected to be amended to facilitate the suspension of executive directors by a board of directors and following such amendment a Director may also be suspended by our Board.
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Directors Insurance and Indemnification
In order to attract and retain qualified and talented persons to serve as members of our Board or our Senior Management, we currently do and expect to continue to provide such persons with protection through a directors and officers insurance policy. Under this policy, any of our past, present or future Directors and members of our Senior Management will be insured against any claim made against any one of them for any wrongful act in their respective capacities.
Under our articles of association, we will be required to indemnify each current and former member of our Board who was or is involved, in that capacity, as a party to any actions or proceedings, against all conceivable financial loss or harm suffered in connection with those actions or proceedings, unless it is ultimately determined by a court having jurisdiction that the damage was caused by intent ( opzet ), willful recklessness ( bewuste roekeloosheid ) or serious culpability ( ernstige verwijtbaarheid ) on the part of such member.
Insofar as indemnification of liabilities arising under the Securities Act may be permitted to members of our Board, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Board Committees
Upon completion of this offering, we expect that our Board will establish an audit committee, compensation committee and a nominating committee. Each of these committees will phase-in compliance with the NYSE listed company board committee independence requirements and we expect that they will be fully compliant with such requirements within one year from the date of listing. Our Board may also establish such other committees as it deems appropriate, in accordance with applicable law and regulations and our articles of association and any applicable Board rules.
Audit Committee
Upon completion of this offering, we expect that our audit committee will consist of two independent Directors, Cees van Luijk and Jean F.H.P. Mandeville, and one non-independent Director, Robert M. Manning, with Cees van Luijk serving as the chairperson of the audit committee. We expect that within a year of the completion of this offering, all of the members of our audit committee will be independent as defined under and required by Rule 10A-3 under the U.S. Securities Exchange Act of 1934, as amended (Rule 10A-3) and the NYSE listed company rules. We also expect that Cees van Luijk will qualify as an audit committee financial expert, as that term is defined in Item 16A of Form 20-F. The audit committee has direct responsibility for the appointment, compensation, retention and oversight of the work of our independent registered public accounting firm, KPMG Accountants N.V. In addition, approval of the audit committee is required prior to our entering into any related-party transaction. It is also responsible for whistle-blowing procedures and certain other compliance matters.
Compensation Committee
Upon completion of this offering, we expect that our compensation committee will consist of two independent Directors, Cees van Luijk and Paul Schröder, and one non-independent Director, John C. Baker, who will also serve as the chairperson of the compensation committee. We expect that within one year of the completion of this offering, all of the members of our compensation committee will be independent under the NYSE listed company rules. Among other things, the compensation committee will review, and will make recommendations to the Board regarding, the compensation and benefits of our executive officers. The compensation committee will also administer the issuance of stock options and other awards under our equity incentive plan and will establish and review policies relating to the compensation and benefits of our employees and consultants.
83
Nominating Committee
Upon completion of this offering, we expect that our nominating committee will consist of two independent Directors, Cees van Luijk and Paul Schröder, and one non-independent Director, John C. Baker, with Cees van Luijk serving as the chairperson of the nominating committee. We expect that within one year of the completion of this offering, all of the members of our nominating committee will be independent under the NYSE listed company rules. The nominating committee will be responsible for, among other things, developing and recommending to our Board our corporate governance guidelines, identifying individuals qualified to become Directors, overseeing the evaluation of the performance of the Board, selecting the Director nominees for the next annual meeting of shareholders, and selecting director candidates to fill any vacancies on the Board.
Compensation
The aggregate annual compensation to our Senior Management for the year ended December 31, 2009 was approximately 3.7 million.
Share Ownership
As of , 2011 our Senior Management and Directors owned the following options, granted under our 2008 equity incentive plan discussed below, and shares (or depositary receipts issued for shares) (1) :
Options |
Option
Exercise Price(s) |
Option
|
Ordinary
Shares |
Preferred
Shares |
Total shares
and options |
Pro rata
share- holdings on a fully diluted basis |
||||||||||||||||||||
Shareholders |
||||||||||||||||||||||||||
Senior Management investment |
13,907 | 1,748,025 | 1,761,932 | 0.71 | ||||||||||||||||||||||
A. Foy |
13,134 | 1,616,771 | ||||||||||||||||||||||||
J. Camman |
773 | 131,254 | ||||||||||||||||||||||||
Granted Senior Management options |
14,668,503 | 5.87 | ||||||||||||||||||||||||
A. Foy |
3,155,170 | | 0.20 | March 31, 2012 | ||||||||||||||||||||||
26,866 | | 0.40 | March 31, 2012 | |||||||||||||||||||||||
J. Camman |
1,040,124 | | 0.20 | March 31, 2012 | ||||||||||||||||||||||
471,343 | | 0.40 | March 31, 2012 | |||||||||||||||||||||||
200,000 | | 0.89 | November 1, 2012 | |||||||||||||||||||||||
J. Joshi |
1,300,000 | | 0.70 | August 2, 2012 | ||||||||||||||||||||||
300,000 | | 0.89 | November 1, 2012 | |||||||||||||||||||||||
D. Ruberg |
7,000,000 | | 0.70 | November 5, 2012 | ||||||||||||||||||||||
K. Dean |
500,000 | | 1.00 | December 12, 2014 | ||||||||||||||||||||||
200,000 | | 1.00 | February 10, 2015 | |||||||||||||||||||||||
M. de Leeuw |
125,000 | | 1.00 | January 12, 2014 | ||||||||||||||||||||||
50,000 | | 1.00 | February 10, 2015 | |||||||||||||||||||||||
P. Cladingbowl |
300,000 | | 1.30 | August 1, 2015 | ||||||||||||||||||||||
Total Senior Management investment and Granted Senior Management options |
16,430,435 | 6.58 | ||||||||||||||||||||||||
Granted other employees options/shares |
8,997,877 | 8,997,877 | 3.60 | |||||||||||||||||||||||
Available but ungranted options (2) |
4,366,851 | 4,366,851 | 1.75 |
84
(1) | This table does not reflect the five-to-one reverse stock split, which is expected to occur on or before the closing of this offering. |
(2) | No further options will be granted under our 2008 International Stock Option and Incentive Master Award Plan. |
Employee Share Ownership Plans
Our InterXion Holding N.V. 2008 International Stock Option and Incentive Master Award Plan (the 2008 Plan) provides for the grant of options to employees. The purpose of the Plan is to attract, retain and motivate employees responsible for the success and growth of our company by providing them with appropriate incentives and rewards and enabling them to participate in the growth of our company.
On , 2011, our general meeting of shareholders authorized our Board to establish a new option plan following this offering, to be called the InterXion Holding N.V. 2011 International Stock Option Plan and Incentive Master Award Plan (the 2011 Plan), under and in accordance with which our Board may grant options for ordinary shares to certain eligible persons following completion of the offering. It is expected that the terms of the 2011 Plan will be materially similar to the 2008 Plan. The 2008 Plan will be discontinued following this offering as no new options will be granted under the 2008 Plan but outstanding options will remain governed by the terms of the 2008 Plan until such options have been exercised in full. The 2011 Plan will make 8,645,157 of our ordinary shares (post five-to-one reverse stock split) available for issue.
Eligible employees are those that have an employment contract for an indefinite period with us or any of our majority-owned subsidiaries or any company that holds a majority interest in us as of the grant date of the options. Advisors and members of the Board are also eligible.
Generally, options become partially or fully exercisable according to a vesting schedule which permits 25% of the option to become vested on the first anniversary of the grant date and 6.25% of each option to become vested on the last day of each three month period following the first anniversary of the grant date. The options become fully vested on the fourth anniversary of the grant date. The option will generally expire on the fifth anniversary of the grant date, after which it is no longer exercisable.
Corporate Governance
Dutch Corporate Governance Code
The Dutch Corporate Governance Code, as revised, became effective on January 1, 2009, and applies to all Dutch companies listed on a government-recognized stock exchange, whether in the Netherlands or elsewhere. The Dutch Corporate Governance Code is based on a comply or explain principle. Accordingly, companies are required to disclose in their annual reports filed in The Netherlands whether or not they are complying with the various rules of the Dutch corporate governance code that are addressed to the board of directors and if they do not apply those provisions, to give the reasons for such non-application.
We intend to comply with the NYSE listed company rules to the extent that these rules conflict with the Dutch Corporate Governance Code. In particular, we intend to adhere to the NYSE listed company rules with regard to the independence of Board and committee members, which are discussed above under Board Committees.
85
PRINCIPAL AND SELLING SHAREHOLDERS
We are currently majority-owned by Baker Capital, which invested 31.5 million in our equity in January 2000, 50 million in August 2000 and 15 million in August 2002. Through its participation in three convertible loans from December 2003 to February 2006, Baker Capital invested a further 9 million, which converted into an equity interest in June 2007. Baker Capital currently owns approximately 56% of our equity.
The following table sets forth information with respect to the beneficial ownership of our ordinary shares as of January 7, 2011, subject to certain assumptions set forth in the footnotes, and as adjusted to reflect the sale of our ordinary shares offered in this offering under this Prospectus, the automatic one-to-one conversion of Preferred Shares into ordinary shares, the five-to-one reverse stock split that is expected to occur on or before the closing of this offering and the issue of the maximum number of ordinary shares to which holders of our Preferred Shares are entitled in the Preferred Share Liquidation Price Offering, for:
|
each shareholder, or group of affiliated shareholders, who we know beneficially owns more than 5% of our outstanding ordinary shares; |
|
our Directors and Senior Management; |
|
each of the selling shareholders; and |
|
each of the option holders who are exercising their options and selling the resulting ordinary shares and each of the selling depositary receipt holders. |
Beneficial ownership is determined in accordance with rules of the SEC and generally includes any shares over which a person exercises sole or shared voting and/or investment power. Ordinary shares subject to options and warrants currently exercisable or exercisable within 60 days are deemed outstanding for computing the percentage ownership of the person holding the options but are not deemed outstanding for computing the percentage ownership of any other person. Except as otherwise indicated, we believe the beneficial owners of the ordinary shares listed below, based on information furnished by them, have sole voting and investment power with respect to the number of shares listed opposite their names. Except as otherwise set forth below, the address of each beneficial owner is c/o InterXion Holding N.V., Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands.
Shares Beneficially
Owned Prior to the Offerings |
Shares
being Offered |
Shares beneficially
Owned After the Offerings (1) |
Shares to be
Sold if Underwriters Option is Exercised in Full |
Shares Beneficially
Owned After the Offerings if Underwriters Option is Exercised in Full |
||||||||||||||||||||||||||||
Name of Beneficial Owner |
Number |
Percent
(%) |
Number |
Percent
(%) |
Number |
Percent
(%) |
||||||||||||||||||||||||||
5% Shareholders |
||||||||||||||||||||||||||||||||
Baker Capital (2)(3)(6) |
28,113,115 | 57.95 | % | | 30,872,779 | 47.51 | % | | 30,872,779 | 47.51 | % | |||||||||||||||||||||
Lamont Finance N.V. (2)(3) |
18,825,669 | 38.80 | % | | 20,689,767 | 31.84 | % | | 20,689,767 | 31.84 | % | |||||||||||||||||||||
Chianna Investment N.V. (2)(3) |
9,272,623 | 19.11 | % | | 10,166,695 | 15.64 | % | | 10,166,695 | 15.64 | % | |||||||||||||||||||||
Baker Communications Fund II, L.P. (2)(4) |
14,823 | * | | 16,317 | * | | 16,317 | * | ||||||||||||||||||||||||
ParC-IT II B.V. (2) (5) (6) |
5,954,485 | 12.27 | % | | 6,545,792 | 10.07 | % | | 6,545,792 | 10.07 | % | |||||||||||||||||||||
Directors (6) and Senior Management |
||||||||||||||||||||||||||||||||
D. Ruberg (7) |
1,400,000 | 2.89 | % | | 1,400,000 | 2.15 | % | | 1,400,000 | 2.15 | % | |||||||||||||||||||||
A. Foy ( 8 ) |
962,389 | 1.98 | % | 271,504 | 704,220 | 1.08 | % | 328,496 | 375,725 | * | ||||||||||||||||||||||
J. Camman ( 9 ) |
361,479 | * | 95,026 | 268,209 | * | 114,974 | 153,236 | * | ||||||||||||||||||||||||
J. Joshi ( 10 ) |
276,250 | * | 28,960 | 247,290 | * | 35,040 | 212,250 | * | ||||||||||||||||||||||||
K. Dean ( 11 ) |
35,000 | * | | 35,000 | * | | 35,000 | * | ||||||||||||||||||||||||
P. Cladingbowl ( 12 ) |
| * | | | | | | | ||||||||||||||||||||||||
M. de Leeuw ( 13 ) |
15,000 | * | | 15,000 | * | | 15,000 | * |
86
Shares Beneficially
Owned Prior to the Offering |
Shares
being Offered |
Shares beneficially
Owned After the Offering (1) |
Shares to be
Sold if Underwriters Option is Exercised in Full |
Shares Beneficially
Owned After the Offering if Underwriters Option is Exercised in Full |
||||||||||||||||||||||||||||
Name of Beneficial Owner |
Number |
Percent
(%) |
Number |
Percent
(%) |
Number |
Percent
(%) |
||||||||||||||||||||||||||
Other Selling Shareholders |
||||||||||||||||||||||||||||||||
Morgan Stanley Dean Witter Equity Funding, Inc. (14) |
116,342 | * | 52,646 | 63,696 | * | 63,696 | | | ||||||||||||||||||||||||
Originators Investment Plan L.P. ( 14) |
7,124 | * | 3,224 | 3,900 | * | 3,900 | | | ||||||||||||||||||||||||
E v.d. Brandhof |
1,413,692 | 2.91 | % | 153,852 | 1,363,319 | 2.10 | % | 186,148 | 1,177,172 | 1.81 | % | |||||||||||||||||||||
P. Collerton ( 15 ) |
892,939 | 1.84 | % | 385,961 | 506,978 | * | 466,978 | 40,000 | * | |||||||||||||||||||||||
A. Jamieson |
100,575 | * | 36,461 | 66,276 | * | 44,114 | 22,162 | * | ||||||||||||||||||||||||
M. Boussard ( 16) |
1,955,841 | 4.03 | % | 885,032 | 1,070,809 | 1.65 | % | 1,070,810 | | | ||||||||||||||||||||||
Whitehall Parallel Real Estate LP XIII ( 17) |
109,435 | * | 49,520 | 59,915 | * | 59,915 | | | ||||||||||||||||||||||||
J. V. d. Marel |
19,360 | * | 8,761 | 10,599 | * | 10,599 | | | ||||||||||||||||||||||||
J. Loeber |
461,982 | * | 209,051 | 252,931 | * | 252,932 | | | ||||||||||||||||||||||||
Stichting Administratiekantoor Management (18) |
1,962,252 | 3.89 | % | 758,508 | 1,237,746 | 1.90 | % | 917,727 | 320,019 | * | ||||||||||||||||||||||
Other Option Holders and Depositary Receipt Holders ( 19) |
||||||||||||||||||||||||||||||||
Mr. Adewale |
400 | * | 181 | 219 | * | 219 | | | ||||||||||||||||||||||||
Mr. Assem |
62,610 | * | 7,320 | 55,290 | * | 8,857 | 46,433 | * | ||||||||||||||||||||||||
Mr. Assink |
36,324 | * | 33 | 36,291 | * | 41 | 36,250 | * | ||||||||||||||||||||||||
Mr. Balzer |
6,900 | * | 11 | 6,889 | * | 14 | 6,875 | * | ||||||||||||||||||||||||
Mr. Bastiaenen |
6,410 | * | 1,091 | 5,319 | * | 1,319 | 4,000 | * | ||||||||||||||||||||||||
Mr. Bervoets |
400 | * | 45 | 355 | * | 55 | 300 | * | ||||||||||||||||||||||||
Mr. de Boer |
21,297 | * | 7,601 | 13,696 | * | 9,196 | 4,500 | * | ||||||||||||||||||||||||
Mr. Bos-Rijks |
438 | * | 136 | 302 | * | 164 | 138 | * | ||||||||||||||||||||||||
Mr. Cahill |
5,417 | * | 2,271 | 3,146 | * | 2,748 | 398 | * | ||||||||||||||||||||||||
Mr. Croese |
3 | * | 1 | 2 | * | 2 | | | ||||||||||||||||||||||||
Mr. El Mourabit |
400 | * | 181 | 219 | * | 219 | | | ||||||||||||||||||||||||
Mr. Fischer |
400 | * | 91 | 309 | * | 109 | 200 | * | ||||||||||||||||||||||||
Mr. Gerritzen |
12,448 | * | 5,633 | 6,815 | * | 6,815 | | | ||||||||||||||||||||||||
Mr. de Haan |
1,427 | * | 30 | 1,397 | * | 37 | 1,360 | * | ||||||||||||||||||||||||
Mr. Hase |
18 | * | 8 | 10 | * | 10 | | | ||||||||||||||||||||||||
Mr. van Hulten |
29,797 | * | 6,788 | 23,009 | * | 8,212 | 14,797 | * | ||||||||||||||||||||||||
Mr. Kruisinga |
4,428 | * | 2,004 | 2,424 | * | 2,424 | | | ||||||||||||||||||||||||
Mr. Luycks |
105,744 | * | 21,442 | 84,302 | * | 25,942 | 58,360 | * | ||||||||||||||||||||||||
Mr. Meuleman |
3,295 | * | 812 | 2,483 | * | 983 | 1,500 | * | ||||||||||||||||||||||||
Mr. Procter |
6 | * | 3 | 3 | * | 3 | | | ||||||||||||||||||||||||
Mr. Rochepeau |
1 | * | | 1 | * | 1 | | | ||||||||||||||||||||||||
Mr. Le Roy |
4,900 | * | 2,048 | 2,852 | * | 2,477 | 375 | * | ||||||||||||||||||||||||
Mr. Stoker |
13,600 | * | 6,154 | 7,446 | * | 7,446 | | | ||||||||||||||||||||||||
Mr. Theunissen |
81,250 | * | 36,766 | 44,484 | * | 44,484 | | | ||||||||||||||||||||||||
Mr. Tidemand |
8,100 | * | 272 | 7,828 | * | 328 | 7,500 | * | ||||||||||||||||||||||||
Mr. de Vries |
400 | * | 181 | 219 | * | 219 | | | ||||||||||||||||||||||||
Mr. Went |
3,000 | * | 679 | 2,321 | * | 821 | 1,500 | * |
* | less than 1%. |
87
(1) | Assumes (i) the election by all holders of Preferred Shares to receive the liquidation price of Preferred Shares entirely in the form of ordinary shares, (ii) an offering price of U.S. $12.00 per ordinary share, the midpoint of the estimated range of the initial public offering price, and (iii) an exchange rate of 1.00 to U.S. $1.2944 representing the exchange rate in effect on January 7, 2011. |
(2) | Includes 25,526,886 and 5,469,591 Preferred Shares held by Baker Capital and Parc-IT II B.V., respectively, which will automatically convert into 25,526,886 and 5,469,591 ordinary shares, respectively, prior to the closing of this offering. If they do not elect to receive their liquidation preference in the form of ordinary shares, their shares beneficially owned after the offering will be 43.23% and 9.16%, respectively. |
(3) | Chianna Investment N.V. is a wholly owned subsidiary of Baker Communications Fund (Cayman), L.P. (BCF I). Lamont Finance N.V. is a wholly owned subsidiary of Baker Communications Fund II (Cayman), L.P. (BCF II). The address of each of Chianna Investment N.V. and Lamont Finance N.V. is c/o Intertrust (Curaçao) B.V., Berg Arrarat 1, Curaçao, Netherlands Antilles. The address of each of BCF I and BCF II is c/o Maples and Calder, Ugland House, South Church Street, Grand Cayman, Cayman Islands. Each of BCF I and BCF II is managed by Baker Capital Corp., whose address is 540 Madison Avenue, New York, NY 10022. |
(4) | The address of Baker Communications Fund II, L.P. is 540 Madison Avenue, New York, NY 10022. Baker Capital Corp. also manages Baker Communications Fund II, L.P. |
(5) | The address of Parc-IT II B.V. is Dennenlaan 5, 2244 AK Wassenaar, The Netherlands. |
(6) | None of the Directors owns any of our shares. Messrs. Baker, Manning and Ekelund are general partners of Baker Capital, which owns 57.95% of our shares as of January 7, 2011. Mr. van Luijk is chairman and Mr. Schröder is a managing partner of Capital C-Ventures. Parc-IT II B.V., which owns 12.27% of our shares as of January 7, 2011, is owned by Capital C-Ventures. |
(7) | D. Ruberg is our President, Chief Executive Officer, Vice-Chairman and Executive Director. D. Rubergs total shares beneficially owned prior to the offering are options for depositary receipts issued by Stichting Administratiekantoor Management InterXion (SAMI) for ordinary shares and, following completion of this offering, options for our ordinary shares. |
(8) | A. Foy is our Group Managing Director. A. Foys total shares beneficially owned prior to the offering include 636,408 options for depositary receipts issued by SAMI for ordinary shares and, following completion of this offering, options for our ordinary shares. A. Foys number of shares offered and the resulting shares beneficially owned after the offering includes 400,000 depositary receipts for our ordinary shares. |
(9) | J. Camman is our Senior Vice President of Legal. J. Cammans total shares beneficially owned prior to the offering include 342,572 depositary receipts issued by SAMI for ordinary shares and, following completion of this offering, options for our ordinary shares. J. Cammans number of shares offered and the resulting shares beneficially owned after the offering include 200,000 depositary receipts for our ordinary shares. |
(10) | J. Joshi is our Chief Financial Officer. J. Joshis total shares beneficially owned prior to this offering are options for depositary receipts issued by SAMI for ordinary shares and, following completion of this offering, options for our ordinary shares. |
(11) | K. Dean is our Chief Marketing Officer. K. Deans total shares beneficially owned prior to this offering are options for depositary receipts issued by SAMI for ordinary shares and, following completion of this offering, options for our ordinary shares. |
(12) | P. Cladingbowl is our Senior Vice President of Engineering and Operations Support. P. Cladingbowls total shares beneficially owned prior to this offering are options for depositary receipts issued by SAMI for ordinary shares and, following completion of this offering, options for our ordinary shares. |
(13) | M. de Leeuw is our Vice President of Human Resources. M. de Leeuws total shares beneficially owned prior to this offering are options for depositary receipts issued by SAMI for ordinary shares and, following completion of this offering, options for our ordinary shares. |
(14) |
The address of Morgan Stanley Dean Witter Equity Funding, Inc. and Originators Investment Plan, L.P. is 1585 Broadway, 2 nd Floor, New York, NY 10036. |
88
(15) | P. Collerton is our former Executive Vice President of Engineering and Operations Support. P. Collerton shares beneficially owned prior to this offering and shares offered include 510,316 depositary receipts issued by SAMI for ordinary shares. |
(16) | M. Boussard is our former Chief Executive Officer. M. Boussards shares beneficially owned prior to this offering are 1,305,770 for depositary receipts issued by SAMI for ordinary shares. |
(17) |
The address of Whitehall Parallel Real Estate LP XIII is WTC Amsterdam Tower D, 11 th Floor, Strawinskylaan 1161, 1077 XX Amsterdam, The Netherlands. |
(18) | SAMI has issued depositary receipts for our ordinary shares and for Preferred Shares that it holds. Holders of depositary receipts do not have voting but do have investment power with respect to the shares underlying their depositary receipts. The administration by SAMI of shares will be cancelled ( decetificering ) as soon as practicable after completion of this offering. The number of shares held by SAMI will be adjusted to reflect any additional shares allotted to depositary receipt holders who hold fractional amounts of shares as a result of the five-to-one reverse stock split that is expected to occur on or before the closing of this offering. The numbers mentioned above include shares referred to elsewhere in the table. |
(19) | Other Option Holders and Depositary Receipt Holders do not hold the shares directly but hold options or depositary receipts for shares that are held by SAMI. The numbers mentioned are therefore also included in the holding of SAMI referred to above. |
As of December 31, 2010, we had 14 holders of record resident in The Netherlands, representing approximately 21% of our outstanding shares. As of December 31, 2010, we had 17 holders of record resident in the United States, representing approximately 8% of our outstanding shares.
89
Shareholders Agreement
On August 3, 2000, we and our shareholders as of that date entered into a shareholders agreement which was most recently amended and restated on December 24, 2009 (the Shareholders Agreement). The Shareholders Agreement sets out certain rights and obligations between the parties specified therein. The following shareholders are signatories of the Shareholders Agreement: Lamont Finance N.V. and Chianna Investments N.V. (both Baker Capital companies), Parc-IT II B.V., Cobepa (Nederland) N.V., Mr. M.J.J. Boussard, Mr. A.R.D. Jamieson, Beauchamp Beheer B.V., Mr. E.A. van den Brandhof, Mr. J. Loeber, Stichting Administratiekantoor Management InterXion, Aman Ventures, L.L.C., Mr. B.A. Foy, Mr. J.J. Camman, Fleet Growth Resources III, Inc., Fleet Equity Partners VII, LP, Kennedy Plaza Partners II, LLC and Chisholm Partners IV, LP.
The Shareholders Agreement:
(a) | prohibits the transfer of any shares, or rights to receive shares, or warrants held by a shareholder unless such transfer is permitted by the articles of association or the Shareholders Agreement or is approved by the written consent of the other shareholders; |
(b) | grants a right of first refusal pursuant to which any offer made by a bona fide third party for ordinary shares or Preferred Shares held by a shareholder shall also be made to the other non-selling shareholders; |
(c) | grants customary tag-along and drag-along provisions; |
(d) | includes provisions related to our management, including nomination rights relating to our supervisory board, our management board and any committee and certain approval, consent and reserved matter rights; and |
(e) | sets out the automatic one-to-one conversion of Preferred Shares into ordinary shares and the rights associated with the Preferred Shares Liquidation Price Offering. |
The Shareholders Agreement will automatically terminate on the consummation of this offering.
Shareholders Agreement with Baker Capital
Upon consummation of the initial public offering, we will enter into a Shareholders Agreement with affiliates of Baker Capital. For so long as Baker Capital or its affiliates continue to be the owner of shares representing more than 25% of our outstanding ordinary shares, Baker Capital will have the right to designate for nomination a majority of the members of our Board. As such, upon consummation of the initial public offering, Baker Capital will be entitled to designate four nominees for the seven-member board. At such time that a majority of our Board is required to be independent in accordance with the listing requirements of the NYSE, Baker Capital will remain entitled to designate for nomination four of the seven members of the Board, provided, that at least two of the Baker Capital nominees shall satisfy the criteria for independent directors as set forth in the corporate governance rules of the NYSE.
For so long as Baker Capital or its affiliates continues to be the owner of shares representing less than or equal to 25% but more than 15% of our outstanding ordinary shares, Baker Capital will have the right to designate for nomination three of the seven members of our Board, at least one of whom shall satisfy the criteria for independent directors as set forth in the applicable listing standards. For so long as Baker Capital or its affiliates continues to be the owner of shares representing less than or equal to 15% but more than 10% of our outstanding ordinary shares, Baker Capital will have the right to designate for nomination two of the seven members of our Board, none of whom shall be required to be independent. At such time that the ownership of Baker Capital or its affiliates is less than or equal to 10% but more than 5% of our outstanding ordinary shares, Baker Capital will have the right to designate for nomination one of the seven members of our Board, who shall not be required to be independent.
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Furthermore, for so long as Baker Capital or its affiliates continues to be the owner of shares representing more than 25% of our outstanding ordinary shares, Baker Capital will have the right, but not the obligation, to nominate the Chairman of our Board.
In addition, as long as Baker Capital or its affiliates continues to be the owner of shares representing more than 15% of our outstanding ordinary shares, at least one of Baker Capitals director nominees shall be appointed to each of our standing committees, provided that, when required by the transition provisions for companies listing in conjunction an initial public offering, such Baker Capital nominees shall meet any independence or other requirements of the applicable listing standards.
In the event of a change in the number of members of our Board, Baker Capital will have the right to designate a proportional amount of the members of the nominees for our Board to most closely approximate the rights described above.
Registration Rights Agreement
We have entered into a registration rights agreement with affiliates of Baker Capital (the Baker Shareholders), pursuant to which 140,565,567 ordinary shares are entitled to the registration rights described below.
Demand registration rights. At any time following the closing of this offering, we are required to effect up to four registrations at the request of one or more of the Baker Shareholders holding ordinary shares representing in the aggregate a majority of ordinary shares held by the Baker Shareholders (the Majority Baker Shareholders). We are not required to effect a registration within 150 days of this offering or within 90 days after the effective date of a registration statement. We may not effect a registration for our own account (other than a registration effected solely with respect to an employee benefit plan or pursuant to a registration on Form F-4 or S-4) within 90 days after any such registration without the consent of the Majority Baker Shareholders.
In the event that the managing underwriter advises us that the number of ordinary shares requested to be included in such registration exceeds the number that can be sold in such offering without adversely affecting the underwriters ability to effect an orderly distribution of such ordinary shares, we will include in the registration statement the number of ordinary shares that, in the opinion of the managing underwriter, can be sold. The allocation of such ordinary shares to be included in such registration statement will be done on a pro rata basis.
Registration on Form F-3. After we become eligible under applicable securities laws to file a registration statement on Form F-3, which will not be until at least 12 months after the date of this Prospectus, we will file a registration statement on Form F-3 at the request of the Majority Baker Shareholders. These shareholders may request such a registration no more than once every six months. There is no limit to the number of such registrations that these shareholders may request. In connection with the foregoing registrations: (1) we are not required to effect a registration pursuant to a request by shareholders holding registrable securities if, within the 12-month period preceding the date of such request, we have already effected one registration on Form F-3, (2) each registration on Form F-3 must be for anticipated proceeds of at least U.S. $500,000, and (3) we may not effect a registration for our own account (other than a registration effected solely with respect to an employee benefit plan) within 90 days after any such registration without the consent of the Majority Baker Shareholders.
Piggyback registration rights. Following this offering, the Baker Shareholders will also have the right to request the inclusion of their registrable shares in any registration statements filed by us in the future for the purposes of a public offering, subject to specified exceptions. In the event that the managing underwriter advises that the number of our securities included in such a request exceeds the number that can be sold in such offering without adversely affecting such underwriters ability to effect an orderly distribution of our securities, the shares will be included in the registration statement in the following order of preference: first, the shares that we wish to include for our own account and second, ordinary shares held by the Baker Shareholders on a pro rata basis.
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Termination. All registration rights granted to holders of registrable shares terminate when all ordinary shares resulting from the conversion of the Preferred Shares have been effectively registered under the Securities Act, or, with respect to any holder, can be sold freely during a three-month period without registration under the Securities Act.
Expenses. We will be required to pay all expenses relating to up to two demand registration and up to two registrations on Form F-3. We will be required to pay all expenses relating to piggyback registrations.
CEO
On October 31, 2007, Mr. Ruberg resigned as a partner of Baker Capital LLP and on November 5, 2007 he was appointed as our CEO. As at November 5, 2007 and December 31, 2007, Mr. Ruberg held an indirect interest of less than 0.01% in our shares through his interests in Baker Capital funds. Mr. Ruberg had no voting rights over any of these interests. On June 23, 2008, Mr. Ruberg sold his interest in Baker Capital funds.
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Incorporation and Registered Office
We were incorporated on April 6, 1998 as a private company with limited liability ( besloten venootschap met beperkte aansprakelijkheid ) under the laws of The Netherlands. On January 11, 2000, we were converted from a B.V. to a limited liability company ( naamloze venootschap ) under the laws of The Netherlands.
Our corporate seat is in Amsterdam, The Netherlands. We are registered with the Trade Register of the Chamber of Commerce in Amsterdam under number 33301892. Our executive offices are located at Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands. Our telephone number is +31 20 880 7600.
Share Capital
At the date of this Prospectus, our authorized share capital amounts to 15,000,000 and is divided into 575 million ordinary shares and 175 million Preferred Shares, each with a nominal value of 0.02. Our issued share capital as of January 12, 2011 is 4,437,908.12, divided into 47,856,199 ordinary shares and 174,039,207 Preferred Shares. All of the issued ordinary shares and Preferred Shares have been created under Dutch law and have been fully paid up.
Unless otherwise indicated, the description of our share capital disregards the five-to-one reverse stock split which is expected to take place prior to completion of this offering.
Since January 1, 2005 there have been the following changes to our share capital:
(a) | On January 17, 2005, we issued 500,000 Preferred Shares to Mr. A. Jamieson, one of our former financial advisers, against contribution of a receivable of 100,000, resulting in an addition to our share premium reserves of 90,000 and our issued share capital consisting of 39,790,197 ordinary shares and 101,209,575 Preferred Shares. |
(b) | On June 13, 2007, we issued an aggregate of 68,790,425 Preferred Shares to Messrs. Loeber, Collerton, Camman, Foy and Boussard, who are employees or advisers or former employees or advisers of ours, and to Stichting Administratiekantoor Management InterXion, Beauchamp Beheer B.V., Baker Communications Fund II L.P., Lamont Finance N.V., Aman Ventures L.L.C., ParC-IT B.V. and Copeba (Nederland) N.V. (the Convertible Loan Parties). In consideration of these Preferred Shares a total of 39 convertible loan notes with an aggregate principal amount of 12,529,763 and accrued interest of 2,037,000 were contributed to our share capital, resulting in an addition to our share premium reserves of 13,110,170 when taken together with the issue described in paragraph (c) below. Effective June 13, 2007, our authorized share capital increased from 14,000,000 to 14,900,000. |
(c) | On August 23, 2007, our authorized share capital increased from 14,900,000 to 15,000,000, following which our capital consisted of 575 million ordinary shares and 175 million Preferred Shares. At the same time, we issued a total of 4,039,207 Preferred Shares to the Convertible Loan Parties to complete the issue of Preferred Shares referred to in paragraph (b) above. |
(d) | On October 13, 2008, we issued 4,526,446 ordinary shares, and on July 15, 2009 we issued another 3,521,368 ordinary shares to Stichting Administratiekantoor Management InterXion, a Dutch foundation established by us, which in turn issued an equal number of depositary receipts for such ordinary shares to certain of our (former) employees in connection with the exercise of stock options by them. The aggregate exercise price for these options, and the amount received by us, amounted to 1,760,709, resulting in an addition to our share premium reserves of 1,599,752. See ManagementEmployee Share Ownership Plans above for more information on the 2008 Plan. |
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(e) | On December 22, 2010, we issued 18,188 ordinary shares to Stichting Administratiekantoor Management InterXion which in turn issued an equal number of depositary receipts for such ordinary shares to certain of our (former) employees in connection with the exercise of stock options by them. The aggregate exercise price for these options, and the amount received by us, amounted to 5,456, resulting in an addition to our share premium reserves of 5,092. |
(f) | On , 2011, we issued ordinary shares to Stichting Administratiekantoor Management InterXion which in turn issued an equal number of depositary receipts for such ordinary shares to certain of our (former) employees in connection with the exercise of stock options by them. The aggregate exercise price for these options, and the amount received by us, amounted to , resulting in an addition to our share premium reserves of . |
(g) | On , 2011, our general meeting of shareholders resolved to reduce our issued share capital by the cancellation ( intrekking ) of 464 Preferred Shares and one ordinary share held by us. On , 2011, the resolution of the general meeting of shareholders was filed with the Trade Register of the Chamber of Commerce in Amsterdam and notice of the filing was published in a Dutch newspaper. As of the date of publication of the notice of filing of the resolution of the general meeting of shareholders, an opposition period of two months applies for our creditors. If no opposition will be instituted in the two months opposition period, the cancellation of Preferred Shares will take effect. If opposition will be instituted, the resolution shall take effect only upon the withdrawal of the opposition or upon an order of the District Court of Amsterdam setting aside the opposition becoming enforceable. |
On , 2011, our general meeting of shareholders resolved to designate our Management Board, subject to the approval of our Supervisory Board, as the corporate body with the power to issue such number of ordinary shares as needed in connection with this offering. At the same meeting, our general meeting of shareholders resolved to amend our articles of association as set out below, which will result in a designation of our Board as the corporate body to issue ordinary shares and/or grant rights to subscribe for ordinary shares for a period of five years from the date of the Third Amendment of Articles (as defined below) and to issue such number of ordinary shares and/or grant such number of rights to subscribe for ordinary shares as shall be permitted under our authorized share capital from time to time. At the same time and subject to the same limitations, our Board will be designated, with the power to limit or exclude pre-emptive rights relating to ordinary shares.
On , 2011, our general meeting of shareholders further resolved to amend our current articles of association by means of three separate proposed deeds of amendment. Through the first amendment of articles (the First Amendment of Articles) our Management Board will be authorised to issue ordinary shares in our capital, and to exclude the pre-emptive rights relating thereto, required to facilitate a five-to-one reversed stock split in connection with this offering. Through the second amendment of articles (the Second Amendment of Articles) our current articles of association will be amended so as to facilitate the automatic conversion of the Preferred Shares on a one-to-one basis into ordinary shares in connection with this offering. Through the third amendment of articles (the Third Amendment of Articles, together with the First Amendment of Articles and the Second Amendment of Articles, the Deeds of Amendment), our current articles of association will be amended to, inter alia , (i) replace our two-tier governance structure, consisting of our Management Board and our Supervisory Board, with a one-tier governance structure, with a single board, our Board, comprised of Executive Directors; (ii) the Preferred Shares being removed as a class of shares in our capital; and (iii) implement the five-to-one reversed stock split. The Second Amendment of Articles will take effect upon the execution of the deed containing the Third Amendment of Articles.
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On , 2011 (following the amendment of our articles of association including to effect the five-to-one reverse stock split), our authorized and issued share capital will be as follows:
Authorized |
Issued | |||||
Number |
Amount |
Number |
Amount |
|||
Ordinary shares |
| Ordinary shares | |
All of the issued ordinary shares will have been fully paid up.
Articles of Association and Dutch Law
On , 2011, our general meeting of shareholders resolved to amend our current articles of association by means of the Deeds of Amendment. The execution of the Deeds of Amendment is expected to take place shortly following the determination of the offer price referred to on the cover of this Prospectus and the Second Amendment of Articles will become effective as per the execution of the deed containing the Third Amendment of Articles. The Second Amendment of Articles becoming effective will reflect the Preferred Shares being automatically converted on a one-to-one basis into ordinary shares. The Third Amendment of Articles becoming effective will, inter alia , reflect the Preferred Shares being removed as a class of shares in our capital and result in our articles of association containing the provisions summarized below and will implement the five-to-one reversed stock split.
When we refer to our Articles hereafter in this Prospectus, we refer to our proposed articles of association as we expect them to read after the amendments contained in the Deeds of Amendment become effective.
Set forth below is a summary of relevant information concerning our share capital and of material provisions of our Articles and applicable Dutch law. This summary does not constitute legal advice regarding those matters and should not be regarded as such.
Corporate Purpose
Pursuant to Article 3 of our Articles, our corporate purpose is:
(a) | to incorporate, to participate in any way whatsoever in, to manage, to supervise businesses and companies; |
(b) | to finance businesses and companies; |
(c) | to borrow, to lend and to raise funds, including through the issue of bonds, debt instruments or other securities or evidence of indebtedness as well as to enter into agreements in connection with aforementioned activities; |
(d) | to render advice and services to businesses and companies with which the Company forms a group and to third parties; |
(e) | to grant guarantees, to bind the Company and to pledge its assets for obligations of businesses and companies with which it forms a group and on behalf of third parties; and |
(f) | to perform any and all activities of an industrial, financial or commercial nature, |
and to do all that is connected therewith or may be conducive thereto, all to be interpreted in the broadest sense.
Issue of Ordinary Shares
Our Articles, as proposed, provide that we may issue ordinary shares, or grant rights to subscribe for ordinary shares, pursuant to a resolution of our general meeting of shareholders upon a proposal of our Board.
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Our proposed Articles provide that our general meeting of shareholders may, upon a proposal of our Board, designate another corporate body, which can only be our Board, as the competent body to issue ordinary shares, or grant rights to subscribe for ordinary shares. Pursuant to our proposed Articles and Dutch law, the period of designation may not exceed five years, but may be renewed by a resolution of our general meeting of shareholders for periods of up to five years. If not otherwise stated in the resolution approving the designation, such designation is irrevocable. The resolution designating our Board must specify the number of shares which may be issued and, if applicable, any conditions to the issuance.
Our Board will be designated as the corporate body competent to issue ordinary shares and to grant rights to subscribe for ordinary shares in the Third Amendment of Articles. This authority is limited to a maximum equal to our authorized share capital from time to time. Our Boards authority to issue ordinary shares and grant rights to acquire ordinary shares is for a period of five years commencing on the date the Third Amendment of Articles is executed and therefore is expected to expire on , 2016. Our general meeting of shareholders may extend this period at any time, subject to the limitations set out above.
Ordinary shares may not be issued at less than their nominal value and must be fully paid up upon issue.
No resolution of our general meeting of shareholders or our Board is required for an issue of ordinary shares pursuant to the exercise of a previously granted right to subscribe for ordinary shares.
Pre-emptive Rights
Dutch law and our proposed Articles generally give our shareholders pre-emptive rights to subscribe on a pro rata basis for any issue of new ordinary shares or grant of rights to subscribe for ordinary shares. Exceptions to these pre-emptive rights include: (i) the issue of ordinary shares and the grant of rights to subscribe for ordinary shares to our employees, (ii) the issue of ordinary shares and the grant of rights to subscribe for ordinary shares in return for non-cash consideration and (iii) the issue of ordinary shares to persons exercising a previously-granted right to subscribe for ordinary shares.
A shareholder has the legal right to exercise pre-emption rights for at least two weeks after the date of the announcement of the issue or grant. However, our general meeting of shareholders, or our Board if so designated by our general meeting of shareholders, may restrict or exclude pre-emptive rights. A resolution by our general meeting of shareholders to designate another corporate body, which can only be our Board, as the competent authority to exclude or restrict pre-emptive rights requires a proposal by our Board and approval by a majority of at least two-thirds of the valid votes cast at our general meeting of shareholders if less than half of our issued and outstanding share capital is present or represented. A simple majority is sufficient if more than half of our issued and outstanding share capital is present or represented. A resolution by our general meeting of shareholders to designate our Board as the competent authority to exclude or restrict pre-emptive rights must be for a fixed period not exceeding five years and is only possible if our Board is simultaneously designated as the corporate body authorized to issue ordinary shares. If not otherwise stated in the resolution approving designation, such designation is irrevocable. If our general meeting of shareholders has not designated our Board, our general meeting of shareholders itself is the corporate body authorized to restrict or exclude pre-emptive rights upon a proposal by our Board.
Our Board will be designated as the corporate body authorized to limit or exclude pre-emptive rights, subject to the limited authority it has to issue ordinary shares and grant rights to subscribe for ordinary shares in the Third Amendment of Articles as set out under Issue of Ordinary Shares above, for a period of five years from the date of the Third Amendment of Articles taking effect, and therefore expected to be ending on , 2016.
Reduction of Share Capital
Our general meeting of shareholders may, subject to Dutch law and our proposed Articles and only upon a proposal of our Board, resolve to reduce our issued share capital by cancellation of ordinary shares or reduction
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of the nominal value of ordinary shares by amendment of our proposed Articles. A resolution of our general meeting of shareholders to reduce the issued share capital must designate the ordinary shares to which the resolution applies and must make provisions for the implementation of such resolution. A resolution to cancel ordinary shares may only be adopted in relation to ordinary shares or depositary receipts for such shares we hold ourselves. A partial repayment or exemption from the obligation to pay up ordinary shares must be made pro rata, unless all of our shareholders agree otherwise. A resolution at our general meeting of shareholders to reduce our issued share capital requires a majority of at least two-thirds of the votes validly cast at a meeting at which less than half of our issued and outstanding share capital is present or represented. A simple majority is sufficient if more than half of our issued and outstanding share capital is present or represented.
Acquisition of Ordinary Shares
We may acquire our own fully paid up ordinary shares at any time for no consideration, or, subject to certain provisions of Dutch law and our proposed Articles, if (i) our shareholders equity minus the payment required to make the acquisition, does not fall below the sum of called-up and paid-up share capital and any statutory reserves we must maintain by Dutch law or our proposed Articles, and (ii) we and our subsidiaries would thereafter not hold ordinary shares or rights of pledge over ordinary shares with an aggregate nominal value exceeding 50% of our issued and outstanding share capital.
Dutch law generally and more specifically, the Dutch Civil Code, imposes minimum capital and other reserve requirements on legal entities as a way of protecting shareholders and creditors and maintaining the capital of a company. Such minimum capital and reserve requirements include, among other things, complying with certain minimum capital requirements when declaring and paying dividends and repurchasing shares in its own capital, maintaining reserves on the granting of legitimate financial assistance loans by a public limited company and maintaining reserves on the re-evaluation of assets.
An acquisition of ordinary shares for a consideration must be authorized by our general meeting of shareholders. Such authorization may be granted for a maximum period of 18 months and must specify the number of ordinary shares that may be acquired, the manner in which ordinary shares may be acquired and the price limits within which ordinary shares may be acquired. Authorization is not required for the acquisition of ordinary shares in order to transfer them to our employees. The actual acquisition may only be effected by a resolution of our Board.
On , 2011 our general meeting of shareholders resolved to grant authorization to our Management Board (and our Board under our proposed Articles) for a period of 18 months from the date of that meeting to acquire ordinary shares up to a maximum of ten percent of the ordinary shares outstanding immediately following the completion of this offering, whether through the stock exchange or by other means, at prices between an amount equal to the nominal value of the ordinary shares and an amount equal to 110% of the market prices of the ordinary shares on the New York Stock Exchange (the market price being the average of the closing price on each of the 30 consecutive days of trading preceding the three trading days prior to the date of acquisition).
Any ordinary shares held by us in our own capital may not be voted on or counted for quorum purposes.
Exchange Controls and Other Provisions Relating to Non-Dutch Shareholders
There are no Dutch exchange control restrictions on investments in, or payments on, the ordinary shares. There are no special restrictions in our Articles or Dutch law that limit the right of shareholders who are not citizens or residents of The Netherlands to hold or vote the ordinary shares.
Dividends and Distributions
We may only make distributions to our shareholders in so far as our equity exceeds the sum of our paid-in and called-up share capital plus the reserves we are required to maintain by Dutch law or our proposed Articles.
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Under our proposed Articles, our Board may determine that a portion of the profits of the current financial year shall be added to our reserves. The remaining profits are at the disposal of our general meeting of shareholders.
We may only make distributions of dividends to our shareholders after the adoption of our statutory annual accounts from which it appears that such distributions are legally permitted. However, our Board may resolve to pay interim dividends on account of the profits of the current financial year if the equity requirement set out above is met, as evidenced by an interim statement of assets and liabilities relating to the condition of such assets and liabilities on a date no earlier than the first day of the third month preceding the month in which the resolution to distribute interim dividends is made public. Our general meeting of shareholders may resolve, upon a proposal to that effect by our Board, to pay distributions at the expense of any of our reserves.
Additionally, if we choose to declare dividends, the payment of cash dividends on our shares is restricted under the terms of the agreements governing our indebtedness.
Dividends and other distributions may be made in cash or, but only at all times with the approval of the Board, in ordinary shares. Dividends and other distributions are due and payable as from the date determined by the corporate body resolving on the distribution. Claims to dividends and other declared distributions lapse after five years from the date that such dividends or distributions became payable and any such amounts not collected within this period revert to us and are allocated to our general reserves.
General Meetings of Shareholders and Voting Rights
Our annual general meeting of shareholders must be held within six months after the end of each of our financial years. It must be held in The Netherlands in Amsterdam or Haarlemmermeer (Schiphol Airport). Our financial year coincides with the calendar year. An extraordinary general meeting of shareholders may be convened whenever our Board or CEO deems such necessary. Shareholders representing at least 10% of our issued and outstanding share capital may, pursuant to Dutch law and our proposed Articles, request that a general meeting of shareholders be convened, specifying the items for discussion. If our Board has not convened a general meeting of shareholders within four weeks of such request such that such meeting can be held within six weeks following such request, the shareholders requesting such meeting are authorized to call such meeting themselves with due observance of the relevant provisions of our proposed Articles.
The notice convening any general meeting of shareholders must include an agenda indicating the items for discussion, or it must state that the shareholders and any holders of depositary receipts for ordinary shares may review such agenda at our main offices in The Netherlands. We will have the notice published by electronic means of communication which is directly and permanently accessible until the meeting and in such other manner as may be required to comply with any applicable rules of the New York Stock Exchange. The explanatory notes to the agenda must contain all facts and circumstances that are relevant for the proposals on the agenda. Such explanatory notes and the agenda will be placed on our website.
Shareholders holding at least 1% of our issued and outstanding share capital or ordinary shares representing a value of at least 50 million may submit agenda proposals for any general meeting of shareholders. Provided we receive such proposals no later than 60 days before the date of the general meeting of shareholders, and provided that such proposal does not, according to our Board, conflict with our vital interests, we will have the proposals included in the notice.
Each of the ordinary shares confers the right to cast one vote. Each shareholder entitled to participate in a general meeting of shareholders, either in person or through a written proxy, is entitled to attend and address the meeting and, to the extent that the voting rights accrue to him, to exercise his voting rights in accordance with our proposed Articles. The voting rights attached to any ordinary shares, or ordinary shares for which depositary receipts have been issued, are suspended as long as they are held in treasury.
Our Board may allow shareholders to, in person or through a person holding a written proxy, participate in a general meeting of shareholders, including to take the floor and, to the extent applicable, to exercise voting
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rights, through an electronic means of communication. Our Board selects the means of electronic communication and may subject its use to conditions.
To the extent that our proposed Articles or Dutch law do not require a qualified majority, all resolutions of our general meeting of shareholders shall be adopted by a simple majority of the votes cast.
The following resolutions of our general meeting of shareholders may only be adopted upon a proposal by our Board:
(a) | to effect a statutory merger ( juridische fusie ) or demerger ( juridische splitsing ); |
(b) | to issue ordinary shares or to restrict or exclude pre-emption rights on ordinary shares to the extent the authority to issue has not been delegated to our Board; |
(c) | to designate our Board as the corporate body authorized to issue ordinary shares or rights to subscribe for ordinary shares and to restrict or to exclude the pre-emption rights on ordinary shares or rights to subscribe for ordinary shares; |
(d) | to reduce our issued share capital; |
(e) | to make a whole or partial distribution of reserves; |
(f) | to amend our articles of association or change our corporate form; and |
(g) | to dissolve us. |
Annual and Interim Financial Statements
Within five months after the end of our financial year, our Board is required to prepare our annual financial statements, which must be accompanied by an annual report and an auditors report. Our general meeting of shareholders may extend this period by no more than six months on account of special circumstances. All members of our Board must sign the financial statements. If any member does not sign, the reason for this must be stated.
Our annual financial statements, the annual report and the auditors report must be made generally available to our shareholders for review at no charge at our head office in Schiphol-Rijk during regular business hours from the day of the notice convening the annual general meeting of shareholders. Our general meeting of shareholders shall be requested to adopt our annual financial statements at such annual general meeting of shareholders.
In addition, we intend to publish quarterly financial statements within 60 days following the end of each of the first three quarters in each of our financial years.
Our financial reporting will be subject to the supervision of the Dutch Authority for the Financial Markets, or AFM. The AFM will review the content of the financial reports and has the authority to approach us with requests for information in case, on the basis of publicly available information, it has reasonable doubts as to the integrity of our financial reporting.
Amendment of our Articles of Association
Our general meeting of shareholders may resolve to amend our Articles upon a proposal made by our Board.
Dissolution and Liquidation
Under our proposed Articles, we may be dissolved by a resolution of our general meeting of shareholders upon a proposal of our Board.
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In the event of dissolution, our business will be liquidated in accordance with Dutch law and our proposed Articles and the liquidation shall be effected by our Board. During liquidation, the provisions of our Articles will remain in force to the extent possible. Any assets remaining upon completion of the dissolution will be distributed to the holders of ordinary shares in proportion to the aggregate nominal amount of their ordinary shares.
Disclosure of Information
Dutch law contains specific rules intended to prevent insider trading, tipping and market manipulation. We are subject to these rules and accordingly, we have adopted a code of securities dealings in relation to our securities.
Squeeze Out
If a shareholder, alone or together with group companies, (the Controlling Entity) holds a total of at least 95% of a companys issued share capital by nominal value for its own account, Dutch law permits the Controlling Entity to acquire the remaining shares in the controlled entity (the Controlled Entity) by initiating proceedings against the holders of the remaining shares. The price to be paid for such shares will be determined by the Enterprise Chamber of the Amsterdam Court of Appeal (the Enterprise Chamber). A Controlling Entity that holds less than 95% of the shares in the Controlled Entity, but that in practice controls the Controlled Entitys general meeting of shareholders, could attempt to obtain full ownership of the business of the Controlled Entity through a legal merger of the Controlled Entity with another company controlled by the Controlling Entity, by subscribing to additional shares in the Controlled Entity (for example, in exchange for a contribution of part of its own business), through another form of reorganization aimed at raising its interest to 95% or through other means.
In addition to the general squeeze-out procedure mentioned above, following a public offer a holder of at least 95% of the outstanding shares and voting rights has the right to require the minority shareholders to sell their shares to it. To the extent there are two or more types of shares the request can only be made with regard to the type of shares of which the shareholder holds at least 95% in aggregate representing at least 95% of the voting rights attached to those shares. Any request to require the minority shareholders to sell their shares must be filed with the Enterprise Chamber within three months after the end of the acceptance period of the public offer. Conversely, in such a case, each minority shareholder has the right to require the holder of at least 95% of the outstanding shares and voting rights to purchase its shares. The minority shareholders must file such claim with the Enterprise Chamber within three months after the end of the acceptance period of the public offer.
Reporting of Insider Transactions
Pursuant to the Dutch Financial Supervision Act, the Directors and any other person who has managerial responsibilities or who has the authority to make decisions affecting our future developments and business prospects or who has regular access to inside information relating, directly or indirectly, to us (each an Insider), must notify The Netherlands Authority for the Financial Markets of all transactions conducted for his own account relating to ordinary shares or securities the value of which is determined by the value of ordinary shares. The Netherlands Authority for the Financial Markets must be notified within five days following the transaction date. Notification may be postponed until the date the value of the transactions amounts to 5,000 or more per calendar year.
In addition, persons designated by the Decree on Market Abuse pursuant to the Dutch Financial Supervision Act ( Besluit Marktmisbruik Wft ) (the Market Abuse Decree) who are closely associated with an Insider must notify The Netherlands Authority for the Financial Markets of any transactions conducted for their own account relating to ordinary shares or securities the value of which is determined by the value of the ordinary shares. The Market Abuse Decree designates the following categories of persons: (i) the spouse or any partner considered by
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national law as equivalent to the spouse, (ii) dependent children, (iii) other relatives who have shared the same household for at least one year prior to the relevant transaction date, and (iv) any legal person, trust or partnership whose managerial responsibilities are discharged by, which is controlled by, which has been incorporated for the benefit of, or whose economic interests are the same as, a person referred to in the previous paragraph or under (i), (ii) or (iii) above.
The AFM keeps a public register of all notifications made pursuant to the Dutch Financial Supervision Act.
Pursuant to the rules against insider trading we have, among other things, further adopted rules governing the holding of, reporting and carrying out of transactions in our securities by the Directors or our employees. Further, we have drawn up a list of those persons working for us who could have access to inside information on a regular or incidental basis and have informed the persons concerned of the rules against insider trading and market manipulation including the sanctions which can be imposed in the event of a violation of those rules.
Non-compliance with the notification obligations under the market abuse obligations laid down in the Dutch Financial Supervision Act may lead to criminal fines, administrative fines, imprisonment or other sanctions.
Comparison of Dutch Corporate Law and U.S. Corporate Law
The following comparison between Dutch corporation law, which applies to us, and Delaware corporation law, the law under which many corporations in the United States are incorporated, discusses additional matters not otherwise described in this Prospectus.
Duties of directors
The Netherlands
In The Netherlands, a listed company typically has a two-tier board structure with a management board comprised of the executive directors and a supervisory board comprised of the non-executive directors. It is, however, also possible by virtue of the provisions of a companys articles of association to have a single-tier board, comprised of both executive directors and non-executive directors. Following the adoption of the Second Deed of Amendment, we will have a single-tier board.
Under Dutch law the board of directors is collectively responsible for the policy and day-to-day management of the company. The non-executive directors will be assigned the task of supervising the executive directors and providing them with advice. Each director has a duty to the company to properly perform the duties assigned to him. Furthermore, each board member has a duty to act in the corporate interest of the company. Under Dutch law, the corporate interest extends to the interests of all corporate stakeholders, such as shareholders, creditors, employees, customers and suppliers. The duty to act in the corporate interest of the company also applies in the event of a proposed sale or break-up of the company, whereby the circumstances generally dictate how such duty is to be applied. Any board resolution regarding a significant change in the identity or character of the company or its business requires shareholders approval.
Delaware
The board of directors of a Delaware corporation bears the ultimate responsibility for managing the business and affairs of a corporation. In discharging this function, directors of a Delaware corporation owe fiduciary duties of care and loyalty to the corporation and to its shareholders. Delaware courts have decided that the directors of a Delaware corporation are required to exercise an informed business judgment in the performance of their duties. An informed business judgment means that the directors have informed themselves of all material information reasonably available to them. Delaware courts have also imposed a heightened standard of conduct upon directors of a Delaware corporation who take any action designed to defeat a threatened change in control
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of the corporation. In addition, under Delaware law, when the board of directors of a Delaware corporation approves the sale or break-up of a corporation, the board of directors may, in certain circumstances, have a duty to obtain the highest value reasonably available to the shareholders.
Director terms
The Netherlands
Under Dutch law a director of a listed company is generally appointed for a maximum term of four years. There is no limit to the number of terms a director may serve.
Delaware
The Delaware General Corporation Law generally provides for a one-year term for directors, but permits directorships to be divided into up to three staggered classes with up to three-year terms, with the terms for each class expiring in different years, if permitted by the certificate of incorporation, an initial bylaw or a bylaw adopted by the shareholders, with exceptions if the board is classified or if the company has cumulative voting.
Director vacancies
The Netherlands
Under Dutch law, new members of the board of directors of a company such as ours are appointed by the general meeting. Our proposed Articles shall provide that our Board shall have nomination rights with respect to the appointment of a new member of our Board. If a nomination consists of a list of two or more candidates, it shall be binding and the appointment to the vacant seat concerned shall be from the persons placed on the binding list of candidates and shall be effected through election. Notwithstanding the foregoing, our general meeting of shareholders may, at all times, by a resolution passed with a two-thirds majority of the votes cast representing more than half of our issued and outstanding capital, resolve that such list of candidates shall not be binding.
Delaware
The Delaware General Corporation Law provides that vacancies and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) unless (a) otherwise provided in the certificate of incorporation or by-laws of the corporation or (b) the certificate of incorporation directs that a particular class of stock is to elect such director, in which case any other directors elected by such class, or a sole remaining director elected by such class, will fill such vacancy.
Shareholder proposals
The Netherlands
Pursuant to our proposed Articles, extraordinary shareholders meetings will be held as often as our Board or our CEO deems such necessary. Additionally, shareholders and/or persons with depository receipt holder rights representing in the aggregate at least one-tenth of the issued capital of the company may request the Board to convene a general meeting, specifically stating the business to be discussed. If our Board has not given proper notice of a general meeting within four weeks following receipt of such request such that the meeting can be held within six weeks after receipt of the request, the applicants shall be authorized to convene a meeting themselves. Pursuant to Dutch law, one or more shareholders representing at least 10% of the issued share capital may request the Dutch Courts to order that a general meeting be held.
The agenda for a meeting of shareholders must contain such items as our Board or the person or persons convening the meeting decide, including the time and place of the shareholders meeting and the procedure for
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participating in the shareholders meeting by way of a written power of attorney. The agenda shall also include such other items as one or more shareholders, representing at least such part of the issued share capital as required by the laws of the Netherlands (currently, 1% of the issued share capital or shares representing a value of 50 million) may request by providing a substantiated written request or a proposal for a resolution to our Board at least 60 days before the date of the meeting.
Delaware
Delaware law does not specifically grant shareholders the right to bring business before an annual or special meeting.
Shareholder suits
The Netherlands
In the event a third party is liable to a Dutch company, only the company itself can bring a civil action against that party. The individual shareholders do not have the right to bring an action on behalf of the company. Only in the event that the cause for the liability of a third party to the company also constitutes a tortious act directly against a shareholder does that shareholder have an individual right of action against such third party in its own name. The Dutch Civil Code provides for the possibility to initiate such actions collectively. A foundation or an association whose objective is to protect the rights of a group of persons having similar interests can institute a collective action. The collective action itself cannot result in an order for payment of monetary damages but may only result in a declaratory judgment ( verklaring voor recht ). In order to obtain compensation for damages, the foundation or association and the defendant may reachoften on the basis of such declaratory judgmenta settlement. A Dutch court may declare the settlement agreement binding upon all the injured parties with an opt-out choice for an individual injured party. An individual injured party may also itself institute a civil claim for damages.
Delaware
Under the Delaware General Corporation Law, a shareholder may bring a derivative action on behalf of the corporation to enforce the rights of the corporation. An individual also may commence a class action suit on behalf of himself and other similarly situated shareholders where the requirements for maintaining a class action under Delaware law have been met. A person may institute and maintain such a suit only if that person was a shareholder at the time of the transaction which is the subject of the suit. In addition, under Delaware case law, the plaintiff normally must be a shareholder not only at the time of the transaction that is the subject of the suit, but also throughout the duration of the derivative suit. Delaware law also requires that the derivative plaintiff make a demand on the directors of the corporation to assert the corporate claim and such demand has been refused before the suit may be prosecuted by the derivative plaintiff in court, unless such a demand would be futile.
Anti-takeover provisions
The Netherlands
Neither Dutch law nor our proposed Articles specifically prevent business combinations with interested shareholders. Under Dutch law various protective measures are as such possible and admissible, within the boundaries set by Dutch case law and Dutch law.
Delaware
In addition to other aspects of Delaware law governing fiduciary duties of directors during a potential takeover, the Delaware General Corporation Law also contains a business combination statute that protects Delaware companies from hostile takeovers and from actions following the takeover by prohibiting some transactions once an acquirer has gained a significant holding in the corporation.
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Section 203 of the Delaware General Corporation Law prohibits business combinations, including mergers, sales and leases of assets, issuances of securities and similar transactions by a corporation or a subsidiary with an interested shareholder that beneficially owns 15% or more of a corporations voting stock, within three years after the person becomes an interested shareholder, unless:
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the transaction that will cause the person to become an interested shareholder is approved by the board of directors of the target prior to the transactions; |
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after the completion of the transaction in which the person becomes an interested shareholder, the interested shareholder holds at least 85% of the voting stock of the corporation not including shares owned by persons who are directors and also officers of interested shareholders and shares owned by specified employee benefit plans; or |
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after the person becomes an interested shareholder, the business combination is approved by the board of directors of the corporation and holders of at least 66.67% of the outstanding voting stock, excluding shares held by the interested shareholder. |
A Delaware corporation may elect not to be governed by Section 203 by a provision contained in the original certificate of incorporation of the corporation or an amendment to the original certificate of incorporation or to the bylaws of the Company, which amendment must be approved by a majority of the shares entitled to vote and may not be further amended by the board of directors of the corporation. Such an amendment is not effective until twelve months following its adoption.
Removal of directors
The Netherlands
Under Dutch law, the general meeting has the authority to suspend or remove members of the board of directors at any time. Under our proposed Articles, a member of our Board may be suspended or removed by our general meeting of shareholders at any time by a resolution passed with a two-thirds majority of the votes cast representing more than half of the issued and outstanding capital. If permitted under the laws of the Netherlands, a member of our Board may also be suspended by our Board itself. Any suspension may not last longer than three months in the aggregate. If, at the end of that period, no decision has been taken on termination of the suspension, the suspension shall end. Currently, Dutch law does not allow directors to be suspended by the board of directors; however, Dutch law is expected to be amended to facilitate the suspension of directors by the board of directors.
Delaware
Under the Delaware General Corporation Law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except (a) unless the certificate of incorporation provides otherwise, in the case of a corporation whose board is classified, shareholders may effect such removal only for cause, or (b) in the case of a corporation having cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors, at an election of the class of directors of which he is a part.
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DESCRIPTION OF CERTAIN INDEBTEDNESS
The following is a summary of the material terms of certain financing arrangements to which we and certain of our subsidiaries are a party. For further information regarding our existing indebtedness, please see Capitalization and Managements Discussion and Analysis of Financial Condition and Results of Operations.
Revolving Credit Facility
On February 1, 2010 we entered into the Revolving Facilities Agreement (the Revolving Facilities Agreement) which, among other things, provides for an amount available for drawing under the Revolving Credit Facility of up to 60.0 million (the Revolving Credit Facility). We have amended the Revolving Facilities Agreement to reduce the amount available for drawing under the Revolving Credit Facility to 50.0 million.
Capitalized terms used but not otherwise defined in the following summary have the meanings assigned to them in the Revolving Facilities Agreement.
Borrowings under the Revolving Credit Facility may be used to finance our general corporate and working capital needs (including capital expenditure), but not towards refinancing any Financial Indebtedness in existence on the Issue Date or to fund a Permitted Acquisition as such terms are defined in the Revolving Credit Facility.
Interest and Fees
The Revolving Credit Facility bears interest at a rate per annum equal to EURIBOR (or, for loans denominated in Sterling, U.S. $ or CHF, LIBOR) plus certain mandatory costs and a margin of 4.00% per annum, subject to a margin ratchet based on the ratio of consolidated Total Debt at each quarter end to the pro forma EBITDA for the 12 months ending on that quarter end (as such terms are defined in the Revolving Credit Facility).
We are also required to pay a commitment fee, quarterly in arrears, on available but unused commitments under the Revolving Credit Facility at a rate of 42.5% of the applicable margin.
Security and Guarantees
The Revolving Credit Facility is guaranteed irrevocably and unconditionally on a joint and several basis by each of our subsidiaries that is a Guarantor of the Notes, plus InterXion France SARL, InterXion España S.L., InterXion Belgium N.V., InterXion Ireland Ltd. and InterXion Danmark ApS (the Original Guarantors).
On June 15, 2010, we entered into a new share pledge agreement with Barclays Bank plc, the security trustee to the Revolving Facilities Agreement, granting a right of pledge over our shares in the newly created intermediate company, InterXion Operational B.V. As a result of the execution of the Revolving Facilities Agreement, InterXion Operational B.V. has replaced us as the pledgor in all of the share pledge agreements entered into. Listed below are the relevant share pledge agreements reflecting the proposed appointment of InterXion Operational B.V. as pledgor:
The Revolving Credit Facility is secured by the following share security:
(i) | a share pledge agreement in relation to the shares in InterXion Operational B.V. made between InterXion Holding N.V. as pledgor and the Security Trustee; |
(ii) | a share pledge agreement in relation to the shares in InterXion HeadQuarters B.V. made between InterXion Operational B.V. as pledgor and the Security Trustee; |
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(iii) | a share pledge agreement in relation to the shares in InterXion Nederland B.V. made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(iv) | a share pledge agreement in relation to the shares in Interxion France SAS made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(v) | a share pledge agreement in relation to the shares in InterXion Deutschland GmbH made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(vi) | a notarized deed of share pledge agreement in relation to the shares in InterXion España, S.A. made between InterXion Operational B.V. as pledgor and the Security Trustee and the Lenders; |
(vii) | a share pledge agreement in relation to the shares in InterXion Carrier Hotel Limited made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(viii) | a share pledge agreement in relation to the shares in InterXion Belgium NV made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(ix) | a share pledge agreement in relation to the shares in InterXion Danmark ApS made between InterXion Operational B.V. as pledgor, the secured parties listed therein and the Security Trustee; and |
(x) | a share charge agreement in relation to the shares in InterXion Ireland Ltd. made between InterXion Operational B.V. as chargor and the Security Trustee. |
The Revolving Credit Facility also has the benefit of security granted to the Security Trustee by us and each other Guarantor over its rights in respect of any inter-company loan receivables owed to it by any member of the Group.
The Revolving Credit Facility also has the benefit of security granted to the Security Trustee by us and each other Guarantor over all its bank accounts other than any bank account that is a blocked account with a bank that has provided a guarantee or other assurance against loss on behalf of an Obligor in respect of rental lease or supplier payments.
Covenants
The Revolving Credit Facility contains customary affirmative, negative and financial covenants, subject to certain agreed exceptions. Set forth below is a brief description of certain covenants, all of which are subject to customary exceptions and qualifications.
Affirmative Covenants
The affirmative covenants, among other things, require us to: (a) comply with certain laws and regulations, including without limitation environmental laws; (b) notify the Arrangers of any environmental claim which is current, pending or threatened; (c) maintain adequate and appropriate insurance; and (d) pay and discharge all taxes imposed on us or our assets.
Negative Covenants
The negative covenants include, among other things, restrictions with respect to our ability to: (a) enter into mergers, demergers, consolidations, restructurings, acquisitions or joint ventures; (b) undergo a substantial change of the general nature of our business; (c) create or issue security over our assets; (d) dispose of our assets; (e) incur certain debt; and (f) distribute dividends.
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Financial Covenants
The Revolving Credit Facility also requires us to comply with the financial covenants below:
Leverage. Calculated as the ratio of Total Debt on the last day of the Relevant Period set forth in the table below to Pro Forma EBITDA for the Relevant Period and may not exceed the ratio set forth in the column opposite that Relevant Period:
Relevant Period |
Ratio | |||
Relevant Period ending June 30, 2010 |
3.75:1 | |||
Relevant Period ending September 30, 2010 |
3.75:1 | |||
Relevant Period ending December 31, 2010 |
3.75:1 | |||
Relevant Period ending March 31, 2011 |
3.75:1 | |||
Relevant Period ending June 30, 2011 |
3.75:1 | |||
Relevant Period ending September 30, 2011 |
3.75:1 | |||
Relevant Period ending December 31, 2011 |
3.75:1 | |||
Relevant Period ending March 31, 2012 |
3.75:1 | |||
Relevant Period ending June 30, 2012 |
3.75:1 | |||
Relevant Period ending September 30, 2012 |
3.75:1 | |||
Relevant Period ending December 31, 2012 |
3.25:1 | |||
Thereafter |
3.25:1 |
Interest Cover . Calculated as the ratio of Adjusted EBITDA to Finance Charges quarterly for the 12 months then ending and may not be less than the ratio set forth in the relevant column in the table below opposite that Relevant Period:
Relevant Period |
Ratio | |||
Relevant Period ending June 30, 2010 |
2.60:1 | |||
Relevant Period ending September 30, 2010 |
2.75:1 | |||
Relevant Period ending December 31, 2010 |
2.60:1 | |||
Relevant Period ending March 31, 2011 |
2.60:1 | |||
Relevant Period ending June 30, 2011 |
2.75:1 | |||
Relevant Period ending September 30, 2011 |
2.90:1 | |||
Relevant Period ending December 31, 2011 |
3.00:1 | |||
Relevant Period ending March 31, 2012 |
3.00:1 | |||
Relevant Period ending June 30, 2012 |
3.25:1 | |||
Relevant Period ending September 30, 2012 |
3.45:1 | |||
Relevant Period ending December 31, 2012 |
3.65:1 | |||
Thereafter |
4.00:1 |
Cashflow Cover . Commencing with the Relevant Period ending June 30, 2010 and calculated as the ratio of Cashflow to Debt Service for each Relevant Period ending on a Relevant Date and may not be less than 1.00:1.
Events of Default
The Revolving Credit Facility contains customary events of default, including a cross default with respect to an Event of Default under the Indenture relating to the Notes (as defined below), the occurrence of which would allow the lenders to accelerate all outstanding loans and terminate their commitments and declare that cash cover in respect of ancillary facilities is immediately due and payable, subject in certain cases to agreed grace periods, thresholds and other qualifications.
Governing Law
The Revolving Credit Facility is governed by English law.
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9.50% Senior Secured Notes due 2017
General
We issued 200 million 9.50% Senior Secured Notes (the Original Notes) under an indenture (the Indenture), dated February 12, 2010, among ourselves, the subsidiary guarantors named therein (the Guarantors), The Bank of New York Mellon, London Branch, as trustee (Trustee), principal paying agent and transfer agent and The Bank of New York Mellon (Luxembourg) S.A., as registrar and Luxembourg Paying Agent. On November 11, 2010, we issued 60 million 9.50% Senior Secured Notes due 2017 as additional notes (the Additional Notes and together with the Original Notes, the Notes) under the Indenture.
Capitalized terms used but not otherwise defined in the following summary have the meanings assigned to them in the Indenture.
The Notes:
(a) | are general secured obligations; |
(b) | mature on February 12, 2017; |
(c) | rank equally in right of payment with all of our existing and future debt that is not subordinated in right of payment to the Notes; |
(d) | are structurally subordinated to all existing and future debt of our wholly-owned subsidiaries that did not provide Guarantees; and |
(e) | are guaranteed on a senior basis by the Guarantors. |
Guarantees
Under the Indenture, the Guarantors jointly and severally agree to guarantee the due and punctual payment of all amounts payable under the Notes, including principal, premium, if any, and interest payable under the Notes. The Indenture requires, to the extent permitted by any applicable local laws, any Restricted Subsidiary that guarantees the Revolving Credit Facility to also provide a Guarantee of the Notes immediately following its having provided its guarantee of the Revolving Credit Facility.
The obligations of each Guarantor under its Guarantee are limited to an amount not to exceed the maximum amount that can be guaranteed by such Guarantor by law or without resulting in its obligations under its Guarantee being voidable or unenforceable under applicable laws relating to fraudulent transfer, fraudulent conveyance, corporate benefit, or under similar laws affecting the rights of creditors generally. Each Guarantor that makes a payment or distribution under its Guarantee will be entitled to contribution from any other Guarantor.
Optional Redemption
Optional Redemption prior to February 12, 2013 upon Equity Offering
At any time prior to February 12, 2013, upon not less than 30 nor more than 60 days notice, we may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes at a redemption price of 109.5% of their principal amount, plus accrued and unpaid interest, if any, to the redemption date, with the net proceeds from one or more Equity Offerings other than an Initial Public Offering within 6 months of the Issue Date. We may only do this, however, if:
(a) | at least 65% of the aggregate principal amount of Notes that were initially issued would remain outstanding immediately after the proposed redemption; and |
(b) | the redemption occurs within 90 days after the closing of such Equity Offering. |
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Optional Redemption prior to February 12, 2014
At any time prior to February 12, 2014, upon not less than 30 nor more than 60 days notice, we may also redeem all or part of the Notes at a redemption price equal to 100% of the principal amount thereof plus the Applicable Redemption Premium and accrued and unpaid interest to the redemption date.
Optional Redemption on or after February 12, 2014
At any time on or after February 12, 2014 and prior to maturity, upon not less than 30 nor more than 60 days notice, we may redeem all or part of the Notes. These redemptions will be in amounts of 50,000 or integral multiples of 1,000 in excess thereof at the following redemption prices (expressed as percentages of their principal amount at maturity), plus accrued and unpaid interest, if any, to the redemption date, if redeemed during the 12-month period commencing on February 12 of the years set forth below.
Year |
Redemption Price | |||
2014 |
104.750 | % | ||
2015 |
102.375 | % | ||
2016 and thereafter |
100.000 | % |
Any optional redemption or notice thereof may, at our discretion, be subject to one or more conditions precedent.
Redemption Upon Changes in Withholding Taxes
We may, at our option, redeem the Notes, in whole but not in part, at any time upon giving not less than 30 nor more than 60 days notice to the Holders, at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon, if any, to the redemption date and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if we determine in good faith that we or any Guarantor is or, on the next date on which any amount would be payable in respect of the Notes, would be obliged to pay Additional Amounts which are more than a de minimis amount in respect of the Notes pursuant to the terms and conditions thereof, which we or any Guarantor cannot avoid by the use of reasonable measures available to it (including making payment through a paying agent located in another jurisdiction) as a result of:
(a) | any change in, or amendment to, the laws or treaties (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the date of the Indenture or, if the Relevant Taxing Jurisdiction has changed since the date of the Indenture, on or after the date on which the then current Relevant Taxing Jurisdiction became the Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor person, on or after the date of assumption by the successor person of our obligations under the Indenture); or |
(b) | any change in the official application, administration, or interpretation of the laws, treaties, regulations or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment or order by a court of competent jurisdiction) on or after the date of the Indenture or, if the Relevant Taxing Jurisdiction has changed since the date of the Indenture, on or after the date on which the then current Relevant Taxing Jurisdiction became the Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor person, on or after the date of assumption by the successor person of our obligations under the Indenture) (each of the foregoing clauses (a) and (b), a Change in Tax Law). |
Notwithstanding the foregoing, we may not redeem the Notes under this provision if the Relevant Taxing Jurisdiction changes under the Indenture and we are obliged to pay Additional Amounts as a result of a Change in Tax Law of the then current Relevant Taxing Jurisdiction which, at the time the latter became the Relevant Taxing Jurisdiction under the Indenture, had been publicly announced as being or having been formally proposed.
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In the case of a Guarantor that becomes a party to the Indenture after the Issue Date or a successor person, the Change in Tax Law must become effective after the date that such entity (or another person organized or resident in the same jurisdiction) becomes a party to the Indenture. In the case of Additional Amounts required to be paid as a result of us conducting business in an Additional Taxing Jurisdiction (as defined above), the Change in Tax Law must become effective after the date we begin to conduct the business giving rise to the relevant withholding or deduction.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which we or any Guarantor would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the publication or, where relevant, mailing of any notice of redemption pursuant to the foregoing, we will deliver to the Trustee:
(a) | an Officers Certificate stating that we are entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to our right to so redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by us or any Guarantor taking reasonable measures available to it); and |
(b) | an opinion of independent tax counsel of recognized standing, qualified under the laws of the Relevant Taxing Jurisdiction and reasonably satisfactory to the Trustee to the effect that we or any Guarantor, as the case may be, is or would be obliged to pay such Additional Amounts as a result of a Change in Tax Law. |
The Trustee will accept such Officers Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.
The foregoing provisions will apply mutatis mutandis to any successor person, after such successor person becomes a party to the Indenture, with respect to a Change in Tax Law occurring after the time such successor person becomes a party to the Indenture.
Change of Control
If a Change of Control occurs at any time, then we will make an offer (a Change of Control Offer) to each holder of Notes to purchase such holders Notes, in whole or in part, in a principal amount of 50,000 or in integral multiples of 1,000 in excess thereof at a purchase price (the Change of Control Purchase Price) in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (the Change of Control Purchase Date).
Change of Control means the occurrence of any of the following events:
(a) | prior to the consummation of an Initial Public Offering, any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder or the Permitted Holders, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the voting power of our outstanding Voting Stock; |
(b) |
after the consummation of an Initial Public Offering, (i) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder or the Permitted Holders, is or becomes the beneficial owner, directly or indirectly, of more than 30% of the voting power of our outstanding Voting Stock and (ii) the Permitted Holders do not beneficially own a larger percentage of such Voting Stock than such person or group (for the purposes of this clause (b), such other person or group shall be deemed to beneficially own all Voting Stock of a specified entity directly held by a parent entity, if such other person or group becomes the beneficial owner (as defined in clause (a) above), |
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directly or indirectly, of more than 30% of the Voting Stock of such parent entity and the Permitted Holders do not beneficially own more than 30% of the Voting Stock of such parent entity); |
(c) | the merger or consolidation of us with or into another Person or the merger of another Person with or into us, or the sale of all or substantially all of our assets (determined on a consolidated basis) to another Person other than (i) a transaction in which the survivor or transferee is a Person that is controlled by a Permitted Holder or (ii) a transaction following which (A) in the case of a merger or consolidation transaction, holders of securities that represented 100% of our Voting Stock immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction and in substantially the same proportion as before the transaction and (B) in the case of a sale of assets transaction, each transferee becomes an obligor in respect of the Notes and a Subsidiary of the transferor of such assets; or |
(d) | during any consecutive two-year period following the completion of the Initial Public Offering, individuals who at the beginning of such period constituted our Board (together with any new members whose election to such Board, or whose nomination for election by our shareholders, was approved by a vote of at least a majority of the members of our Board then still in office who were either members at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of our Board then in office. |
Events of Default
The Notes contain customary events of default including, without limitation: (a) default for 30 days in the payment when due of any interest or any Additional Amounts on any Note; (b) default in the payment of the principal of or premium, if any, on any Note at its Maturity (upon acceleration, optional or mandatory redemption, if any, required repurchase or otherwise); (c) failure to make or consummate an Excess Proceeds Offer in accordance with the provisions of the Indenture; (d) failure to make or consummate a Change of Control Offer in accordance with the provisions of the Indenture; (e) failure to comply with any covenant or agreement of ours or of any Restricted Subsidiary that is contained in the Indenture or any Guarantee, subject to certain exceptions, and such failure continues for a period of 30 days or more; (f) default under the terms of any instrument evidencing or securing our debt or the debt of any Restricted Subsidiary, subject to certain exceptions; (g) any Guarantee ceases to be, or shall be asserted in writing by any Guarantor, or any Person acting on behalf of any Guarantor, not to be in full force and effect or enforceable in accordance with its terms; (h) one or more of the Security Documents shall, at any time, cease to be in full force and effect or declared invalid; (i) one or more final judgments, orders or decrees (not subject to appeal and not covered by insurance) shall be rendered against the us or any restricted subsidiary either individually or in an aggregate amount, in each case in excess of 15.0 million, and either a creditor shall have commenced an enforcement proceeding upon such judgment, order or decree or there shall have been a period of 60 consecutive days or more during which a stay of enforcement of such judgment, order or decree was not (by reason of pending appeal or otherwise) in effect; and (j) the occurrence of certain events of bankruptcy, insolvency, receivership, schemes of arrangement (where any creditors are impaired) or reorganization with respect to us or any restricted subsidiary.
Covenants
The Indenture contains covenants for the benefit of the holders of the Notes that, among other things, limit our and any of our Restricted Subsidiaries ability to:
(a) | create certain liens; |
(b) | enter into certain transactions with, or for the benefit of, an affiliate; |
(c) | make certain distributions or payments; |
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(d) | engage in any business activity not authorized by the Indenture; |
(e) | sell certain kinds of assets; |
(f) | impair any security interest on the assets serving as collateral for the Notes; |
(g) | enter into any sale and leaseback transaction; |
(h) | make certain investments or other types of restricted payments; |
(i) | pay dividends and other distributions; |
(j) | designate unrestricted subsidiaries; and |
(k) | effect mergers, consolidations or sale of assets. |
Financial Covenants
In addition to the covenants listed above, the Indenture contains financial covenants which place limitations on our incurrence of debt. These covenants are listed below:
Except for certain Permitted Debt, we will not, and will not permit any Restricted Subsidiary to, create, issue, incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to Incur or, as appropriate, an Incurrence), any Debt (including any Acquired Debt); provided that the Issuer and any Guarantor will be permitted to Incur Debt (including Acquired Debt) if:
(a) | after giving effect to the Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing; |
(b) | at the time of such Incurrence and after giving effect to the Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and |
(c) | if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00. |
Intercreditor Agreement
In connection with entering into the Revolving Credit Facility, we and certain of our subsidiaries entered into an intercreditor agreement on February 12, 2010 to govern the relationships and relative priorities among: (i) the lenders under the Revolving Credit Facility (the Lenders); (ii) the Lenders, or any affiliates of the Lenders, or other persons that accede to the intercreditor agreement as counterparties to certain commodities hedging agreements (the Hedging Agreements; the Lenders or their affiliates or other persons that accede to the intercreditor agreement as counterparties to the Hedging Agreements are referred to in such capacity as the Hedge Counterparties); (iii) the holders of the Notes and (iv) intra-group creditors and debtors. In addition, the Intercreditor Agreement regulates the relationship between us and our subsidiaries, on the one hand, and our shareholders and related parties, on the other hand.
In connection with the issuance of the Additional Notes, the Trustee on behalf of the holders of the Additional Notes and each guarantor became parties to the Intercreditor Agreement and entered into an additional intercreditor agreement dated November 11, 2010 (the Additional Intercreditor Agreement). The Additional Intercreditor Agreement confirms that, as provided for in the Intercreditor Agreement, the Additional Notes contractually rank and are secured pari passu with the Original Notes with regard to security granted under the debt documents described above.
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The intercreditor agreement is referred to in this description as the Intercreditor Agreement and we and each of our subsidiaries that incurs any liability or provides any guarantee under the Revolving Credit Facility or the Indenture is referred to in this description as a Debtor and are referred to collectively as the Debtors.
The Intercreditor Agreement sets out:
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the relative ranking of certain indebtedness of the Debtors; |
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the relative ranking of certain security granted by the Debtors; |
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when payments can be made in respect of certain indebtedness of the Debtors; |
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when enforcement actions can be taken in respect of that indebtedness; |
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the terms pursuant to which that indebtedness will be subordinated upon the occurrence of certain insolvency events; |
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turnover provisions; and |
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when security and guarantees will be released to permit a sale of the Collateral. |
Unless expressly stated otherwise in the Intercreditor Agreement, the provisions of the Intercreditor Agreement will override anything in the Revolving Credit Facility or the Indenture to the contrary.
The following description is a summary of certain provisions, among others, contained in the Intercreditor Agreement and does not restate the Intercreditor Agreement.
Ranking and Priority
The Intercreditor Agreement provides, subject to the provisions in respect of permitted payments described below, that the liabilities of the Debtors in respect of the Revolving Credit Facility (the Revolving Creditor Liabilities), the Hedging Agreements (the Hedging Liabilities), the Notes (the Notes Liabilities) and certain other liabilities rank in right and priority of payment in the following order and are postponed and subordinated to any prior ranking liabilities of the Debtors as follows:
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first , the Revolving Creditor Liabilities, certain Hedging Liabilities to the extent they do not exceed 50.0 million (the Priority Hedging Liabilities) and the Notes Liabilities pari passu and without any preference between them; and |
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second , the Hedging Liabilities to the extent they are not Priority Hedging Liabilities (the Non Priority Hedging Liabilities). |
The Intercreditor Agreement also provides that certain intra-group claims are subordinated to the Revolving Credit Facility Liabilities, the Hedge Liabilities and the Notes Liabilities.
The parties to the Intercreditor Agreement agree in the Intercreditor Agreement that the security provided by the Debtors and the other parties that provides security for the Revolving Credit Facility and the Notes ranks and secures the following liabilities (but only to the extent that such security is expressed to secure those liabilities) in the following order:
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first , the fees, costs and expenses owed by the Debtors to the Senior Facility Agent and the fees, costs and expenses of, and amounts incurred by or payable to, the Trustee pari passu and without any preference between them; |
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second , the Revolving Creditor Liabilities and the Priority Hedging Liabilities pari passu and without any preference between them; |
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third , the Notes Liabilities; and |
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fourth , the Non Priority Hedging Liabilities. |
Under the Intercreditor Agreement, all proceeds from enforcement of the security are applied as provided below under Application of Proceeds.
The Intercreditor Agreement does not restrict our ability to make payments under the Notes.
Permitted Payments
The Intercreditor Agreement permits, inter alia , payments to be made by the Debtors under the Revolving Credit Facility and the Notes and does not in any way limit or restrict any payment by any Debtor in the ordinary course of business. The Intercreditor Agreement also permits payments to be made by the Debtors:
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in respect of the Hedging Liabilities (provided that no payments may be made if any scheduled payment due to a Debtor under a Hedging Agreement is due and unpaid) subject to the hedge counterparty exercising its rights to withhold payment under the Hedging Agreement: |
(a) | if the payment is a scheduled payment arising under the relevant Hedging Agreement; |
(b) | to the extent that the relevant Debtors obligation to make the payment arises as a result of, among others, the provisions in the Hedging Agreements relating to deduction or withholding for tax, default interest and expenses; |
(c) | to the extent that the relevant Debtors obligation to make the payment arises from a permitted hedge close out; and |
(d) | prior to the later of the date on which all Revolving Creditor Liabilities have been fully and finally discharged (the Revolving Facility Discharge Date) and the date on which all Notes Liabilities have been fully and finally discharged (the Notes Discharge Date), with the consent of the Majority Senior Creditors. |
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to lenders under any intra group loan agreement (together, the Intra Group Liabilities) if at the time of payment no acceleration event has occurred in respect of the Revolving Credit Facility or the Notes or if such an acceleration event occurs prior to the Senior Discharge Date, with the consent of the Majority Senior Creditors. |
For the purposes of the Intercreditor Agreement, Majority Senior Creditors are (i) while the aggregate principal amount outstanding under the Revolving Credit Facility is equal to or greater than 20.0 million, Lenders and Hedge Counterparties that are owed Priority Hedging Liabilities in accordance with the Intercreditor Agreement and to which unpaid amounts are owed (or deemed to be owed) having more than 66 2/3% of the aggregate of commitments under the Revolving Credit Facility and the Priority Hedging Liabilities at that time and (ii) at all other times, Lenders, Hedge Counterparties that are owed Priority Hedging Liabilities in accordance with the Intercreditor Agreement and to which unpaid amounts are owed (or deemed to be owed), holders of Notes having more than 50.1% of the aggregate of commitments under the Revolving Credit Facility, such Priority Hedging Liabilities and the Notes at that time.
No payments may be made on liabilities owed by us to, any shareholder, direct or indirect, of ours, any entity managed or controlled by a shareholder of ours, any person with an interest (direct or indirect) in our shares, or any joint venture, consortium, partnership or similar arrangement of which any of the foregoing is a member (other than a trading company) (Subordinated Liabilities) without, prior to the Super Senior Discharge Date, the consent of the Majority Super Senior Creditors; following the Super Senior Discharge Date but prior to the Notes Discharge Date, the consent of the Majority Senior Secured Creditors or except as expressly permitted by the Notes; and following the Senior Secured Discharge Date but prior to the Non-Priority Hedging Discharge Date, the consent of the Majority Non-Priority Creditors (as such terms are defined in the Revolving Credit Facility).
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Entitlement to Enforce
The Intercreditor Agreement provides that the Security Trustee may refrain from enforcing the security unless instructed otherwise by the Majority Senior Creditors or the Majority Non-Priority Creditors (as applicable) and subject to any specific exclusions in the Intercreditor Agreement.
Turnover
The Intercreditor Agreement provides that if at any time prior to the Notes Discharge Date the Trustee (subject to certain knowledge qualifications) or any holder of the Notes:
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receives or recovers any payment or distribution of, or on account of or in relation to, any liability owed by the Debtors which is not a permitted payment under the Intercreditor Agreement or made in accordance with the Application of Proceeds provision under the Intercreditor Agreement; |
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receives or recovers any amount by way of set off in respect of any liability owed by the Debtors which does not give effect to a permitted payment under the Intercreditor Agreement; |
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receives or recovers any amount (i) on account of or in relation to any liability owed by the Debtors after the occurrence of an acceleration event under the Revolving Credit Facility or the Indenture or as a result of the enforcement of any security or any other enforcement action against us or any of our subsidiaries (other than after the occurrence of an insolvency event in respect of us or such subsidiary), or (ii) by way of set off in respect of any liability of the Debtors after the occurrence of an acceleration event under the Revolving Credit Facility or the Indenture or as a result of the enforcement of any security; |
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receives or recovers the proceeds of any enforcement of any security except in accordance with Application of Proceeds below; or |
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(other than where set off applies) receives or recovers any distribution in cash or in kind or payment of, or on account of or in relation to, any liability owed by us or any of our subsidiaries which is not in accordance with Application of Proceeds below and which is made as a result of, or after, the occurrence of an insolvency event in respect of us or such subsidiary, |
the Trustee (subject to certain knowledge qualifications) or that holder of the Notes, as the case may be, will:
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in relation to receipts or recoveries not received or recovered by way of set off, (i) hold that amount on trust for the Security Trustee and promptly pay that amount or an amount equal to that amount to the Security Trustee for application in accordance with the terms of the Intercreditor Agreement; and (ii) promptly pay an amount equal to the amount (if any) by which receipt or recovery exceeds the relevant liabilities to the Security Trustee for application in accordance with the terms of the Intercreditor Agreement; and |
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in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Security Trustee for application in accordance with the terms of the Intercreditor Agreement. |
Application of Proceeds
The Intercreditor Agreement provides that amounts received by the Security Trustee pursuant to the terms of the Intercreditor Agreement, the Hedging Agreements, the Revolving Credit Facility, the security documents, the Indenture, the Notes, the guarantees of the Notes and any agreement evidencing the Intra Group Liabilities or in connection with the realization or enforcement of all or any part of the security will be applied in the following order of priority:
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first , in discharging any sums owing to the Security Trustee, any receiver or any delegate in payment to the Senior Facility Agent and the Trustee for application towards the discharge of the fees, costs and |
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expenses and other indemnification amounts owed by the Debtors to the Senior Facility Agent under the Revolving Credit Facility and the Trustee under the Indenture arising in connection with any realization or enforcement of the security taken in accordance with the terms of the Intercreditor Agreement or any action taken at the request of the Security Trustee in accordance with the Intercreditor Agreement, on a pro rata basis and ranking pari passu between them; |
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second , in payment to the Senior Facility Agent and the Hedge Counterparties for application towards the discharge of the Revolving Creditor Liabilities and the Priority Hedging Liabilities, on a pro rata basis; |
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third , in payment to the Trustee on behalf of the holders of the Notes for application in accordance with the Indenture towards the discharge of the Notes Liabilities, on a pro rata basis; |
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fourth , in payment to the Hedge Counterparties for application towards the discharge of the Non Priority Hedging Liabilities, on a pro rata basis; |
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fifth , if none of the Debtors is under any further actual or contingent liability under the Revolving Credit Facility, the Hedging Agreements or the Indenture, in payment to any person to whom the Security Trustee is obliged to pay in priority to any Debtor; and |
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sixth , the balance, if any, in payment to the relevant Debtor. |
Release of the Guarantees and the Security
The Intercreditor Agreement provides that the Security Trustee is authorized to (i) release the security created by the security documents over the relevant asset (ii) if the relevant asset consists of shares in the capital of a Debtor, to release that Debtor and any of its subsidiaries from its liabilities in its capacity as a guarantor or a borrower under the Revolving Credit Facility, the Notes and certain other liabilities and to release any security granted by that Debtor over any of its assets, (iii) if the relevant asset consists of shares in the capital of a Holding Company of a Debtor, to release that Holding Company and any of its subsidiaries from their liabilities in their capacity as a guarantor or a borrower under the Revolving Credit Facility, the Notes and certain other liabilities and to release any security granted by that subsidiary or Holding Company over any of its assets and (iv) if the relevant asset consists of shares in the capital of a Debtor or holding company of a Debtor (the Disposed Entity) and the Security Trustee decides to transfer to another Debtor (the Receiving Entity) all or any part of the Disposed Entity or obligations or any obligations of any subsidiary of that Disposed Entity in respect of liabilities owed to a Debtor or intra-group lender, transfer all or part of such obligations on behalf of the person to which they are owed and accept the transfer of those obligations on behalf of the Receiving Entity:
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at the request of the Majority Senior Creditors or of the Majority Non-Priority Creditors (as applicable) in circumstances where the security has become enforceable; |
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pursuant to the enforcement of the security; |
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in the absence of any instructions, as the Security Trustee sees fit. |
In addition, if (a) a disposal relates to an asset of a Debtor or a grantor of security or an asset which is subject to security to a person or persons outside the Group, (b) that disposal is permitted under (prior to the Revolving Facility Discharge Date) the Revolving Credit Facility and (prior to the Notes Discharge Date) the Indenture, and (c) that disposal is not a disposal being effected in the circumstances described above, the Security Trustee is irrevocably authorized (at the cost of the relevant Debtor or us and without any consent, sanction, authority or further confirmation from any other party to the Intercreditor Agreement) (i) to release the security and any other claim over that asset, (ii) where that asset consists of shares in the capital of a Debtor, to release the security and any other claim (relating to the relevant debt document) over that Debtors or that other grantors assets and (iii) to execute and deliver or enter into any release of security and any claim described in (i) and (ii) above and issue any certificates of non-crystallization of any floating charge or any consent to dealing that the Security Trustee considers to be necessary or desirable.
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Amendment
The Intercreditor Agreement provides that it may only be amended with the consent of us, the Senior Facility Agent, the Security Trustee and the Trustee unless (i) any amendments are made to cure defects, resolve ambiguities or reflect changes of a minor, technical or administrative nature, which may be made by us and the Security Trustee or (ii) any amendments are made to meet the requirements of any person proposing to act as the Senior Facility Agent or the Trustee which are customary for persons acting in such capacity, which may be made by us and the Security Trustee. Subject to the previous sentence, no amendment or waiver of the Intercreditor Agreement may impose new or additional obligations on any party to the Intercreditor Agreement without their prior written consent.
The Security Trustee may amend the terms of, waive any of the requirements of, or grant consents under, any of the security documents acting on the instructions of the Majority Senior Creditors or the Majority Non-Priority Creditors (as applicable). No such amendment, waiver or consent may affect the nature or scope of the security or the manner in which the proceeds of enforcement of the security are distributed without the consent of each of the Senior Facility Agent and the Trustee. Notwithstanding the foregoing, the prior consent of the Senior Facility Agent only is required to authorize any amendment or waiver of, or consent under, any security document that is entered into only for the benefit of the Lenders or the Hedge Counterparties to the extent they are owed Priority Hedging Liabilities.
Governing Law
The Intercreditor Agreement and the Additional Intercreditor Agreement are governed by English law.
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SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, the automatic one-to-one conversion of Preferred Shares into ordinary shares and, for these purposes, assuming the issue of the maximum number of ordinary shares to which holders of our Preferred Shares are entitled in the Preferred Shares Liquidation Price Offering, we will have outstanding ordinary shares representing approximately % of our ordinary shares in issue. All of the shares sold in this offering will be freely transferable by persons other than our affiliates without restriction or further registration under the Securities Act. Sales of substantial amounts of our shares in the public market could adversely affect prevailing market prices of our ordinary shares. Prior to this offering, there has been no public market for our ordinary shares, and while we expect our application to list our shares on the NYSE to be approved, we cannot assure you that a regular trading market will develop in the shares.
Lock-Up Agreements
We have agreed with the underwriters not to sell or transfer any ordinary shares or securities convertible into, exchangeable for, exercisable for or repayable with ordinary shares, for 150 days after the date of this Prospectus without first obtaining the written consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and Barclays Capital Inc. Our executive officers and directors and our other existing security holders and option holders have agreed with the underwriters not to sell or transfer any ordinary shares or securities convertible into, exchangeable for, exercisable for or repayable with ordinary shares, for 150 days after the date of this Prospectus without first obtaining the written consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc. Specifically, we and these other persons have agreed, with certain limited exceptions, not to directly or indirectly:
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offer, pledge, sell or contract to sell any ordinary shares, |
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sell any option or contract to purchase any ordinary shares, |
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purchase any option or contract to sell any ordinary shares, |
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grant any option, right or warrant for the sale of any ordinary shares, |
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lend or otherwise dispose of or transfer any ordinary shares, |
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request or demand that we file a registration statement related to the ordinary shares, or |
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enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any ordinary shares whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise. |
This lock-up provision applies to ordinary shares and to securities convertible into or exchangeable or exercisable for or repayable with ordinary shares or preferred shares. It also applies to ordinary shares owned now or acquired later by the person executing the agreement or for which the person executing the agreement later acquires the power of disposition.
After the expiration of the 150-day period, the ordinary shares held by our directors, executive officers or certain of our other existing shareholders and option holders may be sold subject to the restrictions under Rule 144 under the Securities Act or by means of registered public offerings.
Rule 144
Under Rule 144, a person who has beneficially owned restricted ordinary shares or warrants for at least six months would be entitled to sell their securities provided that (i) such person is not one of our affiliates at the time of, or has not been one of our affiliates at any time during the three months preceding, a sale and (ii) we are subject to the Exchange Act periodic reporting requirements for at least 90 days before the sale.
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Persons who have beneficially owned restricted ordinary shares or warrants for at least six months but who are our affiliates at the time of, or at any time during the three months preceding, a sale, would be subject to additional restrictions, by which such person would be entitled to sell:
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1% of the total number of ordinary shares then outstanding, which will equal shares immediately after this offering (or if the underwriters exercise their option to purchase additional shares); or |
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the average weekly trading volume of the shares on the New York Stock Exchange during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale; |
provided, in each case, that we are subject to the Exchange Act periodic reporting requirements for at least 90 days before the sale.
Sales under Rule 144 must be made through unsolicited brokers transactions. They are also subject to manner of sale provisions, notice requirements and the availability of current public information about us.
Rule 701
Beginning 90 days after the date of this Prospectus, persons other than affiliates who purchased ordinary shares under a written compensatory plan or contract may be entitled to sell such shares in the United States in reliance on Rule 701. Rule 701 permits affiliates to sell their Rule 701 shares under Rule 144 without complying with the holding period requirements of Rule 144. Rule 701 further provides that non-affiliates may sell these shares in reliance on Rule 144 subject only to its manner-of-sale requirements. However, the Rule 701 shares would remain subject to lock-up arrangements and would only become eligible for sale when the lock-up period expires.
As of January 7, 2011, we had granted options for depositary receipts representing an aggregate of 23,666,380 ordinary shares to our directors, officers and employees under our 2008 Plan.
Registration Rights
Upon completion of this offering, certain holders of our ordinary shares or their transferees will be entitled to request that we register their shares under the Securities Act, following the expiration of the lock-up agreements described above. See Related Party Transactions.
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Certain U.S. Federal Income Tax Considerations
In the opinion of Linklaters LLP, this section describes the material United States federal income tax consequences of the ownership and disposition of our ordinary shares as of the date hereof. This summary deals only with initial purchasers of ordinary shares that are U.S. Holders and that will hold the ordinary shares as capital assets. The discussion does not cover all aspects of U.S. federal income taxation that may be relevant to, or the actual tax effect that any of the matters described herein will have on, the acquisition, ownership or disposition of ordinary shares by particular investors, and does not address state, local, foreign or other tax laws. This summary also does not address tax considerations applicable to investors that own (directly or indirectly) 10% or more of our voting stock, nor does this summary discuss all of the tax considerations that may be relevant to certain types of investors subject to special treatment under the U.S. federal income tax laws (such as financial institutions, insurance companies, investors liable for the alternative minimum tax, individual retirement accounts and other tax-deferred accounts, tax-exempt organizations, dealers in securities or currencies, investors that will hold the ordinary shares as part of straddles, hedging transactions or conversion transactions for U.S. federal income tax purposes or investors whose functional currency is not the U.S. dollar).
As used herein, the term U.S. Holder means a beneficial owner of ordinary shares that is, for U.S. federal income tax purposes, (i) an individual citizen or resident of the United States, (ii) a corporation created or organized under the laws of the United States or any State thereof, (iii) an estate the income of which is subject to U.S. federal income tax without regard to its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust, or the trust has elected to be treated as a domestic trust for U.S. federal income tax purposes.
The U.S. federal income tax treatment of a partner in a partnership that holds ordinary shares will depend on the status of the partner and the activities of the partnership. Prospective purchasers that are partnerships should consult their tax advisers concerning the U.S. federal income tax consequences to their partners of the acquisition, ownership and disposition of ordinary shares by the partnership.
The summary assumes that we are not a passive foreign investment company, or a PFIC, for U.S. federal income tax purposes, which we believe to be the case. A foreign corporation will be a PFIC in any taxable year in which, after taking into account the income and assets of the corporation and certain subsidiaries pursuant to applicable look-through rules, either (i) at least 75% of its gross income is passive income or (ii) at least 50% of the average value of its assets is attributable to assets which produce passive income or are held for the production of passive income. Passive income for this purpose generally includes dividends, interest, royalties, rents, income from interest equivalents and notional principal contracts, foreign currency gains and certain other categories of income, subject to exceptions. Our possible status as a PFIC must be determined annually and therefore may be subject to change. We do not intend to make annual determinations of our PFIC status. If we were to be a PFIC in any year, materially adverse consequences could result for U.S. Holders.
The summary is based on the tax laws of the United States, including the Internal Revenue Code of 1986, as amended (the Code), its legislative history, existing and proposed regulations thereunder, published rulings and court decisions, as well as on the Convention between the United States of America and the Kingdom of the Netherlands for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, signed at Washington on December 18, 1992, as amended by a protocol signed at Washington on October 13, 1993 (the Treaty), all as of the date hereof and all subject to change at any time, possibly with retroactive effect.
THE SUMMARY OF U.S. FEDERAL INCOME TAX CONSEQUENCES SET OUT BELOW IS FOR GENERAL INFORMATION ONLY. ALL PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR
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TAX ADVISERS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF OWNING THE SHARES, INCLUDING THEIR ELIGIBILITY FOR THE BENEFITS OF THE TREATY, THE APPLICABILITY AND EFFECT OF STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND POSSIBLE CHANGES IN TAX LAW.
Dividends
General
Distributions paid by us out of current or accumulated earnings and profits (as determined for U.S. federal income tax purposes), before reduction for any Dutch withholding tax paid by us with respect thereto, will generally be taxable to a U.S. Holder as foreign source dividend income, and will not be eligible for the dividends received deduction allowed to corporations. Distributions in excess of current and accumulated earnings and profits will be treated as a non-taxable return of capital to the extent of the U.S. Holders basis in the ordinary shares and thereafter as capital gain. However, we do not maintain calculations of our earnings and profits in accordance with U.S. federal income tax accounting principles. U.S. Holders should therefore assume that any distribution by us with respect to shares will constitute ordinary dividend income. U.S. Holders should consult their own tax advisers with respect to the appropriate U.S. federal income tax treatment of any distribution received from us.
For taxable years that begin before 2011, dividends paid by us will generally be taxable to a non-corporate U.S. Holder at the special reduced rate normally applicable to long-term capital gains, provided we qualify for the benefits of the Treaty, which we believe to be the case. A U.S. Holder will be eligible for this reduced rate only if it has held the ordinary shares for more than 60 days during the 121-day period beginning 60 days before the ex-dividend date.
Foreign Currency Dividends
Dividends paid in euro will be included in income in a U.S. dollar amount calculated by reference to the exchange rate in effect on the day the dividends are received by the U.S. Holder, regardless of whether euro are converted into U.S. dollars at that time. The U.S. dollar value of any dividend paid to you in euro shall be determined by the person required by law to report such payments to the IRS. If dividends received in euro are converted into U.S. dollars on the day they are received, the U.S. Holder generally will not be required to recognize foreign currency gain or loss in respect of the dividend income.
Effect of Dutch Withholding Taxes
As discussed in Certain Dutch Income Tax Considerations, under current law payments of dividends by us to foreign investors are subject to a 15% Dutch withholding tax. For U.S. federal income tax purposes, U.S. Holders will be treated as having received the amount of Dutch taxes withheld by us, and as then having paid over the withheld taxes to the Dutch taxing authorities. As a result of this rule, the amount of dividend income included in gross income for U.S. federal income tax purposes by a U.S. Holder with respect to a payment of dividends may be greater than the amount of cash actually received by the U.S. Holder from us.
A U.S. Holder will generally be entitled to a credit against its U.S. federal income tax liability, or a deduction in computing its U.S. federal taxable income, for Dutch income taxes withheld by us.
For purposes of the foreign tax credit limitation, foreign source income is classified in one of two baskets, and the credit for foreign taxes on income in any basket is limited to U.S. federal income tax allocable to that income. Dividends paid by us generally will constitute foreign source income in the passive income basket, which generally includes dividends, interest, royalties, rents, income from interest equivalents and notional
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principal contracts, foreign currency gains and certain other categories of income, subject to exceptions. If a U.S. Holder receives a dividend from us that qualifies for the special reduced rate normally applicable to long-term capital gains described above under DividendsGeneral, the amount of the dividend taken into account in calculating the foreign tax credit limitation will in general be limited to the gross amount of the dividend, multiplied by the reduced rate divided by the highest rate of tax normally applicable to dividends. A U.S. Holder may be unable to claim foreign tax credits (and may instead be allowed deductions) for foreign taxes imposed on a dividend if the U.S. Holder has not held the ordinary shares for at least 16 days in the 31-day period beginning 15 days before the ex dividend date. In general, we must remit all amounts withheld as Dutch dividend withholding tax to the Dutch tax authorities. However, depending on the application of complex Dutch corporate tax rules to our particular situation, we may be entitled to retain a portion of the amount withheld, and any such portion will likely not qualify as a creditable tax for U.S. foreign tax credit purposes.
U.S. Holders that are accrual basis taxpayers, and who do not otherwise elect, must translate Dutch taxes into U.S. dollars at a rate equal to the average exchange rate for the taxable year in which the taxes accrue, while all U.S. Holders must translate taxable dividend income into U.S. dollars at the spot rate on the date received. This difference in exchange rates may reduce the U.S. dollar value of the credits for Dutch taxes relative to the U.S. Holders U.S. federal income tax liability attributable to a dividend. However, cash basis and electing accrual basis U.S. Holders must translate Dutch taxes into U.S. dollars using the exchange rate in effect on the day the taxes were paid. Any such election by an accrual basis U.S. Holder will apply for the taxable year in which it is made and all subsequent taxable years, unless revoked with the consent of the IRS.
Prospective purchasers should consult their tax advisers concerning the foreign tax credit implications of the payment of Dutch taxes and receiving a dividend from us that is eligible for the special reduced rate normally applicable to long-term capital gains described above under DividendsGeneral.
Sale or other Disposition
Upon a sale or other disposition of the ordinary shares, a U.S. Holder generally will recognize capital gain or loss for U.S. federal income tax purposes equal to the difference, if any, between the amount realized on the sale or other disposition and the U.S. Holders adjusted tax basis in the shares. A U.S. Holders tax basis in a share will generally be its U.S. dollar cost. This capital gain or loss will be long-term capital gain or loss if the U.S. Holders holding period in the ordinary shares exceeds one year. However, regardless of a U.S. Holders actual holding period, any loss may be long-term capital loss to the extent the U.S. Holder receives a dividend that qualifies for the reduced rate described above under DividendsGeneral, and exceeds 10% of the U.S. Holders basis in its shares. Any gain or loss will generally be U.S. source.
Backup Withholding and Information Reporting
The proceeds of sale or other disposition, as well as dividends and other proceeds with respect to the ordinary shares, by a U.S. paying agent or other U.S. intermediary will be reported to the IRS and to the U.S. Holder as may be required under applicable regulations. Backup withholding may apply to these payments if the U.S. Holder fails to provide an accurate taxpayer identification number or certification of exempt status or fails to report all interest and dividends required to be shown on its U.S. federal income tax returns. Certain U.S. Holders (including, among others, corporations) are not subject to backup withholding. U.S. Holders should consult their tax advisers as to their qualification for exemption from backup withholding and the procedure for obtaining an exemption.
The recently enacted Hiring Incentives to Restore Employment Act (the HIRE Act) imposes new reporting requirements on the holding of specified foreign financial assets (as defined in the HIRE Act), including equity of foreign entities, if the aggregate value of all of these assets exceeds $50,000. The ordinary shares are expected to constitute specified foreign financial assets subject to these requirements unless the ordinary shares are held in an account maintained by a domestic financial institution. U.S. Holders should consult their tax advisors regarding the application of the HIRE Act.
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Certain Dutch Income Tax Considerations
Introduction
In the opinion of Linklaters LLP, this section describes the material Dutch tax consequences of the ownership and disposition of our ordinary shares as of the date hereof and is intended as general information only. The following summary does not purport to be a comprehensive description of all Dutch tax considerations that could be relevant for holders of the ordinary shares. This summary is intended as general information only. Each prospective holder should consult a professional tax adviser with respect to the tax consequences of an investment in the ordinary shares. This summary is based on Dutch tax legislation and published case law in force as of the date of this Prospectus. It does not take into account any developments or amendments thereof after that date, whether or not such developments or amendments have retroactive effect.
Scope
Regardless of whether or not a holder of ordinary shares is, or is treated as being, a resident of The Netherlands, this summary does not address the Dutch tax consequences for such a holder:
(a) | having a substantial interest ( aanmerkelijk belang ) in our company (such a substantial interest is generally present if an equity stake of at least 5%, or a right to acquire such a stake, is held, in each case by reference to our companys total issued share capital, or the issued capital of a certain class of shares); |
(b) | who is a private individual and may be taxed for the purposes of Dutch income tax ( inkomstenbelasting ) as an entrepreneur ( ondernemer ) having an enterprise ( onderneming ) to which the ordinary shares are attributable, as one who earns income from miscellaneous activities ( resultaat uit overige werkzaamheden ), which include the performance of activities with respect to the ordinary shares that exceed regular, active portfolio management (normaal, actief vermogensbeheer ), or who may otherwise be taxed as one earning taxable income from work and home ( werk en woning ) with respect to benefits derived from the ordinary shares; |
(c) | which is a corporate entity, and for the purposes of Dutch corporate income tax ( vennootschapsbelasting ) and Dutch dividend tax ( dividendbelasting ), has, or is deemed to have, a participation ( deelneming ) in our company (such a participation is generally present in the case of an interest of at least 5% of our companys nominal paid-in capital); or |
(d) | which is a corporate entity and an exempt investment institution ( vrijgestelde beleggingsinstelling ) or investment institution ( beleggingsinstelling ) for the purposes of Dutch corporate income tax, a pension fund, or otherwise not a taxpayer or exempt for tax purposes. |
Dividend tax
Withholding requirement
We are required to withhold 15% Dutch dividend tax in respect of proceeds from the ordinary shares, which include:
(a) | proceeds in cash or in kind, including deemed and constructive proceeds; |
(b) | liquidation proceeds, proceeds on redemption of the ordinary shares and, as a rule, the consideration for the repurchase of ordinary shares by our company in excess of its average paid-in capital ( gestort kapitaal ) as recognized for Dutch dividend tax purposes, unless a particular statutory exemption applies; |
(c) | the par value of the ordinary shares issued to a holder, or an increase in the par value of the ordinary shares, except when the (increase in the) par value of the ordinary shares is funded out of our paid-in capital as recognized for Dutch dividend tax purposes; and |
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(d) | partial repayments of paid-in capital, if and to the extent there are qualifying profits ( zuivere winst ), unless the general meeting of holders of shares has resolved in advance to make such repayment and provided that the nominal value of the ordinary shares concerned has been reduced by an equal amount by way of an amendment of the articles of association and the capital concerned is recognized as paid-in capital for Dutch dividend tax purposes. |
Resident holders
If a holder of ordinary shares is, or is treated as being, a resident of The Netherlands, Dutch dividend tax which is withheld with respect to proceeds from the ordinary shares will generally be creditable for Dutch corporate income tax or Dutch income tax purposes if the holder is the beneficial owner ( uiteindelijk gerechtigde ) of the proceeds concerned.
Non-resident holders
If a holder of ordinary shares is, or is treated as being, a resident of a country other than The Netherlands, such holder is generally not entitled to claim full or partial relief at source, or a refund in whole or in part, of Dutch dividend tax with respect to proceeds from the ordinary shares.
Income tax
Resident holders
A holder who is a private individual and a resident, or treated as being a resident of The Netherlands for the purposes of Dutch income tax, must record the ordinary shares as assets that are held in box 3. Taxable income with regard to the ordinary shares is then determined on the basis of a deemed return on income from savings and investments ( sparen en beleggen ), rather than on the basis of income actually received or gains actually realized. This deemed return is fixed at a rate of 4% of the holders yield basis ( rendementsgrondslag ) on January 1 of each year, insofar as the yield basis concerned exceeds a certain threshold. Such yield basis is determined as the fair market value of certain qualifying assets held by the holder of the ordinary shares, less the fair market value of certain qualifying liabilities. The fair market value of the ordinary shares will be included as an asset in the holders yield basis. The deemed return on income from savings and investments is taxed at a rate of 30%.
Non-resident holders
A holder who is a private individual and neither a resident, nor treated as being a resident of The Netherlands for the purposes of Dutch income tax, will not be subject to such tax in respect of benefits derived from the ordinary shares.
Corporate income tax
Resident holders or holders having a Dutch permanent establishment
A holder which is a corporate entity and for the purposes of Dutch corporate income tax a resident (or treated as being a resident) of The Netherlands, or a non-resident having (or treated as having) a permanent establishment in The Netherlands, is taxed in respect of benefits derived from the ordinary shares at rates of up to 25%.
Non-resident holders
A holder which is a corporate entity and for the purposes of Dutch corporate income tax neither a resident, nor treated as being a resident, of The Netherlands, having no permanent establishment in The Netherlands (and is not treated as having such a permanent establishment), will not be subject to such tax in respect of benefits derived from the ordinary shares.
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Gift and inheritance tax
Resident holders
Dutch gift tax or inheritance tax ( schenk- of erfbelasting ) will arise in respect of an acquisition (or deemed acquisition) of the ordinary shares by way of a gift by, or on the death of, a holder of ordinary shares who is a resident, or treated as being a resident, of The Netherlands for the purposes of Dutch gift and inheritance tax. A holder is so treated as being a resident of The Netherlands, if one having Dutch nationality has been a resident of The Netherlands during the ten years preceding the relevant gift or death. A holder is further so treated as being a resident of The Netherlands, if one has been a resident of The Netherlands at any time during the twelve months preceding the time of the relevant gift.
Non-resident holders
No Dutch gift tax or inheritance tax will arise in respect of an acquisition (or deemed acquisition) of the ordinary shares by way of a gift by, or on the death of, a holder of ordinary shares who is neither a resident, nor treated as being a resident, of The Netherlands for the purposes of Dutch gift and inheritance tax.
Other taxes
No Dutch turnover tax ( omzetbelasting ) will arise in respect of any payment in consideration for the issue of the ordinary shares, with respect to a distribution of proceeds from the ordinary shares or with respect to a transfer of ordinary shares. Furthermore, no Dutch registration tax, capital tax, transfer tax or stamp duty (nor any other similar tax or duty) will be payable in connection with the issue or acquisition of the ordinary shares.
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Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and Barclays Capital Inc. are acting as joint bookrunning managers of the offering and as representatives of the underwriters named below. Subject to the terms and conditions stated in the underwriting agreement dated the date of this Prospectus, each underwriter named below has agreed, severally and not jointly, to purchase, and we and the selling shareholders have agreed to sell to that underwriter, the number of ordinary shares set forth opposite the underwriters name.
Underwriter |
Number of ordinary
shares |
|||
Merrill Lynch, Pierce, Fenner &
Smith
|
||||
Citigroup Global Markets Inc. |
||||
Barclays Capital Inc. |
||||
Jefferies & Company, Inc. |
||||
Credit Suisse Securities (USA) LLC |
||||
RBC Capital Markets Corporation |
||||
Piper Jaffray & Co. |
||||
Oppenheimer & Co. Inc. |
||||
Evercore Group L.L.C |
||||
Guggenheim Securities, LLC |
||||
ABN AMRO Bank N.V. |
||||
Total |
18,550,000 | |||
The underwriting agreement provides that the obligations of the underwriters to purchase the ordinary shares included in this offering are subject to approval of legal matters by counsel and to other conditions. The underwriters are obligated to purchase all the ordinary shares (other than those covered by the overallotment option described below) if they purchase any of the ordinary shares.
The underwriters propose to offer some of the ordinary shares directly to the public at the public offering price set forth on the cover page of this Prospectus and some of the ordinary shares to dealers at the public offering price less a concession not to exceed U.S. $ per ordinary share. If all of the ordinary shares are not sold at the initial offering price, the representatives may change the public offering price and the other selling terms. The representatives have advised us and the selling shareholders that the underwriters do not intend to make sales to discretionary accounts in excess of five percent of the total number of ordinary shares offered by them.
The selling shareholders have granted to the underwriters an option, exercisable for 30 days from the date of this Prospectus, to purchase up to 2,782,500 additional shares at the public offering price less the underwriting discount. The underwriters may exercise the option solely for the purpose of covering overallotments, if any, in connection with this offering. To the extent the option is exercised, each underwriter must purchase a number of additional shares approximately proportionate to that underwriters initial purchase commitment.
We, our executive officers and directors and our other existing security holders and option holders have agreed with the underwriters not to sell or transfer any ordinary shares or securities convertible into, exchangeable for, exercisable for, or repayable with ordinary shares, for 150 days after the date of this Prospectus. Specifically, we and these other persons have agreed, with certain limited exceptions, not to directly or indirectly:
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offer, pledge, sell or contract to sell any ordinary shares, |
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sell any option or contract to purchase any ordinary shares, |
|
purchase any option or contract to sell any ordinary shares, |
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|
grant any option, right or warrant for the sale of any ordinary shares, |
|
lend or otherwise dispose of or transfer any ordinary shares, |
|
request or demand that we file a registration statement related to the ordinary shares, or |
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enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any ordinary shares, whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise. |
This lock-up provision applies to ordinary shares and to securities convertible into or exchangeable or exercisable for or repayable with ordinary shares or preferred shares. It also applies to ordinary shares owned now or acquired later by the person executing the agreement or for which the person executing the agreement later acquires the power of disposition.
Pursuant to the underwriting agreement, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Capital Markets Inc. and Barclays Capital Inc. in their sole discretion may release us from these lock-up restrictions at any time without notice. Pursuant to the individual lock-up agreements, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Capital Markets Inc. in their sole discretion may release our executive officers, directors and our other existing security holders and option holders from these lock-up restrictions at any time without notice.
Prior to this offering, there has been no public market for the ordinary shares. Consequently, the initial public offering price for the ordinary shares was determined by negotiations among us, the selling shareholders and the representatives. Among the factors considered in determining the initial public offering price were our results of operations, our current financial condition, our future prospects, our markets, the economic conditions in and future prospects for the industry in which we compete, our management, and currently prevailing general conditions in the equity securities markets, including current market valuations of publicly traded companies considered comparable to our company. We cannot assure you, however, that the prices at which the ordinary shares will sell in the public market after this offering will not be lower than the initial public offering price or that an active trading market in our ordinary shares will develop and continue after this offering.
We intend to apply to have our ordinary shares listed on the NYSE under the symbol INXN.
The following table shows the underwriting discounts and commissions that we and the selling shareholders are to pay to the underwriters in connection with this offering. These amounts are shown assuming both no exercise and full exercise of the underwriters option to purchase additional ordinary shares.
Paid by Selling Shareholders | ||||||||||||||||
Paid by InterXion Holding N.V. | No Exercise | Full Exercise | ||||||||||||||
Per ordinary share |
$ | $ | $ | |||||||||||||
Total |
$ | $ | $ |
In connection with the offering, the underwriters may purchase and sell ordinary shares in the open market. These transactions may include short sales, syndicate covering transactions and stabilizing transactions. Short sales involve syndicate sales of ordinary shares in excess of the number of shares to be purchased by the underwriters in the offering, which creates a syndicate short position. Covered short sales are sales of ordinary shares made in an amount up to the number of shares represented by the underwriters over-allotment option. In determining the source of ordinary shares to close out the covered syndicate short position, the underwriters will consider, among other things, the price of ordinary shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. Transactions to close out the covered syndicate short involve either purchases of ordinary shares in the open market after the distribution has been completed or the exercise of the over-allotment option. The underwriters may also make naked short sales
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of ordinary shares in excess of the over-allotment option. The underwriters must close out any naked short position by purchasing ordinary shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the ordinary shares in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of bids for or purchases of ordinary shares in the open market while the offering is in progress.
The underwriters also may impose a penalty bid. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the underwriters repurchase ordinary shares originally sold by that syndicate member in order to cover syndicate short positions or make stabilizing purchases.
Any of these activities may have the effect of preventing or retarding a decline in the market price of the ordinary shares. They may also cause the price of the ordinary shares to be higher than the price that would otherwise exist in the open market in the absence of these transactions. The underwriters may conduct these transactions on the New York Stock Exchange or in the over-the-counter market, or otherwise. If the underwriters commence any of these transactions, including stabilizing transactions, they may discontinue them at any time without notice.
We estimate that our expenses of this offering, excluding underwriting discounts and commissions, will be U.S. $6.7 million. The underwriters have agreed to reimburse us for certain of our expenses in connection with the offering.
ABN AMRO Bank N.V. is not a U.S. registered broker-dealer and, therefore, to the extent that it intends to effect any sales of the ordinary shares in the United States, it will do so through one or more U.S. registered broker-dealers in accordance with the applicable U.S. securities laws and regulations, and as permitted by the Financial Industry Regulatory Authority regulations.
Some of the underwriters, including certain of the managing underwriters, perform investment banking and advisory services for us from time to time for which they have received and will continue to receive customary fees and expenses. In addition, certain underwriters and their affiliates may, from time to time, engage in transactions with or perform services for us in the ordinary course of business. Affiliates of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Barclays Capital Inc., Jefferies & Company, Inc., Credit Suisse Securities (USA) LLC and ABN AMRO Bank N.V. are lenders under our revolving credit facility.
A prospectus in electronic format may be made available on the websites maintained by one or more of the underwriters. The representatives may agree to allocate a number of ordinary shares to underwriters for sale to their online brokerage account holders. The representatives will allocate ordinary shares to underwriters that may make Internet distributions on the same basis as other allocations. In addition, ordinary shares may be sold by the underwriters to securities dealers who resell shares to online brokerage account holders.
We and the selling shareholders have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act or to contribute to payments the underwriters may be required to make because of any of those liabilities.
Notice To Prospective Investors In The European Economic Area
In relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), including each Relevant Member State that has implemented the 2010 PD Amending Directive with regard to persons to whom an offer of securities is addressed and the denomination per unit of the offer of securities (each, an Early Implementing Member State), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the
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Relevant Implementation Date), no offer of ordinary shares will be made to the public in that Relevant Member State (other than offers (the Permitted Public Offers) where a prospectus will be published in relation to the ordinary shares that has been approved by the competent authority in a Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive), except that with effect from and including that Relevant Implementation Date, offers of ordinary shares may be made to the public in that Relevant Member State at any time:
(a) | to qualified investors as defined in the Prospectus Directive, including: |
(A) | (in the case of Relevant Member States other than Early Implementing Member States), legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities, or any legal entity which has two or more of (i) an average of at least 250 employees during the last financial year; (ii) a total balance sheet of more than 43.0 million and (iii) an annual turnover of more than 50.0 million as shown in its last annual or consolidated accounts; or |
(B) | (in the case of Early Implementing Member States), persons or entities that are described in points (1) to (4) of Section I of Annex II to Directive 2004/39/EC, and those who are treated on request as professional clients in accordance with Annex II to Directive 2004/39/EC, or recognized as eligible counterparties in accordance with Article 24 of Directive 2004/39/EC unless they have requested that they be treated as non-professional clients; or |
(b) | to fewer than 100 (or, in the case of Early Implementing Member States, 150) natural or legal persons (other than qualified investors as defined in the Prospectus Directive) ,as permitted in the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or |
(c) | in any other circumstances falling within Article 3(2) of the Prospectus Directive, |
provided that no such offer of ordinary shares shall result in a requirement for the publication of a prospectus pursuant to Article 3 of the Prospectus Directive or of a supplement to a prospectus pursuant to Article 16 of the Prospectus Directive.
Each person in a Relevant Member State (other than a Relevant Member State where there is a Permitted Public Offer) who initially acquires any ordinary shares or to whom any offer is made will be deemed to have represented, acknowledged and agreed that (A) it is a qualified investor, and (B) in the case of any ordinary shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (x) the ordinary shares acquired by it in the offering have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than qualified investors as defined in the Prospectus Directive, or in circumstances in which the prior consent of the Subscribers has been given to the offer or resale, or (y) where ordinary shares have been acquired by it on behalf of persons in any Relevant Member State other than qualified investors as defined in the Prospectus Directive, the offer of those ordinary shares to it is not treated under the Prospectus Directive as having been made to such persons.
For the purpose of the above provisions, the expression an offer to the public in relation to any ordinary shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer of any ordinary shares to be offered so as to enable an investor to decide to purchase any ordinary shares, as the same may be varied in the Relevant Member State by any measure implementing the Prospectus Directive in the Relevant Member State and the expression Prospectus Directive means Directive 2003/71 EC (including the 2010 PD Amending Directive, in the case of Early Implementing Member States) and includes any relevant implementing measure in each Relevant Member State and the expression 2010 PD Amending Directive means Directive 2010/73/EU.
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Notice to Prospective Investors in the United Kingdom
This Prospectus is only being distributed to, and is only directed at, persons in the United Kingdom that are qualified investors within the meaning of Article 2(1)(e) of the Prospectus Directive that are also (i) investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the Order) or (ii) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (each such person being referred to as a relevant person). This Prospectus and its contents are confidential and should not be distributed, published or reproduced (in whole or in part) or disclosed by recipients to any other persons in the United Kingdom. Any person in the United Kingdom that is not a relevant person should not act or rely on this Prospectus or any of its contents.
Notice to Prospective Investors in France
Neither this Prospectus nor any other offering material relating to the ordinary shares described in this Prospectus has been approved, registered or filed with the Autorité des Marchés Financiers (the AMF) or of the competent authority of another member state of the European Economic Area and notified to the AMF. Consequently, the ordinary shares have not been offered or sold and will not be offered or sold, directly or indirectly, to the public in France. Neither this Prospectus nor any other offering material relating to the ordinary shares has been or will be:
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released, issued, distributed or caused to be released, issued or distributed to the public in France; or |
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used in connection with any offer for subscription or sale of the ordinary shares to the public in France. |
Such offers, sales and distributions will be made in France only:
|
to qualified investors ( investisseurs qualifiés ) and/or to a restricted circle of investors ( cercle restreint dinvestisseurs ), in each case investing for their own account, all as defined in, and in accordance with articles L.411-2, D.411-1, D.411-2, D.734-1, D.744-1, D.754-1 and D.764-1 of the French Code monétaire et financier ; and/or |
|
to investment services providers authorized to engage in portfolio management on behalf of third parties. |
The ordinary shares may be resold directly or indirectly in France, only in compliance with applicable laws and regulations and in particular those relating to a public offering (which are embodied in articles L.411-1, L.411-2, L.412-1 and L.621-8 through L.621-8-3 of the French Code monétaire et financier ).
Notice to Prospective Investors in Hong Kong
The ordinary shares may not be offered or sold in Hong Kong by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), or (ii) to professional investors within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a prospectus within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong) and no advertisement, invitation or document relating to the ordinary shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to ordinary shares which are or are intended to be disposed of only to persons outside Hong Kong or only to professional investors within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.
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Notice to Prospective Investors in Japan
The ordinary shares offered in this Prospectus have not been registered under the Financial Instruments and Exchange Law of Japan. The ordinary shares have not been offered or sold and will not be offered or sold, directly or indirectly, in Japan or to or for the account of any resident of Japan, except (i) pursuant to an exemption from the registration requirements of the Financial Instruments and Exchange Law of Japan and (ii) in compliance with any other applicable requirements of Japanese law.
Notice to Prospective Investors in Singapore
This Prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this Prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the ordinary shares may not be circulated or distributed, nor may the ordinary shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the SFA), (ii) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to compliance with conditions set forth in the SFA.
Where the ordinary shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is:
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a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or |
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a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor, |
shares, debentures and units of shares and debentures of that corporation or the beneficiaries rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the ordinary shares pursuant to an offer made under Section 275 of the SFA except:
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to an institutional investor (for corporations, under Section 274 of the SFA) or to a relevant person defined in Section 275(2) of the SFA, or to any person pursuant to an offer that is made on terms that such shares, debentures and units of shares and debentures of that corporation or such rights and interest in that trust are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or other assets, and further for corporations, in accordance with the conditions specified in Section 275 of the SFA; |
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where no consideration is or will be given for the transfer; or |
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where the transfer is by operation of law. |
Notice to Prospective Investors in Switzerland
This document, as well as any other material relating to the ordinary shares which are the subject of the offering contemplated by this Prospectus, do not constitute an issue prospectus pursuant to Article 652a of the Swiss Code of Obligations. The ordinary shares will not be listed on the SWX Swiss Exchange and, therefore, the documents relating to the ordinary shares including, but not limited to, this document, do not claim to comply with the disclosure standards of the listing rules of SWX Swiss Exchange and corresponding prospectus schemes annexed to the listing rules of the SWX Swiss Exchange. The ordinary shares are being offered in Switzerland by way of a private placement, i.e. to a small number of selected investors only, without any public offer and only to
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investors who do not purchase the ordinary shares with the intention to distribute them to the public. The investors will be individually approached by us from time to time. This document, as well as any other material relating to the ordinary shares, is personal and confidential and do not constitute an offer to any other person. This document may only be used by those investors to whom it has been handed out in connection with the offering described herein and may neither directly nor indirectly be distributed or made available to other persons without our express consent. It may not be used in connection with any other offer and shall in particular not be copied and/or distributed to the public in (or from) Switzerland.
Notice to Prospective Investors in the Dubai International Financial Centre
This document relates to an exempt offer in accordance with the Offered Securities Rules of the Dubai Financial Services Authority. This document is intended for distribution only to persons of a type specified in those rules. It must not be delivered to, or relied on by, any other person. The Dubai Financial Services Authority has no responsibility for reviewing or verifying any documents in connection with exempt offers. The Dubai Financial Services Authority has not approved this document nor taken steps to verify the information set out in it, and has no responsibility for it. The ordinary shares which are the subject of the offering contemplated by this Prospectus may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the ordinary shares offered should conduct their own due diligence on the ordinary shares. If you do not understand the contents of this document you should consult an authorized financial adviser.
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We estimate that our expenses in connection with this offering, other than underwriting discounts and commissions, will be as follows:
Total underwriting discounts and commissions to be paid to the underwriters represent 6.25% of the total amount of the offering.
Itemized Expense |
Amount
(U.S. $) |
|||
U.S. Securities and Exchange Commission registration fee |
37,733 | |||
NYSE listing fee |
160,000 | |||
FINRA filing fee |
40,500 | |||
Printing expenses |
250,000 | |||
Legal fees and expenses |
3,225,000 | |||
Accounting fees and expenses |
1,400,000 | |||
Miscellaneous costs |
1,600,000 |
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ENFORCEABILITY OF CIVIL LIABILITIES
We are a limited liability company ( naamloze vennootschap ) incorporated under the laws of The Netherlands. A majority of our directors and officers and certain other persons named in this Prospectus reside outside the United States and all or a significant portion of the assets of the directors and officers and certain other persons named in this Prospectus and substantially all of our assets are located outside the United States. As a result, it may not be possible for you to effect service of process within the United States upon such persons or us, or to enforce against them or against us judgments obtained in U.S. courts, including judgments predicated upon civil liability of us or such persons under U.S. securities laws, against us or any such person in the courts of a foreign jurisdiction.
The United States and The Netherlands currently do not have a treaty providing for the reciprocal recognition and enforcement of judgments (other than arbitration awards) in civil and commercial matters. Consequently, a final and conclusive judgment for the payment of money rendered by any federal or state court in the United States which is enforceable in the United States, whether or not predicated solely upon U.S. federal securities laws, would not automatically be recognized or enforceable in The Netherlands. In order to obtain a judgment which is enforceable in The Netherlands, the party in whose favor a final and conclusive judgment of the U.S. court has been rendered will be required to file its claim with a court of competent jurisdiction in The Netherlands. Such party may submit to the Dutch court the final judgment rendered by the U.S. court. If and to the extent that the Dutch court finds that the jurisdiction of the U.S. court has been based on grounds which are internationally acceptable and that proper legal procedures have been observed, the court of The Netherlands will, in principle, give binding effect to the judgment of the court of the United States, unless such judgment contravenes principles of public policy of The Netherlands. The enforcement in a Dutch court of judgments rendered by a court in the United States is subject to Dutch rules of civil procedure.
Subject to the foregoing and service of process in accordance with applicable treaties, investors may be able to enforce in The Netherlands judgments in civil and commercial matters obtained from U.S. federal or state courts. However, no assurance can be given that those judgments will be enforceable. In addition, it is doubtful whether a Dutch court would accept jurisdiction and impose civil liability in an original action commenced in The Netherlands and predicated solely upon U.S. federal securities laws.
We have appointed CT Corporation System, located at 111 Eighth Avenue, New York, New York 10011, United States, as our agent to receive service of process with respect to any action brought against us in the United States District Court for the Southern District of New York under the federal securities laws of the United States or of any State of the United States or any action brought against us in the Supreme Court of the State of New York in the County of New York under the securities laws of the State of New York.
134
Certain legal matters in connection with the offering will be passed upon for us by Linklaters LLP, our U.S. and Dutch counsel. Certain legal matters in connection with the offering will be passed upon for the Underwriters by Shearman & Sterling LLP, U.S. counsel to the Underwriters and Van Doorne N.V., Dutch counsel to the Underwriters.
135
The consolidated financial statements of InterXion Holding N.V. as of December 31, 2009, 2008 and 2007, and for each of the years in the three-year period ended December 31, 2009, have been included herein and in the registration statement in reliance upon the report of KPMG Accountants N.V., independent registered public accounting firm, appearing elsewhere herein, and upon the authority of said firm as experts in accounting and auditing.
136
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form F-1 under the Securities Act with respect to the ordinary shares offered in this Prospectus. This Prospectus is a part of the registration statement and does not contain all of the information set forth in the registration statement. The rules and regulations of the SEC allow us to omit from this Prospectus certain information included in the registration statement. For further information about us and our ordinary shares, you should refer to the registration statement. This Prospectus summarizes material provisions of contracts and other documents. Since the Prospectus may not contain all of the information that you may find important, you should review the full text of these contracts and other documents. We have included copies of these documents as exhibits to our registration statement.
We intend to provide our shareholders with annual reports on Form 20-F containing financial statements audited by our independent auditors. Upon completion of this offering, we will be required to file periodic reports and other information with the SEC pursuant to the Exchange Act. Our annual report on Form 20-F for the fiscal year ended December 31, 2010 will be due six months following the end of 2010; however, for fiscal years ending on or after December 31, 2011, we will be required to file our annual reports on Form 20-F within 120 days after the end of each fiscal year.
For further information about us and our ordinary shares, you may inspect a copy of the registration statement, of the exhibits and schedules to the registration statement or of any reports, statements or other information we file with the SEC without charge at the offices of the SEC at 100 F Street, N.E., Washington, D.C. 20549, United States. You may obtain copies of all or any part of the registration statement from the Public Reference Section of the SEC, 100 F Street, N.E., Washington, D.C. 20549, United States, upon the payment of the prescribed fees. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains a website at www.sec.gov that contains reports and information statements and other information regarding registrants like us that file electronically with the SEC. You can also inspect our registration statement on this website. Our filings with the SEC are available through the electronic data gathering, analysis and retrieval (EDGAR) system of the SEC.
137
Audited financial statements of InterXion Holding N.V. as of and for the years ended December 31, 2009, 2008 and 2007 |
||||
F-2 | ||||
F-3 | ||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-6 | ||||
F-7 | ||||
Unaudited interim financial statements of InterXion Holding N.V. as of and for the quarters and nine months ended September 30, 2010 and 2009 |
||||
F-44 | ||||
F-44 | ||||
F-45 | ||||
Consolidated Interim Statement of Changes in Shareholders Equity |
F-46 | |||
F-47 | ||||
F-48 |
F-1
Report of Independent Registered Public Accounting Firm
The Supervisory Board, Board of Management and Shareholders of InterXion Holding N.V.
We have audited the accompanying consolidated balance sheets of InterXion Holding N.V. and subsidiaries as of December 31, 2009, 2008 and 2007, and the related consolidated statements of income, comprehensive income, changes in shareholders equity and cash flows for each of the years in the three-year period ended December 31, 2009. These consolidated financial statements are the responsibility of the Companys management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of InterXion Holding N.V. and subsidiaries as of December 31, 2009, 2008 and 2007, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2009, in conformity with International Financial Reporting Standards, as issued by the International Accounting Standards Board.
/s/ KPMG ACCOUNTANTS N.V.
Amstelveen
March 24, 2010
F-2
For the years ended December 31 | ||||||||||||||||
Note | 2009 | 2008 | 2007 | |||||||||||||
(000) | ||||||||||||||||
Revenue |
5 | 171,668 | 138,180 | 100,450 | ||||||||||||
Cost of sales |
5,6 | (78,548 | ) | (63,069 | ) | (51,998 | ) | |||||||||
Gross profit |
93,120 | 75,111 | 48,452 | |||||||||||||
Other income |
5 | 746 | 2,291 | 988 | ||||||||||||
Sales and marketing costs |
5,6 | (11,253 | ) | (9,862 | ) | (7,297 | ) | |||||||||
General and administrative costs |
5,6,9 | (50,628 | ) | (35,352 | ) | (34,837 | ) | |||||||||
Operating profit |
5 | 31,985 | 32,188 | 7,306 | ||||||||||||
Finance income |
7 | 536 | 1,166 | 387 | ||||||||||||
Finance expense |
7 | (6,784 | ) | (4,879 | ) | (4,513 | ) | |||||||||
Profit before taxation |
25,737 | 28,475 | 3,180 | |||||||||||||
Income tax benefit |
8 | 715 | 8,899 | 10,405 | ||||||||||||
Profit for the year attributable to shareholders |
26,452 | 37,374 | 13,585 | |||||||||||||
Basic earnings per share:() |
14 | 0.12 | 0.17 | 0.06 | ||||||||||||
Diluted earnings per share:() |
14 | 0.11 | 0.16 | 0.06 |
Consolidated Statement of Comprehensive Income
For the years ended December 31 | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Profit for the year attributable to shareholders |
26,452 | 37,374 | 13,585 | |||||||||
Foreign currency translation differences |
1,347 | (4,322 | ) | 1,666 | ||||||||
Total comprehensive income |
27,799 | 33,052 | 15,251 | |||||||||
The accompanying notes form an integral part of these consolidated financial statements.
F-3
As at December 31 | ||||||||||||||||
Note | 2009 | 2008 | 2007 | |||||||||||||
(000) | ||||||||||||||||
Non-current assets |
||||||||||||||||
Property, plant and equipment |
9 | 275,960 | 208,206 | 113,174 | ||||||||||||
Intangible assets |
10 | 3,642 | 2,801 | 1,879 | ||||||||||||
Deferred tax assets |
8 | 39,585 | 38,204 | 28,965 | ||||||||||||
Other non-current assets |
11 | 1,220 | 1,096 | 998 | ||||||||||||
320,407 | 250,307 | 145,016 | ||||||||||||||
Current assets |
||||||||||||||||
Trade and other current assets |
11 | 55,610 | 49,874 | 29,313 | ||||||||||||
Cash and cash equivalents |
12 | 32,003 | 61,775 | 35,848 | ||||||||||||
87,613 | 111,649 | 65,161 | ||||||||||||||
Total assets |
408,020 | 361,956 | 210,177 | |||||||||||||
Shareholders equity |
||||||||||||||||
Share capital |
13 | 4,434 | 4,364 | 4,274 | ||||||||||||
Share premium |
13 | 319,388 | 317,806 | 315,180 | ||||||||||||
Foreign currency translation reserve |
13 | 413 | (934 | ) | 3,388 | |||||||||||
Accumulated deficit |
13 | (189,858 | ) | (216,310 | ) | (253,684 | ) | |||||||||
134,377 | 104,926 | 69,158 | ||||||||||||||
Non-current liabilities |
||||||||||||||||
Trade and other payables |
15 | 8,227 | 8,957 | 6,614 | ||||||||||||
Provision for onerous lease contracts |
16 | 15,844 | 18,367 | 20,716 | ||||||||||||
Borrowings |
17 | 128,678 | 107,384 | 39,418 | ||||||||||||
152,749 | 134,708 | 66,748 | ||||||||||||||
Current liabilities |
||||||||||||||||
Trade and other payables |
15 | 91,029 | 93,946 | 59,360 | ||||||||||||
Current tax liabilities |
376 | 128 | 128 | |||||||||||||
Provision for onerous lease contracts |
16 | 3,068 | 4,545 | 4,115 | ||||||||||||
Borrowings |
17 | 26,421 | 23,703 | 10,668 | ||||||||||||
120,894 | 122,322 | 74,271 | ||||||||||||||
Total liabilities |
273,643 | 257,030 | 141,019 | |||||||||||||
Total liabilities and shareholders equity |
408,020 | 361,956 | 210,177 | |||||||||||||
The accompanying notes form an integral part of these consolidated financial statements.
F-4
Consolidated Statement of Changes in Shareholders Equity
Note |
Share
capital |
Share
premium |
Foreign
currency translation reserve |
Accumulated
deficit |
Total
equity |
|||||||||||||||||||
(000) | ||||||||||||||||||||||||
Balance at January 1, 2009 |
4,364 | 317,806 | (934 | ) | (216,310 | ) | 104,926 | |||||||||||||||||
Total comprehensive income |
| | 1,347 | 26,452 | 27,799 | |||||||||||||||||||
Exercise of options |
70 | 632 | | | 702 | |||||||||||||||||||
Share-based payments |
19 | | 950 | | | 950 | ||||||||||||||||||
Balance at December 31, 2009 |
4,434 | 319,388 | 413 | (189,858 | ) | 134,377 | ||||||||||||||||||
Balance at January 1, 2008 |
4,274 | 315,180 | 3,388 | (253,684 | ) | 69,158 | ||||||||||||||||||
Total comprehensive income |
| | (4,322 | ) | 37,374 | 33,052 | ||||||||||||||||||
Exercise of options |
90 | 966 | | | 1,056 | |||||||||||||||||||
Share-based payments |
19 | | 1,660 | | | 1,660 | ||||||||||||||||||
Balance at December 31, 2008 |
4,364 | 317,806 | (934 | ) | (216,310 | ) | 104,926 | |||||||||||||||||
Balance at January 1, 2007 |
2,817 | 300,672 | 1,722 | (267,269 | ) | 37,942 | ||||||||||||||||||
Total comprehensive income |
| | 1,666 | 13,585 | 15,251 | |||||||||||||||||||
Issue of preference shares |
1,457 | 13,109 | | | 14,566 | |||||||||||||||||||
Share-based payments |
19 | | 1,399 | | | 1,399 | ||||||||||||||||||
Balance at December 31, 2007 |
4,274 | 315,180 | 3,388 | (253,684 | ) | 69,158 | ||||||||||||||||||
The accompanying notes form an integral part of these consolidated financial statements.
F-5
Consolidated Statement of Cash Flows
For the years ended December 31 | ||||||||||||||||
Note | 2009 | 2008 | 2007 | |||||||||||||
(000) | ||||||||||||||||
Profit for the year |
26,452 | 37,374 | 13,585 | |||||||||||||
Depreciation and amortization |
9 | 21,960 | 15,083 | 9,772 | ||||||||||||
Impairments |
9 | | 489 | 1,885 | ||||||||||||
Provision for onerous lease contracts |
16 | 950 | (1,919 | ) | 4,097 | |||||||||||
Share-based payments |
19 | 950 | 1,660 | 1,399 | ||||||||||||
Abandoned transaction costs |
5 | 4,841 | | | ||||||||||||
Net finance expense |
6,248 | 3,713 | 4,126 | |||||||||||||
Income tax expense |
8 | (715 | ) | (8,899 | ) | (10,405 | ) | |||||||||
Interest paid |
(7,373 | ) | (4,194 | ) | (1,878 | ) | ||||||||||
Interest received |
583 | 1,001 | 387 | |||||||||||||
Income tax paid |
(418 | ) | (340 | ) | (306 | ) | ||||||||||
Net cash flows from operating activities before changes in working capital |
53,478 | 43,968 | 22,662 | |||||||||||||
Movements in trade and other current assets |
(11,151 | ) | (18,421 | ) | (8,717 | ) | ||||||||||
Movements in trade and other payables |
9,051 | 10,444 | 10,811 | |||||||||||||
Net cash flows from changes in working capital |
(2,100 | ) | (7,977 | ) | 2,094 | |||||||||||
Net cash flows from operating activities |
51,378 | 35,991 | 24,756 | |||||||||||||
Cash flow from investing activities |
||||||||||||||||
Purchase of property, plant and equipment |
(99,979 | ) | (91,123 | ) | (48,838 | ) | ||||||||||
Disposal of property, plant and equipment |
104 | | | |||||||||||||
Purchase of intangible assets |
(1,074 | ) | (1,129 | ) | (710 | ) | ||||||||||
Net cash flows from investing activities |
(100,949 | ) | (92,252 | ) | (49,548 | ) | ||||||||||
Cash flow from financing activities |
||||||||||||||||
Proceeds from exercised options |
702 | 1,056 | | |||||||||||||
Borrowings |
19,062 | 81,001 | 45,419 | |||||||||||||
Net cash flows from financing activities |
19,764 | 82,057 | 45,419 | |||||||||||||
Effect of exchange rate changes on cash |
35 | 131 | 179 | |||||||||||||
Net movement in cash and cash equivalents |
(29,772 | ) | 25,927 | 20,806 | ||||||||||||
Cash and cash equivalents, beginning of year |
61,775 | 35,848 | 15,042 | |||||||||||||
Cash and cash equivalents, end of year |
12 | 32,003 | 61,775 | 35,848 | ||||||||||||
The accompanying notes form an integral part of these consolidated financial statements.
F-6
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS
1 The Company
InterXion Holding N.V. (the Company) is domiciled in The Netherlands. The address of the Companys registered office is Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands. The consolidated financial statements of the Company for the year ended December 31, 2009 comprise the Company and its subsidiaries (together referred to as the Group). The Group is a leading pan-European operator of carrier-neutral Internet data centers.
The financial statements were authorized for issuance by the Management Board and approved by the Supervisory Board on March 24, 2010. The financial statements are subject to approval by the General Meeting of Shareholders.
2 Basis of preparation
Statement of compliance
The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (IFRS) effective as at December 31, 2009 as issued by the Internal Accounting Standards Board (IASB).
New and amended standards adopted by the Group
The adoption as of January 1, 2009 by the Group of the following new and amended standards did not have a material impact on the financial position or performance of the Group.
IFRS 8 Operating Segments replaces IAS 14 Segment reporting. Following a review of the Groups internal management information, the previously reported operating segments: Germany, France, the Netherlands and the United Kingdom, and the Rest of Europe, remain appropriate.
Basis of measurement
The Group presents its consolidated financial statements in thousands of Euros. They are prepared on a going concern basis and under the historical cost convention except for certain financial instruments. The Companys functional currency is the Euro.
The accounting policies set out below have been applied consistently by the Group entities and to all periods presented in these consolidated financial statements.
Use of estimates and judgments
The preparation of financial statements in conformity with IFRS requires management to make judgments, estimates and assumptions that affect the application of accounting policies and the reported amounts of assets,
F-7
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
liabilities, income and expenses. Actual results may differ from these estimates. Estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to accounting estimates are recognized in the period in which the estimates are revised and in any future periods affected.
In particular, information about significant areas of estimation uncertainty and critical judgments in applying accounting policies that have the most significant effect on amounts recognized in the financial statements are discussed below:
Property, plant and equipment depreciation Estimated remaining useful lives and residual values are reviewed annually. The carrying values of property, plant and equipment are also reviewed for impairment where there has been a triggering event by assessing the present value of estimated future cash flows and net realizable value compared with net book value. The calculation of estimated future cash flows and residual values is based on the Companys best estimates of future prices, output and costs and is therefore subjective.
Costs of site restoration Liabilities in respect of obligations to restore premises to their original condition are estimated at the commencement of the lease. The actual cost of these may be different depending upon whether the Group renews the lease.
Provision for onerous lease contracts A provision is made for the discounted amount of future losses expected to be incurred in respect of unused data center sites over the term of the leases. Where unused sites have been sublet or partly sublet, management has taken account of the contracted rental income to be received over the minimum sublease term, which meets the Groups revenue recognition criteria in arriving at the amount of future losses.
Deferred taxation Provision is made for deferred taxation at the rates of tax prevailing at the period-end dates unless future rates have been substantively enacted. Deferred tax assets are recognized where it is probable that they will be recovered based on estimates of future taxable profits for each tax jurisdiction. The actual profitability may be different depending upon local financial performance in each tax jurisdiction.
3 Significant accounting policies
The consolidated financial statements incorporate the financial statements of the Company and all entities in which a direct or indirect controlling interest exists. Subsidiaries are entities that are directly or indirectly controlled by the Group. Control exists when the Group has the power to govern the financial and operating policies of an entity so as to obtain benefits from its activities.
Intercompany balances and transactions, and any unrealized income and expenses arising from intercompany transactions, are eliminated in preparing the consolidated financial statements.
Accounting policies used by subsidiaries for group reporting purposes are identical to the accounting policies of the Group.
With the exception of Stichting Administratiekantoor Management InterXion, all of the subsidiary undertakings of the Group as set out below are wholly owned. Unless otherwise stated, ownership is of ordinary shares.
|
InterXion HeadQuarters B.V., Amsterdam, the Netherlands; |
|
InterXion Nederland B.V., Amsterdam, the Netherlands; |
|
InterXion Trademarks B.V., Amsterdam, the Netherlands; |
F-8
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
|
InterXion Österreich GmbH, Vienna, Austria; |
|
InterXion Belgium N.V., Brussels, Belgium; |
|
InterXion Denmark ApS, Copenhagen, Denmark; |
|
InterXion France SARL, Paris, France; |
|
InterXion Deutschland GmbH, Frankfurt, Germany; |
|
InterXion Ireland Ltd, Dublin, Ireland; |
|
InterXion Telecom SRL, Milan, Italy; |
|
InterXion España SL, Madrid, Spain; |
|
InterXion Sverige AB, Stockholm, Sweden; |
|
InterXion (Schweiz) AG, Zurich, Switzerland; |
|
InterXion Carrier Hotel Ltd., London, United Kingdom; |
|
InterXion Real Estate Holding B.V. (in incorporation), Amsterdam, the Netherlands; |
|
InterXion Real Estate I B.V. (in incorporation), Amsterdam, the Netherlands; |
|
Centennium Detachering B.V., The Hague, the Netherlands (dormant); |
|
InterXion Consultancy Services B.V., Amsterdam, the Netherlands (dormant); |
|
InterXion Telecom B.V., Amsterdam, the Netherlands (dormant); |
|
InterXion Trading B.V., Amsterdam, the Netherlands (dormant); |
|
InterXion B.V., Amsterdam, the Netherlands (dormant); |
|
InterXion Europe Ltd., London, United Kingdom (dormant); |
|
InterXion Telecom Ltd., London, United Kingdom (dormant); |
|
Stichting Administratiekantoor Management InterXion, Amsterdam, the Netherlands. |
Foreign currency
The individual financial statements of each Group entity are presented in the currency of the primary economic environment in which the entity operates (its functional currency). For the purpose of the consolidated financial statements, the results and the financial position of each entity are expressed in Euros, which is the functional currency of the Company and the presentation currency for the consolidated financial statements.
In preparing the financial statements of the individual entities, transactions in foreign currencies other than the entitys functional currency are recorded at the rates of exchange prevailing at the dates of the transactions. At each balance sheet date, monetary assets and liabilities denominated in foreign currencies are retranslated at the rates prevailing at the balance sheet date. Non-monetary items that are measured in terms of historical cost in a foreign currency are not retranslated. The income and expenses of foreign operations are translated to Euros at average exchange rates.
For the purpose of presenting consolidated financial statements, the assets and liabilities of the Groups foreign operations are expressed in Euros using exchange rates prevailing at the balance sheet date. Income and expense items are translated at average exchange rates for the period. Exchange differences arising, if any, on net investments including receivables from or payables to a foreign operation for which settlement is neither planned
F-9
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
nor likely to occur, are recognized directly in the foreign currency translation reserve (FCTR) within equity. When a foreign operation is disposed of, in part or in full, the relevant amount in the FCTR is transferred to profit or loss.
Borrowing costs
Borrowing costs directly attributable to the acquisition, construction or production of qualifying assets, which are assets that necessarily take a substantial period of time to get ready for their intended use or sale, are added to the cost of those assets, until such time as the assets are substantially ready for their intended use or sale. Investment income earned on the temporary investment of specific borrowings pending their expenditure on qualifying assets is deducted from the borrowing costs eligible for capitalization. All other borrowing costs are recognized in profit or loss in the period in which they are incurred.
Derivative financial instruments
The Group enters into derivative financial instruments (interest rate swaps) to manage its exposure to interest risk. Further details of derivative financial instruments are disclosed in Note 18. Derivatives are initially recognized at fair value at the date the derivative contract is entered into and are subsequently re-measured to their fair value at the end of each reporting period. The fair value of interest rate swaps is based on broker quotes. Those quotes are tested for reasonableness by discounting estimated future cash flows based on the terms and maturity of each contract and using market interest rates for a similar instrument at the measurement date.
The resulting gain or loss is recognized in profit or loss immediately.
Compound financial instruments
Compound financial instruments issued by the Group comprise of convertible notes that can be converted to share capital at the option of the holder, and the number of shares to be issued does not vary with changes in their fair value.
The liability component of a compound financial instrument is recognized initially at the fair value of a similar liability that does not have an equity conversion option. The equity component is recognized initially at the difference between the fair value of the compound financial instrument as a whole and the fair value of the liability component. Any directly attributable transaction costs are allocated to the liability and equity components in proportion to their initial carrying amounts.
Subsequent to initial recognition, the liability component of a compound financial instrument is measured at amortized cost using the effective interest method. The equity component of a compound financial instrument is not re-measured subsequent to initial recognition.
Interest relating to the financial liability is recognized in profit or loss.
Non-derivative financial instruments
Non-derivative financial instruments comprise trade and other receivables, cash and cash equivalents, loans and borrowings, and trade and other payables.
Non-derivative financial instruments are recognized initially at fair value, net of any directly attributable transaction costs. Subsequent to initial recognition, non-derivative financial instruments are measured at amortized cost using the effective interest method, less any impairment losses.
F-10
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Property, plant and equipment
Property, plant and equipment are measured at cost less accumulated depreciation and accumulated impairment losses.
Cost includes expenditure that is directly attributable to the acquisition or construction of the asset and comprises purchase cost, together with the incidental costs of installation and commissioning. These costs include external consultancy fees, borrowing costs, rent and associated costs and internal employment costs which are directly and exclusively related to the underlying asset. Where it is probable that the underlying property lease will not be renewed, the cost of self-constructed assets includes the estimated costs of dismantling and removing the items and restoring the site on which they are located.
When parts of an item of property, plant and equipment have different useful lives, they are accounted for as separate items (major components) of property, plant and equipment.
Gains and losses on disposal of an item of property, plant and equipment are determined by comparing the proceeds from disposal with the carrying amount of property, plant and equipment and are recognized within income.
The cost of replacing part of an item of property, plant and equipment is recognized in the carrying amount of the item if it is probable that the future economic benefits embodied within the part will flow to the Group and its cost can be measured reliably. The carrying amount of the replaced part is derecognized. The costs of the day-to-day servicing of property, plant and equipment are recognized in profit or loss as incurred.
Depreciation is calculated from the date an asset becomes available for use and is written off on a straight-line basis over the estimated useful life of each part of an item of property, plant and equipment. Leased assets are depreciated on the same basis as owned assets over the shorter of the lease term and their useful lives. The principal periods used for this purpose are:
Data centers |
10 15 years | |
Office buildings |
10 15 years | |
Office equipment |
3 5 years |
Depreciation methods, useful lives and residual values are reviewed at each reporting date.
Data centers consist of leasehold improvements and equipment or infrastructure for advanced environmental controls such as ventilation and air conditioning, specialized heating, fire detection and suppression equipment and monitoring equipment. Office buildings consist of office leasehold improvements and office equipment consists of furniture, computer equipment and software.
Intangible assets
Intangible assets represent computer software and other intangible assets. Other intangible assets principally consist of power grid rights (which are initially recognized at cost less accumulated amortization and accumulated impairment losses) and lease premiums (paid in addition to obtain rental contracts).
Amortization is recognized in profit or loss on a straight-line basis over the estimated useful lives of the intangible assets, but, if applicable, no longer than the length of the lease contract. Amortization methods, useful lives and residual values are reviewed at each reporting date.
F-11
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The estimated useful lives are:
Lease premiums |
12 years | |
Power grid rights |
10 12 years | |
Computer software |
3 5 years | |
Other |
3 10 years |
Cash and cash equivalents
Cash and cash equivalents includes cash in hand, deposits held at call with banks and other short-term highly liquid investments with original maturities of three months or less.
Trade receivables
Trade receivables are recognized initially at fair value and subsequently measured at amortized cost using the effective interest method, less provision for impairment.
A provision for impairment of trade receivables is established when there is objective evidence that the Group will not be able to collect all amounts due according to the original term of the receivables. Significant financial difficulties of the debtor, probability that the debtor will enter bankruptcy or financial reorganization, and default or delinquency in payments are considered indicators that the trade receivable is impaired.
The amount of the provision is the difference between the assets carrying amount and the present value of estimated future cash flows discounted at the original effective interest rate. The carrying amount of the asset is reduced through the use of an allowance account, and the amount of the loss is recognized in the income statement.
When a trade receivable is uncollectable, it is written off against the allowance account for trade receivables. Subsequent recoveries of amounts previously written off are credited in the income statement.
Impairment of non-financial assets
The carrying amounts of the Groups non-financial assets, other than deferred tax assets, are reviewed at each reporting date to determine whether there is any indication of impairment. If any such indication exists, then the assets recoverable amount is estimated. For intangible assets that have indefinite lives or that are not yet available for use, the recoverable amount is estimated at each reporting date.
The recoverable amount of an asset or cash-generating unit is the greater of either its value in use or its fair value less costs to sell. In assessing value in use, the estimated future cash flows are discounted to their present value using a pre-tax discount rate that reflects current market assessments of the time value of money and the risks specific to the asset. For the purpose of impairment testing, assets are grouped together into the smallest group of assets that generates cash inflows from continuing use that are largely independent of the cash inflows of other assets or groups of assets (the cash-generating unit).
An impairment loss is recognized if the carrying amount of an asset or its cash-generating unit exceeds its estimated recoverable amount. Impairment losses are recognized in profit or loss. Impairment losses recognized in respect of cash-generating units are to reduce the carrying amount of the assets in the unit (group of units) on a pro rata basis.
Impairment losses recognized in prior periods are assessed at each reporting date for any indications that the loss has decreased or no longer exists. An impairment loss is reversed if there has been a change in the estimates
F-12
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
used to determine the recoverable amount. An impairment loss is reversed only to the extent that the assets carrying amount does not exceed the carrying amount that would have been determined, net of depreciation or amortization, if no impairment loss had been recognized.
Share capital
Ordinary shares are classified as equity. Incremental costs directly attributable to the issue of ordinary shares and share options are recognized as a deduction from equity, net of any tax effects.
Preference share capital is classified as equity if it is non-redeemable and any dividends are discretionary. Dividends thereon are recognized as distributions within equity upon approval by the Groups shareholders.
Trade payables
Trade payables are recognized initially at fair value and subsequently measured at amortized cost using the effective interest method.
Borrowings
Borrowings are recognized initially at fair value, net of transaction costs incurred. Borrowings are subsequently stated at amortized costs; with any difference between the proceeds (net of transaction costs) and the redemption value recognized in the income statement over the period of the borrowings using the effective interest method.
Borrowings are classified as current liabilities unless the Group has an unconditional right to defer settlement of the liability for at least 12 months after the balance sheet date.
Provisions
A provision is recognized in the balance sheet when the Group has a present legal or constructive obligation as a result of a past event, and it is probable that an outflow of economic benefits will be required to settle the obligation. Provisions are determined by discounting the expected future cash flows at a pre-tax rate that reflects current market assessments of the time value of money and, where appropriate, the risks specific to the liability. The discount rate arising on the provision is amortized in future years through interest.
A provision for site restoration is recognized when costs for restoring leasehold premises to their original condition at the end of the lease need to be made.
A provision for onerous lease contracts is recognized when the expected benefits to be derived by the Group from a contract are lower than the unavoidable cost of meeting its obligations under the contract.
The provision is measured at the present value of the lower of either the expected cost of terminating the contract or the expected net cost of continuing with the contract. Before a provision is established, the Group recognizes any impairment loss on the assets associated with that contract.
Leases
Leases, where the Group assumes substantially all the risks and rewards of ownership, are classified as finance leases. Upon initial recognition the leased asset is measured at an amount equal to the lower of either its fair value or the present value of the minimum lease payments. Subsequent to initial recognition, the asset is accounted for in accordance with the accounting policy applicable to that asset.
F-13
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Other leases are operating leases and the leased assets are not recognized on the Groups balance sheet. Payments made under operating leases are recognized in profit or loss on a straight-line basis over the term of the lease. Lease incentives received are recognized as an integral part of the total lease expense, over the term of the lease.
Minimum finance lease payments are apportioned between the finance charge and the reduction of the outstanding liability. The finance charge is allocated to each period during the lease term so as to produce a constant periodic rate of interest on the remaining balance of the liability.
Segment reporting
IFRS 8, Operating Segments replaces IAS 14, Segment reporting. The segments are reported in a manner consistent with internal reporting provided to the chief operating decision maker, identified as the Director. There are two segments: the first segment being France, Germany, the Netherlands and the United Kingdom and the second segment being Rest of Europe , which comprises Austria, Belgium, Denmark, Ireland, Spain, Sweden and Switzerland. Shared expenses such as corporate management, general and administrative expenses, loans and borrowings and related expenses and income tax assets and liabilities are stated in Corporate and other .
Segment results, assets and liabilities include items directly attributable to a segment as well as those that can be allocated on a reasonable basis. Unallocated items presented as Corporate and other principally comprise provisions for onerous lease contracts and related revenue and expenses; loans and borrowings and related expenses; corporate assets and expenses (primarily the Companys headquarters); and income tax assets and liabilities.
Segment capital expenditure is defined as the net cash outflows during the period to acquire property, plant and equipment, and intangible assets other than goodwill.
EBITDA and Adjusted EBITDA, as well as recurring revenue, are additional indicators of our operating performance and are not required by, or presented in accordance with, IFRS. They are not intended as a replacement or alternative for measures such as cash flows from operating activities and operating profit as defined and required under IFRS. EBITDA is defined as operating profit plus depreciation, amortization and impairment of assets. Adjusted EBITDA is defined as EBITDA adjusted to exclude share-based payments, income (charge) attributable to a defined benefit scheme, exceptional and non-recurring items and include share of profits (losses) of non-group companies.
This information, provided to the chief operating decision maker, is disclosed to permit a more complete analysis of our operating performance. Exceptional items are those significant items that are separately disclosed by virtue of their size, nature or incidence to enable a full understanding of the Groups financial performance. EBITDA and Adjusted EBITDA, as calculated here, may not be comparable to similarly titled measures reported by other companies.
Revenue recognition
Revenues are recognized when it is probable that future economic benefits will flow to the Group and that these benefits, together with their related costs, can be measured reliably. Revenues are measured at the fair value of the consideration received or receivable.
The Group earns colocation revenue as a result of providing data center services to customers at its data centers. Colocation revenues are recognized in profit or loss on a straight-line basis over the term of the customer
F-14
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
contract. Incentives granted are recognized as an integral part of the total income, over the term of the customer contract. Customers are usually invoiced quarterly in advance and income is recognized on a straight-line basis over the quarter.
Initial set-up fees payable at the beginning of customer contracts are deferred at inception and recognized in profit or loss on a straight-line basis over the initial term of the customer contract.
Other services revenue relates mainly to managed services and connectivity. Revenue from other services is recognized when the services are rendered.
Deferred revenues relating to invoicing in advance and initial set-up fees are carried on the balance sheet. Deferred revenues due to be recognized after more than one year are held in non-current liabilities.
Cost of sales
The cost of sales consist mainly of rental costs for the data centers and offices, power costs, maintenance costs relating to the data center equipment, operation and support personnel costs and costs related to installations and other customer requirements. In general, maintenance and repairs are expensed as incurred. In cases where maintenance contracts are in place, the costs are recorded on a straight-line basis over the contractual period.
Sales and marketing costs
The operating expenses related to sales and marketing consist of costs for personnel (including sales commissions), marketing and other costs directly related to the sales process. Costs of advertising and promotion are expensed as incurred.
Share-based payments
The share option program allows Group employees to acquire share certificates of the Group. The fair value at the date of grant to employees of share options is recognized as an employee expense, with a corresponding increase in equity, over the period that the employees become unconditionally entitled to the options. The amount recognized as an expense is adjusted to reflect the actual number of share options that vest except where forfeiture is only due to share prices not achieving the threshold for vesting.
Finance income and expense
Finance expense comprises interest payable on borrowings calculated using the effective interest rate method and foreign exchange gains and losses. Borrowing costs directly attributable to the acquisition or construction of data center assets, which are assets that necessarily take a substantial period of time to get ready for their intended use, are added to the costs of those assets, until such time as the assets are ready for their intended use.
Interest income is recognized in the income statement as it accrues, using the effective interest method. The interest expense component of finance lease payments is recognized in the income statement using the effective interest rate method.
Income tax
Income tax on the profit or loss for the year comprises current and deferred tax. Income tax is recognized in the income statement except to the extent that it relates to items recognized directly in equity, in which case it is recognized in equity.
F-15
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Current tax is the expected tax payable on the taxable income for the year, using tax rates enacted or substantially enacted at the balance sheet date, and any adjustment to tax payable in respect of previous years.
Deferred tax is recognized using the balance sheet liability method, providing for temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for taxation purposes. The following temporary differences are not provided for: the initial recognition of assets or liabilities that affect neither accounting nor taxable profit, and differences relating to investments in subsidiaries to the extent that they will probably not reverse in the foreseeable future. The amount of deferred tax provided is based on the expected manner of realization or settlement of the carrying amount of assets and liabilities, using tax rates enacted or substantively enacted at the balance sheet date that are expected to be applied to temporary differences when they reverse or loss carry forwards when they are utilized.
A deferred tax asset is also recognized for unused tax losses and tax credits. A deferred tax asset is recognized only to the extent that it is probable that future taxable profits will be available against which the asset can be utilized. Deferred tax assets are reduced to the extent that it is no longer probable that the related tax benefit will be realized.
Additional income taxes that arise from the distribution of dividends are recognized at the same time as the liability to pay the related dividend.
Earnings per share
The Group presents basic and diluted earnings per share (EPS) data for its ordinary shares. Ordinary shares share on an equal basis in profits with preference shares. Basic EPS is calculated by dividing the profit or loss attributable to ordinary and preference shareholders of the Company by the weighted average number of ordinary and preference shares outstanding during the year. Diluted EPS is determined by adjusting the profit or loss attributable to ordinary and preference shareholders and the weighted average number of ordinary and preference shares outstanding for the effects of all dilutive potential ordinary shares, which comprise the share options granted to employees.
New standards and interpretations not yet adopted
A number of new standards, amendments to standards, and interpretations are not yet effective for the year ended December 31, 2009 and have not been applied in preparing these consolidated financial statements:
Following an internal review, it is not anticipated that the adoption of these new but not yet effective standards and interpretations will have a material financial impact on the financial statements in the period of initial application and subsequent reporting.
F-16
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
These new standards and interpretations, with the exception of IFRIC 19, will become mandatory for the Groups 2010 financial statements. The Group has not opted for earlier adoption. Following an internal review it is not anticipated that the adoption of these other standards and interpretations will have a material financial impact on the financial statements in the period of initial application and the subsequent reporting periods.
4 Financial risk management
Overview
The Group has exposure to the following risks from its use of financial instruments:
|
Credit risk |
|
Liquidity risk |
|
Market risk |
|
Other price risks |
This note presents information about the Groups exposure to each of the above risks, the Groups objectives, policies and processes for measuring and managing risk, and the Groups management of capital. Further quantitative disclosures are included throughout these consolidated financial statements.
The Management Board has overall responsibility for the oversight of the Groups risk management framework.
The Company continues developing and evaluating the Groups risk management policies with a view to identifying and analyzing the risks faced by the Group, to setting appropriate risk limits and controls, and to monitoring risks and adherence to limits. Risk management policies and systems are reviewed regularly to reflect changes in market conditions and the Groups activities. The Group, through its training and management standards and procedures, aims to develop a disciplined and constructive control environment in which all employees understand their roles and obligations.
The Supervisory Board oversees how management monitors compliance with the Groups risk management policies and procedures and reviews the adequacy of the risk management framework in relation to the risks faced by the Group.
Credit risk
Credit risk is the risk of financial loss to the Group if a customer, bank or other counterparty to a financial instrument fails to meet its contractual obligations. This risk principally arises from the Groups receivables from customers. The Groups most significant customer accounts for less than 5% of the revenues for 2009, 2008 and 2007.
Trade and other receivables
The Groups exposure to credit risk is influenced mainly by the individual characteristics of each customer. The demographics of the Groups customer base, including the default risk of the industry and the country in which customers operate, has less of an influence on credit risk.
The Groups most significant customer accounts for less than 5% of the carrying amount of trade receivables as at December 31, 2009, 2008 and 2007.
F-17
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The Group has an established credit policy under which each new customer is analyzed individually for creditworthiness before they commence trading with the Group. If customers are independently rated, these ratings are used. Otherwise, if there is no independent rating, the credit quality of the customer is analyzed taking into account its financial position, past experience and other factors.
The Groups standard terms require contracted services to be paid in advance of these services being delivered. In the event that a customer fails to pay amounts that are due, the Group has a clearly defined escalation policy that can result in a customers access to their equipment being denied or service to the customer being suspended.
In 2009 more than 94% (2008: 92% and 2007: 90%) of the Groups revenues were derived from contracts under which customers pay an agreed contracted amount including power on a regular basis (usually monthly or quarterly) or from deferred initial set-up fees paid at the outset of the customer contract.
As a result of the Groups credit policy and the contracted nature of the revenues, losses have occurred infrequently (see Note 19). The Group establishes an allowance that represents its estimate of potential incurred losses in respect of trade and other receivables. This allowance is entirely composed of a specific loss component relating to individually significant exposures.
Bank counterparties
The Group has obligations under the terms of its revolving loan agreement to deposit surplus cash balances at bank accounts held by the lending banks. The Group seeks to minimize the risk that this constraint imposes by holding cash as widely as possible across all three lending bank institutions. Term risk is limited to deposits of no more than two weeks. The Group monitors its cash position, including counterparty and term risk, daily.
Liquidity risk
Liquidity risk is the risk that the Group will not be able to meet its financial obligations as they fall due. The Groups approach to managing liquidity is to ensure, as far as possible, that it will always have sufficient liquidity to meet its liabilities when due, under both normal and stressed conditions, without incurring unacceptable losses or risking damage to the Groups reputation or jeopardizing its future.
The majority of the Groups revenues and operating costs are contracted, which assists it in monitoring cash flow requirements, which are monitored on a daily and weekly basis. Typically the Group ensures that it has sufficient cash on demand to meet expected normal operational expenses for a period of 60 days, including the servicing of financial obligations; this excludes the potential impact of extreme circumstances that cannot reasonably be predicted, such as natural disasters.
All significant capital expansion projects are subject to formal approval by the Board, and material expenditure or customer commitments are only made once the management is satisfied that the Group has adequate committed funding to cover the anticipated expenditure.
The Group has 135 million of secured credit facilities of which an amount of 27.6 million was undrawn and available for capital expenditure projects as at December 31, 2009. Interest is payable at the rate of EURIBOR plus 240 basis points. The Group has secured additional 45 million credit facility during 2009 that is fully drawn as at December 31, 2009. Interest is payable at the rate of EURIBOR plus 750 basis points.
Refer to Borrowing section for more details (Note 17).
F-18
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Market risk
Currency risk
The Group is exposed to currency risk on sales, purchases and borrowings that are denominated in a currency other than the respective functional currencies of Group entities, primarily the Euro, but also pounds sterling (GBP), Swiss francs (CHF), Danish kroner (DKK) and Swedish kronor (SEK). The currencies in which these transactions are primarily denominated are EUR, GBP, CHF, DKK and SEK.
Historically, the revenues and operating costs of each of the Groups entities have provided an economic hedge against foreign currency exposure and have not required foreign currency hedging.
It is anticipated that a number of capital expansion projects will be funded in a currency that is not the functional currency of the entity in which the associated expenditure will be incurred. In the event that this occurs and is material to the Group, the Group will seek to implement an appropriate hedging strategy.
The majority of the Groups borrowings are Euro denominated and the Company believes that the Interest on these borrowings will be serviced from the cash flows generated by the underlying operations of the Group whose functional currency is the Euro. The Groups investments in subsidiaries are not hedged.
Interest rate risk
Historically the Group has received funding from its shareholders which has resulted in limited exposure to changes in interest rates. Following the arrangement of the credit facilities to fund investments in expansion projects, the Groups exposure to interest rate risk increased. In November 2009, to limit the interest rate risk, the Group entered into an interest rate swap to fix interest rates on part of the variable rate borrowings. The Group fixed the interest rate payable on approximately 50% of the outstanding amount of its 135 million Senior Revolving Credit Facility. For further details, please refer to Note 18.
Other risks
Price risk
The risk of changes in market circumstances, such as strong unanticipated increases in operational costs, construction costs of new data centers or that customer contracts will churn, will negatively affect the Groups income. Customers have medium-term contracts that require notice prior to termination. The objective of market risk management is to manage and control market risk exposures within acceptable parameters, while optimizing the return.
The Group is a significant user of power and has exposure to increases in power prices. In recent years the Group has seen significant increases in power prices. The Group uses independent consultants to monitor price changes in electricity and seeks to negotiate fixed-price term agreements with the power supply companies where possible. The risk to the Group is mitigated by the contracted ability to recover power price increases through adjustments in the pricing for power services.
Capital management
The Group has a capital base comprising its equity, including reserves, and committed debt facilities. The Group monitors its solvency ratio, funds from operations and net debt with reference to multiples of the Groups six months annualized Adjusted EBITDA levels. The Companys policy is to maintain a strong capital base and access to capital in order to sustain the future development of the business and maintain shareholders, creditors and customers confidence.
F-19
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The principal use of capital in the development of the business is through capital expansion projects for the deployment of further equipped space in new and existing data centers. Major capital expansion projects are not started unless the company has access to adequate capital resources at the start of the project to complete the project, and they are evaluated against target internal rates of return before approval. Capital expansion projects are continually monitored both before and after completion.
There were no changes in the Groups approach to capital management during the year. The Group is not subject to externally imposed capital requirements.
5 Information by segment
The Group has adopted IFRS 8 Operating Segments with effect from January 1, 2009. IFRS 8 requires operating segments to be identified on the basis of internal reports about components of the Group that are regularly reviewed by the chief operating decision maker in order to allocate resources to the segments and to assess their performance. The required adoption of IFRS 8 Operating Segments does not have any effect on the reporting segments (or comparatives) previously in use by the Group. Management monitors the operating results of its business units separately for the purpose of making decisions about performance assessments.
The performance of the operating segments is primarily based on the measures of revenue, EBITDA and Adjusted EBITDA. Other information provided, except as noted below, to the Director is measured in a manner consistent with that in the financial statements.
Information by segment 2009
FR, DE, NL
and UK |
Rest of
Europe |
Subtotal |
Corporate
and other |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
Revenue |
100,630 | 71,038 | 171,668 | | 171,668 | |||||||||||||||
Cost of sales |
(44,615 | ) | (29,893 | ) | (74,508 | ) | (4,040 | ) | (78,548 | ) | ||||||||||
Gross profit/(loss) |
56,015 | 41,145 | 97,160 | (4,040 | ) | 93,120 | ||||||||||||||
Other income |
471 | 275 | 746 | | 746 | |||||||||||||||
Sales and marketing costs |
(3,987 | ) | (2,282 | ) | (6,269 | ) | (4,984 | ) | (11,253 | ) | ||||||||||
General and administrative costs |
(21,629 | ) | (13,169 | ) | (34,798 | ) | (15,830 | ) | (50,628 | ) | ||||||||||
Operating profit/(loss) |
30,870 | 25,969 | 56,839 | (24,854 | ) | 31,985 | ||||||||||||||
Net finance expense |
(6,248 | ) | ||||||||||||||||||
Profit before tax |
25,737 | |||||||||||||||||||
Total Assets |
235,575 | 123,460 | 359,035 | 48,985 | 408,020 | |||||||||||||||
Total Liabilities |
102,967 | 45,493 | 148,460 | 125,183 | 273,643 | |||||||||||||||
Capital Expenditures (PPE) paid |
55,253 | 42,584 | 97,837 | 2,142 | 99,979 | |||||||||||||||
Depreciation, amortization, impairments |
(12,785 | ) | (8,289 | ) | (21,074 | ) | (886 | ) | (21,960 | ) | ||||||||||
Adjusted EBITDA |
46,509 | 33,983 | 80,492 | (17,749 | ) | 62,743 | ||||||||||||||
F-20
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Information by segment 2008
FR, DE, NL
and UK |
Rest of
Europe |
Subtotal |
Corporate
and other |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
Revenue |
80,950 | 57,230 | 138,180 | | 138,180 | |||||||||||||||
Cost of sales |
(36,207 | ) | (25,018 | ) | (61,225 | ) | (1,844 | ) | (63,069 | ) | ||||||||||
Gross profit/(loss) |
44,743 | 32,212 | 76,955 | (1,844 | ) | 75,111 | ||||||||||||||
Other income |
518 | 1,773 | 2,291 | | 2,291 | |||||||||||||||
Sales and marketing costs |
(3,437 | ) | (2,498 | ) | (5,935 | ) | (3,927 | ) | (9,862 | ) | ||||||||||
General and administrative costs |
(16,116 | ) | (9,650 | ) | (25,766 | ) | (9,586 | ) | (35,352 | ) | ||||||||||
Operating profit/(loss) |
25,708 | 21,837 | 47,545 | (15,357 | ) | 32,188 | ||||||||||||||
Net finance expense |
(3,713 | ) | ||||||||||||||||||
Profit before tax |
28,475 | |||||||||||||||||||
Total Assets |
177,501 | 102,551 | 280,052 | 81,904 | 361,956 | |||||||||||||||
Total Liabilities |
77,265 | 45,023 | 122,288 | 134,742 | 257,030 | |||||||||||||||
Capital Expenditures (PPE) paid |
59,509 | 29,543 | 89,052 | 2,071 | 91,123 | |||||||||||||||
Depreciation, amortization, impairments |
(8,875 | ) | (5,768 | ) | (14,643 | ) | (440 | ) | (15,083 | ) | ||||||||||
Adjusted EBITDA |
35,872 | 25,636 | 61,508 | (13,257 | ) | 48,251 | ||||||||||||||
Information by segment 2007
FR, DE, NL
and UK |
Rest of
Europe |
Subtotal |
Corporate
and other |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
Revenue |
60,284 | 40,166 | 100,450 | | 100,450 | |||||||||||||||
Cost of sales |
(28,868 | ) | (19,955 | ) | (48,823 | ) | (3,175 | ) | (51,998 | ) | ||||||||||
Gross profit/(loss) |
31,416 | 20,211 | 51,627 | (3,175 | ) | 48,452 | ||||||||||||||
Other income |
501 | | 501 | 487 | 988 | |||||||||||||||
Sales and marketing costs |
(2,973 | ) | (2,077 | ) | (5,050 | ) | (2,247 | ) | (7,297 | ) | ||||||||||
General and administrative costs |
(9,081 | ) | (9,406 | ) | (18,487 | ) | (16,350 | ) | (34,837 | ) | ||||||||||
Operating profit/(loss) |
19,863 | 8,728 | 28,591 | (21,285 | ) | 7,306 | ||||||||||||||
Net finance expense |
(4,126 | ) | ||||||||||||||||||
Profit before tax |
3,180 | |||||||||||||||||||
Total Assets |
101,102 | 55,384 | 156,486 | 53,691 | 210,177 | |||||||||||||||
Total Liabilities |
38,644 | 22,506 | 61,150 | 79,869 | 141,019 | |||||||||||||||
Capital Expenditures (PPE) paid |
29,839 | 17,460 | 47,299 | 1,539 | 48,838 | |||||||||||||||
Depreciation, amortization, impairments |
(5,060 | ) | (6,334 | ) | (11,394 | ) | (263 | ) | (11,657 | ) | ||||||||||
Adjusted EBITDA |
24,422 | 15,062 | 39,484 | (10,517 | ) | 28,967 | ||||||||||||||
F-21
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Reconciliation Adjusted EBITDA
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Adjusted EBITDA |
62,743 | 48,251 | 28,967 | |||||||||
Income from subleases on unused data center sites |
471 | 534 | 501 | |||||||||
Income on release of loan repayment obligations |
| | 487 | |||||||||
Net insurance compensation benefit |
275 | 1,757 | | |||||||||
Exceptional income |
746 | 2,291 | 988 | |||||||||
Increase in provision onerous lease contracts (1) |
(3,753 | ) | (1,611 | ) | (8,139 | ) | ||||||
Abandoned transaction costs |
(4,841 | ) | | | ||||||||
Personnel costs |
| | (1,454 | ) | ||||||||
Share based payments |
(950 | ) | (1,660 | ) | (1,399 | ) | ||||||
Exceptional general and administrative costs |
(9,544 | ) | (3,271 | ) | (10,992 | ) | ||||||
EBITDA (2) |
53,945 | 47,271 | 18,963 | |||||||||
Depreciation and amortization |
(21,960 | ) | (15,083 | ) | (9,772 | ) | ||||||
Impairment loss |
| | (1,885 | ) | ||||||||
Operating profit |
31,985 | 32,188 | 7,306 | |||||||||
Notes:
(1) | Before deduction of income from subleases on unused data center sites. |
(2) | Operating profit plus depreciation, amortization and impairment of assets. |
Exceptional income is recorded as Other income in the consolidated income statement. In 2009 and 2008, the net insurance compensation benefit received from our insurance company, as a result of fire damage incurred in 2008, represents the difference between the net book value and the replacement value of the equipment damaged. The increase in the provision for onerous lease contracts in 2009 relates to an unused data center in Germany and an office property in the Netherlands.
Exceptional income relating to the 2007 release of loan repayment obligations pertains to a Senter loan. The provision for onerous lease contracts in 2008 and 2007 relates to unused data center sites in Germany and Switzerland (see Note 16). The increase is principally due to certain increased costs.
Personnel costs relate to one-off costs incurred during 2007, including severance payments and sign-on bonuses.
The impairment losses in 2007 relate to the impairment of data center assets in Sweden.
6 Employee benefit expenses
The Group employed on average 269 employees (full-time equivalents) during 2009 (2008: 225 and 2007: 205). Costs incurred in respect of these employees were:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Salaries and bonuses |
20,561 | 17,844 | 14,575 | |||||||||
Social security charges |
3,363 | 2,453 | 2,078 | |||||||||
Pension costs |
1,104 | 881 | 684 | |||||||||
Other personnel-related costs |
4,776 | 2,932 | 2,773 | |||||||||
Share-based payments |
950 | 1,660 | 1,399 | |||||||||
30,754 | 25,770 | 21,509 | ||||||||||
F-22
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The following income statement line items include employee benefit expenses of:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Costs of sales |
13,233 | 10,354 | 8,630 | |||||||||
Sales and marketing costs |
5,423 | 4,418 | 3,671 | |||||||||
General and administrative costs |
12,098 | 10,998 | 9,208 | |||||||||
30,754 | 25,770 | 21,509 | ||||||||||
The Group operates a defined contribution scheme for its employees. The contributions are made in accordance with the scheme and are expensed in the income statement as incurred.
7 Finance income and expense
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Bank and other interest |
536 | 1,138 | 387 | |||||||||
Foreign currency exchange gains |
| 28 | | |||||||||
Finance income |
536 | 1,166 | 387 | |||||||||
Interest expense on bank and other loans |
(5,794 | ) | (3,724 | ) | (1,098 | ) | ||||||
Interest expense on finance leases |
(102 | ) | (121 | ) | (25 | ) | ||||||
Interest expense on convertible loans |
| | (425 | ) | ||||||||
Interest expense on provision for onerous lease contracts |
(708 | ) | (1,034 | ) | (755 | ) | ||||||
Fair value loss interest rate swap |
(99 | ) | | | ||||||||
Foreign currency exchanges losses |
(81 | ) | | (2,210 | ) | |||||||
Finance expense |
(6,784 | ) | (4,879 | ) | (4,513 | ) | ||||||
Net finance expense |
(6,248 | ) | (3,713 | ) | (4,126 | ) | ||||||
We fund the capital expansion programs within operating entities principally through intra-group loans; and since 2008, exchange differences arising, if any, on net investments including receivables from or payable to a foreign operation, are recognized directly in the foreign currency translation reserve within equity in accordance with IAS 21. Prior to 2008, these exchange differences were recognized as net finance expense or income.
The Interest expense on provision for onerous lease contracts relates to the unwinding of the discount rate used to calculate the Provision for onerous lease contracts.
8 Income taxes
Income tax benefit/(expense)
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Current taxes |
(666 | ) | (340 | ) | (306 | ) | ||||||
Deferred taxes |
1,381 | 9,239 | 10,711 | |||||||||
Total income tax benefit |
715 | 8,899 | 10,405 | |||||||||
F-23
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Reconciliation of effective tax rate
A reconciliation between income taxes calculated at the Dutch statutory tax rate of 25.5% in 2009 (25.5% in 2008 and 2007) and the actual tax benefit/expense is as follows:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Profit for the year |
26,452 | 37,374 | 13,585 | |||||||||
Income tax benefit |
715 | 8,899 | 10,405 | |||||||||
Profit before taxation |
25,737 | 28,475 | 3,180 | |||||||||
Income tax using Companys domestic tax rate |
(6,563 | ) | (7,261 | ) | (811 | ) | ||||||
Effect of tax rates in foreign jurisdictions |
(701 | ) | 14 | 232 | ||||||||
Change in tax rate |
50 | | (218 | ) | ||||||||
Non-deductible expenses |
(523 | ) | (573 | ) | (80 | ) | ||||||
Recognition of previously unrecognized tax losses |
4,982 | 13,583 | 13,748 | |||||||||
Current year results for which no deferred tax asset was recognized |
476 | 482 | (4,376 | ) | ||||||||
Change in previously unrecognized temporary differences |
2,994 | 2,654 | 1,910 | |||||||||
Income tax benefit/(expense) |
715 | 8,899 | 10,405 | |||||||||
Recognized deferred tax assets/(liabilities)
The movement in recognized deferred tax assets during the year is as follows:
Property,
plant and equipment |
Provision
onerous contracts |
Other |
Tax loss
carry- forward |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
January 1, 2007 |
4,992 | 1,938 | 210 | 11,114 | 18,254 | |||||||||||||||
Recognized in profit/(loss) for 2007 |
(81 | ) | (1,938 | ) | 15 | 13,554 | 11,550 | |||||||||||||
December 31, 2007 |
4,911 | | 225 | 24,668 | 29,804 | |||||||||||||||
Recognized in profit/(loss) for 2008 |
(4,366 | ) | 3,922 | 786 | 13,952 | 14,294 | ||||||||||||||
December 31, 2008 |
545 | 3,922 | 1,011 | 38,620 | 44,098 | |||||||||||||||
Recognized in profit/(loss) for 2009 |
91 | 1,761 | 507 | (2,040 | ) | 319 | ||||||||||||||
December 31, 2009 |
636 | 5,683 | 1,518 | 36,580 | 44,417 | |||||||||||||||
The movement in recognized deferred tax liabilities during the year is as follows:
Property,
plant and equipment |
Provision
onerous contracts |
Other |
Tax loss
carry- forward |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
January 1, 2007 |
| | | | | |||||||||||||||
Recognized in profit/(loss) for 2007 |
(535 | ) | | (304 | ) | | (839 | ) | ||||||||||||
December 31, 2007 |
(535 | ) | | (304 | ) | | (839 | ) | ||||||||||||
Recognized in profit/(loss) for 2008 |
(3,361 | ) | | (1,694 | ) | | (5,055 | ) | ||||||||||||
December 31, 2008 |
(3,896 | ) | | (1,998 | ) | | (5,894 | ) | ||||||||||||
Recognized in profit/(loss) for 2009 |
685 | | 377 | | 1,062 | |||||||||||||||
December 31, 2009 |
(3,211 | ) | | (1,621 | ) | | (4,832 | ) | ||||||||||||
Net deferred tax assets/(liabilities) |
(2,575 | ) | 5,683 | (103 | ) | 36,580 | 39,585 | |||||||||||||
F-24
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The estimated utilization of carried-forward tax losses in future years is based on managements forecasts of future profitability by tax jurisdiction.
The following net deferred tax assets have not been recognized:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Deductible temporary differencesnet |
(183 | ) | 4,452 | 7,567 | ||||||||
Tax losses |
12,532 | 16,383 | 34,124 | |||||||||
12,349 | 20,835 | 41,691 | ||||||||||
The accumulated tax losses expire as follows:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Within one year |
5,741 | 3,792 | 5,385 | |||||||||
Between 1 and 5 years |
61,218 | 73,934 | 76,143 | |||||||||
After 5 years |
19,632 | 21,235 | 20,275 | |||||||||
Unlimited |
97,002 | 108,643 | 118,003 | |||||||||
183,593 | 207,604 | 219,806 | ||||||||||
F-25
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
9 Property, plant and equipment
Data centers |
Office
buildings |
Office
equipment |
Assets under
construction |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
Cost: |
||||||||||||||||||||
As at January 1, 2009 |
226,543 | 5,197 | 10,237 | 75,089 | 317,066 | |||||||||||||||
Additions |
25,414 | 909 | 1,653 | 59,890 | 87,866 | |||||||||||||||
Exchange differences |
1,399 | 31 | 99 | 1,005 | 2,534 | |||||||||||||||
Disposals |
(176 | ) | | | | (176 | ) | |||||||||||||
Transfers |
73,165 | 74 | 276 | (73,819 | ) | (304 | ) (1) | |||||||||||||
As at December 31, 2009 |
326,345 | 6,211 | 12,265 | 62,165 | 406,986 | |||||||||||||||
Accumulated depreciation: |
||||||||||||||||||||
As at January 1, 2009 |
97,021 | 2,914 | 8,925 | | 108,860 | |||||||||||||||
Depreciation |
20,263 | 351 | 809 | | 21,423 | |||||||||||||||
Exchange differences |
767 | 17 | 97 | | 881 | |||||||||||||||
Disposals |
(44 | ) | | (28 | ) | | (72 | ) | ||||||||||||
Transfer |
(66 | ) | | | | (66 | ) (1) | |||||||||||||
As at December 31, 2009 |
117,941 | 3,282 | 9,803 | | 131,026 | |||||||||||||||
Carrying amount as at December 31, 2009 |
208,404 | 2,929 | 2,462 | 62,165 | 275,960 | |||||||||||||||
Cost: |
||||||||||||||||||||
As at January 1, 2008 |
189,318 | 4,601 | 9,648 | 6,288 | 209,855 | |||||||||||||||
Additions |
29,381 | 665 | 692 | 81,887 | 112,625 | |||||||||||||||
Exchange differences |
(3,464 | ) | (69 | ) | (305 | ) | (183 | ) | (4,021 | ) | ||||||||||
Disposals |
(1,383 | ) | | (10 | ) | | (1,393 | ) | ||||||||||||
Transfers |
12,691 | | 212 | (12,903 | ) | | ||||||||||||||
As at December 31, 2008 |
226,543 | 5,197 | 10,237 | 75,089 | 317,066 | |||||||||||||||
Accumulated depreciation: |
||||||||||||||||||||
As at January 1, 2008 |
85,329 | 2,704 | 8,648 | | 96,681 | |||||||||||||||
Depreciation |
14,044 | 247 | 584 | | 14,875 | |||||||||||||||
Exchange differences |
(1,467 | ) | (37 | ) | (298 | ) | | (1,802 | ) | |||||||||||
Disposals |
(1,374 | ) | | (9 | ) | | (1,383 | ) | ||||||||||||
Impairment loss |
489 | | | | 489 | |||||||||||||||
As at December 31, 2008 |
97,021 | 2,914 | 8,925 | | 108,860 | |||||||||||||||
Carrying amount as at December 31, 2008 |
129,522 | 2,283 | 1,312 | 75,089 | 208,206 | |||||||||||||||
Cost: |
||||||||||||||||||||
As at January 1, 2007 |
136,291 | 5,617 | 11,662 | 12,987 | 166,557 | |||||||||||||||
Additions |
40,531 | 97 | 1,199 | 4,565 | 46,392 | |||||||||||||||
Exchange differences |
(1,543 | ) | (51 | ) | (102 | ) | | (1,696 | ) | |||||||||||
Disposals |
(777 | ) | | (621 | ) | | (1,398 | ) | ||||||||||||
Transfers |
14,816 | (1,062 | ) | (2,490 | ) | (11,264 | ) | | ||||||||||||
As at December 31, 2007 |
189,318 | 4,601 | 9,648 | 6,288 | 209,855 | |||||||||||||||
Accumulated depreciation: |
||||||||||||||||||||
As at January 1, 2007 |
72,527 | 3,761 | 11,042 | | 87,330 | |||||||||||||||
Depreciation |
8,891 | 222 | 504 | | 9,617 | |||||||||||||||
Exchange differences |
(630 | ) | (27 | ) | (96 | ) | | (753 | ) | |||||||||||
Disposals |
(777 | ) | | (621 | ) | | (1,398 | ) | ||||||||||||
Impairment loss |
1,885 | | | | 1,885 | |||||||||||||||
Transfers |
3,433 | (1,252 | ) | (2,181 | ) | | | |||||||||||||
As at December 31, 2007 |
85,329 | 2,704 | 8,648 | | 96,681 | |||||||||||||||
Carrying amount as at December 31, 2007 |
103,989 | 1,897 | 1,000 | 6,288 | 113,174 | |||||||||||||||
F-26
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Note:
(1) | This balance represents a power grid right transferred to other intangible assets. |
The Group leases certain data center equipment under a number of finance lease agreements. At December 31, 2009, the carrying amount of leased equipment classified in data centers was 2,112,000 (2008: 2,429,000 and 2007: 2,746,000).
In 2009, the Group capitalized interest expenses for 2,041,000 (2008: 1,892,000 and 2007: 678,000).
Impairment losses and reversals
In 2007, the Group reassessed the recoverable amount of its data center in Sweden. As a result, the carrying amount of the data center asset was determined to be 1,885,000 higher than their recoverable amounts and consequently an impairment loss was recognized.
Value in use was determined by discounting estimated future cash flows generated from the continuing use of the cash generating-unit.
F-27
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
10 Intangible assets
The components of intangible assets are as follows:
Software | Other | Total | ||||||||||
(000) | ||||||||||||
Cost: |
||||||||||||
As at January 1, 2009 |
1,380 | 1,809 | 3,189 | |||||||||
Additions |
1,114 | 26 | 1,140 | |||||||||
Transfers |
| 304 | 304 | (1) | ||||||||
As at December 31, 2009 |
2,494 | 2,139 | 4,633 | |||||||||
Amortization: |
||||||||||||
As at January 1, 2009 |
73 | 315 | 388 | |||||||||
Amortization |
381 | 156 | 537 | |||||||||
Transfers |
| 66 | 66 | (1) | ||||||||
As at December 31, 2009 |
454 | 537 | 991 | |||||||||
Carrying amount as at December 31, 2009 |
2,040 | 1,602 | 3,642 | |||||||||
Cost: |
||||||||||||
As at January 1, 2008 |
278 | 1,781 | 2,059 | |||||||||
Additions |
1,102 | 28 | 1,130 | |||||||||
As at December 31, 2008 |
1,380 | 1,809 | 3,189 | |||||||||
Amortization: |
||||||||||||
As at January 1, 2008 |
47 | 133 | 180 | |||||||||
Amortization |
26 | 182 | 208 | |||||||||
As at December 31, 2008 |
73 | 315 | 388 | |||||||||
Carrying amount as at December 31, 2008 |
1,307 | 1,494 | 2,801 | |||||||||
Cost: |
||||||||||||
As at January 1, 2007 |
249 | 1,100 | 1,349 | |||||||||
Additions |
29 | 681 | 710 | |||||||||
As at December 31, 2007 |
278 | 1,781 | 2,059 | |||||||||
Amortization: |
||||||||||||
As at January 1, 2007 |
25 | | 25 | |||||||||
Amortization |
22 | 133 | 155 | |||||||||
As at December 31, 2007 |
47 | 133 | 180 | |||||||||
Carrying amount as at December 31, 2007 |
231 | 1,648 | 1,879 | |||||||||
Note:
(1) | This balance represents a power grid right transferred from property, plant and equipment. |
F-28
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
11 Trade and other (non-) current assets
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Non-current |
||||||||||||
Rental deposits |
1,220 | 1,096 | 998 | |||||||||
Current |
||||||||||||
Trade receivablesnet |
37,261 | 28,743 | 20,353 | |||||||||
Taxes |
1,420 | 4,155 | 638 | |||||||||
Prepaid expenses and other current assets |
16,929 | 16,976 | 8,322 | |||||||||
55,610 | 49,874 | 29,313 | ||||||||||
Prepaid expenses and other current assets principally comprise prepaid insurances, rental and other related operational data center and construction-related prepayments.
12 Cash and cash equivalents
Cash and cash equivalents include 3,874,000 (2008: 3,872,000 and 2007: 3,558,000) that is restricted and held as collateral to support the issuance of bank guarantees on behalf of a number of subsidiary companies.
13 Shareholders equity
Share capital and share premium
Ordinary shares | 2002 Series A preference shares | |||||||||||||||||||||||
2009 | 2008 | 2007 | 2009 | 2008 | 2007 | |||||||||||||||||||
(In thousands of shares) | ||||||||||||||||||||||||
On issue at January 1 |
44,192 | 39,665 | 39,665 | 174,040 | 174,040 | 101,210 | ||||||||||||||||||
Issue of shares |
3,521 | 4,527 | | | | 72,830 | ||||||||||||||||||
On issue at December 31 |
47,713 | 44,192 | 39,665 | 174,040 | 174,040 | 174,040 |
At December 31, 2009, the authorized share capital comprised 575,000,000 ordinary shares (2008: 575,000,000 and 2007: 575,000,000) and 175,000,000 2002 Series A preference shares (2008: 175,000,000 and 2007: 175,000,000). All shares have a par value of 0.02. All issued shares are fully paid.
Voting
Holders of the 2002 Series A preference shares are entitled to vote, together with holders of the Companys ordinary shares, on all matters submitted to shareholders for vote. Each share equals one vote. In addition to voting privileges, holders of the 2002 Series A preference shares are entitled to certain prior-consent rights against certain actions proposed by the Management Board.
Dividends
Dividends that are paid from the profits of the Company and, if permitted under Dutch law, as a result of a sale by the Company of shares or assets of the Company or a subsidiary other than pursuant to an IPO, sale or liquidation event shall be distributed in the following priority: first to holders of the 2002 Series A preference shares in an amount equal to the purchase price of the 2002 Series A preference shares (reduced by any dividend previously received on the 2002 Series A preference shares) and second to the extent any residual amount exits
F-29
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
thereafter, pro rata amongst all holders of ordinary shares and 2002 Series A preference shares. Upon the completion of an IPO or a sale, the holders of the 2002 Series A preference shares are entitled to receive the 2002 Series A Share Purchase Price of 0.20 per share less any dividends exclusively paid to the holders of the 2002 Series A preference shares in cash or in ordinary shares.
Conversion of convertible loan into preference shares on 13 June 2007
On May 21, 2007, the majority note holder confirmed its intention to convert the convertible loan into 2002 Series A preference shares. As entitled in article 8a of the convertible loan agreement (mandatory conversion notice), the majority holder elected that the entire principal amount of the convertible loan should be converted to 2002 Series A preference shares, as of the close of business on June 13, 2007. In accordance with this and pursuant to the fact that all participants elected to convert the accrued interest into Series A preference shares, the Company issued 72,829,632 shares of the 2002 Series A preference shares with a nominal value of 0.02 per share for an amount of 0.20 per share to the convertible loan holders.
Foreign currency translation reserve
The foreign currency translation reserve comprises of all foreign exchange differences arising from the translation of the financial statements of foreign operations as well as from the translation of intergroup balances.
14 Earnings per share
Basic earnings per share
The calculation of basic earnings per share at December 31, 2009 was based on the profit attributable to ordinary and preference shareholders of 26,452,000 (2008: 37,374,000 and 2007: 13,584,000) and a weighted average number of ordinary and preference shares outstanding during the year ended December 31, 2009 of 219,993,000 (2008: 215,968,000 and 2007: 213,704,000). Profit is attributable to ordinary and preference shares on an equal basis.
Diluted earnings per share
The calculation of diluted earnings per share at December 31, 2009 was based on the profit attributable to ordinary shareholders and preference shares of 26,452,000 (2008: 37,374,000 and 2007: 13,901,000 adjusted for interest expense on the convertible loan) and a weighted average number of ordinary and preference shares outstanding during the year ended December 31, 2009 of 233,961,000 (2008: 231,504,000 and 2007: 227,001,000), calculated as follows:
Profit attributable to ordinary and preference shareholders
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Profit attributable to ordinary and preference shareholders (basic) |
26,452 | 37,374 | 13,584 | |||||||||
Interest expense on convertible loan, net of tax |
| | 317 | |||||||||
Profit attributable to ordinary and preference shareholders |
26,452 | 37,374 | 13,901 | |||||||||
F-30
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Weighted average number of ordinary shares and preference shares
2009 | 2008 | 2007 | ||||||||||
(In thousands of shares) | ||||||||||||
Weighted average number of ordinary shares (basic) |
45,953 | 41,928 | 39,665 | |||||||||
Weighted average number of preference shares |
174,040 | 174,040 | 141,316 | |||||||||
Weighted average number of conversion of convertible loan |
| | 32,723 | |||||||||
Weighted average number of ordinary and preference shares at December 31 |
219,993 | 215,968 | 213,704 | |||||||||
Dilution effect of share options on issue |
13,968 | 15,536 | 13,297 | |||||||||
Weighted average number of ordinary and preference shares (diluted) at December 31 |
233,961 | 231,504 | 227,001 | |||||||||
15 Trade and other payables
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Non-current |
||||||||||||
Deferred revenue |
6,815 | 7,731 | 5,624 | |||||||||
Other non-current liabilities |
1,412 | 1,226 | 990 | |||||||||
8,227 | 8,957 | 6,614 | ||||||||||
Current |
||||||||||||
Trade payables |
25,032 | 35,542 | 14,195 | |||||||||
Tax and social security |
3,607 | 1,205 | 2,386 | |||||||||
Customer deposits |
12,941 | 11,626 | 8,999 | |||||||||
Deferred revenue |
30,437 | 24,043 | 19,343 | |||||||||
Accrued expenses |
19,012 | 21,530 | 14,437 | |||||||||
91,029 | 93,946 | 59,360 | ||||||||||
Trade payables include 15,147,000 (2008: 24,653,000 and 2007: 7,118,000) accounts payable in respect of purchases of property, plant and equipment.
Accrued expenses are analyzed as follows:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Data center related costs |
6,200 | 8,350 | 4,976 | |||||||||
Personnel and related costs |
7,027 | 6,573 | 4,611 | |||||||||
Professional services |
1,315 | 1,405 | 791 | |||||||||
Customer implementation and related costs |
678 | 573 | 367 | |||||||||
Other |
3,792 | 4,629 | 3,692 | |||||||||
19,012 | 21,530 | 14,437 | ||||||||||
F-31
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
16 Provision for onerous lease contracts
The provision for onerous lease contracts principally relates to two unused data center sites in Germany. In 2008 and 2007, the provision also included amounts for an unused data center site in Switzerland. In 2009, the Company settled the lease with the Swiss landlord. The provision is calculated based on the discounted future contracted payments net of any sublease revenues.
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
As at 1 January |
22,912 | 24,831 | 20,953 | |||||||||
Increase in provision |
3,282 | 1,077 | 7,638 | |||||||||
Settlement |
(4,950 | ) | | | ||||||||
Unwinding of discount |
708 | 1,034 | 755 | |||||||||
Utilization of provision |
(3,040 | ) | (4,635 | ) | (4,296 | ) | ||||||
Exchange differences |
| 605 | (219 | ) | ||||||||
As at December 31 |
18,912 | 22,912 | 24,831 | |||||||||
Non-current |
15,844 | 18,367 | 20,716 | |||||||||
Current |
3,068 | 4,545 | 4,115 | |||||||||
18,912 | 22,912 | 24,831 | ||||||||||
Discounted estimated future losses are calculated using a discount rate based on the 10-year Euro-area
17 Borrowings
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Non-current |
||||||||||||
Bank borrowings |
124,777 | 104,291 | 35,911 | |||||||||
Finance lease liabilities |
889 | 1,244 | 1,728 | |||||||||
Other loans |
3,012 | 1,849 | 1,779 | |||||||||
128,678 | 107,384 | 39,418 | ||||||||||
Current |
||||||||||||
Bank borrowings |
24,168 | 22,867 | 9,718 | |||||||||
Finance lease liabilities |
347 | 482 | 530 | |||||||||
Other loans |
1,906 | 354 | 420 | |||||||||
26,421 | 23,703 | 10,668 | ||||||||||
Total borrowings |
155,099 | 131,087 | 50,086 | |||||||||
The carrying amounts of the Groups borrowings are principally denominated in Euros. The fair value of non-current and current borrowings equals their carrying amount, as the impact of discounting is not significant. The fair values are based on cash flows discounted using a rate based on the market rate.
Bank borrowings
Bank borrowings are used to finance investments in capital expansion projects in order to increase equipped space within new and existing data centers. These borrowings are secured by the related project assets.
F-32
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
On June 18, 2009, the Group entered into a 45 million 5-year Junior Term Loan with ABN AMRO Bank N.V. (as successor to Fortis Bank (Nederland) N.V.), ING Bank N.V. and Coöperatieve Rabobank Regio Schiphol U.A. Together with the senior revolving facility available already at December 31, 2008, the total available borrowing facilities as at December 31, 2009 amount to 180 million of which at that date 152.4 million was drawn.
Bank borrowings mature on various dates until July 31, 2014 and in 2009 bear an average interest of three months EURIBOR plus on average 3.2% annually (2008: three months EURIBOR plus on average 2.4% annually, 2007: three months EURIBOR plus 1.8% annually).
The maturity profile of the gross amounts of bank borrowings is set out below:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Within one year |
24,843 | 23,064 | 9,718 | |||||||||
Between 1 and 5 years |
127,659 | 105,769 | 36,510 | |||||||||
152,502 | 128,833 | 46,228 | ||||||||||
The Group has the following undrawn bank borrowing facilities:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Expiring within one year |
27,613 | 3,867 | 16,451 | |||||||||
As at the year-end, the Group was in compliance with all covenants associated with its bank borrowings.
The Group hedges a portion of the bank facilities with interest rate swaps, exchanging EURIBOR based variable rate interest for fixed rate interest.
Financial lease liabilities
Financial lease liabilities relate to the acquisition of property, plant and equipment with the following repayment schedule:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Gross lease liabilities: |
||||||||||||
Within one year |
526 | 583 | 530 | |||||||||
Between 1 and 5 years |
807 | 1,272 | 1,800 | |||||||||
After 5 years |
| 51 | 217 | |||||||||
1,333 | 1,906 | 2,547 | ||||||||||
Future interest payments |
(97 | ) | (180 | ) | (289 | ) | ||||||
Present Value of Minimum Lease Payments |
1,236 | 1,726 | 2,258 | |||||||||
Other loans
Loan from landlord
The Company has a loan facility with the landlord of one of its unused data center sites in Germany to allow the Company to invest in improvements to the building to meet the requirements of sub-lessees. The non-current
F-33
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
loan bears interest at 6% per annum and is repayable at the end of the lease term. As at December 31, 2009, the balance of the landlord loan was 1,605,000 (2008: 1,605,000 and 2007: 1,180,000).
During 2009, the Company entered into a loan facility with the landlord of its unused data center site in Switzerland to fund the settlement of the lease of that site. The carrying amount is 3,205,000.
18 Financial instruments
Credit risk
Exposure to credit risk
The carrying amount of financial assets represents the maximum credit exposure. The maximum exposure to credit risk at the reporting date was:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Trade receivables |
37,261 | 28,743 | 20,353 | |||||||||
Cash and cash equivalents |
32,003 | 61,775 | 35,848 | |||||||||
69,264 | 90,518 | 56,201 | ||||||||||
The maximum exposure to credit risk for trade receivables at the reporting date by geographic region was:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
UK, France, Germany and the Netherlands |
26,953 | 18,692 | 13,675 | |||||||||
Rest of Europe |
10,308 | 10,051 | 6,678 | |||||||||
37,261 | 28,743 | 20,353 | ||||||||||
The Groups most significant customer accounts for less than 5% of the trade receivables carrying amount at December 31, 2009, as at December 31, 2008 and as at December 31, 2007.
Impairment losses
The aging of trade receivables as at the reporting date was:
2009 | 2008 | 2007 | ||||||||||||||||||||||
Gross | Impairment | Gross | Impairment | Gross | Impairment | |||||||||||||||||||
(000) | ||||||||||||||||||||||||
Not past due |
30,031 | | 22,797 | | 15,618 | | ||||||||||||||||||
Past due 0-30 days |
4,708 | | 3,402 | | 3,690 | | ||||||||||||||||||
Past due 31-120 days |
2,437 | 56 | 2,090 | | 1,043 | | ||||||||||||||||||
Past due 120 days 1 year |
274 | 206 | 590 | 136 | 87 | 85 | ||||||||||||||||||
More than 1 year |
113 | 40 | 8 | 8 | 9 | 9 | ||||||||||||||||||
37,563 | 302 | 28,887 | 144 | 20,447 | 94 | |||||||||||||||||||
F-34
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The movement in the allowance for impairment in respect of trade receivables during the year was as follows:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Balance as at January 1 |
144 | 94 | 100 | |||||||||
Impairment loss recognized |
176 | 63 | 14 | |||||||||
Write-offs |
(18 | ) | (13 | ) | (20 | ) | ||||||
Balance as at December 31 |
302 | 144 | 94 | |||||||||
Based on historic default rates, the Group believes that no impairment allowance is necessary in respect of trade receivables other than those that have been specifically provided for; close to a 100% of the balance relates to customers that have a good track record with the Group.
Liquidity risk
The following are the contractual maturities of financial liabilities, including interest payments and excluding the impact of netting agreements.
December 31, 2009
Carrying
amount |
Contractual
cash flows |
Less than
1 year |
Between
1 - 5 years |
More than
5 years |
||||||||||||||||
(000) | ||||||||||||||||||||
Financial liabilities |
||||||||||||||||||||
Bank borrowings (1) |
148,945 | 174,178 | 35,703 | 138,465 | 10 | |||||||||||||||
Finance lease liabilities |
1,236 | 1,333 | 499 | 834 | | |||||||||||||||
Other loans |
4,918 | 5,029 | 2,005 | 1,419 | 1,605 | |||||||||||||||
Trade and other payables (2 ) |
62,004 | 62,004 | 60,592 | 1,412 | | |||||||||||||||
217,103 | 242,544 | 98,799 | 142,130 | 1,615 | ||||||||||||||||
December 31, 2008
Carrying
amount |
Contractual
cash flows |
Less than
1 year |
Between
1 - 5 years |
More than
5 years |
||||||||||||||||
(000) | ||||||||||||||||||||
Financial liabilities |
||||||||||||||||||||
Bank borrowings |
127,158 | 149,126 | 31,501 | 117,625 | | |||||||||||||||
Finance lease liabilities |
1,726 | 1,906 | 583 | 1,272 | 51 | |||||||||||||||
Other loans |
2,203 | 3,024 | 486 | 644 | 1,894 | |||||||||||||||
Trade and other payables (2 ) |
71,129 | 71,129 | 69,903 | 1,226 | | |||||||||||||||
202,216 | 225,185 | 102,473 | 120,767 | 1,945 | ||||||||||||||||
F-35
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
December 31, 2007
Carrying
amount |
Contractual
cash flows |
Less than
1 year |
Between
1 - 5 years |
More than
5 years |
||||||||||||||||
(000) | ||||||||||||||||||||
Financial liabilities |
||||||||||||||||||||
Bank borrowings |
45,629 | 55,321 | 6,536 | 48,785 | | |||||||||||||||
Finance lease liabilities |
2,258 | 2,545 | 640 | 1,800 | 105 | |||||||||||||||
Other loans |
2,199 | 2,614 | 445 | 2,169 | | |||||||||||||||
Trade and other payables (2) |
41,007 | 41,007 | 40,017 | 990 | | |||||||||||||||
91,093 | 101,487 | 47,638 | 53,744 | 105 | ||||||||||||||||
Notes:
(1) | Cash flows for bank borrowings include the estimated cash flows from the interest rate swaps. |
(2) | Excludes deferred revenues. |
On June 13, 2007, the entire aggregate amount of the principal and accrued interest on the convertible loan was converted into 2002 Series A preference shares. There was no cash flow impact on the Group as a result of this conversion.
Currency risk
Exposure to currency risk
The following significant exchange rates applied during the year:
Average rate |
Report date
mid-spot rate |
|||||||||||||||||||||||
2009 | 2008 | 2007 | 2009 | 2008 | 2007 | |||||||||||||||||||
Euro |
||||||||||||||||||||||||
GBP 1 |
1.122 | 1.254 | 1.460 | 1.117 | 1.035 | 1.357 | ||||||||||||||||||
CHF 1 |
0.662 | 0.630 | 0.609 | 0.674 | 0.671 | 0.603 | ||||||||||||||||||
DKK 1 |
0.134 | 0.134 | 0.134 | 0.134 | 0.134 | 0.134 | ||||||||||||||||||
SEK 1 |
0.094 | 0.104 | 0.108 | 0.098 | 0.092 | 0.106 |
F-36
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Sensitivity analysis
A 10% strengthening of the Euro against the following currencies at December 31 would have increased (decreased) equity and profit or loss by approximately the amounts shown below. This analysis assumes that all other variables, in particular interest rates, remain constant and is performed on the same basis for 2008 and 2007.
Equity |
Profit or
loss |
|||||||
(000) | ||||||||
December 31, 2009 |
||||||||
GBP |
(1,100 | ) | (358 | ) | ||||
CHF |
(1,058 | ) | (289 | ) | ||||
DKK |
(1,007 | ) | (134 | ) | ||||
SEK |
(1 | ) | 10 | |||||
December 31, 2008 |
||||||||
GBP |
(1,181 | ) | 525 | |||||
CHF |
(1,367 | ) | (1,319 | ) | ||||
DKK |
(923 | ) | (296 | ) | ||||
SEK |
10 | 12 | ||||||
December 31, 2007 |
||||||||
GBP |
237 | (58 | ) | |||||
CHF |
(538 | ) | 62 | |||||
DKK |
(650 | ) | (39 | ) | ||||
SEK |
(42 | ) | 239 |
A 10% weakening of the Euro against the above currencies at December 31 would have had the equal but opposite effect on the above currencies to the amounts shown above, on the basis that all other variables remain constant.
Interest rate risk
Profile
At the reporting date, the interest rate profile of the Groups interest-bearing financial instruments was:
Carrying amount | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Fixed rate instrument |
||||||||||||
Finance lease liabilities |
1,236 | 1,726 | 2,258 | |||||||||
Other loans |
4,918 | 2,203 | 2,199 | |||||||||
6,154 | 3,929 | 4,457 | ||||||||||
Variable rate instruments |
||||||||||||
Bank borrowings |
148,945 | 127,158 | 45,629 | |||||||||
155,099 | 131,087 | 50,086 | ||||||||||
In November 2009, the Group entered into an interest rate swap to fix interest rates on variable rates borrowings. The amount to be hedged via an interest rate swap is 45.9 million. The hedge is not effective as the hedged financial instrument is extinguished by the Senior Secured Notes issued in 2010 (Please refer to Note 24 Events subsequent to the balance sheet date). Unrealized hedging results were booked to net finance expenses in the income statement. The below schedule summarizes the open interest swap transactions and their valuation as at December 31.
F-37
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Fair values of interest rate swaps as at December 31,
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Interest swaps |
(99 | ) | | | ||||||||
Total fair value |
(99 | ) | | | ||||||||
Weighted Average
Contracted Fixed Interest Rate |
Notional Principal Value | Fair Value | ||||||||||||||||||||||
2009 | 2008 | 2009 | 2008 | 2009 | 2008 | |||||||||||||||||||
(%) | (000) | |||||||||||||||||||||||
Less than 1 year |
| | | | | | ||||||||||||||||||
1 to 2 years |
| | | | | | ||||||||||||||||||
2 to 5 years |
4.21 | | 45,914 | | (99 | ) | | |||||||||||||||||
5 years+ |
| | | | | |
Cash flow sensitivity analysis for variable rate instruments
A change of 100 basis points in interest rates payable at the reporting date would have increased (decreased) equity and profit or loss by the amounts shown below. This analysis assumes that all other variables, in particular foreign currency rates, remain constant. The analysis is performed on the same basis for 2008 and 2007.
Profit or loss | Equity | |||||||||||||||
100 bp
increase |
100 bp
decrease |
100 bp
increase |
100 bp
decrease |
|||||||||||||
(000) | ||||||||||||||||
December 31, 2009 |
||||||||||||||||
Variable rate instruments |
(1,458 | ) | 1,458 | (1,458 | ) | 1,458 | ||||||||||
December 31, 2008 |
||||||||||||||||
Variable rate instruments |
(687 | ) | 687 | (687 | ) | 687 | ||||||||||
December 31, 2007 |
||||||||||||||||
Variable rate instruments |
(219 | ) | 219 | (219 | ) | 219 |
Fair values and hierarchy
Fair values versus carrying amounts
The carrying amounts of financial assets and liabilities approximate their fair value.
Fair value hierarchy
Certain liabilities related to financial instruments are carried at fair value. The company uses three levels of valuation method as defined below:
Level 1: |
quotedprices (unadjusted) in active markets for identical assets or liabilities |
|
Level 2: | inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly (i.e., as prices) or indirectly (i.e., derived from prices) | |
Level 3: |
inputsfor the asset or liability that are not based on observable market data (unobservable inputs). |
F-38
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The Group had no assets valued at fair value at December 31, 2009 (2008: nil and 2007: nil). The table below sets out liabilities at fair value at December 31, 2009 (2008: nil and 2007: nil) by valuation method:
December 31, 2009 | ||||||||||||
Level 1 | Level 2 | Level 3 | ||||||||||
Interest rate swaps |
| (99 | ) | |
19 Share-based payments
Summary of outstanding options
Share options to acquire a fixed number of certificates of shares are granted to employees and others based on a number of factors. The exercise price is fixed at the date of the grant.
The terms and conditions of the grants are as follows:
Grant date |
Employees entitled |
Exercise
price |
Granted | Outstanding | Exercisable | |||||||||||||
(In thousands) | ||||||||||||||||||
2001 | Key management | 0.02 | 77 | 77 | | |||||||||||||
2003 | Key management | 0.20 | 7,497 | | | |||||||||||||
Key management | 0.40 | 7,497 | 498 | 498 | ||||||||||||||
Senior employees | 0.20 | 453 | 348 | 348 | ||||||||||||||
Senior employees | 0.40 | 452 | 266 | 266 | ||||||||||||||
2005 | Key management | 0.20 | 6,999 | 6,747 | 6,747 | |||||||||||||
Senior employees | 0.20 | 1,104 | 1,031 | 1,028 | ||||||||||||||
Senior employees | 0.40 | 150 | 150 | 147 | ||||||||||||||
2006 | Key management | 0.20 | 1,500 | 375 | 375 | |||||||||||||
2007 | Key management | 0.70 | 8,300 | 8,300 | 6,231 | |||||||||||||
Key management | 0.89 | 500 | 500 | 250 | ||||||||||||||
2008 | Key management | 0.89 | 1,300 | 406 | 406 | |||||||||||||
Senior employees | 0.20 | 101 | 101 | 101 | ||||||||||||||
Senior employees | 0.40 | 3 | 3 | 3 | ||||||||||||||
Senior employees | 0.89 | 1,745 | 1,564 | 693 | ||||||||||||||
Senior employees | 1.00 | 480 | 480 | 120 | ||||||||||||||
2009 | Key management | 1.00 | 625 | 625 | | |||||||||||||
Senior employees | 1.00 | 360 | 360 | 50 | ||||||||||||||
Total share options |
39,143 | 21,831 | 17,263 | |||||||||||||||
With the exception of the share options granted in 2001, share options granted vest over 4 years and can be exercised up to 5 years after the date of grant. The share options granted in 2001 do not become exercisable until the occurrence of certain events following which they can be exercised during the following six-month period. In 2008, the exercise periods of some options granted in 2003 and 2005 but not yet exercised were extended to December 31, 2010.
F-39
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The number and weighted average exercise prices of outstanding share options are as follows:
Weighted average exercise price | Number of options in thousands | |||||||||||||||||||||||
2009 | 2008 | 2007 | 2009 | 2008 | 2007 | |||||||||||||||||||
Outstanding at January 1 |
0.49 | 0.38 | 0.21 | 25,392 | 26,911 | 19,743 | ||||||||||||||||||
Granted |
1.00 | 0.90 | 0.71 | 985 | 3,629 | 8,800 | ||||||||||||||||||
Exercised |
0.20 | 0.23 | | (3,521 | ) | (4,527 | ) | |||||||||||||||||
Expired |
| 0.23 | 0.47 | | (565 | ) | (506 | ) | ||||||||||||||||
Forfeited |
0.84 | 0.82 | 0.21 | (1,025 | ) | (56 | ) | (1,126 | ) | |||||||||||||||
OutstandingDecember 31 |
0.53 | 0.49 | 0.38 | 21,831 | 25,392 | 26,911 | ||||||||||||||||||
ExercisableDecember 31 |
0.41 | 0.34 | 0.28 | 17,263 | 17,461 | 20,509 | ||||||||||||||||||
The options outstanding at December 31, 2009 have a weighted average contractual life of 3.6 years (2008: 2.7 years and 2007: 2.2 years).
Employee expenses
In 2009, the Company recorded employee expenses of 950,000 related to share-based payments (2008: 1,660,000 and 2007: 1,399,000).
The weighted average fair value at grant date of options granted during the period has been determined using the Black-Scholes valuation model. The following inputs have been used:
2009 | 2008 | 2007 | ||||||||||
Share price at grant date |
1.34 to 1.72 | 0.89 to 1.39 | 0.69 to 0.89 | |||||||||
Exercise price |
1.00 | 0.89 to 1.00 | 0.70 to 0.89 | |||||||||
Dividend yield |
0 | % | 0 | % | 0 | % | ||||||
Expected volatility |
35 | % | 57 | % | 40 | % | ||||||
Risk free interest rate |
4.1 | % | 4.2 | % | 4.4 | % | ||||||
Expected life weighted average |
3.5 years | 3.5 years | 3.5 years |
The significant inputs into the model were:
|
Expected volatility based on the performance of companies that are considered to be comparable to the Group. |
|
A risk-free interest rate based on the yield on zero coupon bonds issued by the Netherlands government with a maturity similar to the expected life of the options. |
|
Expected life is considered to be equal to the average of the share option exercise and vesting periods as there is no public market on which they can be traded. |
20 Financial commitments
Non-cancellable operating lease commitments
The Group has future minimum off-balance sheet commitments for non-cancellable operating leases with terms in excess of one year as follows:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Within 1 year |
22,717 | 18,384 | 17,371 | |||||||||
Between 1 to 5 years |
84,439 | 65,229 | 68,765 | |||||||||
After 5 years |
75,728 | 37,275 | 25,889 | |||||||||
182,884 | 120,888 | 112,025 | ||||||||||
F-40
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Gross operating lease expense for 2009 was 20,483,000 (2008: 18,089,000 and 2007: 16,883,000).
Future committed revenues receivable
The Group enters into initial contracts with its customers for periods of at least 1 year and generally between 3 and 5 years resulting in future committed revenues from customers. At December 31, the Group had contracts with customers for future committed revenues receivable as follows:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Within 1 year |
101,235 | 84,074 | 67,439 | |||||||||
Between 1 to 5 years |
96,392 | 90,204 | 81,142 | |||||||||
After 5 years |
16,093 | 7,553 | 9,590 | |||||||||
213,720 | 181,831 | 158,171 | ||||||||||
Commitments to purchase power
The Group, where possible, seeks to purchase power on fixed-price term agreements with local power supply companies within the cities in which it operates. In some cases the Group also commits to purchase certain minimum volumes of power at fixed prices. At December 31, 2009, the Group had entered into non-cancellable power purchase commitments of approximately 9,800,000, all of which will be paid in 2010.
21 Capital commitments
At December 31, 2009, the Group had outstanding capital commitments totalling 33,539,000 (2008: 46,472,000 and 2007: 7,992,000). These commitments are expected to be settled in the following financial year.
22 Contingencies
Guarantees
Certain of our subsidiaries have granted guarantees to our lending banks in relation to our borrowings. The Company has granted rent guarantees to landlords of certain of the Groups property leases. Financial guarantees granted by the Groups banks in respect of operating leases amount to 3,828,000 (2008: 3,872,000 and 2007: 3,558,000) and other supplier guarantees amounting to 2,655,000.
Costs of sites restoration
As at December 31, 2009, the estimated discounted cost relating to the restoration of data center leasehold premises was 14,481,000 (2008: 13,115,000 and 2007: 9,979,000), of which 633,000 (2008: 208,000 and 2007: 144,000) was recognized. Remaining lease terms are over a range of 1 to 24 years and, in accordance with the Groups accounting policy, amounts have only been provided in the financial statements in respect of premises where it is probable that the lease will not be renewed. The Group expects to exercise its right to renew its leases when they expire and continue to use the sites as data centers. It is therefore not expected that other site restoration liabilities will be incurred.
23 Related-party transactions
There are no material transactions with related parties, other than as disclosed below, and all transactions are conducted at arms length.
F-41
NOTES TO THE 2009 CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Shareholders Agreement
On August 3, 2000, the Company and its shareholders (as at that date) entered into a shareholders agreement, which was most recently amended and restated on December 24, 2009 (the Shareholders Agreement). The Shareholders Agreement sets out certain rights and obligations between the parties specified therein.
Chief Executive Officer
On October 31, 2007, Mr. Ruberg resigned as a partner of Baker Capital LLP and on November 5, 2007 he was appointed as Chief Executive Officer of the Group. As at November 5, 2007 and December 31, 2007, Mr. Ruberg held an indirect interest of 0.01% in the shares of the Company through his interests in Baker Capital funds. Mr. Ruberg had no voting rights over any of these interests. On June 23, 2008, Mr. Ruberg sold his interest in Baker Capital funds.
Key management compensation
The total compensation of key management is as follows:
2009 | 2008 | 2007 | ||||||||||
(000) | ||||||||||||
Short-term employee benefits (salaries and bonuses) |
3,505 | 3,935 | 2,971 | |||||||||
Post-employment benefits |
66 | 40 | 54 | |||||||||
Termination benefits |
83 | | 160 | |||||||||
3,654 | 3,975 | 3,185 | ||||||||||
Key managements share-based payment compensation is disclosed in Note 19.
24 Events subsequent to the balance sheet date
On February 12, 2010, the Company issued, at par, 200,000,000 of 9.50% Senior Secured Notes due 2017. The Notes are listed on the Luxembourg Stock Exchanges Euro MTF Market. The proceeds were used to repay in full the Companys bank borrowings and surplus proceeds will be used to fund future data center expansion. Cash and non-cash costs related to the repayment of the Companys bank borrowings amount to approximately EUR 10 million, which will be charged through the 2010 income statement.
On February 12, 2010, the Company entered into a new 60,000,000 Revolving Credit Facility, which remained undrawn.
On February 18, 2010, the Group closed out its interest rate swap contracts.
F-42
Unaudited interim financial statements of InterXion Holding N.V.
as of and for the quarters and the nine months
ended September 30, 2010 and 2009
F-43
Consolidated Interim Income Statement
Note |
For the quarter ended
September 30, |
For the nine months ended
September 30, |
||||||||||||||||||
2010 | 2009 | 2010 | 2009 | |||||||||||||||||
(000) | ||||||||||||||||||||
Revenue |
6 | 54,646 | 43,739 | 152,824 | 126,611 | |||||||||||||||
Cost of sales |
6 | (23,945 | ) | (19,907 | ) | (67,867 | ) | (58,163 | ) | |||||||||||
Gross profit |
30,701 | 23,832 | 84,957 | 68,448 | ||||||||||||||||
Other income |
6 | 67 | 103 | 293 | 629 | |||||||||||||||
Sales and marketing costs |
6 | (4,380 | ) | (2,729 | ) | (11,262 | ) | (8,439 | ) | |||||||||||
Total general and administrative costs |
6 | (13,781 | ) | (15,691 | ) | (39,717 | ) | (36,180 | ) | |||||||||||
Operating profit |
12,607 | 5,515 | 34,271 | 24,458 | ||||||||||||||||
Net finance expense |
7 | (5,066 | ) | (1,909 | ) | (23,321 | ) | (4,387 | ) | |||||||||||
Profit before taxation |
7,541 | 3,606 | 10,950 | 20,071 | ||||||||||||||||
Income tax expense |
8 | (1,606 | ) | (2,321 | ) | (5,782 | ) | (4,642 | ) | |||||||||||
Profit for the period attributable to shareholders |
5,935 | 1,285 | 5,168 | 15,429 | ||||||||||||||||
Basic earnings per share: () |
0.03 | 0.01 | 0.02 | 0.07 | ||||||||||||||||
Diluted earnings per share: () |
0.02 | 0.01 | 0.02 | 0.06 |
Consolidated Interim Statement of Comprehensive income
The accompanying notes form an integral part of these consolidated interim financial statements.
F-44
Consolidated Interim Balance Sheet
As at |
Note |
September 30,
2010 |
December 31,
2009 |
|||||||||
(000) | ||||||||||||
Non-current assets |
||||||||||||
Property, plant and equipment |
9 | 332,327 | 275,960 | |||||||||
Intangible assets |
5,876 | 3,642 | ||||||||||
Deferred tax assets |
35,619 | 39,585 | ||||||||||
Trade and other receivables |
2,420 | 1,220 | ||||||||||
376,242 | 320,407 | |||||||||||
Current assets |
||||||||||||
Trade and other receivables |
57,829 | 55,610 | ||||||||||
Cash and cash equivalents |
30,592 | 32,003 | ||||||||||
88,421 | 87,613 | |||||||||||
Total assets |
464,663 | 408,020 | ||||||||||
Shareholders equity |
||||||||||||
Share capital |
4,434 | 4,434 | ||||||||||
Share premium |
320,457 | 319,388 | ||||||||||
Foreign currency translation reserve |
3,097 | 413 | ||||||||||
Accumulated deficit |
(184,690 | ) | (189,858 | ) | ||||||||
143,298 | 134,377 | |||||||||||
Non-current liabilities |
||||||||||||
Trade and other payables |
9,186 | 8,227 | ||||||||||
Provision for onerous lease contracts |
13,845 | 15,844 | ||||||||||
Borrowings |
10 | 195,819 | 128,678 | |||||||||
218,850 | 152,749 | |||||||||||
Current liabilities |
||||||||||||
Trade and other payables |
95,903 | 91,029 | ||||||||||
Current tax liabilities |
894 | 376 | ||||||||||
Provision for onerous lease contracts |
3,105 | 3,068 | ||||||||||
Borrowings |
10 | 2,613 | 26,421 | |||||||||
102,515 | 120,894 | |||||||||||
Total liabilities |
321,365 | 273,643 | ||||||||||
Total liabilities and shareholders equity |
464,663 | 408,020 | ||||||||||
The accompanying notes form an integral part of these consolidated interim financial statements.
F-45
Consolidated Interim Statement of Changes in Shareholders Equity
Share
capital |
Share
premium |
Foreign
currency translation reserve |
Accumulated
deficit |
Total
equity |
||||||||||||||||
(000) | ||||||||||||||||||||
Balance at January 1, 2010 |
4,434 | 319,388 | 413 | (189,858 | ) | 134,377 | ||||||||||||||
Profit for the period |
| | | 5,168 | 5,168 | |||||||||||||||
Total other comprehensive income |
| | 2,684 | | 2,684 | |||||||||||||||
Total comprehensive income |
| | 2,684 | 5,168 | 7,852 | |||||||||||||||
Share-based payments |
| 1,069 | | | 1,069 | |||||||||||||||
Total contributions by and distributions to owners of the Company |
| 1,069 | | | 1,069 | |||||||||||||||
Balance at September 30, 2010 |
4,434 | 320,457 | 3,097 | (184,690 | ) | 143,298 | ||||||||||||||
Balance at January 1, 2009 |
4,364 | 317,806 | (934 | ) | (216,310 | ) | 104,926 | |||||||||||||
Profit for the period |
| | | 15,429 | 15,429 | |||||||||||||||
Total other comprehensive income |
| | 1,081 | | 1,081 | |||||||||||||||
Total comprehensive income |
| | 1,081 | 15,429 | 16,510 | |||||||||||||||
Exercise of options |
70 | 632 | | | 702 | |||||||||||||||
Share-based payments |
| 605 | | | 605 | |||||||||||||||
Total contributions by and distributions to owners of the Company |
70 | 1,237 | | | 1,307 | |||||||||||||||
Balance at September 30, 2009 |
4,434 | 319,043 | 147 | (200,881 | ) | 122,743 | ||||||||||||||
The accompanying notes form an integral part of these consolidated interim financial statements.
F-46
Consolidated Interim Statement of Cash Flows
For the quarter ended
September 30, |
For the nine months ended
September 30, |
|||||||||||||||
2010 | 2009 | 2010 | 2009 | |||||||||||||
000 | ||||||||||||||||
Profit for the period |
5,935 | 1,285 | 5,168 | 15,429 | ||||||||||||
Depreciation and amortization |
7,802 | 5,567 | 22,483 | 15,195 | ||||||||||||
Provision for onerous lease contracts |
(288 | ) | (363 | ) | (1,828 | ) | (541 | ) | ||||||||
Share-based payments |
409 | 201 | 1,069 | 605 | ||||||||||||
Abandoned transaction cost |
| 4,841 | | 4,841 | ||||||||||||
Net finance expense |
4,777 | 1,909 | 23,032 | 4,387 | ||||||||||||
Income tax expense |
1,606 | 2,321 | 5,782 | 4,642 | ||||||||||||
20,241 | 15,761 | 55,706 | 44,558 | |||||||||||||
Movements in trade and other current assets |
(4,264 | ) | (2,053 | ) | (1,618 | ) | (5,419 | ) | ||||||||
Movements in trade and other payables |
3,388 | (5,191 | ) | 4,211 | 2,974 | |||||||||||
Cash generated from operations |
19,365 | 8,517 | 58,299 | 42,113 | ||||||||||||
Interest paid |
(8,200 | ) | (2,242 | ) | (9,178 | ) | (4,835 | ) | ||||||||
Interest received |
150 | 107 | 337 | 431 | ||||||||||||
Income tax paid |
(724 | ) | (336 | ) | (950 | ) | (416 | ) | ||||||||
Net cash flows from operating activities |
10,591 | 6,046 | 48,508 | 37,293 | ||||||||||||
Cash flow from investing activities |
||||||||||||||||
Purchase of property, plant and equipment |
(25,516 | ) | (18,094 | ) | (79,113 | ) | (74,986 | ) | ||||||||
Purchase of intangible assets |
(1,059 | ) | (381 | ) | (1,549 | ) | (1,001 | ) | ||||||||
Net cash flows from investing activities |
(26,575 | ) | (18,475 | ) | (80,662 | ) | (75,987 | ) | ||||||||
Cash flow from financing activities |
||||||||||||||||
Proceeds from exercised options |
| | | 702 | ||||||||||||
Proceeds/(repayment) bank facilities |
| 11,085 | (159,046 | ) | 22,237 | |||||||||||
Proceeds from Revolving Credit Facility and Senior Secured Notes |
(414 | ) | | 190,830 | | |||||||||||
Other borrowings |
(6 | ) | (522 | ) | (1,176 | ) | (2,429 | ) | ||||||||
Net cash flows from financing activities |
(420 | ) | 10,563 | 30,608 | 20,510 | |||||||||||
Effect of exchange rate changes on cash |
(125 | ) | 106 | 135 | (100 | ) | ||||||||||
Net movement in cash and cash equivalents |
(16,529 | ) | (1,760 | ) | (1,411 | ) | (18,284 | ) | ||||||||
Cash and cash equivalents, beginning of period |
47,121 | 45,251 | 32,003 | 61,775 | ||||||||||||
Cash and cash equivalents, end of period |
30,592 | 43,491 | 30,592 | 43,491 | ||||||||||||
The accompanying notes form an integral part of these consolidated interim financial statements.
F-47
NOTES TO THE CONSOLIDATED INTERIM FINANCIAL STATEMENTS
1 The Company
Interxion Holding N.V. (the Company) is domiciled in The Netherlands. The address of the Companys registered office is Tupolevlaan 24, 1119 NX, Schiphol-Rijk, The Netherlands. The consolidated interim financial statements of the Company as at and for the quarter and nine months ended September 30, 2010 comprise the Company and its subsidiaries (together referred to as the Group). The Group is a leading pan-European operator of carrier neutral Internet data centers.
2 Statement of compliance
The consolidated interim financial statements have been prepared in accordance with International Financial Reporting Standards (IFRS) IAS 34 Interim Financial Reporting . They do not include all the information required for full annual financial statements, and should be read in conjunction with the audited consolidated financial statements of the Group as at and for the year ended December 31, 2009; these are contained in the 2009 Annual Report which is publicly available on the companys websitewww.interxion.com.
3 Significant accounting policies
The accounting policies applied by the Group in these consolidated Interim Financial Statements are the same as those applied by the Group in its consolidated Financial Statements as at and for the year ended December 31, 2009, except for the new Standards and Interpretations as of January 1, 2010. Compared with the accounting principles as applied in the 2009 financial statements, the main change was the adoption of the revised IFRS 3 Business Combinations. This did not have an impact on the financial position or performance of the Group.
4 Estimates
The preparation of interim financial statements requires management to make judgments, estimates and assumptions that affect the application of accounting policies and the reported amounts of assets and liabilities, income and expense. Actual results may differ from these estimates.
In preparing these consolidated Interim Financial Statements, the significant judgments made by management in applying the Groups accounting policies and the key sources of estimation uncertainty were the same as those applied to the consolidated financial statements as at and for the year ended December 31, 2009 in the 2009 Annual Report.
5 Financial risk management
The Groups financial risk management objectives and policies are consistent with those disclosed in the audited consolidated financial statements in the 2009 Annual Report.
6 Information by segment
IFRS 8 requires operating segments to be identified on the basis of internal reports about components of the Group that are regularly reviewed by the chief operating decision maker in order to allocate resources to the segments and to assess their performance. Management monitors the operating results of its operating segments separately for the purpose of making decisions about performance assessments.
The performance of the operating segments is primarily based on the measures of revenue, EBITDA and adjusted EBITDA. Other information provided to the Managing Director is measured in a manner consistent with that in the financial statements.
F-48
NOTES TO THE CONSOLIDATED INTERIM FINANCIAL STATEMENTS(Continued)
For the quarter ended September 30, 2010
FR, DE
NL and UK |
Rest of
Europe |
Subtotal |
Corporate
and other |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
Revenue |
32,800 | 21,846 | 54,646 | | 54,646 | |||||||||||||||
Cost of sales |
(14,427 | ) | (8,260 | ) | (22,687 | ) | (1,258 | ) | (23,945 | ) | ||||||||||
Gross profit/(loss) |
18,373 | 13,586 | 31,959 | (1,258 | ) | 30,701 | ||||||||||||||
Other income |
67 | | 67 | | 67 | |||||||||||||||
Sales and marketing costs |
(1,467 | ) | (880 | ) | (2,347 | ) | (2,033 | ) | (4,380 | ) | ||||||||||
Total general and administrative costs |
(6,924 | ) | (4,032 | ) | (10,956 | ) | (2,825 | ) | (13,781 | ) | ||||||||||
Operating profit/(loss) |
10,049 | 8,674 | 18,723 | (6,116 | ) | 12,607 | ||||||||||||||
Net finance expense |
(5,066 | ) | ||||||||||||||||||
Profit before tax |
7,541 | |||||||||||||||||||
Total assets |
267,259 | 147,435 | 414,694 | 49,969 | 464,663 | |||||||||||||||
Total liabilities |
83,750 | 35,718 | 119,468 | 201,897 | 321,365 | |||||||||||||||
Capital expenditures (PPE) paid |
14,027 | 8,378 | 22,405 | 3,111 | 25,516 | |||||||||||||||
Depreciation, amortization, impairments |
(4,676 | ) | (2,843 | ) | (7,519 | ) | (283 | ) | (7,802 | ) | ||||||||||
Adjusted EBITDA |
14,725 | 11,517 | 26,242 | (5,424 | ) | 20,818 | ||||||||||||||
For the quarter ended September 30, 2009
FR, DE
NL and UK |
Rest of
Europe |
Subtotal |
Corporate
and other |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
Revenue |
25,849 | 17,890 | 43,739 | | 43,739 | |||||||||||||||
Cost of sales |
(11,321 | ) | (7,701 | ) | (19,022 | ) | (885 | ) | (19,907 | ) | ||||||||||
Gross profit/(loss) |
14,528 | 10,189 | 24,717 | (885 | ) | 23,832 | ||||||||||||||
Other income |
103 | | 103 | | 103 | |||||||||||||||
Sales and marketing costs |
(1,058 | ) | (440 | ) | (1,498 | ) | (1,231 | ) | (2,729 | ) | ||||||||||
Total general and administrative costs |
(4,699 | ) | (3,299 | ) | (7,988 | ) | (7,693 | ) | (15,691 | ) | ||||||||||
Operating profit/(loss) |
8,874 | 6,450 | 15,324 | (9,809 | ) | 5,515 | ||||||||||||||
Net finance expense |
(1,909 | ) | ||||||||||||||||||
Profit before tax |
3,606 | |||||||||||||||||||
Total assets |
210,777 | 115,244 | 326,021 | 63,362 | 389,383 | |||||||||||||||
Total liabilities |
51,450 | 46,202 | 97,652 | 168,988 | 266,640 | |||||||||||||||
Capital expenditures (PPE) paid |
12,405 | 5,484 | 17,889 | 205 | 18,094 | |||||||||||||||
Depreciation, amortization, impairments |
(3,194 | ) | (2,036 | ) | (5,230 | ) | (337 | ) | (5,567 | ) | ||||||||||
Adjusted EBITDA |
11,990 | 8,486 | 20,476 | (4,430 | ) | 16,046 | ||||||||||||||
F-49
NOTES TO THE CONSOLIDATED INTERIM FINANCIAL STATEMENTS(Continued)
For the nine months ended September 30, 2010
FR, DE
NL and UK |
Rest of
Europe |
Subtotal |
Corporate
and other |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
Revenue |
91,780 | 61,044 | 152,824 | | 152,824 | |||||||||||||||
Cost of sales |
(40,280 | ) | (24,194 | ) | (64,474 | ) | (3,393 | ) | (67,867 | ) | ||||||||||
Gross profit/(loss) |
51,500 | 36,850 | 88,350 | (3,393 | ) | 84,957 | ||||||||||||||
Other income |
293 | | 293 | | 293 | |||||||||||||||
Sales and marketing costs |
(3,443 | ) | (2,574 | ) | (6,017 | ) | (5,245 | ) | (11,262 | ) | ||||||||||
Total general and administrative costs |
(19,881 | ) | (11,214 | ) | (31,095 | ) | (8,622 | ) | (39,717 | ) | ||||||||||
Operating profit/(loss) |
28,469 | 23,062 | 51,531 | (17,260 | ) | 34,271 | ||||||||||||||
Net finance expense |
(23,321 | ) | ||||||||||||||||||
Profit before tax |
10,950 | |||||||||||||||||||
Total assets |
267,259 | 147,435 | 414,694 | 49,969 | 464,663 | |||||||||||||||
Total liabilities |
83,750 | 35,718 | 119,468 | 201,897 | 321,365 | |||||||||||||||
Capital expenditure (PPE) paid |
46,110 | 29,065 | 75,175 | 3,938 | 79,113 | |||||||||||||||
Depreciation, amortization, impairments |
(13,657 | ) | (7,831 | ) | (21,488 | ) | (995 | ) | (22,483 | ) | ||||||||||
Adjusted EBITDA |
42,126 | 30,893 | 73,019 | (15,196 | ) | 57,823 | ||||||||||||||
For the nine months ended September 30, 2009
FR, DE
NL and UK |
Rest of
Europe |
Subtotal |
Corporate
and other |
Total | ||||||||||||||||
(000) | ||||||||||||||||||||
Revenue |
74,197 | 52,414 | 126,611 | | 126,611 | |||||||||||||||
Cost of sales |
(33,258 | ) | (22,079 | ) | (55,337 | ) | (2,826 | ) | (58,163 | ) | ||||||||||
Gross profit/(loss) |
40,939 | 30,335 | 71,274 | (2,826 | ) | 68,448 | ||||||||||||||
Other income |
354 | 275 | 629 | | 629 | |||||||||||||||
Sales and marketing costs |
(2,843 | ) | (1,702 | ) | (4,545 | ) | (3,894 | ) | (8,439 | ) | ||||||||||
Total general and administrative costs |
(13,825 | ) | (9,045 | ) | (22,870 | ) | (13,310 | ) | (36,180 | ) | ||||||||||
Operating profit/(loss) |
24,625 | 19,863 | 44,488 | (20,030 | ) | 24,458 | ||||||||||||||
Net finance expense |
(4,387 | ) | ||||||||||||||||||
Profit before tax |
20,071 | |||||||||||||||||||
Total assets |
210,777 | 115,244 | 326,021 | 63,362 | 389,383 | |||||||||||||||
Total liabilities |
51,450 | 46,202 | 97,652 | 168,988 | 266,640 | |||||||||||||||
Capital expenditure (PPE) paid |
40,666 | 33,034 | 73,700 | 1,286 | 74,986 | |||||||||||||||
Depreciation, amortization, impairments |
(8,842 | ) | (5,450 | ) | (14,292 | ) | (903 | ) | (15,195 | ) | ||||||||||
Adjusted EBITDA |
34,134 | 25,038 | 59,172 | (13,331 | ) | 45,841 | ||||||||||||||
F-50
NOTES TO THE CONSOLIDATED INTERIM FINANCIAL STATEMENTS(Continued)
Reconciliation of Adjusted EBITDA
For the quarter ended
September 30, |
For the nine months ended
September 30, |
|||||||||||||||
2010 | 2009 | 2010 | 2009 | |||||||||||||
(000) | ||||||||||||||||
Adjusted EBITDA |
20,818 | 16,046 | 57,823 | 45,841 | ||||||||||||
Income from sub-leases on unused data center sites |
67 | 103 | 293 | 354 | ||||||||||||
Net insurance compensation benefit |
| | | 275 | ||||||||||||
Exceptional income |
67 | 103 | 293 | 629 | ||||||||||||
Increase in provision for onerous lease contracts (1) |
(67 | ) | (25 | ) | (293 | ) | (1,371 | ) | ||||||||
Abandoned transaction costs |
| (4,841 | ) | | (4,841 | ) | ||||||||||
Share-based payments |
(409 | ) | (201 | ) | (1,069 | ) | (605 | ) | ||||||||
Exceptional general and administrative costs and share-based payments |
(476 | ) | (5,067 | ) | (1,362 | ) | (6,817 | ) | ||||||||
EBITDA (2) |
20,409 | 11,082 | 56,754 | 39,653 | ||||||||||||
Depreciation and amortization |
(7,802 | ) | (5,567 | ) | (22,483 | ) | (15,195 | ) | ||||||||
Operating profit |
12,607 | 5,515 | 34,271 | 24,458 | ||||||||||||
Notes:
(1) | Before deduction of income from sub-leases on unused data center sites. |
(2) | Operating profit plus depreciation, amortization and impairment of assets. |
The net insurance compensation benefit received from our insurance company, as a result of fire damage incurred in 2008, represents the difference between the net book value and the replacement value of the equipment damaged. Exceptional income is recorded as Other income in the consolidated income statement. In the nine months ended September 2009, the increase in the provision for onerous lease contracts relates to an unused data center in Germany and an office property in The Netherlands.
7 Finance income and expense
For the quarter ended
September 30, |
For the nine months ended
September 30, |
|||||||||||||||
2010 | 2009 | 2010 | 2009 | |||||||||||||
000 | ||||||||||||||||
Bank and other interest |
101 | 107 | 366 | 431 | ||||||||||||
Finance income |
101 | 107 | 366 | 431 | ||||||||||||
Interest expense on Senior Security Notes, bank and other loans |
(4,532 | ) | (1,855 | ) | (12,278 | ) | (4,326 | ) | ||||||||
Interest expense on finance leases |
(23 | ) | (24 | ) | (75 | ) | (79 | ) | ||||||||
Interest expense on provision for onerous lease contracts |
(81 | ) | (101 | ) | (289 | ) | (410 | ) | ||||||||
Other financial expenses |
(439 | ) | | (10,947 | ) | | ||||||||||
Foreign currency exchange losses |
(92 | ) | (36 | ) | (98 | ) | (3 | ) | ||||||||
Finance expense |
(5,167 | ) | (2,016 | ) | (23,687 | ) | (4,818 | ) | ||||||||
Net finance expense |
(5,066 | ) | (1,909 | ) | (23,321 | ) | (4,387 | ) | ||||||||
F-51
NOTES TO THE CONSOLIDATED INTERIM FINANCIAL STATEMENTS(Continued)
The Interest expense on provision for onerous lease contracts relates to the unwinding of the discount rate used to calculate the Provision for onerous lease contracts.
Other financial expenses are cash and non-cash costs related to the repayment of the Companys bank borrowings.
8 Income tax expense
The Groups consolidated effective tax rate of 53% in respect of continuing operations for the nine months ended September 30, 2010 was affected by refinancing costs, incurred in the first quarter and treated as non- tax deductable (the Groups effective tax rate for the nine months ended September 30, 2009: 23%).
9 Property, plant and equipment
Acquisitions
During the nine months ended September 30, 2010, the Group acquired data-center-related assets at a cost of 76,597,000, of which 26,494,000 was during the quarter ended September 30, 2010 (nine months ended September 30, 2009: 62,538,000, quarter ended September 30, 2009: 15,711,000).
During the nine months ended September 30, 2010 the Group capitalised interest relating to borrowing costs during construction work of new-build assets of 1,830,000 and 715,000 for the quarter (during the nine months ended September 30, 2009: 1,453,000 and 354,000 for the quarter).
Capital commitments
At September 30, 2010, the Group had outstanding capital commitments totalling 18,610,000. These commitments are expected to be substantially settled in 2010.
10 Borrowings
On February 12, 2010, the Company issued, at par, 200,000,000 of 9.5% Senior Secured Notes due 2017. The notes are listed on the Luxembourg Stock Exchanges Euro MTF Market. The proceeds were used to repay the Companys bank borrowings in full and to pay transaction fees and expenses. Excess cash will be used for capital expenditure and other general corporate purposes.
On February 12, 2010, the Company entered into a new 60,000,000 revolving credit facility, which remained undrawn.
On February 18, 2010, the Group closed out its interest-rate swap contracts.
11 Share-based payments
The terms and conditions of the share option programme are disclosed in the consolidated financial statements as at and for the year ended December 31, 2009. As at September 30, 2010 the number of outstanding share options amounted to 23,562,818 (December 31, 2009: 23,831,000). In the nine months ended September 30, 2010, 1,850,000 options were granted.
F-52
Until , 2011 (25 days after the date of this Prospectus), all dealers that buy, sell or trade our ordinary shares, whether or not participating in this offering, may be required to deliver a Prospectus. This is in addition to the dealers obligation to deliver a Prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
18,550,000 Ordinary Shares
InterXion Holding N.V.
PRELIMINARY PROSPECTUS
, 2011
BofA Merrill Lynch
Citi
Barclays Capital
Jefferies
Credit Suisse
RBC Capital Markets
Piper Jaffray
Oppenheimer & Co.
Evercore Partners
Guggenheim Securities, LLC
ABN AMRO
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state or jurisdiction where the offer or sale is not permitted.
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
SUBJECT TO COMPLETION, DATED JANUARY 12, 2011
PRELIMINARY PROSPECTUS | CONFIDENTIAL |
3,754,606 Ordinary Shares
InterXion Holding N.V.
(a limited liability company incorporated under the laws of The Netherlands)
$ per Ordinary Share
We are offering 3,754,606 ordinary shares directly to holders of our 2002 Series A preference shares (the Preferred Shares) in respect of the liquidation price of their Preferred Shares. We currently expect the initial public offering price to be between U.S. $11.00 and U.S. $13.00 per ordinary share.
This offering is being made concurrently with our initial public offering of ordinary shares pursuant to a separate prospectus. This offering is contingent upon the concurrent initial public offering of our ordinary shares.
Pursuant to the fifth amended and restated shareholders agreement dated as of December 24, 2009, each Preferred Share will automatically convert into one ordinary share prior to the completion of our initial public offering of ordinary shares. In addition to the automatic one-to-one conversion, Preferred Share holders are entitled to a 0.20 liquidation price per Preferred Share which they may elect to receive in cash or in ordinary shares. If a holder elects to receive payment in ordinary shares, such holder will receive, in addition to the conversion shares, ordinary shares in respect of each Preferred Share, assuming an offering price of U.S. $12.00 per ordinary share, the midpoint of the estimated range of the initial public offering price, and an exchange rate of 1.00 to U.S. $1.2944, representing the exchange rate in effect on January 7, 2011. The proposed five-to-one reverse stock split will be effected following the one-for-one conversion of the Preferred Shares, and the numbers of Preferred Shares and the 0.20 liquidation price per Preferred Share mentioned in this Prospectus therefore do not take the five-to-one reverse stock split into account, except as expressly indicated.
In order to elect to receive the 0.20 liquidation price per Preferred Share in a payment of cash instead of ordinary shares, holders must validly deliver their Election Form to us no later than 17:00 Central European Time on January 25, 2011. If a holder takes no action or does not validly deliver the Election Form within the prescribed time, such holder will automatically receive their liquidation price distribution in the form of ordinary shares based on the initial public offering price.
These shares are not part of the underwritten initial public offering. Any references in this prospectus to underwriters are to the underwriters in the initial public offering. No underwriters will participate as an underwriter, placement agent or in any other offeror capacity in connection with any sale of, and will not receive any commission or discount on, the ordinary shares issued in this offering.
We expect that the ordinary shares will trade on the New York Stock Exchange under the symbol INXN.
Investing in our ordinary shares involves risks. See Risk Factors beginning on page 12.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
We expect to deliver the ordinary shares to purchasers on or about , 2011 through the book-entry facilities of The Depository Trust Company.
The date of this prospectus is , 2011
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
The Offering
Summary of the Offering: |
We are offering 3,754,606 ordinary shares directly to holders of our Preferred Shares in respect of the liquidation price of their Preferred Shares. |
Concurrent with this offering, we are conducting an initial public offering of 18,550,000 ordinary shares.
Pursuant to the fifth amended and restated shareholders agreement dated as of December 24, 2009, each Preferred Share will automatically convert into one ordinary share prior to the completion of our initial public offering of ordinary shares. In addition to the automatic one-to-one conversion, Preferred Share holders are entitled to a 0.20 liquidation price per Preferred Share which they may elect to receive in cash or in ordinary shares. If a holder elects to receive payment in ordinary shares, such holder will receive, in addition to the conversion shares, approximately 0.11 ordinary shares in respect of each Preferred Share, assuming an offering price of U.S. $12.00 per ordinary share, the midpoint of the estimated range of the initial public offering price, and an exchange rate of 1.00 to U.S. $1.2944, representing the exchange rate in effect on January 7, 2011. We will not receive any proceeds from the automatic conversion of Preferred Shares into ordinary shares or the exchange of the liquidation price for ordinary shares based on the initial public offering price.
Offering Price Per Ordinary Share: |
We currently estimate the offering price will be between U.S. $11.00 and U.S. $13.00. The offering price will be based on the price for the offering of 18,550,000 ordinary shares in our initial public offering. |
Ordinary Shares Offered by Us: |
3,754,606 ordinary shares. |
Ordinary Shares Outstanding Immediately After This Offering: |
64,988,477 ordinary shares. |
The number of ordinary shares to be outstanding after this offering is based upon the number of shares outstanding as of September 30, 2010. Except as otherwise indicated, all information in this Prospectus relating to ordinary shares assumes:
|
16,250,000 ordinary shares issued in the initial public offering; |
A-1
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
|
a five-to-one reverse stock split that is expected to occur on or before the closing of this offering and the related issuance of a certain number of ordinary shares to ensure that each shareholder holds a number of shares divisible by five, as required for the five-to-one reverse stock split. All shares numbers referred to as post five-to-one reverse stock split are approximate numbers; |
|
the automatic one-to-one conversion of all of our 2002 Series A preference shares (the Preferred Shares) into ordinary shares prior to the closing of this offering (as of September 30, 2010 there were 174,039,207 Preferred Shares outstanding). For these purposes it is assumed that after giving effect to the reverse stock split and the related issuance of ordinary shares referred to above, the automatic one-for-one conversion would result in 34,807,842 ordinary shares. See Capitalization; |
|
no issue of any of the 4,128,486 ordinary shares (as of January 7, 2011) issuable upon the exercise of options outstanding under our 2008 equity incentive plan at a weighted average exercise price of 3.13 per share, assuming the exercise by the selling shareholders of options to acquire 604,790 ordinary shares in connection with the sale of such shares in this offering, or 4,733,276 ordinary shares without such exercise, in each case after giving effect to the five-to-one reverse stock split referred to above. If the reverse stock split did not occur, these ordinary shares would be 20,642,428 after giving effect to the exercise of options described above and 23,666,380 without giving effect to the exercise of such options; and |
|
no issue of any of the 873,371 additional ordinary shares (as of January 7, 2011) reserved for issuance under our 2008 equity incentive plan or 4,400,000 additional ordinary shares to be reserved for issuance under our 2011 equity incentive plan (after giving effect to the five-to-one reverse stock split referred to above). These figures would be 4,366,851 and 22,000,000 if the reverse stock split did not occur. |
Use of Proceeds: |
We will not receive any proceeds from the issuance of ordinary shares to the holders of our Preferred Shares. |
Risk Factors: |
See Risk Factors and other information included in this Prospectus for a discussion of the risks you should carefully consider before deciding to invest in our ordinary shares. |
Listing: |
We expect to list the ordinary shares on the New York Stock Exchange, or NYSE, under the symbol INXN. |
Payment and Settlement |
The ordinary shares are expected to be delivered against payment on , 2011. They will be deposited with a custodian for, and registered in the name of a nominee of, The Depository Trust Company, or DTC, in New York, New York. Initially, beneficial interests in the ordinary shares will be shown on, and transfer of these beneficial interests, will be effected through, records maintained by DTC and its direct and indirect participants. |
A-2
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
USE OF PROCEEDS
We will not receive any proceeds from the issuance of ordinary shares to the holders of our Preferred Shares.
A-3
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
CAPITALIZATION
The following table sets forth on a consolidated basis, our cash and cash equivalents and our capitalization as of September 30, 2010:
|
on an actual basis; |
|
on an adjusted basis to give effect to the November 2010 offering of 60 million 9.50% Senior Secured Notes due 2017 (the Additional Notes); and |
|
on an adjusted basis to give effect to: |
|
the offering of the Additional Notes; |
|
a five-to-one reverse stock split that is expected to occur on or before the closing of this offering and assuming no related issuance of ordinary shares to ensure that each shareholder holds a number of shares divisible by five, as required for the five-to-one reverse stock split, which will be effected by way of an amendment of our articles of association (see Description of Capital StockArticles of Association and Dutch law); |
|
the automatic one-to-one conversion of 174,039,207 Preferred Shares into ordinary shares prior to the closing of this offering, which will be effected by way of an amendment of our articles of association (see Description of Capital StockArticles of Association and Dutch Law). For these purposes it is assumed that after giving effect to the reverse stock split and the related issuance of ordinary shares referred to above, the automatic one-for-one conversion would result in 34,807,842 ordinary shares; |
|
the sale of 16,250,000 ordinary shares by us in the initial public offering at an assumed initial public offering price of U.S. $12.00 per ordinary share, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us; and |
|
the issuance of 3,754,606 ordinary shares by us in this offering, for these purposes assumed to be the maximum number of ordinary shares to which holders of our Preferred Shares are entitled in this offering, at an assumed offering price of U.S. $12.00 per ordinary share, the midpoint of the range set forth on the cover page of this Prospectus assuming an exchange rate of 1.00 to U.S. $1.2944 based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of January 7, 2011. |
As of September 30, 2010 | ||||||||||||
Actual |
As Adjusted for
the offering of the Additional Notes |
As Further
Adjusted |
||||||||||
(000) | ||||||||||||
Cash and cash equivalents |
30,592 | (1) | 92,712 | (2) | 224,546 | (3 ) | ||||||
Debt (including current portion) |
||||||||||||
Finance lease liabilities |
871 | 871 | 871 | |||||||||
9.50% Notes due 2017 |
193,023 | (4 ) | 255,143 | (5 ) | 255,143 | (5 ) | ||||||
Other loans |
4,538 | 4,538 | 4,538 | |||||||||
Debt excluding revolving credit facility deferred financing costs (6) |
198,432 | 260,552 | 260,552 | |||||||||
Revolving credit facility deferred financing costs (6 ) |
(1,206 | ) | (1,206 | ) | (1,206 | ) | ||||||
Total debt |
197,226 | 259,346 | 259,346 | |||||||||
Shareholders equity |
||||||||||||
Share capital |
4,434 | 4,434 | 6,434 | |||||||||
Share premium (7 ) |
320,457 | 320,457 | 448,291 | |||||||||
Foreign currency translation reserve |
3,097 | 3,097 | 3,097 | |||||||||
Accumulated deficit (8 ) |
(184,690 | ) | (184,690 | ) | (184,690 | ) | ||||||
Total shareholders equity (8 ) |
143,298 | 143,298 | 273,132 | |||||||||
Total capitalization |
340,524 | 402,644 | 532,478 | |||||||||
Notes:
(1) |
Cash and cash equivalents includes 4.4 million which is restricted and held as collateral to support the issuance of bank guarantees on behalf of a number of subsidiary companies. To the extent holders of |
A-4
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
Preferred Shares elect payment in cash of the liquidation price of their Preferred Shares, Cash and cash equivalents as adjusted would be decreased, to a minimum of 34,807,842. |
(2) | As adjusted Cash and cash equivalents includes the estimated net proceeds of the Additional Notes, after deducting underwriting discounts and commissions and our offering fees and expenses. |
(3) | As further adjusted Cash and cash equivalents includes the estimated net proceeds of the Additional Notes and the estimated net proceeds of our initial public offering, after deducting underwriting discounts and commissions and our offering fees and expenses in excess of 2.0 million, which is already included in Actual Cash and cash equivalents as of September 30, 2010. |
(4) | The net proceeds of the 200 million 9.50% Senior Secured Notes due 2017 (the Original Notes) are shown after deducting underwriting discounts and commissions and our offering fees and expenses. |
(5) | As adjusted and As further adjusted 9.50% Notes due 2017 includes the net proceeds of the Additional Notes, after deducting underwriting discounts and commissions and our offering fees and expenses. |
(6) | We reported deferred financing costs of 1.2 million in connection with entering into our revolving credit facility, which is currently undrawn. |
(7) | Share premium has been translated for convenience only based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of September 30, 2010 for euro into U.S. dollars of 1.00 = U.S. $1.3601. See Exchange Rate Information for additional information. |
(8) | Adjustment represents the write-off of deferred financing fees and related refinancing premium in respect of our credit facilities that were refinanced with the proceeds of the Original Notes. |
A-5
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
PRINCIPAL SHAREHOLDERS
We are currently majority-owned by Baker Capital, which invested 31.5 million in our equity in January 2000, 50 million in August 2000 and 15 million in August 2002. Through its participation in three convertible loans from December 2003 to February 2006, Baker Capital invested a further 9 million, which converted into an equity interest in June 2007. Baker Capital currently owns approximately 58% of our equity.
The following table sets forth information with respect to the beneficial ownership of our ordinary shares as of January 7, 2011, subject to certain assumptions set forth in the footnotes, and as adjusted to reflect the issuance of the maximum number of ordinary shares to which holders of our Preferred Shares are entitled under this Prospectus, the automatic one-to-one conversion of Preferred Shares into ordinary shares, the five-to-one reverse stock split that is expected to occur on or before the closing of this offering and the sale of 16,250,000 ordinary shares in our initial public offering, for each shareholder, or group of affiliated shareholders, who we know beneficially owns more than 5% of our outstanding ordinary shares.
Beneficial ownership is determined in accordance with rules of the SEC and generally includes any shares over which a person exercises sole or shared voting and/or investment power. Ordinary shares subject to options and warrants currently exercisable or exercisable within 60 days are deemed outstanding for computing the percentage ownership of the person holding the options but are not deemed outstanding for computing the percentage ownership of any other person. Except as otherwise indicated, we believe the beneficial owners of the ordinary shares listed below, based on information furnished by them, have sole voting and investment power with respect to the number of shares listed opposite their names.
Shares
Beneficially Owned Prior to the Offerings |
Shares Beneficially
Owned After the Offerings (1) |
|||||||||||||||
Name of Beneficial Owner |
Number |
Percent
(%) (2) |
Number |
Percent
(%) (2) |
||||||||||||
5% Shareholders |
||||||||||||||||
Baker Capital (3)(4) |
28,113,115 | 57.95 | % | 30,872,779 | 47.51 | % | ||||||||||
Lamont Finance N.V. (3)(4) |
18,825,669 | 38.80 | % | 20,689,767 | 31.84 | % | ||||||||||
Chianna Investment N.V. (3)(4) |
9,272,623 | 19.11 | % | 10,166,695 | 15.64 | % | ||||||||||
Baker Communications Fund II, L.P. (3) (5) |
14,823 | * | 16,317 | * | ||||||||||||
ParC-IT II B.V. (3) |
5,954,485 | 12.27 | % | 6,545,792 | 10.07 | % |
* | less than 1%. |
(1) | Assumes (i) the election by all holders of Preferred Shares to receive the liquidation price of Preferred Shares entirely in the form of ordinary shares, (ii) an offering price of U.S. $12.00 per ordinary share, the midpoint of the estimated range of the initial public offering price, and (iii) an exchange rate of 1.00 to U.S. $1.2944, representing the exchange rate in effect on January 7, 2011. |
(2) | Includes 25,526,886 and 5,469,591 Preferred Shares held by Baker Capital and Parc-IT II B.V., respectively, which will automatically convert into 25,526,886 and 5,469,591 ordinary shares, respectively, prior to the closing of this offering. If they do not elect to receive their liquidation preference in the form of ordinary shares, their shares beneficially owned after the offering will be 43.23% and 9.16%, respectively. |
(3) | Chianna Investment N.V. is a wholly owned subsidiary of Baker Communications Fund (Cayman), L.P. (BCF I). Lamont Finance N.V. is a wholly owned subsidiary of Baker Communications Fund II (Cayman), L.P. (BCF II). The address of each of Chianna Investment N.V. and Lamont Finance N.V. is c/o Intertrust (Curaçao) B.V., Berg Arrarat 1, Curaçao, Netherlands Antilles. The address of each of BCF I and BCF II is c/o Maples and Calder, Ugland House, South Church Street, Grand Cayman, Cayman Islands. Each of BCF I and BCF II is managed by Baker Capital Corp., whose address is 540 Madison Avenue, New York, NY 10022. |
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[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
(4) | The address of Baker Communications Fund II, L.P. is 540 Madison Avenue, New York, NY 10022. Baker Capital Corp. also manages Baker Communications Fund II, L.P. |
(5) | The address of Parc-IT II B.V. is Dennenlaan 5, 2244 AK Wassenaar, The Netherlands. |
As of December 31, 2010, we had 14 holders of record resident in The Netherlands, representing approximately 20% of our outstanding ordinary shares. As of December 31, 2010, we had 17 holders of record resident in the United States, representing approximately 8% of our outstanding ordinary shares.
A-7
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
THE OFFER
Each Preferred Share will automatically convert into one ordinary share prior to the completion of our initial public offering. In addition to the automatic one-to-one conversion, Preferred Share holders are entitled to a 0.20 liquidation price, plus accrued and unpaid dividends, per Preferred Share, which they may elect to receive in cash or in ordinary shares. If a holder elects to receive payment in ordinary shares, such holder will receive, in addition to the conversion shares, approximately 0.11 ordinary shares in respect of each Preferred Share, assuming an offering price of U.S. $12.00 per ordinary share, the midpoint of the estimated range of the initial public offering price, and an exchange rate of 1.00 to U.S. $1.2944 based on the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes by the Federal Reserve Bank of New York as of January 7, 2011.
In order to elect to receive the 0.20 liquidation price, plus accrued and unpaid dividends, per Preferred Share in a payment of cash instead of ordinary shares, Preferred Share holders must validly deliver their Election Form to us no later than 17:00 Central European Time on January 25, 2011. If a holder takes no action or does not validly deliver the Election Form within the prescribed time, such holder will automatically receive their liquidation price distribution in the form of ordinary shares.
A-8
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
PLAN OF DISTRIBUTION
We will directly offer 3,754,606 ordinary shares to holders of our Preferred Shares. Holders of our Preferred Shares are entitled to receive an equivalent amount of cash in lieu of receiving ordinary shares based on the initial public offering price. These shares are not part of the underwritten initial public offering and no underwriter will participate as an underwriter, placement agent or in any other offeror capacity in connection with any sale of, and will not receive any commission or discount on, the ordinary shares issued in this offering.
A-9
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
LEGAL MATTERS
Certain legal matters in connection with the offering will be passed upon for us by Linklaters LLP, our U.S. and Dutch counsel.
A-10
[ALTERNATE PAGE FOR PREFERRED SHARES PROSPECTUS]
3,754,606 Ordinary Shares
InterXion Holding N.V.
PRELIMINARY PROSPECTUS
, 2011
Until , 2011 (25 days after the date of this Prospectus), all dealers that buy, sell or trade our ordinary shares, whether or not participating in this offering, may be required to deliver a Prospectus. This is in addition to the dealers obligation to deliver a Prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 6. | Indemnification of Directors and Officers |
Under our proposed Articles, we are required to indemnify each current and former member of our Board (and our managing and supervisory boards before our adoption of a one-tier board structure) who was or is involved, in that capacity, as a party to any actions or proceedings, against all conceivable financial loss or harm suffered in connection with those actions or proceedings, provided that such a person acted in good faith and in a manner he reasonably believed to be in or not opposed to our best interests and, with respect to any criminal action or proceeding, had no reasonably cause to believe his conduct to be unlawful or outside his mandate.
Item 7. | Recent Sales of Unregistered Securities |
The information below sets forth the date of issuance, title, amount and purchasers of, and consideration paid for, the Registrants securities sold within the last three years that were not registered under the U.S. Securities Act. The securities listed below were either offered or sold in the United States to qualified institutional buyers (QIBs) in accordance with Rule 144A under the U.S. Securities Act (Rule 144A) and outside the United States in accordance with Regulation S under the U.S. Securities Act (Regulation S).
Date of Sale or
|
Title |
Aggregate
Principal Amount of Securities Sold |
Consideration |
Exemption
from Registration Claimed |
Use of
Proceeds |
Underwriters | ||||||
June 13, 2007 | Preferred Shares | 14,565,926 | 14,565,926 | Rule 701 |
Working
capital |
N/A | ||||||
August 23, 2007 | Preferred Shares |
Included with
June 13, 2007 issue |
Included with
June 13, 2007 issue |
Rule 701 |
Working
capital |
N/A | ||||||
October 13, 2008 | Ordinary Shares | 1,760,709 | 1,760,709 | Rule 701 |
Working
capital |
N/A | ||||||
July 15, 2009 | Ordinary Shares |
Included with
October 13, 2008 issue |
Included with
October 13, 2008 issue |
Rule 701 |
Working
capital |
N/A | ||||||
February 12, 2010 |
200,000,000 9.50%
Senior Secured Notes due 2017 |
200,000,000 | 192,777,000 |
Rule 144A and
Regulation S under the Securities Act |
A portion of
the net proceeds were used to repay amounts outstanding under then- existing credit facilities and the remainder was used for general corporate purposes |
Citigroup
Global Markets Limited, Merrill Lynch International, Credit Suisse Securities (Europe) Limited, Barclays Bank PLC and ING Bank N.V., London Branch |
II-1
Date of Sale or
|
Title |
Aggregate
Principal Amount of Securities Sold |
Consideration |
Exemption
from Registration Claimed |
Use of
Proceeds |
Underwriters | ||||||
November 11, 2010 |
60,000,000 9.50%
Senior Secured Notes due 2017 |
60,000,000 | 62,120,000 |
Rule 144A and
Regulation S under the Securities Act |
A portion of
the net proceeds were used primarily for general corporate purposes, including, without limitation, capital expenditure relating to expansion of existing data centers and construction of new data centers. |
Citigroup
Global Markets Limited, Merrill Lynch International, Credit Suisse Securities (Europe) Limited, Barclays Bank PLC and ABN AMRO Bank N.V. |
||||||
December 22, 2010 |
Ordinary Shares | 5,456 | 5,456 | Rule 701 |
Working
Capital |
N/A |
Item 8. | Exhibits |
(a) | The following documents are filed as part of this Registration Statement: |
1.1* | Form of Underwriting Agreement. | |
3.1* | Articles of Association of InterXion Holding N.V., as amended, dated as of . | |
3.2* | Bylaws of InterXion Holding N.V. dated as of . | |
4.1 | Indenture dated as of February 12, 2010 among InterXion Holding N.V., InterXion Nederland B.V., InterXion HeadQuarters B.V.; InterXion Carrier Hotel (UK) Ltd and InterXion Deutschland GmbH, The Bank of New York Mellon, London Branch, The Bank of New York Mellon (Luxembourg) S.A. and Barclays Bank PLC. | |
4.2 | Form of Registration Rights Agreement among InterXion Holding N.V., Chianna Investment N.V., Lamont Finance N.V. and Baker Communications Fund II, L.P. | |
5.1* | Opinion of Linklaters LLP regarding legality of ordinary shares and certain Dutch tax matters included in the prospectus. | |
8.1* | Opinion of Linklaters LLP regarding certain U.S. tax matters included in the prospectus. | |
10.1 | Senior Multicurrency Revolving Facility Agreement dated as of February 1, 2010 among InterXion Holding N.V., Barclays Bank PLC, Citigroup Global Markets Limited, ABN AMRO Bank N.V. (as successor to Fortis Bank (Nederland) N.V.), Merrill Lynch International, Credit Suisse AG, London Branch and Jefferies Finance LLC. | |
10.2 | Amendment Letter to the Senior Multicurrency Revolving Facility Agreement dated November 3, 2010 between InterXion Holding N.V. and Barclays Bank PLC | |
10.3 | Lease Agreement between InterXion Österreich GmbH and S-Invest Beteiligungsgesellschaft mbH dated January 1, 2000 as amended by the Supplement to the Floridsdorf Technology Park Lease dated November 13, 2007. | |
10.4 | Lease Agreement among InterXion Holding N.V., InterXion Belgium N.V. and First Cross Roads dated June 25, 2001. |
II-2
10.5 | Lease Agreement between InterXion HeadQuarters B.V. and Keops A/S dated May 1, 2000. | |
10.6 | Lease Agreement between InterXion France Sarl and SCI 43 Rue du Landy dated June 29, 2007 as amended by the Amendment to the Lease Agreement dated October 26, 2007. | |
10.7 | Lease Agreement between InterXion France Sarl and SCI 43 Rue du Landy dated April 28, 2006. | |
10.8 | Lease Agreement between InterXion Holding B.V. and GiP Gewerbe im Park GmbH dated January 29, 1999 as amended by Supplement No. 15 to the Lease Agreement dated November 30, 2009. | |
10.9 | Lease Agreement between InterXion France Sarl and ICADE dated December 23, 2008. | |
10.10 | Lease Agreement between InterXion Nederland B.V. and VastNed Industrial B.V. dated November 4, 2005. | |
10.11 | Lease Agreement between InterXion Nederland B.V. and VA No. 1 (Point of Logistics) B.V. dated May 14, 2007. | |
10.12 | Lease Agreement between InterXion Carrier Hotel S.L. and Naves y Urbanas Andalucia S.A. dated March 20, 2000 as amended by the Annex to the Lease Agreement dated March 15, 2006. | |
10.13 | Lease Agreement among InterXion Holding N.V., InterXion Carrier Hotel Limited and Eliahou Zeloof, Amira Zeloof, Ofer Zeloof and Oren Zeloof dated February 23, 2000. | |
10.14 | Intercreditor Agreement among InterXion Holding N.V., Barclays Bank PLC, The Bank of New York Mellon, London Branch and others named therein dated February 12, 2010. | |
10.15 | Additional Intercreditor Agreement among InterXion Holding N.V., Barclays Bank PLC, The Bank of New York Mellon, London Branch and others named therein dated November 11, 2010. | |
10.16 | InterXion Holding N.V. Fifth Amended and Restated Shareholders Agreement dated December 24, 2009. | |
10.17 | Deed of Pledge of Shares among InterXion Holding N.V., InterXion Operational B.V. and Barclays Bank PLC dated June 15, 2010 | |
10.18 | Lease/Loan Agreement between Alpine Finanz Immobilien AG, InterXion (Schweiz) AG and InterXion Holding N.V. dated March 13, 2009. | |
10.19 | Form of Shareholders Agreement among InterXion Holding N.V., Chianna Investment N.V., Lamont Finance N.V. and Baker Communications Fund II, L.P. | |
21.1 | Subsidiaries of InterXion Holding N.V. as of the date of this Prospectus. | |
23.1 | Consent of KPMG Accountants N.V. | |
23.2* | Consent of Linklaters LLP (included in Exhibit 5.1). | |
23.3 | Consent of International Data Corporation. | |
23.4 | Consent of Jean F.H.P. Mandeville | |
24.1 | Power of Attorney (included in the signature page). |
Notes:
* | To be filed by amendment. |
| Confidential treatment has been or will be requested for certain portions which are omitted in the copy of the exhibit filed with the SEC. The omitted information has been or will be filed separately with the SEC pursuant to an application for confidential treatment. |
(b) | Financial Statement Schedules |
None.
II-3
Item 9. | Undertakings |
(a) | The undersigned registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser. |
(b) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
(c) | The undersigned registrant hereby undertakes that: |
(1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Amsterdam, The Netherlands, on this 12th day of January, 2011.
INTERXION HOLDING N.V. |
/ S / D AVID R UBERG |
David Ruberg Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person, whose signature appears below constitutes and appoints David Ruberg, their attorney-in-fact, with the power of substitution, for them in any and all capacities, to sign any amendment or post-effective amendment to this registration statement on Form F-1, including, without limitation, any additional registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended, with respect hereto and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
/ S / D AVID R UBERG David Ruberg |
Chief Executive Officer
(Principal Executive Officer) |
January 12, 2011 | ||
/ S / J OSH J OSHI M.V. Josh Joshi |
Chief Financial Officer
(Principal Financial and Accounting Officer) |
January 12, 2011 | ||
/ S / J OHN B AKER John Baker |
Member of the Supervisory Board | January 12, 2011 | ||
/ S / R OBERT M. M ANNING Robert M. Manning |
Member of the Supervisory Board | January 12, 2011 | ||
/ S / P ETER E.D. E KELUND Peter E.D. Ekelund |
Member of the Supervisory Board | January 12, 2011 | ||
/ S / C EES VAN L UIJK Cees van Luijk |
Member of the Supervisory Board | January 12, 2011 | ||
/ S / P AUL S CHRODER Paul Schroder |
Member of the Supervisory Board | January 12, 2011 | ||
/ S / D ONALD J. P UGLISI Donald J. Puglisi |
Authorized Representative in the
United States |
January 12, 2011 |
II-5
EXHIBIT INDEX
Exhibit
|
Description of Document |
|
1.1* | Form of Underwriting Agreement. | |
3.1* | Articles of Association of InterXion Holding N.V., as amended, dated as of . | |
3.2* | Bylaws of InterXion Holding N.V. dated as of . | |
4.1 | Indenture dated as of February 12, 2010 among InterXion Holding N.V., InterXion Nederland B.V., InterXion HeadQuarters B.V.; InterXion Carrier Hotel (UK) Ltd and InterXion Deutschland GmbH, The Bank of New York Mellon, London Branch, The Bank of New York Mellon (Luxembourg) S.A. and Barclays Bank PLC. | |
4.2 | Form of Registration Rights Agreement among InterXion Holding N.V., Chianna Investment N.V., Lamont Finance N.V. and Baker Communications Fund II, L.P. | |
5.1* | Opinion of Linklaters LLP regarding legality of ordinary shares and certain Dutch tax matters included in the prospectus. | |
8.1* | Opinion of Linklaters LLP regarding certain U.S. tax matters included in the prospectus. | |
10.1 | Senior Multicurrency Revolving Facility Agreement dated as of February 1, 2010 among InterXion Holding N.V., Barclays Bank PLC, Citigroup Global Markets Limited, ABN AMRO Bank N.V. (as successor to Fortis Bank (Nederland) N.V.), Merrill Lynch International, Credit Suisse AG, London Branch and Jefferies Finance LLC. | |
10.2 | Amendment Letter to the Senior Multicurrency Revolving Facility Agreement dated November 3, 2010 between InterXion Holding N.V. and Barclays Bank PLC | |
10.3 | Lease Agreement between InterXion Österreich GmbH and S-Invest Beteiligungsgesellschaft mbH dated January 1, 2000 as amended by the Supplement to the Floridsdorf Technology Park Lease dated November 13, 2007. | |
10.4 | Lease Agreement among InterXion Holding N.V., InterXion Belgium N.V. and First Cross Roads dated June 25, 2001. | |
10.5 | Lease Agreement between InterXion HeadQuarters B.V. and Keops A/S dated May 1, 2000. | |
10.6 | Lease Agreement between InterXion France Sarl and SCI 43 Rue du Landy dated June 29, 2007 as amended by the Amendment to the Lease Agreement dated October 26, 2007. | |
10.7 | Lease Agreement between InterXion France Sarl and SCI 43 Rue du Landy dated April 28, 2006. | |
10.8 | Lease Agreement between InterXion Holding B.V. and GiP Gewerbe im Park GmbH dated January 29, 1999 as amended by Supplement No. 15 to the Lease Agreement dated November 30, 2009. | |
10.9 | Lease Agreement between InterXion France Sarl and ICADE dated December 23, 2008. | |
10.10 | Lease Agreement between InterXion Nederland B.V. and VastNed Industrial B.V. dated November 4, 2005. | |
10.11 | Lease Agreement between InterXion Nederland B.V. and VA No. 1 (Point of Logistics) B.V. dated May 14, 2007. | |
10.12 | Lease Agreement between InterXion Carrier Hotel S.L. and Naves y Urbanas Andalucia S.A. dated March 20, 2000 as amended by the Annex to the Lease Agreement dated March 15, 2006. | |
10.13 | Lease Agreement among InterXion Holding N.V., InterXion Carrier Hotel Limited and Eliahou Zeloof, Amira Zeloof, Ofer Zeloof and Oren Zeloof dated February 23, 2000. |
Exhibit
|
Description of Document |
|
10.14 | Intercreditor Agreement among InterXion Holding N.V., Barclays Bank PLC, The Bank of New York Mellon, London Branch and others named therein dated February 12, 2010. | |
10.15 | Additional Intercreditor Agreement among InterXion Holding N.V., Barclays Bank PLC, The Bank of New York Mellon, London Branch and others named therein dated November 11, 2010. | |
10.16 | InterXion Holding N.V. Fifth Amended and Restated Shareholders Agreement dated December 24, 2009. | |
10.17 | Deed of Pledge of Shares among InterXion Holding N.V., InterXion Operational B.V. and Barclays Bank PLC dated June 15, 2010. | |
10.18 | Lease/Loan Agreement between Alpine Finanz Immobilien AG, InterXion (Schweiz) AG and InterXion Holding N.V. dated March 13, 2009. | |
10.19 | Form of Shareholders Agreement among InterXion Holding N.V., Chianna Investment N.V., Lamont Finance N.V. and Baker Communications Fund II, L.P. | |
21.1 | Subsidiaries of InterXion Holding N.V. as of the date of this Prospectus. | |
23.1 | Consent of KPMG Accountants N.V. | |
23.2* | Consent of Linklaters LLP (included in Exhibit 5.1). | |
23.3 | Consent of International Data Corporation. | |
23.4 | Consent of Jean F.H.P. Mandeville. | |
24.1 | Power of Attorney (included in the signature page). |
Notes:
* | To be filed by amendment. |
| Confidential treatment has been or will be requested for certain portions which are omitted in the copy of the exhibit filed with the SEC. The omitted information has been or will be filed separately with the SEC pursuant to an application for confidential treatment. |
Exhibit 4.1
Execution Version
I NTER X ION H OLDING N.V.,
AS I SSUER ,
I NTER X ION N EDERLAND B.V., I NTER X ION H EAD Q UARTERS B.V.;
I NTER X ION C ARRIER H OTEL (UK) L TD AND I NTER X ION D EUTSCHLAND G MB H,
AS I NITIAL G UARANTORS ,
T HE B ANK OF N EW Y ORK M ELLON , LONDON BRANCH
AS T RUSTEE , P RINCIPAL P AYING A GENT AND T RANSFER A GENT
T HE B ANK OF N EW Y ORK M ELLON (L UXEMBOURG ) S.A.
AS R EGISTRAR AND L UXEMBOURG P AYING A GENT
AND
B ARCLAYS B ANK PLC,
AS S ECURITY T RUSTEE
Indenture
Dated as of February 12, 2010
200,000,000
9.50% Senior Secured Notes due 2017
InterXion Holding N.V. Indenture | Page i |
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE |
1 | |||||
S ECTION 1.01. |
D EFINITIONS | 1 | ||||
S ECTION 1.02. |
O THER D EFINITIONS | 26 | ||||
S ECTION 1.03. |
R ULES OF C ONSTRUCTION | 27 | ||||
ARTICLE TWO THE NOTES |
28 | |||||
S ECTION 2.01. |
T HE N OTES | 28 | ||||
S ECTION 2.02. |
E XECUTION AND A UTHENTICATION | 29 | ||||
S ECTION 2.03. |
R EGISTRAR , T RANSFER A GENT AND P AYING A GENT | 30 | ||||
S ECTION 2.04. |
D EPOSITS P AYING A GENT TO H OLD M ONEY IN T RUST | 30 | ||||
S ECTION 2.05. |
H OLDER L ISTS | 31 | ||||
S ECTION 2.06. |
T RANSFER AND E XCHANGE | 31 | ||||
S ECTION 2.07. |
R EPLACEMENT N OTES | 40 | ||||
S ECTION 2.08. |
O UTSTANDING N OTES | 40 | ||||
S ECTION 2.09. |
N OTES H ELD BY THE I SSUER | 41 | ||||
S ECTION 2.10. |
D EFINITIVE R EGISTERED N OTES | 41 | ||||
S ECTION 2.11. |
C ANCELLATION | 42 | ||||
S ECTION 2.12. |
D EFAULTED I NTEREST | 42 | ||||
S ECTION 2.13. |
C OMPUTATION OF I NTEREST | 43 | ||||
S ECTION 2.14. |
CUSIP, ISIN AND C OMMON C ODE N UMBERS | 43 | ||||
S ECTION 2.15. |
I SSUANCE OF A DDITIONAL N OTES | 44 | ||||
S ECTION 2.16. |
A GENTS | 44 | ||||
S ECTION 2.17. |
T EMPORARY N OTES | 44 | ||||
ARTICLE THREE REDEMPTION; OFFERS TO PURCHASE |
44 | |||||
S ECTION 3.01. |
R IGHT OF R EDEMPTION | 44 | ||||
S ECTION 3.02. |
N OTICES TO T RUSTEE | 44 | ||||
S ECTION 3.03. |
S ELECTION OF N OTES TO BE R EDEEMED | 44 | ||||
S ECTION 3.04. |
N OTICE OF R EDEMPTION | 45 | ||||
S ECTION 3.05. |
D EPOSIT OF R EDEMPTION P RICE | 46 | ||||
S ECTION 3.06. |
P AYMENT OF N OTES C ALLED FOR R EDEMPTION | 46 | ||||
S ECTION 3.07. |
N OTES R EDEEMED IN P ART | 46 | ||||
S ECTION 3.08. |
M ANDATORY R EDEMPTION | 47 | ||||
ARTICLE FOUR COVENANTS |
47 | |||||
S ECTION 4.01. |
P AYMENT OF N OTES | 47 | ||||
S ECTION 4.02. |
C ORPORATE E XISTENCE | 47 | ||||
S ECTION 4.03. |
S TATEMENT AS TO C OMPLIANCE | 47 | ||||
S ECTION 4.04. |
L IMITATION ON D EBT | 48 | ||||
S ECTION 4.05. |
L IMITATION ON L IENS | 52 | ||||
S ECTION 4.06. |
L IMITATION ON R ESTRICTED P AYMENTS | 52 | ||||
S ECTION 4.07. |
L IMITATION ON S ALE OF C ERTAIN A SSETS | 56 | ||||
S ECTION 4.08. |
L IMITATION ON T RANSACTIONS WITH A FFILIATES | 58 | ||||
S ECTION 4.09. |
C HANGE OF C ONTROL | 60 | ||||
S ECTION 4.10. |
A DDITIONAL A MOUNTS | 62 | ||||
S ECTION 4.11. |
L IMITATION ON I SSUANCES AND S ALES OF C APITAL S TOCK OF R ESTRICTED S UBSIDIARIES | 64 | ||||
S ECTION 4.12. |
L IMITATION ON S ALE AND L EASEBACK T RANSACTIONS | 65 | ||||
S ECTION 4.13. |
L IMITATION ON G UARANTEES OF D EBT BY R ESTRICTED S UBSIDIARIES | 66 | ||||
S ECTION 4.14. |
L IMITATION ON D IVIDENDS AND O THER P AYMENT R ESTRICTIONS A FFECTING R ESTRICTED S UBSIDIARIES | 68 | ||||
S ECTION 4.15. |
D ESIGNATION OF U NRESTRICTED AND R ESTRICTED S UBSIDIARIES | 70 | ||||
S ECTION 4.16. |
R EPORTS TO H OLDERS | 72 |
InterXion Holding N.V. Indenture | Page ii |
S ECTION 4.17. |
I MPAIRMENT OF S ECURITY I NTEREST | 74 | ||||
S ECTION 4.18. |
L IMITATIONS WITH R ESPECT TO THE I SSUER | 75 | ||||
S ECTION 4.19. |
B USINESS A CTIVITIES | 75 | ||||
S ECTION 4.20. |
P AYMENTS FOR C ONSENT | 75 | ||||
S ECTION 4.21. |
A DDITIONAL I NTERCREDITOR A GREEMENT | 75 | ||||
S ECTION 4.22. |
A DDITIONAL G UARANTORS | 76 | ||||
S ECTION 4.23. |
A DDITIONAL C OLLATERAL | 76 | ||||
S ECTION 4.24. |
F URTHER I NSTRUMENTS AND A CTS | 76 | ||||
ARTICLE FIVE CONSOLIDATION, MERGER OR SALE OF ASSETS |
77 | |||||
S ECTION 5.01. |
C ONSOLIDATION , M ERGER OR S ALE OF A SSETS | 77 | ||||
S ECTION 5.02. |
S UCCESSOR S UBSTITUTED | 80 | ||||
ARTICLE SIX DEFAULTS AND REMEDIES |
80 | |||||
S ECTION 6.01. |
E VENTS OF D EFAULT | 80 | ||||
S ECTION 6.02. |
A CCELERATION | 82 | ||||
S ECTION 6.03. |
O THER R EMEDIES | 83 | ||||
S ECTION 6.04. |
W AIVER OF P AST D EFAULTS | 83 | ||||
S ECTION 6.05. |
C ONTROL BY M AJORITY | 84 | ||||
S ECTION 6.06. |
L IMITATION ON S UITS | 84 | ||||
S ECTION 6.07. |
U NCONDITIONAL R IGHT OF H OLDERS T O R ECEIVE P AYMENT | 85 | ||||
S ECTION 6.08. |
C OLLECTION S UIT BY T RUSTEE | 85 | ||||
S ECTION 6.09. |
T RUSTEE M AY F ILE P ROOFS OF C LAIM | 85 | ||||
S ECTION 6.10. |
A PPLICATION OF M ONEY C OLLECTED | 86 | ||||
S ECTION 6.11. |
U NDERTAKING FOR C OSTS | 86 | ||||
S ECTION 6.12. |
R ESTORATION OF R IGHTS AND R EMEDIES | 86 | ||||
S ECTION 6.13. |
R IGHTS AND R EMEDIES C UMULATIVE | 87 | ||||
S ECTION 6.14. |
D ELAY OR O MISSION NOT W AIVER | 87 | ||||
S ECTION 6.15. |
R ECORD D ATE | 87 | ||||
S ECTION 6.16. |
W AIVER OF S TAY OR E XTENSION L AWS | 87 | ||||
ARTICLE SEVEN TRUSTEE |
87 | |||||
S ECTION 7.01. |
D UTIES OF T RUSTEE | 87 | ||||
S ECTION 7.02. |
C ERTAIN R IGHTS OF T RUSTEE | 88 | ||||
S ECTION 7.03. |
I NDIVIDUAL R IGHTS OF T RUSTEE | 91 | ||||
S ECTION 7.04. |
T RUSTEE S D ISCLAIMER | 91 | ||||
S ECTION 7.05. |
C OMPENSATION AND I NDEMNITY | 91 | ||||
S ECTION 7.06. |
R EPLACEMENT OF T RUSTEE | 92 | ||||
S ECTION 7.07. |
S UCCESSOR T RUSTEE BY M ERGER | 93 | ||||
S ECTION 7.08. |
E LIGIBILITY : D ISQUALIFICATION | 93 | ||||
S ECTION 7.09. |
P REFERENTIAL C OLLECTION OF C LAIMS A GAINST I SSUER | 93 | ||||
ARTICLE EIGHT DEFEASANCE; SATISFACTION AND DISCHARGE |
94 | |||||
S ECTION 8.01. |
I SSUER S O PTION TO E FFECT D EFEASANCE OR C OVENANT D EFEASANCE | 94 | ||||
S ECTION 8.02. |
D EFEASANCE AND D ISCHARGE | 94 | ||||
S ECTION 8.03. |
C OVENANT D EFEASANCE | 94 | ||||
S ECTION 8.04. |
C ONDITIONS TO D EFEASANCE | 94 | ||||
S ECTION 8.05. |
S ATISFACTION AND D ISCHARGE OF I NDENTURE | 96 | ||||
S ECTION 8.06. |
S URVIVAL OF C ERTAIN O BLIGATIONS | 97 | ||||
S ECTION 8.07. |
A CKNOWLEDGMENT OF D ISCHARGE BY T RUSTEE | 97 | ||||
S ECTION 8.08. |
A PPLICATION OF T RUST M ONEY | 97 | ||||
S ECTION 8.09. |
R EPAYMENT TO I SSUER | 97 | ||||
S ECTION 8.10. |
I NDEMNITY FOR G OVERNMENT S ECURITIES | 98 | ||||
S ECTION 8.11. |
R EINSTATEMENT | 98 | ||||
ARTICLE NINE AMENDMENTS AND WAIVERS |
98 | |||||
S ECTION 9.01. |
W ITHOUT C ONSENT OF H OLDERS | 98 | ||||
S ECTION 9.02. |
W ITH C ONSENT OF H OLDERS | 99 | ||||
S ECTION 9.03. |
E FFECT OF S UPPLEMENTAL I NDENTURES | 100 | ||||
S ECTION 9.04. |
N OTATION ON OR E XCHANGE OF N OTES | 100 |
InterXion Holding N.V. Indenture | Page iii |
S ECTION 9.05. |
N OTICE OF A MENDMENT OR W AIVER | 101 | ||||
S ECTION 9.06. |
P ROCESS FOR C ONSENTS | 101 | ||||
ARTICLE TEN GUARANTEE |
101 | |||||
S ECTION 10.01. |
G UARANTEE | 101 | ||||
S ECTION 10.02. |
S UBROGATION | 102 | ||||
S ECTION 10.03. |
G ENERAL L IMITATION OF G UARANTEE | 102 | ||||
S ECTION 10.04. |
L IMITATION OF G UARANTEE T HE N ETHERLANDS | 103 | ||||
S ECTION 10.05. |
L IMITATION OF G UARANTEE G ERMANY | 103 | ||||
S ECTION 10.06. |
L IMITATION OF G UARANTEE F RANCE | 105 | ||||
S ECTION 10.07. |
L IMITATION OF G UARANTEE S PAIN | 106 | ||||
S ECTION 10.08. |
L IMITATION OF G UARANTEE R EPUBLIC OF I RELAND | 106 | ||||
S ECTION 10.09. |
L IMITATION OF G UARANTEE B ELGIUM | 106 | ||||
S ECTION 10.10. |
L IMITATION OF G UARANTEE D ENMARK | 107 | ||||
S ECTION 10.11. |
N OTATION N OT R EQUIRED | 108 | ||||
S ECTION 10.12. |
R ELEASE OF THE G UARANTEES | 108 | ||||
S ECTION 10.13. |
S UCCESSORS AND A SSIGNS | 108 | ||||
S ECTION 10.14. |
N O W AIVER | 108 | ||||
S ECTION 10.15. |
M ODIFICATION | 109 | ||||
ARTICLE ELEVEN INTERCREDITOR AGREEMENT |
109 | |||||
S ECTION 11.01. |
I NTERCREDITOR A GREEMENT C ONTROLS | 109 | ||||
ARTICLE TWELVE COLLATERAL AND SECURITY |
109 | |||||
S ECTION 12.01. |
C REATION OF P ARALLEL D EBT | 109 | ||||
S ECTION 12.02. |
S ECURITY D OCUMENTS | 111 | ||||
S ECTION 12.03. |
R ELEASE OF C OLLATERAL | 112 | ||||
S ECTION 12.04. |
A UTHORIZATION OF A CTIONS TO BE T AKEN BY THE S ECURITY T RUSTEE OR THE T RUSTEE U NDER THE S ECURITY D OCUMENTS | 113 | ||||
S ECTION 12.05. |
A UTHORIZATION OF R ECEIPT OF F UNDS BY THE S ECURITY T RUSTEE AND THE T RUSTEE U NDER THE S ECURITY D OCUMENTS | 113 | ||||
S ECTION 12.06. |
F RENCH S ECURITY | 113 | ||||
S ECTION 12.07. |
N O O BLIGATION TO P ERFECT | 113 | ||||
ARTICLE THIRTEEN MISCELLANEOUS |
114 | |||||
S ECTION 13.01. |
N OTICES | 114 | ||||
S ECTION 13.02. |
C OMMUNICATIONS | 116 | ||||
S ECTION 13.03. |
C ERTIFICATE AND O PINION AS TO C ONDITIONS P RECEDENT | 116 | ||||
S ECTION 13.04. |
S TATEMENTS R EQUIRED IN C ERTIFICATE OR O PINION | 116 | ||||
S ECTION 13.05. |
R ULES BY T RUSTEE , P AYING A GENT AND R EGISTRAR | 117 | ||||
S ECTION 13.06. |
L EGAL H OLIDAYS | 117 | ||||
S ECTION 13.07. |
G OVERNING L AW | 117 | ||||
S ECTION 13.08. |
J URISDICTION | 117 | ||||
S ECTION 13.09. |
N O R ECOURSE A GAINST O THERS | 118 | ||||
S ECTION 13.10. |
S UCCESSORS | 118 | ||||
S ECTION 13.11. |
C OUNTERPARTS | 118 | ||||
S ECTION 13.12. |
T ABLE OF C ONTENTS , C ROSS -R EFERENCE S HEET AND H EADINGS | 118 | ||||
S ECTION 13.13. |
S EVERABILITY | 118 | ||||
S ECTION 13.14. |
C URRENCY I NDEMNITY | 118 | ||||
S ECTION 13.15. |
N O A DVERSE I NTERPRETATION OF O THER A GREEMENTS | 119 | ||||
S ECTION 13.16. |
A GENTS | 119 |
InterXion Holding N.V. Indenture | Page iv |
Exhibits
Exhibit A |
- | Form of Notes | ||
Exhibit B |
- | Form of Certificate of Transfer | ||
Exhibit C |
- | Form of Certificate of Exchange | ||
Exhibit D |
- | Form of Supplemental Indenture |
InterXion Holding N.V. Indenture | Page 1 |
INDENTURE dated as of February 12, 2010 among InterXion Holding N.V., a limited liability company incorporated under the laws of The Netherlands and with its corporate seat at Amsterdam, The Netherlands (the Issuer ), the Issuers wholly owned subsidiaries InterXion Nederland B.V., with its corporate seat at Amsterdam, The Netherlands, InterXion HeadQuarters B.V., with its corporate seat at Amsterdam, The Netherlands; InterXion Carrier Hotel (UK) Ltd and InterXion Deutschland GmbH (the Initial Guarantors ), such other Persons as may from time to time become a party to this Indenture as an Additional Guarantor as provided herein, The Bank of New York Mellon ( BNYM ) as Trustee, Principal Paying Agent and Transfer Agent (as such terms are defined below), The Bank of New York Mellon (Luxembourg) S.A. ( BNYML ) as Registrar (as defined below), and Barclays Bank PLC (the Security Trustee ).
RECITALS OF THE ISSUER AND THE GUARANTORS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of its (i) 9.50% Senior Secured Notes due 2017 issued on the date hereof (the Original Notes ) and (ii) any additional Notes ( Additional Notes ) that may be issued after the Issue Date (as defined herein) (the Original Notes and any Additional Notes, the Notes ). The Guarantors (as defined herein) have duly authorized the execution and delivery of this Indenture to provide for the issuance of their Guarantees (as defined herein). The Issuer and the Guarantors have received good and valuable consideration for the execution and delivery of this Indenture and the Guarantees, as the case may be. The Guarantors will derive substantial direct and indirect benefits from the issuance of the Notes. All necessary acts and things have been done to make: (i) the Notes, when duly issued and executed by the Issuer and authenticated and delivered hereunder, the legal, valid and binding obligations of the Issuer; and (ii) this Indenture a legal, valid and binding agreement of the Issuer and the Guarantors in accordance with the terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed by the parties hereto, for the benefit of each other and for the equal and proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. | Definitions |
144A Definitive Registered Note means a certificated Note registered in the name of the holder thereof who has provided (a) the certification in item (1) in the form of Exhibit B hereto or (b) the certifications in items (1) and (3) in the form of Exhibit C hereto and, in any case issued in accordance with Article Two hereof, substantially in the form of Exhibit A hereto.
Acquired Debt means Debt of a Person:
(a) | existing at the time such Person becomes a Restricted Subsidiary or is merged into or consolidated with the Issuer or any Restricted Subsidiary; or |
(b) | assumed in connection with the acquisition of assets from any such Person, |
provided that, in each case, such Debt was not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary or such acquisition, as the case may be.
InterXion Holding N.V. Indenture | Page 2 |
Acquired Debt will be deemed to be Incurred on the date the acquired Person becomes a Restricted Subsidiary (or is merged into or consolidated with the Issuer or any Restricted Subsidiary, as the case may be) or the date of the related acquisition of assets from any Person.
Adjusted EBITDA means, for any period, the sum of the operating profit (or loss) of the Issuer and the Restricted Subsidiaries for such period as determined in accordance with IFRS:
(a) | plus depreciation, amortization and impairment of assets ( less reversal of such impairment); |
(b) | plus share-based payments and charge (less income) attributable to a defined benefit pension scheme other than the current service costs attributable to the scheme; |
(c) | plus exceptional general and administrative costs and material losses ( less gains) of unusual or non-recurring nature; |
(d) | less exceptional income; and |
(e) | plus share of the profits of any non-consolidated Person (other than the Issuer or a Restricted Subsidiary) to the extent received in cash by the Issuer or a Restricted Subsidiary and ( less the share of the losses of such non-consolidated Person to the extent funded in cash by the Issuer or a Restricted Subsidiary). |
Affiliate means, with respect to any specified Person:
(a) | any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person; |
(b) | any other Person that owns, directly or indirectly, 10% or more of such specified Persons Capital Stock or any officer or director of any such specified Person or other Person or, with respect to any natural Person, any Person having a relationship with such Person by blood, marriage or adoption not more remote than first cousin; or |
(c) | any other Person 10% or more of the Voting Stock of which is beneficially owned or held, directly or indirectly by such specified Person. |
For the purposes of this definition, control, when used with respect to any specified Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Agents means any Paying Agent, Registrar, Transfer Agent or any one of them.
Applicable Procedures means, with respect to any transfer or exchange of or for Book-Entry Interests in any Global Note, the procedures of Euroclear and/or Clearstream that apply to such transfer or exchange.
Applicable Redemption Premium means, with respect to any Note on any Redemption Date, the greater of:
(a) | 1.0% of the principal amount of the Note; and |
InterXion Holding N.V. Indenture | Page 3 |
(b) | the excess of: |
(i) | the present value at such Redemption Date of: (x) the redemption price of such Note at February 12, 2014 (such redemption price being set forth in the table appearing on the face of the Notes; plus (y) all required interest payments that would otherwise be due to be paid on such Note during the period between the Redemption Date and February 12, 2014 (excluding accrued but unpaid interest), computed using a discount rate equal to the Bund Rate at such Redemption Date plus 50 basis points; over |
(ii) | the outstanding principal amount of the Note. |
For the avoidance of doubt, calculation of the Applicable Redemptions Premium shall not be a duty or obligation of the Trustee or any Paying Agent.
Asset Sale means any sale, issuance, conveyance, transfer, lease (other than operating leases) or other disposition (including, without limitation, by way of merger, consolidation, amalgamation or other combination or sale and leaseback transaction) (collectively, a transfer ), directly or indirectly, in one or a series of related transactions, of:
(a) | any Capital Stock of any Subsidiary (other than directors qualifying shares or shares required by applicable law to be held by a Person other than the Issuer or a Subsidiary); |
(b) | all or substantially all of the properties and assets of any division or line of business of the Issuer or any Restricted Subsidiary; or |
(c) | any other of the Issuers or any Restricted Subsidiarys properties or assets. |
Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:
(i) | any single transaction or series of related transactions that involves assets or Capital Stock having a Fair Market Value of less than 1.0 million; |
(ii) | any transfer or disposition of assets by the Issuer to any Restricted Subsidiary, or by any Restricted Subsidiary to the Issuer or any Restricted Subsidiary and otherwise in accordance with the terms of this Indenture; |
(iii) | any transfer or disposition of obsolete or permanently retired equipment or facilities or other assets that are no longer useful in the conduct of the Issuers and any Restricted Subsidiarys business; |
(iv) | sales or dispositions of receivables in any factoring transaction in the ordinary course of business; |
(v) | any transfer or disposition of assets that is governed by the provisions of this Indenture described under Section 5.01 and Section 4.09; |
(vi) | for the purposes of Section 4.07 only, the making of a Permitted Investment or a Restricted Payment permitted under Section 4.06; |
InterXion Holding N.V. Indenture | Page 4 |
(vii) | the sale, lease, sublease, assignment or other disposition of any real or personal property or any equipment, inventory or other assets in the ordinary course of business; |
(viii) | an issuance of Capital Stock by a Restricted Subsidiary to the Issuer or to another Restricted Subsidiary; |
(ix) | any transfer, termination, unwinding or other disposition of Hedging Agreements in the ordinary course of business and not for speculative purposes; |
(x) | sales of assets received by the Issuer or any Restricted Subsidiary upon the foreclosure on a Lien granted in favor of the Issuer or any Restricted Subsidiary or any other transfer of title with respect to any secured investment in default; |
(xi) | any disposition in connection with a Permitted Lien; |
(xii) | the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims, in the ordinary course of business; |
(xiii) | a sale and leaseback transaction with respect to any assets within 90 days of the acquisition of such assets; |
(xiv) | a disposition of cash or Cash Equivalents; or |
(xv) | disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements. |
Attributable Debt means, with respect to any sale and leaseback transaction at the time of determination, the present value (discounted at the interest rate implicit in the lease determined in accordance with IFRS or, if not known, at the Issuers incremental borrowing rate) of the total obligations of the lessee of the property subject to such lease for rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended, or until the earliest date on which the lessee may terminate such lease without penalty or upon payment of penalty (in which case the rental payments shall include such penalty), after excluding from such rental payments all amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water, utilities and similar charges.
Authorized Person means any person who is designated in writing by the Issuer from time to time to give Instructions to Trustee or an Agent under this Indenture.
Average Life means, as at the date of determination with respect to any Debt, the quotient obtained by dividing:
(a) | the sum of the products of: |
(i) | the numbers of years from the date of determination to the date or dates of each successive scheduled principal payment of such Debt; multiplied by |
(ii) | the amount of each such principal payment; |
InterXion Holding N.V. Indenture | Page 5 |
by
(b) | the sum of all such principal payments. |
Baker Capital means Baker Capital Corp., Lamont Finance N.V., Chianna Investment N.V., Baker Communications Fund II, L.P., Baker Communications Fund (Cayman), L.P., and/or Baker Communications Fund II (Cayman), L.P.
Bankruptcy Law means any law relating to bankruptcy, insolvency, receivership, winding-up, administration, liquidation, examinership, reorganization or relief of debtors or impairment of creditors or any amendment to, succession to or change in any such law.
BNYM has the meaning assigned to such term in the preamble to this Indenture.
BNYML has the meaning assigned to such term in the preamble to this Indenture.
Board of Directors means:
(a) | with respect to any corporation (which includes, for the avoidance of doubt, the Issuer), the board of directors or managers of the corporation (which, in the case of any corporation having both a supervisory board and an executive or management board, shall be the executive or management board) or any duly authorized committee thereof; |
(b) | with respect to any partnership, the board of directors of the general partner of the partnership or any duly authorized committee thereof; |
(c) | with respect to a limited liability company, the managing member or members (or analogous governing body) or any controlling committee of managing members thereof; and |
(d) | with respect to any other Person, the board or any duly authorized committee thereof or committee of such Person serving a similar function. |
Book-Entry Interest means a beneficial interest in a Global Note held through and shown on, and transferred only through, records maintained in book-entry form by a Depositary.
Bund Rate means, with respect to any Redemption Date, the rate per annum equal to the equivalent yield to maturity as at such Redemption Date of the Comparable German Bund issue, assuming a price for the Comparable German Bund issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such Redemption Date, where:
(a) | Comparable German Bund Issues means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such Redemption Date to February 12, 2014 and that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of Euro denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to February 12, 2014; provided that if the period from such Redemption Date to February 12, 2014, is less than one year, a fixed maturity of one year shall be used; |
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(b) | Comparable German Bund Price means, with respect to any Redemption Date, the average of the Reference German Bund Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations; |
(c) | Reference German Bund Dealer means any dealer of German Bundesanleihe securities appointed by the Issuer in consultation with the Trustee; and |
(d) | Reference German Bund Dealer Quotations means, with respect to each Reference German Bund Dealer and any Redemption Date, the average as determined by the Issuer of the bid and offered prices for the Comparable German Bund issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany time on the third business day preceding such Redemption Date. |
Business Day means a day other than a Saturday, Sunday or other day on which banking institutions in Amsterdam, London, New York or a place of payment under this Indenture are authorized or required by law to close.
Capital Stock means, with respect to any Person, any and all shares, interests, partnership interests (whether general or limited), participations, rights in or other equivalents (however designated) of such Persons equity, any other interest or participation that confers the right to receive a share of the profits and losses, or distributions of assets of, such Person and any rights (other than debt securities convertible into or exchangeable for Capital Stock), warrants or options exchangeable for, or convertible into, such Capital Stock, whether now outstanding or issued after the Issue Date.
Capitalized Lease Obligation means, with respect to any Person, any obligation of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed), which obligation is required to be classified and accounted for as a capital lease obligation under IFRS, and, for purposes of this Indenture, the amount of such obligation at any date will be the capitalized amount thereof at such date, determined in accordance with IFRS and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
Cash Equivalents means any of the following:
(a) | any evidence of Debt denominated in Euro, Sterling or U.S. dollars with a maturity of one year or less from the date of acquisition, issued or directly and fully guaranteed or insured by a member state (an EU Member State ) of the European Union whose sole lawful currency on the Issue Date is the Euro, the government of the United Kingdom of Great Britain and Northern Ireland, the United States of America, any state thereof or the District of Columbia, or any agency or instrumentality thereof (each, an Approved Jurisdiction ); |
(b) |
time deposit accounts, certificates of deposit, money market deposits or bankers acceptances denominated in Euro, Sterling or U.S. dollars with a maturity of one year or less from the date of acquisition issued by a bank or trust company organized in an EU Member State, the United Kingdom of Great Britain and Northern Ireland or any commercial banking institution that |
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is a member of the U.S. Federal Reserve System, in each case having combined capital and surplus and undivided profits of not less than 500.0 million, whose long-term, unsecured, unsubordinated and unguaranteed debt has a rating, at the time any investment is made therein, of at least A or the equivalent thereof from S&P and at least A2 or the equivalent thereof from Moodys; |
(c) | commercial paper with a maturity of one year or less from the date of acquisition issued by a corporation that is not the Issuers or any Restricted Subsidiarys Affiliate and which is incorporated under the laws of an EU Member State, United Kingdom of Great Britain and Northern Ireland, the United States of America or any state thereof and, at the time of acquisition, having a short-term credit rating of at least A-1 or the equivalent thereof from S&P or at least P-1 or the equivalent thereof from Moodys; |
(d) | repurchase obligations with a term of not more than thirty days for underlying securities of the type described in clause (a) above, entered into with a financial institution meeting the qualifications described in clause (b) above; and |
(e) | Investments in money market mutual funds substantially all of the assets of which constitute Cash Equivalents of the kind described in clauses (a) through (d) above. |
Change of Control means the occurrence of any of the following events:
(a) | prior to the consummation of an Initial Public Offering, any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder or the Permitted Holders, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the voting power of the Issuers outstanding Voting Stock; |
(b) | after the consummation of an Initial Public Offering, (i) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder or the Permitted Holders, is or becomes the beneficial owner, directly or indirectly, of more than 30% of the voting power of the Issuers outstanding Voting Stock and (ii) the Permitted Holders do not beneficially own a larger percentage of such Voting Stock than such person or group (for the purposes of this clause (b), such other person or group shall be deemed to beneficially own all Voting Stock of a specified entity directly held by a parent entity, if such other person or group becomes the beneficial owner (as defined in clause (a) above), directly or indirectly, of more than 30% of the Voting Stock of such parent entity and the Permitted Holders do not beneficially own more than 30% of the Voting Stock of such parent entity); |
(c) |
the merger or consolidation of the Issuer with or into another Person or the merger of another Person with or into the Issuer, or the sale of all or substantially all the assets of the Issuer (determined on a consolidated basis) to another Person other than (i) a transaction in which the survivor or transferee is a Person that is controlled by a Permitted Holder or (ii) a transaction following which (A) in the case of a merger or consolidation transaction, holders of securities that represented 100% of the Voting Stock of the Issuer immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation |
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transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction and in substantially the same proportion as before the transaction and (B) in the case of a sale of assets transaction, each transferee becomes an obligor in respect of the Notes and a Subsidiary of the transferor of such assets; or |
(d) | during any consecutive two-year period following the completion of the Initial Public Offering, individuals who at the beginning of such period constituted the Issuers Board of Directors (together with any new members whose election to such Board of Directors, or whose nomination for election by the Issuers shareholders, was approved by a vote of at least a majority of the members of the Issuers Board of Directors then still in office who were either members at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the Issuers Board of Directors then in office. |
Clearstream means Clearstream Banking, société anonyme, or any successor securities clearing agency.
Collateral means the rights and assets over which security is granted to secure the Notes and the Guarantees pursuant to the Security Documents.
Commission means the U.S. Securities and Exchange Commission.
Common Depositary means The Bank of New York Mellon in its capacity as common depositary for Euroclear and Clearstream.
Consolidated Fixed Charge Coverage Ratio of the Issuer means, for any period, the ratio of (1) Adjusted EBITDA to (2) Consolidated Interest Expense; provided that:
(a) | if the Issuer or any Restricted Subsidiary has Incurred any Debt since the beginning of such period that remains outstanding or if the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio is an Incurrence of Debt or both, Consolidated Net Income and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Debt as if such Debt had been Incurred on the first day of such period and the discharge of any other Debt repaid, repurchased, defeased or otherwise discharged with the proceeds of such new Debt as if such discharge had occurred on the first day of such period; |
(b) | if, since the beginning of such period, the Issuer or any Restricted Subsidiary shall have made any Asset Sale, Consolidated Net Income for such period shall be reduced by an amount equal to the Consolidated Net Income (if positive) directly attributable to the assets which are the subject of such asset sale for such period, or increased by an amount equal to the Consolidated Net Income (if negative) directly attributable thereto, for such period and the Consolidated Interest Expense for such period shall be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any Debt of the Issuer or of any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with respect to the Issuer and the continuing Restricted Subsidiaries in connection with such Asset Sale for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period directly attributable to the Debt of such Restricted Subsidiary to the extent the Issuer and the continuing Restricted Subsidiaries are no longer liable for such Debt after such sale); |
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(c) | if, since the beginning of such period the Issuer or any Restricted Subsidiary (by merger, consolidation, amalgamation or other combination or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets, including any acquisition of an asset occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantially all of an operating unit of a business, Consolidated Net Income and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any Debt) as if such Investment or acquisition occurred on the first day of such period; and |
(d) | if, since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary since the beginning of such period) shall have made any Asset Sale or any Investment or acquisition of assets that would have required an adjustment pursuant to clause (b) or (c) if made by the Issuer or a Restricted Subsidiary during such period, Consolidated Net Income and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such asset sale or Investment or acquisition occurred on the first day of such period. |
If any Debt bears a floating rate of interest and is being given pro forma effect, the interest expense on such Debt shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Debt for a period equal to the remaining term of such Interest Rate Agreement).
Consolidated Interest Expense means, for any period, without duplication and in each case determined on a consolidated basis in accordance with IFRS, the sum of:
(a) | the Issuers and the Restricted Subsidiaries interest expense on loans, notes and capital leases for such period, plus, to the extent not otherwise included in interest expense on loans, notes and capital leases: |
(i) | amortization of debt discount and original issue discount; |
(ii) | the net payments made or received pursuant to Hedging Agreements (including amortization of fees and discounts); |
(iii) | commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and similar transactions; and |
(iv) | the interest portion of any deferred payment obligation and amortization of debt issuance costs; plus |
(b) | the interest component of the Issuers and the Restricted Subsidiaries Capitalized Lease Obligations accrued and/or scheduled to be paid or accrued during such period other than the interest component of Capitalized Lease Obligations between or among the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; plus |
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(c) | the Issuers and the Restricted Subsidiaries non-cash interest expenses and interest that was capitalized during such period; plus |
(d) | the interest expense on Debt of another Person to the extent such Debt is guaranteed by the Issuer or any Restricted Subsidiary or secured by a Lien on the Issuers or any Restricted Subsidiarys assets, but only to the extent that such interest is actually paid by the Issuer or such Restricted Subsidiary; plus |
(e) | cash and non-cash dividends due (whether or not declared) on the Issuers Redeemable Capital Stock and any Restricted Subsidiarys Preferred Stock (to any Person other than the Issuer and any Restricted Subsidiary), in each case for such period. |
Consolidated Net Income means, for any period, the Issuers and the Restricted Subsidiaries consolidated net income (or loss) for such period as determined in accordance with IFRS, adjusted by excluding (to the extent included in such consolidated net income or loss), without duplication:
(a) | the portion of net income (and the loss unless and to the extent funded in cash by the Issuer or a Restricted Subsidiary) of any Person (other than the Issuer or a Restricted Subsidiary), including Unrestricted Subsidiaries, in which the Issuer or any Restricted Subsidiary has an equity ownership interest, except that the Issuers or a Restricted Subsidiarys equity in the net income of such Person for such period shall be included in such Consolidated Net Income to the extent of the aggregate amount of dividends or other distributions actually paid to the Issuer or any Restricted Subsidiary in cash dividends or other distributions during such period; |
(b) | the net income (but not the loss) of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the date of determination permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary or its shareholders (other than restrictions (i) pursuant to this Indenture, (ii) contractual restrictions in effect on the Issue Date with respect to a Restricted Subsidiary, and other restrictions with respect to such Restricted Subsidiary that, taken as a whole, are not materially less favorable to the Holders than such restrictions in effect on the Issue Date, and (iii) restrictions specified in clause (2)(m) of Section 4.14; |
(c) | net after-tax gains attributable to the termination of any employee pension benefit plan; |
(d) | any restoration to net income of any contingency reserve, except to the extent provision for such reserve was made out of income accrued at any time following the Issue Date; |
(e) | any net gain arising from the acquisition of any securities or extinguishment, under IFRS, of any Debt of such Person; |
(f) | the net income attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or not such operations were classified as discontinued); |
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(g) | any gains (but not losses) from currency exchange transactions not in the ordinary course of business; |
(h) | the net gain (or loss) realized upon the sale or other disposition of any asset or disposed operations of the Issuer or any Restricted Subsidiary (including pursuant to a sale/leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by an Officer or the Board of Directors of the Issuer); |
(i) | any extraordinary, exceptional, unusual or non-recurring gain, loss or charge; |
(j) | any non-cash compensation charge or expense arising from any grant of stock, stock options or other equity based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions; and |
(k) | any unrealized gains or losses in respect of Hedging Agreements or other derivative instruments or forward contracts or any ineffectiveness recognized in earnings related to a qualifying hedge transaction or the fair value or changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of Hedging Agreements. |
Consolidated Senior Leverage Ratio , as at any date of determination, means the ratio of:
(1) | the outstanding Senior Debt of the Issuer and its Restricted Subsidiaries on a consolidated basis, to |
(2) | the pro forma Adjusted EBITDA for the period of the most recent four consecutive fiscal quarters for which internal financial statements are available, in each case with such pro forma adjustments to Debt and Adjusted EBITDA as are consistent with the pro forma adjustments set forth in the definition of Consolidated Fixed Charge Coverage Ratio. |
Corporate Trust Office means the principal corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered, which office at the date of execution of this Indenture is located at One Canada Square, London, England E14 5AL, or such other address in London, England, as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address in London, England, as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).
Credit Facility or Credit Facilities means, one or more debt facilities or indentures, as the case may be, (including the Revolving Credit Facility) or commercial paper facilities with banks, insurance companies or other institutional lenders providing for revolving credit loans, term loans, notes, letters of credit or other forms of guarantees and assurances or other credit facilities or extensions of credit, including overdrafts, in each case, as amended, restated, modified, renewed, refunded, replaced, refinanced, repaid, increased or extended in whole or in part from time to time.
Currency Agreements means, in respect of a Person, any spot or forward foreign exchange agreements and currency swap, currency option or other similar financial agreements or arrangements designed to protect such Person against or manage exposure to fluctuations in foreign currency exchange rates.
Custodian means any receiver, trustee, assignee, liquidator, custodian, administrator or similar official under any Bankruptcy Law.
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Debt means, with respect to any Person, without duplication:
(a) | all liabilities of such Person for borrowed money (including overdrafts) or for the deferred purchase price of property or services, excluding any trade payables and other accrued current liabilities Incurred in the ordinary course of business; |
(b) | all obligations of such Person evidenced by bonds, notes, debentures or other similar instruments; |
(c) | all reimbursement obligations of such Person in connection with any letters of credit, bankers acceptances, receivables facilities or other similar facilities; |
(d) | all debt of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even if the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), which is due more than one year after its incurrence but excluding trade payables arising in the ordinary course of business; |
(e) | all Capitalized Lease Obligations of such Person; |
(f) | all obligations of such Person under or in respect of Hedging Agreements (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such obligation that would be payable by such Person at such time); |
(g) | all Debt referred to in (but not excluded from) the preceding clauses (a) through (f) of other Persons and all dividends of other Persons, the payment of which is secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien upon or with respect to property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt (the amount of such obligation being deemed to be the lesser of the Fair Market Value of such property or asset and the amount of the obligation so secured); |
(h) | all guarantees by such Person of Debt referred to in this definition of any other Person; |
(i) | all Redeemable Capital Stock of such Person valued at the greater of its voluntary maximum fixed repurchase price and involuntary maximum fixed repurchase price; and |
(j) | Preferred Stock of any Restricted Subsidiary, |
in each case to the extent it appears as a liability on the balance sheet in accordance with IFRS; provided that the term Debt shall not include: (i) non-interest bearing installment obligations and accrued liabilities Incurred in the ordinary course of business that are not more than 90 days past due; (ii) anything accounted for as an operating lease in accordance with IFRS as at the Issue Date; (iii) any pension obligations of the Issuer or a Restricted Subsidiary; and (iv) Debt incurred by the Issuer or one of the Restricted Subsidiaries in connection with a transaction where (a) such Debt is borrowed from a bank or trust company incorporated in any member state of the European Union as of the date of this Indenture, or any commercial banking institution that is a member of the U.S. Federal Reserve System, in
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each case having a combined capital and surplus and undivided profits of not less than 500 million, whose debt has a rating immediately prior to the time such transaction is entered into, of at least A or the equivalent thereof by S&P and A2 or the equivalent thereof by Moodys and (b) a substantially concurrent Investment is made by the Issuer or a Restricted Subsidiary in the form of cash deposited with the lender of such Debt, or a Subsidiary or affiliate thereof, in amount equal to such Debt.
For purposes of this definition, the maximum fixed repurchase price of any Redeemable Capital Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on any date on which Debt will be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Redeemable Capital Stock, such fair market value will be determined in good faith by the Board of Directors of the issuer of such Redeemable Capital Stock; provided, that if such Redeemable Capital Stock is not then permitted to be redeemed, repaid or repurchased, the redemption, repayment or repurchase price shall be the book value of such Redeemable Capital Stock as reflected in the most recent financial statements of such Person.
Default means any event that is, or after the giving of notice or passage of time or both would be, an Event of Default.
Definitive Registered Note means an Unrestricted Definitive Registered Note, a 144A Definitive Registered Note or a Regulation S Definitive Registered Note.
Designated Non-cash Consideration means the Fair Market Value of non-cash consideration received by the Issuer or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.
Depositary means Euroclear, Clearstream and their respective nominees and successors, acting through itself or through the Common Depositary.
Disinterested Member means, with respect to any transaction or series of related transactions, a member of the Issuers Board of Directors who does not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions or is not an Affiliate, or an officer, director, member of a supervisory, executive or management board or employee of any Person (other than the Issuer or a Restricted Subsidiary) who has any direct or indirect financial interest in or with respect to such transaction or series of related transactions.
Equity Offering means an underwritten offer and sale of Capital Stock (which is Qualified Capital Stock) of the Issuer, or any Holding Company of the Issuer; provided that the net proceeds of such underwritten public offer and sale are contributed to the equity capital of the Issuer.
Euro or means the lawful currency of the member states of the European Union that participate in the third stage of the European Economic and Monetary Union.
Euro Equivalent means, with respect to any monetary amount in a currency other than Euro, at any time for the determination thereof, the amount of Euro obtained by converting such foreign currency involved in such computation into Euro at the spot rate for the purchase of Euro with the applicable foreign currency as published under Currency Rates in the section of The Financial Times entitled Currencies, Bonds & Interest Rates on the date two Business Days prior to such determination.
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Euroclear means Euroclear S.A./N.V., or any successor securities clearing agency.
European Government Obligations means direct obligations (or certificates representing an ownership interest in such obligations) of a member state of the European Union as at the Issue Date (including any agency or instrumentality thereof) for the payment of which the full faith and credit of such government is given.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
Fair Market Value means, with respect to any asset or property, the sale value that would be obtained in an arms-length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Issuers Board of Directors.
guarantee means, as applied to any obligation:
(a) | a guarantee (other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business), direct or indirect, in any manner, of any part or all of such obligation; and |
(b) | an agreement, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of non-performance) of all or any part of such obligation, including, without limiting the foregoing, by the pledge of assets and the payment of amounts drawn down under letters of credit. |
Guarantee means any guarantee of the Issuers obligations under this Indenture and the Notes by any Restricted Subsidiary or any other Person in accordance with the provisions of this Indenture. When used as a verb, Guarantee shall have a corresponding meaning.
Guarantors means the Initial Guarantors and the Additional Guarantors (once such entities provide Guarantees) and any other Restricted Subsidiary that Incurs a Guarantee. For the avoidance of doubt, if a Guarantee is released in accordance with the provisions of this Indenture, the entity that provided such Guarantee shall no longer be considered a Guarantor and shall be excluded from the list of entities set out in this definition.
Hedging Agreements means Currency Agreements, Interest Rate Agreements and Power Agreements.
Holder means the Person in whose name a Note is recorded on the Registrars books.
Holding Company of a Person means any other Person (other than a natural person) of which the first Person is a Subsidiary.
IFRS means International Financial Reporting Standards as in effect from time to time.
Indenture means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.
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Independent Financial Advisor means an investment banking firm, bank, accounting firm or third-party appraiser, in any such case, of international standing; provided that such firm is not an Affiliate of the Issuer.
Indirect Participant means a Person who holds a Book-Entry Interest in a Global Note through a Participant.
Initial Guarantors has the meaning assigned to such term in the preamble to this Indenture.
Initial Public Offering means an Equity Offering of the Issuer or any Holding Company of the Issuer or any successor of the Issuer or any Holding Company of the Issuer (the IPO Entity ) following which there is a Public Market and, as a result of which, the Capital Stock of the IPO Entity in such offering is listed on an internationally recognized exchange or traded on an internationally recognized market.
Instructions means any written notices, written directions or written instructions received by the Trustee or any of the Agents in accordance with the provisions of this Indenture from an Authorized Person or from a person reasonably believed by the Trustee or any of the Agents to be an Authorized Person.
Intercreditor Agreement means the Intercreditor Agreement to be dated the Issue Date among the Issuer, the Senior Agent, the Security Trustee, the Trustee and certain other parties, as amended, waived or converted from time to time.
Interest Payment Date means the Stated Maturity of an installment of interest on the Notes.
Interest Rate Agreements means, in respect of a Person, any interest rate protection agreements and other types of interest rate hedging agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) designed to protect such Person against or manage exposure to fluctuations in interest rates.
Investments means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other similar obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions in consideration of Debt, Capital Stock or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with IFRS. If the Issuer or any Subsidiary of the Issuer sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of the Issuer such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Issuer, the Issuer will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Issuers Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in the definition of Fair Market Value. The acquisition by the Issuer or any Subsidiary of the Issuer of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Issuer or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 4.06. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.
Issue Date means February 12, 2010.
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Issuer means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.
Issuer Order means a written order signed in the name of the Issuer by an authorized officer or director of the Issuer.
Lien means any mortgage or deed of trust, charge, pledge, lien (statutory or otherwise), privilege, security interest, hypothecation, assignment for or by way of security, claim, or preference or priority or other encumbrance upon or with respect to any property of any kind, real or personal, movable or immovable, now owned or hereafter acquired. A Person will be deemed to own subject to a Lien any property which such Person has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement.
Losses means any and all claims, losses, liabilities, damages, costs, expenses and judgments (including legal fees and expenses) sustained or incurred.
Management Advances means loans or advances made to, or Guarantees with respect to loans or advances made to, directors, officers, employees or consultants of the Issuer or any Restricted Subsidiary for purposes of funding any such persons purchase of Capital Stock of the Issuer or its Subsidiaries with the approval of the Board of Directors.
Maturity means, with respect to any debt, the date on which any principal of such debt becomes due and payable as therein or herein provided, whether at the Stated Maturity with respect to such principal or by declaration of acceleration, call for redemption or purchase or otherwise.
Midco means a new Subsidiary of the Issuer to be established as a holding company of the Issuers operating Subsidiaries.
Moodys means Moodys Investors Service, Inc. and its successors.
Net Cash Proceeds means:
(a) | with respect to any Asset Sale, the proceeds thereof in the form of cash or Cash Equivalents (except to the extent that such obligations are financed or sold with recourse to the Issuer or any Restricted Subsidiary), net of: |
(i) | brokerage commissions and other fees and expenses (including, without limitation, fees and expenses of legal counsel, accountants, investment banks and other consultants) related to such Asset Sale; |
(ii) | provisions for all taxes paid or payable, or required to be accrued as a liability under IFRS as a result of such Asset Sale; |
(iii) | all distributions and other payments required to be made to any Person (other than the Issuer or any Restricted Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale; and |
(iv) | appropriate amounts required to be provided by the Issuer or any Restricted Subsidiary, as the case may be, as a reserve in accordance with IFRS against any liabilities associated with such Asset Sale and retained by the Issuer or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as reflected in an Officers Certificate delivered to the Trustee; and |
Interxion Holding N.V. Indenture | Page 17 |
(b) | with respect to any capital contributions, issuance or sale of Capital Stock or options, warrants or rights to purchase Capital Stock, or debt securities or Capital Stock that have been converted into or exchanged for Capital Stock as referred to under Section 4.06, the proceeds of such issuance or sale in the form of cash or Cash Equivalents, payments in respect of deferred payment obligations when received in the form of, or stock or other assets when disposed of for, cash or Cash Equivalents (except to the extent that such obligations are financed or sold with recourse to the Issuer or any Restricted Subsidiary), net of attorneys fees, accountants fees and brokerage, consultation, underwriting and other fees and expenses actually Incurred in connection with such issuance or sale and net of taxes paid or payable as a result of thereof. |
Offering Memorandum means the offering memorandum relating to the Notes dated February 9, 2010.
Officers Certificate means a certificate signed by two officers of (or such number of managing directors authorized to represent) the Issuer, a Guarantor or a Surviving Entity, as the case may be, and delivered to the Trustee.
Opinion of Counsel means a written opinion from legal counsel. The counsel may be an employee of or counsel to the Issuer or the Trustee.
Pari Passu Debt means Senior Debt including, without limitation, (a) any Debt of the Issuer that ranks equally in right of payment with the Notes or (b) with respect to any Guarantee, any Debt that ranks equally in right of payment to such Guarantee.
Paying Agents shall mean the Principal Paying Agent and the Luxembourg Paying Agent and Agent shall mean either of them.
Permitted Business means any business related, ancillary or complementary to the business of the Issuer and the Restricted Subsidiaries on the date of this Indenture.
Permitted Collateral Liens means any Lien on the Collateral:
(a) | to secure: |
(i) | Pari Passu Debt of the Issuer or a Restricted Subsidiary (which in the case of this clause (i), may have priority in an intercreditor waterfall) that is permitted to be Incurred under clause (a) or (b) of paragraph (2) of Section 4.04; |
(ii) | Pari Passu Debt of the Issuer or a Guarantor that is permitted to be Incurred under paragraph (1) of Section 4.04 (including, without limitation, clause (c) of such paragraph (1)); |
(iii) | any obligations under Hedging Agreements; |
(iv) | any bank account that is a blocked account with a bank that has provided a guarantee or other assurance against loss on behalf of the Issuer or a Restricted Subsidiary in respect of rental lease, supplier or stock payments; |
Interxion Holding N.V. Indenture | Page 18 |
(v) | Liens on Collateral that are described in clauses (g), (h), (j), (k), (o), (r) (but only to the extent the Lien being extended, renewed or replaced was already a Permitted Collateral Lien) and (s) (but only to the extent the Lien being refinanced was already a Permitted Collateral Lien) of the definition of Permitted Liens; or |
(vi) | any Permitted Refinancing Debt thereof; or |
(b) | that is a statutory Lien arising by operation of law, |
provided that such Lien either ranks: (A) equal to all other Liens on such Collateral securing Pari Passu Debt of the Issuer or the relevant Guarantor, if the Lien secures Pari Passu Debt; or (B) junior to the Liens securing the Notes and the Guarantees; provided further that, in the case of clauses (a)(ii), (a)(iii), (a)(iv), (a)(v), (a)(vi) and (b) above, any Debt related to such Lien does not rank in priority to the Notes in any appropriation or distribution provisions in the Intercreditor Agreement (or any similar agreement among creditors).
Permitted Debt has the meaning given to such term in Section 4.04.
Permitted Holders means (i) Baker Capital, (ii) any Affiliate or Related Person of any Permitted Holder and/or (iii) any successor to any Permitted Holder or such Affiliate or Related Person.
Permitted Investments means any of the following:
(a) | Investments in cash or Cash Equivalents; |
(b) | intercompany Debt to the extent permitted under clause (d) of the definition of Permitted Debt; |
(c) | Investments in: (i) the form of loans or advances to the Issuer; (ii) a Restricted Subsidiary; or (iii) another Person if as a result of such Investment such other Person becomes a Restricted Subsidiary or such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all of its assets to, the Issuer or a Restricted Subsidiary; |
(d) | Investments made by the Issuer or any Restricted Subsidiary as a result of or retained in connection with an Asset Sale permitted under or made in compliance with Section 4.07 to the extent such Investments are non-cash proceeds permitted thereunder; |
(e) | expenses or advances to cover payroll, travel entertainment, moving, other relocation and similar matters that are expected at the time of such advances to be treated as expenses in accordance with IFRS; |
(f) | Investments in the Notes; |
(g) | Investments existing, or made pursuant to legally binding commitments in existence, at the Issue Date and any Investment that amends, extends, renews, replaces or refinances an Investment existing on the date of this Indenture; provided that such new Investment is on terms and conditions no less favorable to the Issuer or the applicable Restricted Subsidiary than the Investment being amended, extended, renewed, replaced or refinanced; |
Interxion Holding N.V. Indenture | Page 19 |
(h) | Investments in Hedging Agreements permitted under Section 4.04; |
(i) | loans and advances (or guarantees to third party loans, but not any forgiveness of such loans or advances) to directors, officers or employees of the Issuer or any Restricted Subsidiary made in the ordinary course of business and consistent with the Issuers past practices or past practices of the Restricted Subsidiaries, as the case may be, in an amount outstanding not to exceed at any one time 1.0 million; |
(j) | Investments in a Person to the extent that the consideration therefor consists of the Issuers Qualified Capital Stock or the net proceeds of the substantially concurrent issue and sale (other than to any Subsidiary) of shares of the Issuers Qualified Capital Stock; provided that the net proceeds of such sale have been excluded from, and shall not have been included in, the calculation of the amount determined under clause (2)(c)(ii) of Section 4.06; |
(k) | (i) stock, obligations or securities received in satisfaction of judgments, foreclosure of liens or settlement of debts and (ii) any Investments received in compromise of obligations of such persons that were Incurred in the ordinary course of business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; |
(l) | Investments of the Issuer or the Restricted Subsidiaries described under item (iv) to the proviso to the definition of Debt; |
(m) | lease, utility and workers compensation, performance and other similar deposits made in the ordinary course of business; |
(n) | guarantees permitted to be incurred under Section 4.04; |
(o) | pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or liens otherwise described in the definition of Permitted Liens or made in connection with Liens permitted under Section 4.05; |
(p) | Investments by the Issuer or any Restricted Subsidiary in Qualified Joint Ventures, the amount of which, measured by reference to the Fair Market Value of each such Investment on the day it was made, not to exceed the greater of 15.0 million or 3% of Total Assets in the aggregate outstanding at any one time; and |
(q) | other Investments in any Person other than an Affiliate of the Issuer having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (q) that are at the time outstanding, not to exceed 20.0 million. |
Permitted Liens means the following types of Liens:
(a) | Liens (other than Liens securing Debt under the Revolving Credit Facility) existing as at the date of the issuance of the Notes; |
Interxion Holding N.V. Indenture | Page 20 |
(b) | Liens securing Debt under Credit Facilities permitted to be Incurred pursuant to Section 4.04(2)(a); |
(c) | Liens on any property or assets of a Restricted Subsidiary granted in favor of the Issuer or any Restricted Subsidiary; |
(d) | Liens on any of the Issuers or any Restricted Subsidiarys property or assets securing the Notes or any Guarantee; |
(e) | any interest or title of a lessor under any Capitalized Lease Obligation and Liens to secure Debt (including Capitalized Lease Obligations) permitted by Section 4.04(2)(f) covering only the assets acquired with such Debt; |
(f) | Liens arising out of conditional sale, title retention, consignment, deferred payment or similar arrangements for the sale or purchase of goods entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business in accordance with the Issuers or such Restricted Subsidiarys past practices prior to the Issue Date; |
(g) | statutory Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen, employees, pension plan administrators or other like Liens arising in the ordinary course of the Issuers or any Restricted Subsidiarys business and with respect to amounts not yet delinquent for more than 60 days or being contested in good faith by appropriate proceedings and for which a reserve or other appropriate provision, if any, as shall be required in conformity with IFRS shall have been made or Liens arising solely by virtue of any statutory or common law provisions relating to attorneys liens or bankers liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution; |
(h) | Liens for taxes, assessments, government charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with IFRS shall have been made; |
(i) | Liens Incurred or deposits made to secure the performance of tenders, bids or trade or government contracts, or to secure leases, statutory or regulatory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature Incurred in the ordinary course of business; |
(j) | zoning restrictions, easements, licenses, reservations, title defects, rights of others for rights-of-way, utilities, sewers, electrical lines, telephone lines, telegraph wires, restrictions, encroachments and other similar charges, encumbrances or title defects incurred in the ordinary course of business that do not in the aggregate materially interfere with in any material respect the ordinary conduct of the business of the Issuer and its Restricted Subsidiaries on the properties subject thereto, taken as a whole; |
(k) | Liens arising by reason of any judgment, decree or order of any court so long as such Lien is adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment, decree or order shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired; |
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(l) | Liens on property of, or on shares of Capital Stock or Debt of, any Person existing at the time such Person is acquired by, merged with or into or consolidated with, the Issuer or any Restricted Subsidiary (or at the time the Issuer or a Restricted Subsidiary acquires such property, Capital Stock or Debt); provided that such Liens: (i) do not extend to or cover any property or assets of the Issuer or any Restricted Subsidiary other than the property or assets acquired or than those of the Person merged into or consolidated with the Issuer or Restricted Subsidiary; and (ii) were created prior to, and not in connection with or in contemplation of, such acquisition, merger, consolidation, amalgamation or other combination; |
(m) | Liens securing the Issuers or any Restricted Subsidiarys obligations under Hedging Agreements permitted under clause (h) of the definition of Permitted Debt or any collateral for the Debt to which such Hedging Agreements relate; |
(n) | Liens Incurred or deposits made in the ordinary course of business in connection with workers compensation, unemployment insurance and other types of social security or other insurance; |
(o) | Liens Incurred in connection with any cash management program established in the ordinary course of business for the Issuers benefit or that of any Restricted Subsidiary in favor of a bank or trust company; |
(p) | Liens made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the Issuer or any Restricted Subsidiary, including rights of offset and set-off; |
(q) | Liens on assets of a Restricted Subsidiary of the Issuer that is not a Guarantor to secure Debt of such Restricted Subsidiary (or any other Restricted Subsidiary that is not a Guarantor) and that is otherwise permitted under this Indenture; |
(r) | any extension, renewal or replacement, in whole or in part, of any Lien; provided that any such extension, renewal or replacement shall be no more restrictive in any material respect than the Lien so extended, renewed or replaced and shall not extend in any material respect to any additional property or assets; |
(s) | Liens securing Debt Incurred to refinance Debt that has been secured by a Lien permitted by this Indenture; provided that: (i) any such Lien shall not extend to or cover any assets not securing the Debt so refinanced; and (ii) the Debt so refinanced shall have been permitted to be Incurred; |
(t) | purchase money Liens to finance property or assets of the Issuer or any Restricted Subsidiary acquired in the ordinary course of business; provided that: (i) the related purchase money Debt shall not exceed the cost of such property or assets and shall not be secured by any property or assets of the Issuer or any Restricted Subsidiary other than the property and assets so acquired; and (ii) the Lien securing such Debt shall be created within 90 days of any such acquisitions; |
(u) | Liens Incurred by the Issuer or any Restricted Subsidiary with respect to obligations that do not exceed 20.0 million at any one time outstanding; |
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(v) | Liens resulting from escrow arrangements entered into in connection with the disposition of assets; |
(w) | any right of refusal, right of first offer, option or other arrangement to sell or otherwise dispose of an asset of the Issuer or any Restricted Subsidiary; and |
(x) | any security arising under Dutch General Banking Terms and Conditions (Algemene Bankvoorwaarden) or the equivalent in any other jurisdiction of relevant banking or financing institutions in each case with whom the Issuer or a Restricted Subsidiary maintains a banking relationship in the ordinary course of business; and |
(y) | Permitted Collateral Liens. |
Permitted Refinancing Debt means any renewals, extensions, substitutions, defeasances, discharges, refinancings or replacements (each, for purposes of this definition and paragraph (2)(k) of Section 4.04, a refinancing ) of any Debt of the Issuer or a Restricted Subsidiary or pursuant to this definition, including any successive refinancings, as long as:
(a) | such Debt is in an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) not in excess of the sum of: (i) the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding of the Debt being refinanced; and (ii) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such refinancing; |
(b) | the Average Life of such Debt is equal to or greater than the Average Life of the Debt being refinanced; |
(c) | the Stated Maturity of such Debt is no earlier than the Stated Maturity of the Debt being refinanced; |
(d) | if the Debt being renewed, extended, substituted, defeased, discharged, refinanced or replaced is subordinated in right of payment to the Notes or the Guarantees (as applicable), such Permitted Refinancing Debt is subordinated in right of payment to, the Notes or the Guarantees (as applicable) on terms at least as favorable to the holders of Notes as those contained in the documentation governing the Debt being renewed, extended, substituted, defeased, discharged, refinanced or replaced; and |
(e) | the new Debt is not senior in right of payment to the Debt that is being refinanced; provided that Permitted Refinancing Debt will not include (i) Debt of a Subsidiary (other than a Guarantor) that refinances the Debt of any Guarantor or (ii) Debt of any Restricted Subsidiary that refinances Debt of an Unrestricted Subsidiary. |
Person means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Power Agreements means, in respect of a Person, any type of hedging agreements designed to protect such Person against or manage exposure to fluctuations in power costs.
InterXion Holding N.V. Indenture | Page 23 |
Preferred Stock means, with respect to any Person, Capital Stock of any class or classes (however designated) of such Person that is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Capital Stock of any other class of such Person, whether now outstanding or issued after the Issue Date and including, without limitation, all classes and series of preferred or preference stock of such Person.
pro forma means, with respect to any calculation made or required to be made pursuant to the terms of the Notes, a calculation made in good faith by the Issuers chief financial officer.
Property means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including Capital Stock and other securities of, any other Person. For purposes of any calculation required pursuant to this Indenture, the value of any Property shall be its Fair Market Value.
Public Market means any time after:
(1) | a public Equity Offering has been consummated; and |
(2) | Capital Stock of the Issuer or a Holding Company of the Issuer having a market value in excess of 100.0 million on the date of such Equity Offering has been distributed pursuant to such Equity Offering. |
QIB means a Qualified Institutional Buyer as defined under Rule 144A.
Qualified Capital Stock of any Person means any and all Capital Stock of such Person other than Redeemable Capital Stock.
Qualified Joint Venture means a joint venture that is not a Subsidiary of the Issuer or any of its Restricted Subsidiaries in which the Issuer or any of its Restricted Subsidiaries has a direct or indirect ownership interest and that is engaged in a Permitted Business.
Record Date for the interest payable on any Interest Payment Date means the January 29 or July 29 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
Redeemable Capital Stock means any class or series of Capital Stock that, either by its terms, by the terms of any security into which it is convertible or exchangeable or by contract or otherwise, is, or upon the happening of an event or passage of time would be, required to be redeemed prior to the final Stated Maturity of the Notes or is redeemable at the option of the holder thereof at any time prior to such final Stated Maturity (other than upon a change of control of the Issuer in circumstances in which the holders of the Notes would have similar rights), or is convertible into or exchangeable for debt securities at any time prior to such final Stated Maturity; provided that any Capital Stock that would constitute Qualified Capital Stock but for provisions thereof giving holders thereof the right to require such Person to repurchase or redeem such Capital Stock upon the occurrence of any asset sale or change of control occurring prior to the Stated Maturity of the Notes will not constitute Redeemable Capital Stock if the asset sale or change of control provisions applicable to such Capital Stock are no more favorable to the holders of such Capital Stock than the provisions contained in Section 4.07 and Section 4.09 and such Capital Stock specifically provides that such Person will not repurchase or redeem any such stock pursuant to such provision prior to the Issuers repurchase of such Notes as are required to be repurchased pursuant to Section 4.07 and Section 4.09.
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Redemption Date, when used with respect to any Note to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
Related Person with respect to any Permitted Holder means:
(a) | any controlling equity-holder or majority (or more) owned Subsidiary of such Permitted Holder; |
(b) | in the case of any individual, any spouse, family member or relative of such individual, any trust or partnership for the benefit of one or more of such individual and any such spouse, family member or relative, or the estate, executor, administrator, committee or beneficiaries of any thereof; |
(c) | any trust, corporation, partnership or other Person for which one or more of the Permitted Holders and other Related Persons of any thereof constitute the beneficiaries, stockholders, partners or owners thereof, or persons beneficially holding in the aggregate a majority (or more) controlling interest therein; or |
(d) | any investment fund or vehicle managed, sponsored or advised by such Permitted Holder or Fortis Intertrust (Curacao) B.V. on their behalf or any successor thereto or by any Affiliate of such Permitted Holder or Fortis Intertrust (Curacao) B.V. on their behalf or any such successor. |
Regulation S means Regulation S under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
Regulation S Definitive Registered Note means (1) on or prior to March 24, 2010, a certificated Note registered in the name of the holder thereof who has provided (a) the certification in item (2) in the form of Exhibit B hereto or (b) the certifications in items (1) and (2) in the form of Exhibit C hereto and, in any case issued in accordance with Article Two hereof, substantially in the form of Exhibit A hereto and (2) after March 24, 2010, an Unrestricted Definitive Registered Note.
Replacement Assets means non-current properties and assets (including Capital Stock of a Person that is or becomes a Restricted Subsidiary and such Restricted Subsidiary is useful in the Issuers business or in that of the Restricted Subsidiaries or any and all businesses that in the good faith judgment of the Board of Directors of the Issuer are reasonably related) that replace the properties and assets that were the subject of an Asset Sale or non-current properties and assets that are useful in the Issuers business or in that of the Restricted Subsidiaries or any and all businesses that in the good faith judgment of the Board of Directors of the Issuer are reasonably related.
Restricted Subsidiary means any Subsidiary of the Issuer other than an Unrestricted Subsidiary.
Revolving Credit Facility means that certain facility agreement dated February 1, 2010 (as amended from time to time) by, among others, the Issuer, certain of its Subsidiaries and the Senior Agent and all documentation relating thereto, including collateral documents, letter of credit and guarantees, as such documentation, in whole or in part, may be amended, renewed, extended, substituted, refinanced, restructured, replaced, supplemented or otherwise modified from time to time under one or more Credit Facilities (including,
InterXion Holding N.V. Indenture | Page 25 |
without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing).
Rule 144 means Rule 144 under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
Rule 144A means Rule 144A under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
S&P means Standard and Poors Ratings Service, a division of The McGraw-Hill Companies, Inc. and its successors.
Securities Act means the U.S. Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
Security Documents has the meaning assigned to such term in the Intercreditor Agreement.
Security Trustee means Barclays Bank PLC.
Senior Agent means Barclays Bank PLC in its capacity as Agent under and as defined in the Revolving Credit Facility until a successor replaces it and, thereafter, means the successor.
Senior Debt means (i) any Debt of the Issuer or any of its Guarantor that is either secured or not Subordinated Debt and (ii) any Debt of a Restricted Subsidiary that is not a Guarantor other than Debt Incurred pursuant to clause (2)(d) of Section 4.04.
Significant Subsidiary means any Restricted Subsidiary that would be a significant subsidiary as defined in Rule 1.02(w) of Regulation S-X under the Securities Act.
Stated Maturity means, when used with respect to any Note or any installment of interest thereon, the date specified in such Note as the fixed date on which the principal of such Note or such installment of interest, respectively, is due and payable, and, when used with respect to any other debt, means the date specified in the instrument governing such debt as the fixed date on which the principal of such debt, or any installment of interest thereon, is due and payable.
Sterling means the lawful currency of the United Kingdom of Great Britain and Northern Ireland.
Subordinated Debt means Debt of the Issuer or any of the Guarantors that is subordinated in right of payment to the Notes or the Guarantees of such Guarantors, as the case may be.
Subsidiary means, with respect to any Person:
(a) | a corporation a majority of whose Voting Stock is at the time, directly or indirectly, owned by such Person, by one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person; and |
(b) | any other Person (other than a corporation), including, without limitation, a partnership, limited liability company, business trust or joint venture, in which such Person, one or more Subsidiaries of such Person or such Person and one or more Subsidiaries thereof, directly or indirectly, at the date of determination thereof, has at least majority ownership interest entitled to vote in the election of directors, managers or trustees thereof (or other Person performing similar functions). |
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TIA means the U.S. Trust Indenture Act of 1939, as in effect on the date of this Indenture.
Total Assets means the consolidated total assets of the Issuer and its Restricted Subsidiaries as shown on the most recent balance sheet (excluding the notes thereto) of the Issuer.
Trustee means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and, thereafter, means the successor serving hereunder.
Trust Officer means, when used with respect to the Trustee, any vice president, assistant vice president, assistant treasurer or trust officer in the corporate trust administration of the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, and, in each case, who shall have direct responsibility for the administration of this Indenture.
Unrestricted Definitive Registered Note means a certificated Note registered in the name of the holder thereof that does not bear and is not required to bear the private placement legend set forth in Section 2.06(k) and, in any case is issued in accordance with Article Two hereof, substantially in the form of Exhibit A hereto.
Unrestricted Subsidiary means:
(a) | any Subsidiary of the Issuer that at the time of determination is an Unrestricted Subsidiary (as designated by the Issuers Board of Directors pursuant to Section 4.15); and |
(b) | any Subsidiary of an Unrestricted Subsidiary. |
U.S. dollars or $ means the lawful currency of the United States of America.
Voting Stock
means any class or classes of Capital Stock pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the Board of Directors, managers or trustees (or Persons performing similar functions) of any Person (irrespective of whether or not, at the time, stock of any other class or classes shall have,
Section 1.02. Other Definitions
Term |
Defined in
Section |
|||
Additional Amounts |
4.10 | |||
Additional Guarantors |
4.22 | |||
Additional Notes |
Recitals | |||
Additional Taxing Jurisdiction |
4.10 | |||
Agreed Jurisdictions |
12.01 | |||
Authorized Agent |
13.08 |
InterXion Holding N.V. Indenture | Page 27 |
Change of Control Offer |
4.09 | |||
Change of Control Payment Date |
4.09 | |||
Change of Control Purchase Price |
4.09 | |||
covenant defeasance |
8.03 | |||
Defaulted Interest |
2.12 | |||
Definitive Registered Note Event |
2.10 | |||
Event of Default |
6.01 | |||
Excess Proceeds |
4.07 | |||
Excess Proceeds Offer |
4.07 | |||
Global Notes |
2.01 | |||
Incur |
4.04 | |||
Initial Agreement |
4.14 | |||
legal defeasance |
8.02 | |||
Luxembourg Paying Agent |
2.03 | |||
Notes |
Recitals | |||
Obligations |
10.01 | |||
Original Notes |
Recitals | |||
Participants |
2.01 | |||
Paying Agent |
2.03 | |||
Permitted Debt |
4.04 | |||
Principal Obligations |
12.01 | |||
Principal Paying Agent |
2.03 | |||
Registrar |
2.03 | |||
Regulation S Global Note |
2.01 | |||
Relevant Payment Date |
4.10 | |||
Relevant Taxing Jurisdiction |
4.10 | |||
Restricted Global Note |
2.01 | |||
Restricted Payment |
4.06 | |||
Security Register |
2.03 | |||
Stamp Duty Jurisdiction |
4.10 | |||
Surviving Entity |
5.01 | |||
Successor Guarantor |
5.01 | |||
Tax and Taxes |
4.10 | |||
Transfer Agent |
2.03 |
Section 1.03. | Rules of Construction |
Unless the context otherwise requires:
(i) | a term has the meaning assigned to it; |
(ii) | an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS; |
(iii) | or is not exclusive; |
(iv) | including or include means including or include without limitation; |
(v) | words in the singular include the plural and words in the plural include the singular; |
(vi) | whenever in this Indenture there is referenced, in any context, the payment of interest under or with respect to any Note or Guarantee, that reference shall be deemed to include the payment of Additional Amounts to the extent that Additional Amounts are payable in respect thereof; |
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(vii) | unsecured or unguaranteed Debt shall not be deemed to be subordinate or junior to secured or guaranteed Debt merely by virtue of its nature as unsecured or unguaranteed Debt; |
(viii) | the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, clause or other subdivision; and |
(ix) | for purposes of the covenants and definitions set forth in this Indenture, amounts stated in Euros shall be deemed to include both Euros and Euro Equivalents. |
ARTICLE TWO
THE NOTES
Section 2.01. | The Notes |
(a) | Form and Dating |
The Notes and the Trustees certificate of authentication shall be substantially in the form of Exhibit A hereto with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture. The Notes may have notations, legends or endorsements required by law, the rules of any securities exchange or usage. The Issuer shall approve the form of the Notes. Each Note shall be dated the date of its authentication. The terms and provisions contained in the form of the Notes shall constitute and are hereby expressly made a part of this Indenture. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. The Notes shall be issued only in registered form without coupons and only in minimum denominations of 50,000 in principal amount and any integral multiples of 1,000 in excess thereof.
(b) | Global Notes. |
Notes offered and sold in reliance on Regulation S shall be issued initially in the form of one or more Global Notes substantially in the form of Exhibit A hereto, with such applicable legends as are provided in Exhibit A hereto, except as otherwise permitted herein (the Regulation S Global Note), which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Depositary, and registered in the name of the Depositary or its nominee, as the case may be, duly executed by the Issuer and authenticated by the Trustee (or an authenticating agent appointed by the Trustee in accordance with Section 2.02) as hereinafter provided. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made by the Registrar on Schedule A to the Regulation S Global Note and recorded in the Security Register, as hereinafter provided.
Notes offered and sold to QIBs in reliance on Rule 144A shall be issued initially in the form of one or more Global Notes substantially in the form of Exhibit A hereto, with such applicable legends as are provided in Exhibit A hereto, except as otherwise permitted herein (the Restricted Global Note), which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Depositary, and registered in the name of the Depositary or its nominee, as the case may be, duly executed by the Issuer and authenticated by the Trustee (or its agent in accordance with Section 2.02) as hereinafter provided. The aggregate principal amount of the Restricted Global Note may from time to time be increased or decreased by adjustments made by the Registrar on Schedule A to the Restricted Global Note and recorded in the Security Register, as hereinafter provided.
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(c) | Book-Entry Provisions |
This Section 2.01(c) shall apply to the Regulation S Global Note and the Restricted Global Note (together, the Global Notes) deposited with or on behalf of the Depositary. Members of, or participants and account holders in the Depositary (Participants) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or by the Trustee or any custodian of the Depositary or under such Global Note, and the Depositary or its nominee may be treated by the Issuer, a Guarantor, the Trustee and any agent of the Issuer, a Guarantor or the Trustee as the sole owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, a Guarantor, the Trustee or any agent of the Issuer, a Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Participants, the operation of customary practices of such persons governing the exercise of the rights of an owner of a beneficial interest in any Global Note.
Subject to the provisions of Section 2.10(b), the registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action that a Holder is entitled to take under this Indenture or the Notes.
Except as provided in Section 2.10, owners of a beneficial interest in Global Notes will not be entitled to receive physical delivery of Definitive Registered Notes.
Section 2.02. | Execution and Authentication |
An authorized member of the Board of Directors or executive officer of the Issuer shall sign the Notes for the Issuer by manual or facsimile signature.
If an authorized member of the Board of Directors or executive officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid or obligatory for any purpose until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture. Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, the Issuer shall deliver such Note to the Trustee for cancellation as provided for in Section 2.11.
Pursuant to an Issuer Order, the Trustee shall authenticate (a) the Original Notes on the Issue Date in an aggregate principal amount of 200,000,000, (b) Additional Notes subject to compliance at the time of issuance of such Additional Notes with the provisions of this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate the Notes. Unless limited by the terms of such appointment, any such authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by any such agent. An authenticating agent has the same rights as any Registrar, co-Registrar Transfer Agent or Paying Agent to deal with the Issuer or an Affiliate of the Issuer.
The Trustee shall have the right to decline to authenticate and deliver any Notes under this Section 2.02 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
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Section 2.03. | Registrar, Transfer Agent and Paying Agent |
The Issuer shall maintain an office or agency for the registration of the Notes and of their transfer or exchange (the Registrar), an office or agency where Notes may be transferred or exchanged (the Transfer Agent), an office or agency in London, England, where the Notes may be presented for payment (the Paying Agent) and an office or agency where notices or demands to or upon the Issuer in respect of the Notes may be served. The Issuer may appoint one or more Transfer Agents, one or more co-Registrars and one or more additional Paying Agents.
The Issuer or any of its Affiliates may act as Transfer Agent, Registrar, co-Registrar, Paying Agent and agent for service of notices and demands in connection with the Notes; provided, however, that neither the Issuer nor any of its Affiliates shall act as Paying Agent for the purposes of Article Three, Article Eight, Section 4.07 and Section 4.09.
The Issuer hereby appoints (i) The Bank of New York Mellon, London Branch (located at One Canada Square, London, England E14 5AL) as Principal Paying Agent (the Principal Paying Agent), (ii) The Bank of New York Mellon (Luxembourg) S.A. (located at Aerogolf Center, 1A, Hoehenhoff, L-1736 Senningerberg, Luxembourg) as Registrar and as Luxembourg Paying Agent (the Luxembourg Paying Agent) and (iii) the Corporate Trust Office of the Trustee as the initial Paying Agent and Transfer Agent. The Bank of New York Mellon, London Branch, The Bank of New York Mellon (Luxembourg) S.A. and the Corporate Trust Office of the Trustee accept their respective appointments.
Subject to any applicable laws and regulations, the Registrar shall keep a register (the Security Register) of the ownership, exchange, and transfer of the Notes. Such registration in the Security Register shall be conclusive evidence of the ownership of Notes. Included in the books and records for the Notes shall be notations as to whether such Notes have been paid, exchanged or transferred, canceled, lost, stolen, mutilated or destroyed and whether such Notes have been replaced. In the case of the replacement of any of the Notes, the Registrar shall keep a record of the Note so replaced and the Note issued in replacement thereof. In the case of the cancellation of any of the Notes, the Registrar shall keep a record of the Note so canceled and the date on which such Note was canceled.
If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.05.
Section 2.04. | Deposits Paying Agent to Hold Money in Trust |
Not later than 11:00 am (London time) on the Business Day prior to each due date of the principal, premium, if any, and interest on any Notes, the Issuer shall deposit with the Paying Agent money in immediately available funds sufficient to pay such principal, premium, if any, and interest so becoming due on the due date for payment under the Notes. Each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money received by the Paying Agent for the payment of principal of, premium, if any, and interest on the Notes (whether such money has been paid to it by the Issuer or any other obligor on the Notes), and such Paying Agent shall promptly notify the Trustee of any default by the Issuer (or any other obligor on the Notes) in making any such payment. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent
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shall have no further liability for the money so paid over to the Trustee. If the Issuer or any Affiliate of the Issuer acts as Paying Agent, it shall, on or before each due date of any principal, premium, if any, or interest on the Notes, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such principal, premium, if any, or interest so becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and shall promptly notify the Trustee of its action or failure to act. Subject to actual receipt of such funds as provided by this Section 2.04 by the Principal Paying Agent, the Principal Paying Agent shall make payments on the Notes in accordance with the provisions of this Indenture.
A Holder of a Note at the close of business on any Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding any transfer or exchange of such Note subsequent to the Record Date and prior to such Interest Payment Date, except if and to the extent the Issuer shall default in the payment of the interest due on such Interest Payment Date, in which case Defaulted Interest shall be paid in accordance with Section 2.12.
Section 2.05. | Holder Lists |
The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and the aggregate principal amount of Notes held by each Holder. If the Trustee is not the Registrar or an Affiliate of the Trustee, the Issuer shall, upon written request of the Trustee, furnish to the Trustee, in writing no later than the Record Date for each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such Record Date as the Trustee may reasonably require of the names and addresses of Holders.
Section 2.06. | Transfer and Exchange |
(a) | Transfer and Exchange of Global Notes |
(1) | The Global Notes cannot be transferred to any Person other than to another Common Depositary, another nominee of the Common Depositary or to a successor clearing agency or its common depositary or nominee approved by the Issuer, the Guarantors and the Trustee. |
(2) | Global Notes will be exchanged by the Issuer for Definitive Registered Notes upon a Definitive Registered Note Event as set out in Section 2.10. Upon the occurrence of any of the preceding events, Definitive Registered Notes shall be issued in such names as the Depositary or Common Depositary shall instruct the Issuer based on the instructions received by the Depositary from the holders of Book-Entry Interests. In the event that Global Notes are exchanged for Definitive Registered Notes, the Issuer and the Trustee shall mutually agree upon an appropriate fee structure for the Trustees on-going administrative duties. |
(3) | Global Notes may also be exchanged or replaced, in whole or in part, as provided in Section 2.07. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to Section 2.07 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note, other than as provided in this Section 2.06(a). |
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(b) | General Provisions Applicable to Transfers and Exchanges of the Notes |
(1) | Transfers of Book-Entry Interests in the Global Notes (other than transfers of Book-Entry Interests in connection with which the transferor takes delivery thereof in the form of a Book-Entry Interest in the same Global Note) shall require compliance with this Section 2.06(b), as well as one or more of the other following subparagraphs of this Section 2.06, as applicable. |
(2) | In connection with all transfers and exchanges of Book-Entry Interests (other than transfers of Book-Entry Interests in connection with which the transferor takes delivery thereof in the form of a Book-Entry Interest in the same Global Note), the Principal Paying Agent must receive: (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to debit from the transferor a Book-Entry Interest in an amount equal to the Book-Entry Interest to be transferred or exchanged; (2) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a Book-Entry Interest in another Global Note in an amount equal to the Book-Entry Interest to be transferred or exchanged; and (3) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase. |
(3) | In connection with a transfer or exchange of a Book-Entry Interest for a Definitive Registered Note, the Principal Paying Agent and the Registrar must receive: (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to debit from the transferor a Book-Entry Interest in an amount equal to the Book-Entry Interest to be transferred or exchanged; (2) a written order from a Participant directing the Registrar to cause to be issued a Definitive Registered Note in an amount equal to the Book-Entry Interest to be transferred or exchanged; and (3) instructions containing information regarding the Person in whose name such Definitive Registered Note shall be registered to effect the transfer or exchange referred to above. |
(4) | In connection with any transfer or exchange of Definitive Registered Notes, the Holder of such Notes shall present or surrender to the Registrar the Definitive Registered Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, in connection with a transfer or exchange of a Definitive Registered Note for a Book-Entry Interest, the Principal Paying Agent must receive a written order directing the Depositary to credit the account of the transferee in an amount equal to the Book-Entry Interest to be transferred or exchanged. |
(5) | Upon satisfaction of all of the requirements for transfer or exchange of Book-Entry Interests in Global Notes contained in this Indenture, the Principal Paying Agent or the Registrar, as specified in this Section 2.06, shall endorse the relevant Global Note(s) with any increase or decrease and instruct the Depositary to reflect such increase or decrease in its system. |
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(c) | Transfer of Book-Entry Interests in an Regulation S Global Note to Book-Entry Interests in a Restricted Global Note. |
(1) | A Book-Entry Interest in the Regulation S Global Note may be transferred to a Person who takes delivery thereof in the form of a Book-Entry Interest in the Restricted Global Note only if the transfer complies with the requirements of Section 2.06(b) above and, if such transfer takes place on or prior to March 24, 2010, the Principal Paying Agent receives a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof. |
(2) | Upon the receipt of such certificate and the orders and instructions required by Section 2.06(b), the Principal Paying Agent shall (i) instruct the Common Depositary to deliver, or cause to be delivered, the Global Notes to the Book-Entry Agent for endorsement and upon receipt thereof, decrease Schedule A to the Regulation S Global Note and increase Schedule A to the Restricted Global Note, by the principal amount of such transfer and (ii) thereafter, return the Global Notes to the Common Depositary, together with all information regarding the Participant accounts to be credited and debited in connection with such transfer. |
(d) | Transfer of Book-Entry Interests in the Restricted Global Note to Book-Entry Interests in the Regulation S Global Note |
(1) | A Book-Entry Interest in the Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a Book-Entry Interest in the Regulation S Global Note only if the transfer complies with the requirements of Section 2.06(b) above and the Principal Paying Agent receives a certificate from the holder of such Book-Entry Interest in the form of Exhibit B hereto, including the certifications in item (2) or (3) thereof. |
(2) | Upon receipt of such certificates and the orders and instructions required by Section 2.06(b), the Principal Paying Agent shall: (i) instruct the Common Depositary to deliver, or cause to be delivered, the Global Notes to the Book-Entry Agent for endorsement and, upon receipt thereof, decrease Schedule A to the Restricted Global Note by the principal amount of such transfer and increase Schedule A to the Regulation S Global Note; and (ii) thereafter, return the Global Notes to the Common Depositary, together with all information regarding the Participant accounts to be credited and debited in connection with such transfer. |
(e) | Transfer of Book-Entry Interests in Global Notes to Definitive Registered Notes |
A holder of a Book-Entry Interest in a Global Note may transfer such Book-Entry Interest to a Person who takes delivery thereof in the form of a Definitive Registered Note if the transfer complies with the requirements of Section 2.06(a) and Section 2.06(b) above and:
(1) | in the case of a transfer on or before March 24, 2010 by a holder of a Book-Entry Interest in the Regulation S Global Note, the Principal Paying Agent shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in either (x) item (1) (in which case the holder shall receive a 144A Definitive Registered Note) or (y) item (2) (in which case the holder shall receive a Regulation S Definitive Registered Note) thereof; |
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(2) | in the case of a transfer after March 24, 2010 by a holder of a Book-Entry Interest in the Regulation S Global Note, the transfer complies with Section 2.06(b) (in which case the holder shall receive an Unrestricted Definitive Registered Note); |
(3) | in the case of a transfer by a holder of a Book-Entry Interest in the Restricted Global Note to a QIB in reliance on Rule 144A, the Principal Paying Agent shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof (in which case the holder shall receive a 144A Definitive Registered Note); |
(4) | in the case of a transfer by a holder of a Book-Entry Interest in the Restricted Global Note in reliance on Regulation S, the Principal Paying Agent shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof (in which case the holder shall, if on or prior to March 24, 2010, receive a Regulation S Definitive Registered Note and, if after March 24, 2010, receive an Unrestricted Definitive Registered Note); or |
(5) | in the case of a transfer by a holder of a Book-Entry Interest in the Restricted Global Note in reliance on Rule 144, the Principal Paying Agent shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3) thereof (in which case the holder shall receive an Unrestricted Definitive Registered Note). |
Upon receipt of such certificates and the orders and instructions required by Section 2.06(b), the Principal Paying Agent shall: (i) instruct the Common Depositary to deliver, or cause to be delivered, the relevant Global Note to the Book-Entry Agent for endorsement and upon receipt thereof, decrease Schedule A to the relevant Global Note by the principal amount of such transfer; (ii) thereafter, return the Global Note to the Common Depositary, together with all information regarding the Participant accounts to be debited in connection with such transfer; and (iii) deliver to the Registrar the instructions received by it that contain information regarding the Person in whose name Definitive Registered Notes shall be registered to effect such transfer. The Registrar shall cause any Definitive Registered Note issued in connection with a transfer to have the private placement legend set forth in Section 2.06(k), if applicable.
The Issuer shall issue and, upon receipt of an Issuer Order from the Issuer in accordance with Section 2.02 hereof, the Trustee shall authenticate, one or more Definitive Registered Notes in an aggregate principal amount equal to the aggregate principal amount of Book-Entry Interests so transferred and in the names set forth in the instructions received by the Registrar.
(f) | Transfer of Definitive Registered Notes to Book-Entry Interests in Global Notes |
Any Holder of a Definitive Registered Note may transfer such Definitive Registered Note to a Person who takes delivery thereof in the form of a Book-Entry Interest in a Global Note only if such transfer occurs after March 24, 2010 and:
(1) | in the case of a transfer by a holder of Definitive Registered Notes to a person who takes delivery thereof in the form of a Book-Entry Interest in the Regulation S Global Note, such transfer complies with Section 2.06(b); |
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(2) | in the case of a transfer by a holder of Definitive Registered Notes to a QIB in reliance on Rule 144A, the Registrar shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof; or |
(3) | in the case of a transfer by a holder of Definitive Registered Notes in reliance on Regulation S or Rule 144 under the Securities Act, the Registrar shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) or (3) thereof, respectively. |
Upon satisfaction of the foregoing conditions, the Registrar shall: (i) deliver the Definitive Registered Notes to the Registrar for cancellation pursuant to Section 2.11 hereof; (ii) record such transfer on the Register; (iii) instruct the Common Depositary to deliver (x) in the case of a transfer pursuant to Section 2.06(b)(f)(1) or Section 2.06(b)(f)(3) above, the Regulation S Global Note and (y) in the case of a transfer pursuant to Section 2.06(f)(2), the Restricted Global Note; (iv) endorse Schedule A to such Global Note to reflect the increase in principal amount resulting from such transfer; and (v) thereafter, return the Global Notes to the Common Depositary, together with all information regarding the Participant accounts to be credited in connection with such transfer.
(g) | Exchanges of Book-Entry Interests in Global Notes for Definitive Registered Notes |
A holder of a Book-Entry Interest in a Global Note may exchange such Book-Entry Interest for a Definitive Registered Note if the exchange complies with the requirements of Section 2.06(a) and Section 2.06(b) above and the Principal Paying Agent receives a certificate from such holder in the form of Exhibit C hereto, including the certifications in item 1 thereof, and (if relevant) the following:
(1) | if the holder of such Book-Entry Interest in an Regulation S Global Note proposes after March 24, 2010 to exchange such Book-Entry Interest for an Unrestricted Definitive Registered Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item 1 and 2 thereof; and |
(2) | if the holder of such Book-Entry Interest in a Restricted Global Note proposes to exchange such Book-Entry Interest for an Unrestricted Definitive Registered Note, a certificate from such holder in the form of Exhibit C hereto including the certifications in items 1 and 3 thereof. |
Upon receipt of such certificates and the orders and instructions required by Section 2.06(b), the Principal Paying Agent shall: (i) instruct the Common Depositary to deliver, or cause to be delivered, the relevant Global Note to the Book-Entry Agent for endorsement and upon receipt thereof, decrease Schedule A to the relevant Global Note by the principal amount of such exchange; (ii) thereafter, return the Global Note to the Common Depositary, together with all information regarding the Participant accounts to be debited in connection with such exchange; and (iii) deliver to the Registrar instructions received by it that contain information regarding the Person in whose name Definitive Registered Notes shall be registered to effect such exchange. The Registrar shall cause all Definitive Registered Notes issued pursuant to Section 2.06(g) (other than clauses (1) and (2)) in exchange for a Book-Entry Interest in a Global Note to bear the appropriate legend required by Exhibit C . Definitive Registered Notes issued pursuant to Section 2.06(g)(1) and (2) shall not bear the 144A Legend or the Regulation S Legend.
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The Issuer shall issue and, upon receipt of an Issuer Order from the Issuer in accordance with Section 2.02 hereof, the Registrar shall authenticate, one or more Definitive Registered Notes in an aggregate principal amount equal to the aggregate principal amount of Book-Entry Interests so exchanged and in the names set forth in the instructions received by the Registrar.
(h) | Exchanges of Definitive Registered Notes for Book-Entry Interests in Global Notes |
Any Holder of a Definitive Registered Note may exchange such Note for a Book-Entry Interest in a Global Note if such exchange complies with Section 2.06(b) above and the Registrar receives a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item 1 thereof and the following documentation:
(1) | if the holder of such Regulation S Definitive Registered Note and proposes after March 24, 2010 to exchange such Notes for Book-Entry Interests in the Regulation S Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item 1 and 2 thereof; and |
(2) | if the holder of such 144A Definitive Registered Notes and proposes to exchange such Notes for a Book-Entry Interest in the Regulation S Global Note, a certificate from such holder in the form of Exhibit C hereto including the certifications in items 1 and 3 thereof. |
Upon satisfaction of the foregoing conditions, the Registrar shall: (i) cancel such Definitive Registered Notes pursuant to Section 2.11 hereof; (ii) record such exchange on the Register, (iii) instruct the Common Depositary to deliver the relevant Global Note, (iv) endorse Schedule A to such Global Note to reflect the increase in principal amount resulting from such exchange; and (v) thereafter, return the Global Note to the Common Depositary, together with all information regarding the Participant accounts to be credited in connection with such exchange.
(i) | Transfer of Definitive Registered Notes for Definitive Registered Notes |
Any Holder of a Definitive Registered Note may transfer such Note to a Person who takes delivery thereof in the form of Definitive Registered Notes if the transfer complies with Section 2.06(b) above and the Registrar receives the following additional documentation:
(1) | in the case of a transfer on or before March 24, 2010 by a holder of a Regulation S Definitive Registered Note, the Registrar shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in either (x) item (1) (in which case the holder shall receive a 144A Definitive Registered Note) or (y) item (2) (in which case the holder shall receive a Regulation S Definitive Registered Note) thereof; |
(2) | in the case of a transfer after March 24, 2010 by a holder of a Regulation S Definitive Registered Note, the transfer complies with Section 2.06(b) (in which case the holder shall receive an Unrestricted Definitive Registered Note); |
(3) | in the case of a transfer by a holder of a 144A Definitive Registered Note to a QIB in reliance on Rule 144A, the Registrar shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof (in which case the holder shall receive a 144A Definitive Registered Note); |
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(4) | in the case of a transfer by a holder of a 144A Definitive Registered Note in reliance on Regulation S, the Registrar shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof (in which case the holder shall, if on or prior to March 24, 2010, receive a Regulation S Definitive Registered Note and, if after March 24, 2010, receive an Unrestricted Definitive Registered Note); or |
(5) | in the case of a transfer by a holder of a 144A Definitive Registered Note in reliance on Rule 144, the Registrar shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3) thereof (in which case the holder shall receive an Unrestricted Definitive Registered Note). |
Upon the receipt of any Definitive Registered Note, the Registrar shall cancel such Note pursuant to Section 2.10 hereof and complete and deliver to the Issuer (A) in the case of a transfer pursuant to Section 2.06(j)(1)(x) or Section 2.06(j)(3), a 144A Definitive Registered Note and (B) in the case of a transfer pursuant to Section 2.06(j)(1)(y) or (4), a Regulation S Definitive Registered Note and (C) in the case of a transfer pursuant to Section 2.06(j)(2) or (5), an Unrestricted Definitive Registered Note. The Issuer shall execute and the Registrar shall authenticate and deliver such Definitive Registered Note to such Person(s) as the Holder of the surrendered Definitive Registered Note shall designate.
(j) | Transfer of Unrestricted Definitive Registered Notes |
Any Holder of an Unrestricted Definitive Registered Note may transfer such Note to a Person who takes delivery thereof in the form of Definitive Registered Notes if the transfer complies with Section 2.06(b) above.
(k) | Legends |
The following legends shall appear on the face of all Global Notes and Definitive Registered Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(1) | Private Placement Legend. Except as permitted below, each Global Note and each Definitive Registered Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form: |
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE SECURITIES ACT), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT: (A) IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON IT AND ANY PERSON ACTING ON ITS BEHALF REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER; (B) IN
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AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT; OR (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUERS AND THE TRUSTEES RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (B) OR (C) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR RESALES OF THIS SECURITY.
Notwithstanding the foregoing, any Global Note or Definitive Registered Note issued pursuant to subparagraph (d)(1), (e)(2), (e)(4) (if after March 24, 2010), (e)(5), (f)(1), (f)(3), (g), (h), (i)(2), (i)(4) (if after March 24, 2010) or (i)(5) to this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear this private placement legend.
(2) | Global Note Legend. Each Global Note shall bear a legend in substantially the following form: |
THIS GLOBAL NOTE IS HELD BY THE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
(3) | Regulation S Global Note Legend. The Regulation S Global Note shall bear a legend in substantially the following form: |
UNTIL MARCH 24, 2010, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT OF 1933 (THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A UNDER THE U.S. SECURITIES ACT.
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THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE REGISTERED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
(l) | Cancellation and/or Adjustment of Global Notes |
At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Registered Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Registered Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(m) | General Provisions Relating to Transfers and Exchanges. |
(1) | To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Registered Notes upon the Issuers order or at the Registrars reasonable request. |
(2) | No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charges payable in connection therewith (other than any such transfer taxes or similar governmental charges payable upon exchange or transfer pursuant to Section 2.17, Section 4.07, Section 4.09 and Section 9.04). |
(3) | The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. |
(4) | All Global Notes and Definitive Registered Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Registered Notes shall be the valid and legally binding obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Registered Notes surrendered upon such registration of transfer or exchange. |
(5) | The Issuer shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.03 and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, (C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date or (D) to register the transfer of or to exchange a Note tendered and not withdrawn in connection with a Change of Control Offer or an Excess Proceeds Offer. |
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(6) | Except as otherwise ordered by a court of competent jurisdiction or required by applicable law, prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary. All such payments so made to any such Person, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effective to satisfy and discharge the liability for moneys payable upon any Note and Guarantee. |
(7) | The Trustee shall authenticate Global Notes and Definitive Registered Notes in accordance with the provisions of Section 2.02. |
(8) | All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile. |
Section 2.07. | Replacement Notes |
If a mutilated Definitive Registered Note is surrendered to the Registrar or if the Holder claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a replacement Note in such form as the Note mutilated, lost, destroyed or wrongfully taken if the Holder satisfies the requirements of the Trustee and the Issuer, including reasonable evidence acceptable to them of the ownership and destruction, loss or theft of such Note. If required by the Trustee or the Issuer, such Holder shall furnish an indemnity bond sufficient in the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar and any co-Registrar, and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge the Holder for their expenses in replacing a Note.
Every replacement Note shall be an additional obligation of the Issuer. If, after delivery of such replacement Note, a bona fide purchaser of the original Note in lieu of which such replacement Note was issued presents for payment or registration such original Note, the Trustee shall be entitled to recover such replacement Note from the Person to whom it was delivered or any Person taking therefrom, except a bona fide purchaser, and the Issuer and/or the Trustee shall be entitled to recover upon the security or indemnity provided therefore to the extent of any loss, damage, cost or expense incurred by the Issuer, any Guarantor, the Trustee or any Paying Agent, Transfer Agent, Registrar or co-Registrar.
Section 2.08. | Outstanding Notes |
Notes outstanding at any time are all Notes that have been authenticated by the Trustee except for: (i) those cancelled by it; (ii) those delivered to it for cancellation; (iii) to the extent set forth in Section 8.02 on or after the date on which the conditions set forth in Section 8.04 have been satisfied, those Notes theretofore authenticated by the Trustee and delivered by the Registrar hereunder; (iv) Notes in respect of which the Issuer and the Guarantors have been fully discharged for the payment of principal, premium, if any, interest and Additional Amounts, if any; (v) (for the purpose only of ascertaining the principal amount of the Notes outstanding and without prejudice to the status for any other purpose of the relevant Notes) Notes which are alleged to have been lost, stolen or destroyed and in respect of which replacement Notes have been issued, and (vi) those described in this Section 2.08 as not outstanding. A Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
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If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the Note which has been replaced is held by a bona fide purchaser in whose hands such Note is a legal, valid and binding obligation of the Issuer.
If the principal amount of any Note is considered to be paid under Section 4.01, it ceases to be outstanding and interest thereon shall cease to accrue.
If one or more Paying Agents hold, in their capacity as such, on a Redemption Date or maturity date of the Notes money sufficient to pay all principal, premium, if any, interest and Additional Amounts, if any, payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and are not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
Section 2.09. | Notes Held by the Issuer |
In determining whether the Holders of the required principal amount of Notes have concurred in any direction or consent or any amendment, modification or other change to this Indenture, Notes owned by the Issuer or by an Affiliate of the Issuer shall be disregarded and treated as if they were not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent or any amendment, modification or other change to this Indenture, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to the Notes and that the pledgee is not the Issuer or an Affiliate of the Issuer.
Section 2.10. | Definitive Registered Notes |
(a) | A Global Note deposited with the Depositary, as the case may be, or other custodian for the Depositary pursuant to Section 2.01 shall be transferred to the beneficial owners thereof in the form of Definitive Registered Notes only if such transfer complies with Section 2.06 and one of the following events has occurred (each, a Definitive Registered Note Event) : |
(i) | each Depositary notifies the Issuer that it is unwilling or unable to act as a clearing system for such Global Note, or if at any time each Depositary ceases to be a clearing agency registered under the Exchange Act and a successor depositary is not appointed by the Issuer within 120 days of such notice; |
(ii) | each Depositary so requests following an Event of Default; or |
(iii) | a Holder or beneficial owner requests such an exchange in writing delivered through a Depositary following an Event of Default. |
(b) |
Any Global Note that is transferable to the beneficial owners thereof in the form of Definitive Registered Notes pursuant to this Section 2.10 shall be surrendered by the Depositary to the Transfer Agent, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount at maturity of Notes of authorized denominations in the form of Definitive Registered Notes. Any portion of a |
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Global Note transferred or exchanged pursuant to this Section 2.10 shall be executed, authenticated and delivered only in registered form in denominations of 50,000 and any integral multiple of 1,000 in excess thereof and registered in such names as the Depositary shall direct. Subject to the foregoing, a Global Note is not exchangeable except for a Global Note of like denomination to be registered in the name of the Depositary or its nominee. In the event that a Global Note becomes exchangeable for Definitive Registered Notes, payment of principal, premium, if any, and interest on the Definitive Registered Notes shall be payable, and the transfer of the Definitive Registered Notes shall be registrable, at the office or agency of the Issuer maintained for such purposes in accordance with Section 2.03. Such Definitive Registered Notes shall bear the applicable legends set forth in Section 2.06(k). |
(c) | In the event of the occurrence of any of the events specified in Section 2.10(a), the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Registered Notes in definitive, fully registered form without interest coupons. |
(d) | In the event that Definitive Registered Notes are not issued to each owner of beneficial interests in Global Notes in accordance with subsection (a) above promptly after a Definitive Registered Note Event, the Issuer explicitly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 6.06 or 6.07 hereof, the right of any beneficial owner in any Global Note to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owners Notes as if such Definitive Registered Notes had been issued. |
Section 2.11. | Cancellation |
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee, in accordance with its customary procedures, and no one else shall cancel (subject to the record retention requirements of the Exchange Act and the Trustees retention policy) all Notes surrendered for registration of transfer, exchange, payment or cancellation and dispose of such cancelled Notes in its customary manner, unless the Issuer directs the Trustee in writing to return such Notes to the Issuer, and, if so disposed, shall deliver a certificate of disposition thereof to the Issuer. Except as otherwise provided in this Indenture the Issuer may not issue new Notes to replace Notes it has redeemed, paid or delivered to the Trustee for cancellation.
Section 2.12. | Defaulted Interest |
Any interest on any Note that is payable, but is not punctually paid or duly provided for, on the dates and in the manner provided in the Notes and this Indenture (all such interest herein called Defaulted Interest) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below:
(a) |
The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer may deposit |
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with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest; or shall make arrangements reasonably satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. In addition, the Issuer shall fix a special record date for the payment of such Defaulted Interest, such date to be not more than 15 days and not less than 10 days prior to the proposed payment date and not less than 15 days after the receipt by the Trustee of the notice of the proposed payment date. The Issuer shall promptly but, in any event, not less than 15 days prior to the special record date, notify the Trustee of such special record date and, in the name and at the expense of the Issuer, the Trustee shall cause notice of the proposed payment date of such Defaulted Interest and the special record date therefor to be mailed first-class, postage prepaid to each Holder as such Holders address appears in the Security Register, not less than 10 days prior to such special record date. Notice of the proposed payment date of such Defaulted Interest and the special record date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes are registered at the close of business on such special record date and shall no longer be payable pursuant to clause (b) below. |
(b) | The Issuer may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment date pursuant to this clause, such manner of payment shall be deemed reasonably practicable. |
Subject to the foregoing provisions of this Section 2.12, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.13. | Computation of Interest |
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 2.14. | CUSIP, ISIN and Common Code Numbers |
The Issuer in issuing the Notes may use CUSIP, ISIN and Common Code numbers (if then generally in use), and, if so, the Issuer shall use CUSIP, ISIN and Common Code numbers, as appropriate, in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers or codes either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee of any change in the CUSIP, ISIN or Common Code numbers.
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Section 2.15. | Issuance of Additional Notes |
The Issuer may, subject to Section 4.04 of this Indenture, issue Additional Notes under this Indenture from time to time after the Issue Date in accordance with the procedures of Section 2.02. The Original Notes issued on the date of this Indenture and any Additional Notes subsequently issued shall be treated as a single class and as part of the same series for all purposes (including voting) under this Indenture.
Section 2.16. | Agents |
(a) | Actions of Agents. The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint or joint and several. |
(b) | Agents of Trustee. The Issuer and the Agents acknowledge and agree that in the event of a Default or Event of Default, the Trustee may, by notice in writing to each of the Issuer and the Agents, require that the Agents act as agents of, and take instructions from, the Trustee. |
Section 2.17. | Temporary Notes |
Pending the preparation of Definitive Registered Notes, the Issuer may execute and the Trustee shall authenticate and deliver temporary Notes. Temporary Notes shall be issuable as registered Notes without coupons, of any authorized denomination, and substantially in the form of the Definitive Registered Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Issuer. Temporary Notes may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Note shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the Definitive Registered Notes. Without unreasonable delay the Issuer shall execute and shall furnish Definitive Registered Notes and thereupon temporary Notes may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for such purpose pursuant to Section 2.03, and the Trustee shall authenticate and deliver in exchange for such temporary Notes a like aggregate principal amount of Definitive Registered Notes of authorized denominations. Until so exchanged the temporary Notes shall be entitled to the same benefits under this Indenture as Definitive Registered Notes.
ARTICLE THREE
REDEMPTION; OFFERS TO PURCHASE
Section 3.01. | Right of Redemption |
The Issuer may redeem all or any portion of the Notes upon the terms and at the Redemption Prices set forth in the Notes. Any redemption pursuant to this Section 3.01 shall be made pursuant to the provisions of this Article Three.
Section 3.02. | Notices to Trustee |
If the Issuer elects to redeem Notes pursuant to Section 3.01, it shall furnish to the Trustee in accordance with Section 13.01, at least 30 days but not more than 60 days (unless the Trustee consents to a shorter period) before a Redemption Date, an Officers Certificate from the Issuer setting forth: (i) the Redemption Date; (ii) the principal amount of Notes to be redeemed; (iii) the Redemption Price; and (iv) the paragraph of the Notes pursuant to which the redemption will occur.
Section 3.03. | Selection of Notes to be Redeemed |
If less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed in compliance with the requirements, as certified to it by the Issuer, of
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the principal national securities exchange or automated quotation system, if any, on which the Notes are listed or, if the Notes are not listed on a national securities exchange or automated quotation system, on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem fair and appropriate; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Note not redeemed to less than 50,000.
The Trustee shall make the selection from the Notes outstanding and not previously called for redemption. The Trustee may select for redemption portions equal to 50,000 in principal amount or any integral multiple of 1,000 in excess thereof, except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if less than 50,000 or not in an integral multiple of 1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The Trustee shall notify the Issuer and the Registrar promptly in writing of the Notes or portions of Notes to be called for redemption. The Trustee shall not be liable for selections made by it under this Section 3.03.
Section 3.04. | Notice of Redemption |
(a) | At least 30 days but not more than 60 days before a date for redemption of Notes, the Issuer shall deliver a notice of redemption in accordance with the provisions of Section 13.01, except that redemption notices may be mailed more than 60 days before a date for redemption of Notes if such notices are issued in connection with Article Eight. |
(b) | The notice shall identify the Notes to be redeemed (including CUSIP, ISIN and Common Code numbers) and shall state: |
(i) | the Redemption Date and the record date; |
(ii) | the Redemption Price and the amount of accrued interest, if any, and Additional Amounts, if any, to be paid; |
(iii) | the name and address of the Paying Agent; |
(iv) | that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued interest, if any, and Additional Amounts, if any; |
(v) | that, if any Note is being redeemed in part, the portion of the principal amount (equal to 50,000 in principal amount or any integral multiple of 1,000 in excess thereof) of such Note to be redeemed and that, on and after the Redemption Date, upon surrender of such Note, if a Global Note, the principal amount thereof will be decreased by the portion thereof redeemed pursuant hereto, or, if a Definitive Registered Note, a new Note or Notes in principal amount equal to the unredeemed portion thereof will be issued upon cancellation of the original Note; |
(vi) | that, if any Note contains a CUSIP, ISIN or Common Code number, no representation is being made as to the correctness of such CUSIP, ISIN or Common Code number either as printed on the Notes or as contained in the notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes; |
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(vii) | that, unless the Issuer and the Guarantors default in making such redemption payment, interest on the Notes (or portion thereof) called for redemption shall cease to accrue on and after the Redemption Date; and |
(viii) | the paragraph of the Notes pursuant to which the Notes called for redemption are being redeemed. |
(c) | At the Issuers written request, the Trustee shall give a notice of redemption in the Issuers name and at the Issuers expense. In such event, the Issuer shall provide the Trustee with the notice and the other information required by this Section 3.04. |
(d) | Any optional redemption or notice thereof may, at the Issuers discretion, be subject to one or more conditions precedent. |
Section 3.05. | Deposit of Redemption Price |
No later than 11:00 am London time one Business Day prior to any Redemption Date, the Issuer shall deposit or cause to be deposited with the Paying Agent (or, if the Issuer or a Wholly Owned Subsidiary is the Paying Agent, such Person shall segregate and hold in trust) a sum in same day funds sufficient to pay the Redemption Price of and accrued interest and Additional Amounts, if any, on all Notes to be redeemed on that date other than Notes or portions of Notes called for redemption that have previously been delivered by the Issuer to the Trustee for cancellation. The Paying Agent shall promptly return to the Issuer any money so deposited that is not required for that purpose.
Section 3.06. | Payment of Notes Called for Redemption |
Save to the extent that any redemption is conditional on any event or condition specified in the notice related thereto, once notice of redemption has been given in the manner provided below, the Notes or portion of Notes specified in such notice to be redeemed shall become due and payable on the Redemption Date at the Redemption Price stated therein, together with accrued interest to such Redemption Date, and on and after such date (unless the Issuer shall default in the payment of such Notes at the Redemption Price and accrued interest to the Redemption Date, in which case the principal, until paid, shall bear interest from the Redemption Date at the rate prescribed in the Notes), such Notes shall cease to accrue interest. Upon surrender of any Note for redemption in accordance with a notice of redemption, such Note shall be paid and redeemed by the Issuer at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders registered as such at the close of business on the relevant Record Date.
Notice of redemption shall be deemed to be given when mailed or published, whether or not the Holder receives the notice. In any event, failure to give such notice, or any defect therein, shall not affect the validity of the proceedings for the redemption of Notes held by Holders to whom such notice was properly given.
Section 3.07. | Notes Redeemed in Part |
(a) | Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall forward such Global Note to the Registrar who shall make a notation on the Security Register to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided, however, that each such Global Note shall be in a principal amount at final Stated Maturity of 50,000 or any integral multiple of 1,000 in excess thereof. |
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(b) | Upon surrender and cancellation of a Definitive Registered Note that is redeemed in part, the Issuer shall execute and the Trustee shall authenticate for the Holder (at the Issuers expense) a new Definitive Registered Note equal in principal amount to the unredeemed portion of the Definitive Registered Note surrendered and canceled; provided, however, that each such Definitive Registered Note shall be in a principal amount at final Stated Maturity of 50,000 or any integral multiple of 1,000 in excess thereof. |
Section 3.08. | Mandatory Redemption |
The Issuer will not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE FOUR
COVENANTS
Section 4.01. | Payment of Notes |
The Issuer and the Guarantors (subject to Article Ten) covenant and agree for the benefit of the Holders that they shall duly and punctually pay the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal, premium, if any, interest and Additional Amounts, if any, shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Issuer or any of its Affiliates) holds, in accordance with this Indenture, money sufficient to pay all principal, premium, if any, interest and Additional Amounts, if any then due. If the Issuer or any of its Affiliates acts as Paying Agent, principal, premium, if any, interest and Additional Amounts, if any, shall be considered paid on the due date if the entity acting as Paying Agent complies with Section 2.04.
The Issuer or the Guarantors shall pay interest on overdue principal at the rate specified therefor in the Notes. The Issuer or the Guarantors shall pay interest on overdue installments of interest at the same rate to the extent lawful.
Section 4.02. | Corporate Existence |
Subject to Article Five, the Issuer and each Restricted Subsidiary shall do or cause to be done all things necessary to preserve and keep in full force and effect their corporate, partnership, limited liability company or other existence.
Section 4.03. | Statement as to Compliance |
(a) | The Issuer shall deliver to the Trustee no later than the date on which the Issuer is required to deliver annual reports pursuant to Section 4.16, an Officers Certificate stating that in the course of the performance by the relevant officers of their respective duties as an officer of the Issuer they would normally have knowledge of any Default and whether or not such officers know of any Default that occurred during such period and, if any, specifying such Default, its status and what action the Issuer is taking or proposes to take with respect thereto. For purposes of this Section 4.03, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture. |
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(b) | The Issuer shall, so long as any of the Notes are outstanding, deliver to the Trustee within 15 Business Days of any Default, an Officers Certificate specifying such Default, its status and what action the Issuer is taking or proposes to take with respect thereto. |
Section 4.04. | Limitation on Debt |
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to Incur or, as appropriate, an Incurrence ), any Debt (including any Acquired Debt); provided that the Issuer and any Guarantor shall be permitted to Incur Debt (including Acquired Debt) if: |
(a) | after giving effect to the Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing; |
(b) | at the time of such Incurrence and after giving effect to the Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and |
(c) | if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00. |
(2) | This Section 4.04 shall not, however, prohibit the following (collectively, Permitted Debt ): |
(a) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) 60.0 million, minus (ii) the amount of any permanent repayments or permanent prepayments of such Debt with, in each case, the proceeds of Asset Sales made in accordance with Section 4.07, plus (iii) in the case of any refinancing of any Debt permitted under this clause, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing; |
(b) | the Incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Guarantees (other than Guarantees of Additional Notes); |
(c) | any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in another clause of this paragraph (2)) outstanding on the Issue Date; |
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(d) | the Incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that: |
(i) | if the Issuer or a Guarantor is the obligor on any such Debt and the lender of such Debt is not the Issuer or a Guarantor, it is unsecured and expressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under the Notes or its Guarantee, as the case may be; and |
(ii) | (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, shall, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (d); |
(e) | guarantees of the Notes made in accordance with the provisions of Section 4.13; |
(f) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, lease, rental or development and improvement of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property plant or equipment used in the Issuers or any Restricted Subsidiarys business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (f) and still outstanding shall not in the aggregate exceed the greater of 15.0 million and 3% of Total Assets; |
(g) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of earnouts or other purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (g) shall at no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value), actually received from the sale of such assets; |
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(h) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Hedging Agreements entered into in the ordinary course of business and not for speculative purposes; |
(i) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit; |
(j) | the Incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (i) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 business days of Incurrence, (ii) bankers acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business; |
(k) | the Incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (1), (2)(b), (2)(c), (2)(k) and (2)(t) of this Section 4.04, as the case may be; |
(l) | Customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business; |
(m) | Management Advances; |
(n) | any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business; |
(o) | without limiting Section 4.13 the guarantee by the Issuer or any Restricted Subsidiary of Debt that was permitted to be incurred by another provision of this covenant; provided that if the Debt being guaranteed is subordinated to the Notes or is unsecured, then the guarantee shall be subordinated or unsecured to the same extent as the Debt guaranteed; |
(p) | without limiting Section 4.05, Debt arising by reason of any Lien granted by or applicable to such Person securing Debt of the Issuer or any Restricted Subsidiary so long as the Incurrence of such Debt is permitted under the terms of this Indenture; |
(q) | Indebtedness consisting of (i) the financing of insurance premiums, (ii) take or pay obligations contained in supply agreements or (iii) rental guarantees, in each case, in the ordinary course of business; |
(r) | guarantees of the obligations of Qualified Joint Ventures at any time outstanding not exceeding the greater of 15.0 million and 3% of Total Assets in aggregate principal amount; |
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(s) | Acquired Debt; provided that, after giving pro forma effect to such acquisition, (i) the Issuer would have been able to incur 1.00 of additional Debt pursuant to paragraph (1) of this Section 4.04 or (ii) the Consolidated Fixed Charges Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available would be no less than immediately prior to such acquisition and incurrence; and |
(t) | the Incurrence of Debt by the Issuer or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (a) through (s) above) in an aggregate principal amount at any one time outstanding not to exceed 15.0 million. |
(3) | For purposes of determining compliance with this Section 4.04, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (t) of paragraph (2) above, or is entitled to be Incurred pursuant to the paragraph (1) of this Section 4.04, the Issuer shall be permitted to classify such item of Debt on the date of its Incurrence in any manner that complies with this Section 4.04. Debt under Credit Facilities outstanding on the date on which the Notes are first issued shall initially be deemed to have been Incurred on such date in reliance on the exception provided by clause (a) of paragraph (2) above. In addition, any item of Debt initially classified as Incurred pursuant to one of the categories of Permitted Debt described in clauses (b) through (t) of paragraph (2) above, or is entitled to be Incurred pursuant to the paragraph (1) of this Section 4.04, may later be reclassified by the Issuer such that it shall be deemed as having been Incurred pursuant to such new clause or paragraph (1) of this Section 4.04 to the extent that such reclassified Debt could be Incurred pursuant to such new clause or paragraph (1) of this Section 4.04 at the time of such reclassification. |
(4) | For purposes of determining compliance with any restriction on the Incurrence of Debt in Euros where Debt is denominated in a different currency, the amount of such Debt shall be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to Euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in Euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt being refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.04, for purposes of determining compliance with this Section 4.04, increases in Debt solely due to fluctuations in the exchange rates of currencies shall not be deemed to exceed the maximum amount that the Issuer or a Restricted Subsidiary may Incur under this Section 4.04. |
(5) | For purposes of determining any particular amount of Debt under Section 4.04: |
(a) | obligations in the form of letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included; |
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(b) | any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.05 shall not be treated as Debt; and |
(c) | accrual of interest, accrual of dividends, the accretion or amortization of original issue discount or of accreted value, the obligation to pay commitment fees and the payment of interest or dividends in the form of additional Debt, |
shall not, in any case, be treated as Debt.
Section 4.05. | Limitation on Liens |
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind or assign or otherwise convey any right to receive any income, profits or proceeds on or with respect to any of the Issuers or any Restricted Subsidiarys property or assets, including any shares or stock or Debt of any Restricted Subsidiary, whether owned at or acquired after the Issue Date, or any income, profits or proceeds therefrom (except for Permitted Liens and Permitted Collateral Liens) unless: |
(a) | in the case of any Lien securing Subordinated Debt, the Issuers obligations in respect of the Notes, the obligations of the Guarantors under the Guarantees and all other amounts due under this Indenture are directly secured by a Lien on such property, assets or proceeds that is senior in priority to the Lien securing the Subordinated Debt until such time as the Subordinated Debt is no longer secured by a Lien; and |
(b) | in the case of any other Lien, the Issuers obligations in respect of the Notes, the obligations of the Guarantors under the Guarantees and all other amounts due under this Indenture are equally and ratably secured with the obligation or liability secured by such Lien. |
(2) | Any such Lien arising as a result of paragraphs (1)(a) or (b) above shall be automatically and unconditionally released and discharged concurrently with (i) the unconditional release of the Lien which gave rise to such Lien (other than as a consequence of an enforcement action with respect to the assets subject to such Lien) or (ii) as set forth in Section 12.03. |
Section 4.06. | Limitation on Restricted Payments |
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, take any of the following actions (each of which is a Restricted Payment and which are collectively referred to as Restricted Payments ): |
(a) | declare or pay any dividend on or make any distribution (whether made in cash, securities or other property) with respect to any of the Issuers or any Restricted Subsidiarys Capital Stock (including, without limitation, any payment in connection with any merger, consolidation, amalgamation or other combination involving the Issuer or any Restricted Subsidiary) (other than to the Issuer or any Restricted Subsidiary) except for dividends or distributions payable solely in shares of the Issuers Qualified Capital Stock or in options, warrants or other rights to acquire such shares of Qualified Capital Stock; |
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(b) | purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger, consolidation, amalgamation or other combination), directly or indirectly, any shares of the Issuers Capital Stock or any Capital Stock of a Holding Company of the Issuer held by persons other than the Issuer or a Restricted Subsidiary or any options, warrants or other rights to acquire such shares of Capital Stock; |
(c) | make any principal payment on, or repurchase, redeem, defease or otherwise acquire or retire for value, prior to any scheduled principal payment, sinking fund payment or Stated Maturity, any Subordinated Debt (other than intercompany Debt between the Issuer and any Restricted Subsidiary or among Restricted Subsidiaries); or |
(d) | make any Investment (other than any Permitted Investment) in any Person. |
If any Restricted Payment described above is not made in cash, the amount of the proposed Restricted Payment shall be the Fair Market Value of the asset to be transferred as at the date of transfer.
(2) | Notwithstanding paragraph (1) above, the Issuer or any Restricted Subsidiary may make a Restricted Payment if, at the time of and after giving pro forma effect to such proposed Restricted Payment: |
(a) | no Default or Event of Default has occurred and is continuing; |
(b) | the Issuer could Incur at least 1.00 of additional Debt pursuant to the ratio set forth in paragraph (1) of Section 4.04; and |
(c) | the aggregate amount of all Restricted Payments declared or made after the Issue Date, and after giving effect to any reductions required by paragraph (4), does not exceed the sum of: |
(i) | 50% of aggregate Consolidated Net Income on a cumulative basis during the period beginning on the first day of the fiscal quarter in which the Notes are issued and ending on the last day of the Issuers last fiscal quarter ending prior to the date of such proposed Restricted Payment (or, if such aggregate cumulative Consolidated Net Income shall be a negative number, minus 100% of such negative amount); plus |
(ii) | the aggregate Net Cash Proceeds received by the Issuer after the Issue Date as equity capital contributions or from the issuance or sale (other than to any Subsidiary) of shares of the Issuers Qualified Capital Stock (including upon the exercise of options, warrants or rights) or warrants, options or rights to purchase shares of the Issuers Qualified Capital Stock (except, in each case to the extent such proceeds are used to purchase, redeem or otherwise retire Capital Stock or Subordinated Debt as set forth in clause (d) or (e) of paragraph (3) below) (excluding the Net Cash Proceeds from the issuance of the Issuers Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Issuer or any Subsidiary until and to the extent such borrowing is repaid); plus |
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(iii) | (x) the amount by which the Issuers Debt or Debt of any Restricted Subsidiary is reduced on the Issuers consolidated balance sheet after the Issue Date upon the conversion or exchange (other than by a Subsidiary) of such Debt into the Issuers Qualified Capital Stock and (y) the aggregate Net Cash Proceeds received after the Issue Date by the Issuer from the issuance or sale (other than to any Subsidiary) of Redeemable Capital Stock that has been converted into or exchanged for the Issuers Qualified Capital Stock, to the extent such Redeemable Capital Stock was originally sold for cash or Cash Equivalents, together with, in the case of both clauses (x) and (y), the aggregate Net Cash Proceeds received by the Issuer at the time of such conversion or exchange (excluding the Net Cash Proceeds from the issuance of the Issuers Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Issuer or any Subsidiary until and to the extent such borrowing is repaid); plus |
(iv) | (x) repurchases, redemptions or other acquisitions or retirements of any such restricted Investment, proceeds realized upon the sale or other disposition to a Person other than the Issuer or a Restricted Subsidiary of any such Restricted Investment, repayments of loans or advances or other transfers of assets (including by way of dividend, distribution, interest payments or returns of capital) to the Issuer or any Restricted Subsidiary, less the cost of the disposition of such Investment and net of taxes, (y) if such Investment constituted a guarantee, an amount equal to the amount of such guarantee upon the full and unconditional release of such guarantee and (z) in the case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary (as long as the designation of such Subsidiary as an Unrestricted Subsidiary was deemed a Restricted Payment), the Fair Market Value of the Issuers interest in such Subsidiary; plus |
(v) | in the event that the Issuer or any Restricted Subsidiary makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, an amount equal to the Fair Market Value of Issuers or such Restricted Subsidiarys existing interest in such Person that was previously treated as a Restricted Payment. |
(3) | Notwithstanding paragraphs (1) and (2) above, the Issuer and any Restricted Subsidiary may take the following actions so long as (with respect to clauses (e), (f), (k), (l) and (m) below) no Default or Event of Default has occurred and is continuing: |
(a) | the payment of any dividend within 60 days after the date of its declaration if at such date of its declaration such payment would have been permitted by the provisions of this Section 4.06; |
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(b) | cash payments in lieu of issuing fractional shares pursuant to the exchange or conversion of any exchangeable or convertible securities; |
(c) | the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of the Issuer or any Restricted Subsidiary of the Issuer held by any employee benefit plan of the Issuer or any of its Restricted Subsidiaries, any current or former officer, director, consultant, or employee of the Issuer or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed 2.0 million in any twelve-month period; |
(d) | the repurchase, redemption or other acquisition or retirement for value of any shares of the Issuers Capital Stock or options, warrants or other rights to acquire such Capital Stock in exchange for (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares or scrip), or out of the Net Cash Proceeds of a substantially concurrent issuance and sale (other than to a Subsidiary) of, shares of the Issuers Qualified Capital Stock or options, warrants or other rights to acquire such Capital Stock; |
(e) | the prepayment, repayment, purchase, repurchase, redemption, defeasance or other acquisition or retirement for value or payment of principal of any Subordinated Debt in exchange for, or out of the Net Cash Proceeds of a substantially concurrent issuance and sale (other than to a Subsidiary) of, shares of the Issuers Qualified Capital Stock; |
(f) | the prepayment, repayment, purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Debt (other than Redeemable Capital Stock) in exchange for, or out of the Net Cash Proceeds of a substantially concurrent Incurrence (other than to a Subsidiary) of, Permitted Refinancing Debt; |
(g) | the declaration or payment of any dividend to all holders of Capital Stock of a Restricted Subsidiary on a pro rata basis or on a basis that results in the receipt by the Issuer or a Restricted Subsidiary of dividends or distributions of greater value than the Issuer or such Restricted Subsidiary would receive on a pro rata basis; |
(h) | the repurchase of Capital Stock deemed to occur upon the exercise of stock options with respect to which payment of the cash exercise price has been forgiven if the cumulative aggregate value of such deemed repurchases does not exceed the cumulative aggregate amount of the exercise price of such options received; |
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(i) | the declaration and payment of dividends to holders of any class or series of Redeemable Capital Stock issued in accordance with Section 4.04; |
(j) | the purchase, repurchase, redemption, retirement or other acquisition for value of Capital Stock deemed to occur upon the exercise of stock options, warrants or other securities, if such Capital Stock represents a portion of the exercise price of such options, warrants or other securities; |
(k) | any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Indebtedness of the Issuer or any of its Restricted Subsidiaries pursuant to the provisions similar to those described in Section 4.09; provided that all Notes validly tendered by Holders in connection with a Change of Control Offer, as applicable, have been repurchased, redeemed or acquired for value; |
(l) | the purchase, repurchase, redemption, acquisition or retirement of subordinated Indebtedness of the Issuer or any Restricted Subsidiary with any Excess Proceeds remaining after consummation of an Excess Proceeds Offer pursuant to Section 4.07; and |
(m) | any other Restricted Payment; provided that the total aggregate amount of Restricted Payments made under this clause (m) does not exceed 15.0 million. |
(4) | The actions described in clauses (a), (c), (g), (k), (l) and (m) of paragraph (3) above are Restricted Payments that shall be permitted to be made in accordance with paragraph (3) but that shall reduce the amount that would otherwise be available for Restricted Payments under clause (c) of paragraph (2) above. |
Section 4.07. | Limitation on Sale of Certain Assets |
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, consummate any Asset Sale unless: |
(a) | the consideration the Issuer or such Restricted Subsidiary receives for such Asset Sale is not less than the Fair Market Value of the assets sold (as determined by the Issuers Board of Directors); |
(b) | at least 75% of the consideration the Issuer or such Restricted Subsidiary receives in respect of such Asset Sale consists of: |
(i) | cash (including any Net Cash Proceeds received from the conversion to cash within 90 days of such Asset Sale of securities, notes or other obligations received in consideration of such Asset Sale); |
(ii) | Cash Equivalents (including any Net Cash Proceeds received from the conversion to cash within 90 days of such Asset Sale of securities, notes or other obligations received in consideration of such Asset Sale); |
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(iii) | the assumption by the purchaser of (x) the Issuers Debt or Debt of any Restricted Subsidiary (other than Subordinated Debt) as a result of which neither the Issuer nor any of the Restricted Subsidiaries remains obliged in respect of such Debt or (y) Debt of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, if the Issuer and each other Restricted Subsidiary is released from any guarantee of such Debt as a result of such Asset Sale; |
(iv) | Replacement Assets; |
(v) | any Designated Non-cash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Sale; provided that the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (iv), less the amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration does not exceed (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) 10.0 million; or |
(iv) | a combination of the consideration specified in clauses (i) through (v); and |
(c) | the Issuer delivers an Officers Certificate to the Trustee certifying that such Asset Sale complies with the provisions described in the foregoing clauses (a) and (b). |
(2) | If the Issuer or any Restricted Subsidiary consummates an Asset Sale, the Net Cash Proceeds of the Asset Sale, within 365 days of the consummation of such Asset Sale (or the Issuer or any such Restricted Subsidiary may enter into a binding commitment to so use; provided that such Net Cash Proceeds are so used within 180 days after the expiration of the aforementioned 365 day period), may be used by the Issuer or such Restricted Subsidiary to: |
(a) | permanently repay or prepay any then outstanding Debt of the Issuer, or Debt of any Restricted Subsidiary (and to permanently reduce the corresponding commitment by an equal amount if such Debt is a revolving credit borrowing) owing to a Person other than the Issuer or a Restricted Subsidiary, as applicable; |
(b) | to make a capital expenditure or to invest in any Replacement Assets; or |
(c) | any combination of the foregoing. |
The amount of such Net Cash Proceeds not so used as set forth in this paragraph (2) constitutes Excess Proceeds. Pending the final application of any such Net Cash Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by the terms of this Indenture.
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(3) | When the aggregate amount of Excess Proceeds exceeds 15.0 million, the Issuer shall, within 30 Business Days, make an offer to purchase (an Excess Proceeds Offer) to all holders of Notes and, at the Issuers election, to the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in this Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount, in the case of the Notes (expressed as a minimum amount of 50,000 and integral multiples of 1,000 in excess thereof) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt shall be payable in cash in an amount equal to (solely in the case of the Notes) 100% of the principal amount of such Note and (solely in the case of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, as applicable) of such Pari Passu Debt, plus, in each case, accrued and unpaid interest, if any, to the date of purchase. |
To the extent that the aggregate principal amount of Notes and any such Pari Passu Debt tendered pursuant to an Excess Proceeds Offer is less than the aggregate amount of Excess Proceeds, the Issuer may use the amount of such Excess Proceeds not used to purchase Notes and Pari Passu Debt for general corporate purposes that are not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and any such Pari Passu Debt validly tendered and not withdrawn by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Pari Passu Debt to be purchased shall be selected by the Trustee on a pro rata basis (based upon the principal amount of Notes and the principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds shall be reset to zero.
(4) | If the Issuer is obliged to make an Excess Proceeds Offer, the Issuer shall purchase the Notes and Pari Passu Debt, at the option of the holders thereof, in whole or in part in a minimum amount of 50,000 and integral multiples of 1,000 in excess thereof on a date that is not earlier than 30 days and not later than 60 days from the date the notice of the Excess Proceeds Offer is given to such holders, or such later date as may be required under the Exchange Act. |
Pending the final application of any Net Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
Section 4.08. | Limitation on Transactions with Affiliates |
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets or property or the rendering of any service), with, or for the benefit of, any Affiliate of the Issuer or any other Restricted Subsidiary having a value greater than 1.0 million, unless such transaction or series of transactions is entered into in good faith and: |
(a) | such transaction or series of transactions is on terms that, taken as a whole, are not materially less favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable arms-length transaction with third parties that are not Affiliates; |
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(b) | with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value greater than 5.0 million, the Issuer shall deliver a resolution of its Board of Directors (attached to an Officers Certificate to the Trustee) resolving that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the Disinterested Members, if any, of the Board of Directors; and |
(c) | with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value greater than 20.0 million, the Issuer shall deliver to the Trustee a written opinion of an Independent Financial Advisor stating that the transaction or series of transactions is fair to the Issuer or such Restricted Subsidiary from a financial point of view or that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arms length basis. |
(2) | Notwithstanding the foregoing, the restrictions set forth in this description shall not apply to: |
(i) | customary directors fees, indemnities and similar arrangements (including the payment of directors and officers insurance premiums), consulting fees, employee compensation, employee and director bonuses, employment agreements and arrangements or employee benefit arrangements, including stock options or legal fees, as long as the Issuers Board of Directors has approved the terms thereof and deemed the services performed or thereafter to be performed for amounts to be fair consideration therefor; |
(ii) | any Restricted Payment not prohibited by Section 4.06; |
(iii) | loans and advances (or guarantees to third party loans, but not any forgiveness of such loans or advances) to directors, officers or employees of the Issuer or any Restricted Subsidiary made in the ordinary course of business in an amount outstanding not to exceed at any one time 1.0 million; |
(iv) | agreements and arrangements existing on the Issue Date and any amendment, extension, renewal, refinancing, modification or supplement thereto; provided that any such amendment, extension, renewal, refinancing, modification or supplement to the terms thereof is not more disadvantageous, taken as a whole, to the holders of the Notes and to the Issuer and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the Issue Date and provided, further, that such amendment, extension, renewal, refinancing or modification is on a basis substantially similar to that which would be conducted in an arms-length transaction with third parties who are not Affiliates; |
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(v) | the issuance of securities or other payments, awards or grants in cash, securities or similar transfers pursuant to, or for the purpose of the funding of, employment arrangements, stock options, stock ownership plans and other similar arrangements, as long as the terms thereof are or have been previously approved by the Issuers Board of Directors; |
(vi) | the granting and performance of registration rights for the Issuers securities; |
(vii) | transactions between or among the Issuer and the Restricted Subsidiaries or between or among Restricted Subsidiaries; |
(viii) | any issuance of Capital Stock (other than Redeemable Capital Stock) of the Issuer; |
(ix) | the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement relating thereto) to which it is a party as at the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of, obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (x) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the holders of the Notes when taken as a whole; and |
(x) | transactions with a Person that is an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary of the Issuer owns Capital Stock in such Person or solely because the Issuer or a Restricted Subsidiary of the Issuer has the right to designate one or more members of the Board of Directors or similar governing body of such Person. |
Section 4.09. | Change of Control |
(1) | If a Change of Control occurs at any time, than the Issuer shall make an offer (a Change of Control Offer) to each holder of Notes to purchase such holders Notes, in whole or in part, in a principal amount of 50,000 or in integral multiples of 1,000 in excess thereof at a purchase price (the Change of Control Purchase Price) in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (the Change of Control Purchase Date) . |
(2) | Within 30 days following any Change of Control, the Issuer shall: |
(a) | cause a notice of the Change of Control Offer to be published (i) through the newswire service of Bloomberg, or if Bloomberg does not then operate, any similar agency; and (ii) if at the time of such notice the Notes are listed on the Official List of the Luxembourg Stock Exchange and traded on the Euro MTF Market and to the extent that the rules of the Luxembourg Stock Exchange so require, on the website of the Luxembourg Stock Exchange); and |
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(b) | send notice of the Change of Control Offer by first-class mail, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Security Register, which notice shall state: |
(i) | that a Change of Control has occurred and the date it occurred; |
(ii) | the circumstances and relevant facts regarding such Change of Control; |
(iii) | the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be a business day no earlier than 30 days nor later than 60 days after the date such notice is mailed, or such later date as is necessary to comply with any requirements under the Exchange Act and any other applicable securities laws or regulations; |
(iv) | that any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date unless the Change of Control Purchase Price is not paid on such date; |
(v) | that any Note or part thereof not tendered shall continue to accrue interest; and |
(vi) | any other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance (which procedures may also be performed at the office of the paying agent in Luxembourg as long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and traded on the Euro MTF Market and to the extent that the rules of the Luxembourg Stock Exchange so require). |
(3) | The Trustee shall promptly authenticate and deliver a new Note or Notes in a principal amount equal to any unpurchased portion of Notes surrendered, if any, to the holder of Notes in global form or to each holder of Definitive Registered Notes; provided that each such new Note shall be in a principal amount of 50,000 or in integral multiples of 1,000 in excess thereof. The Issuer shall publicly announce the results of a Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date. |
(4) | The Issuer shall not be required to make a Change of Control Offer following a Change of Control if (i) the Notes have been irrevocably and unconditionally called for redemption as described on the face of the Note or (ii) a third party has made, and not terminated, a tender offer for all of the Notes in the manner and at the times applicable to a Change of Control Offer, at a tender offer purchase price in cash equal to at least 101% of the principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, and such third party purchases all of the Notes validly tendered and not withdrawn under such tender offer. |
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The Issuer and the Guarantors shall comply with the applicable tender offer rules, including Rule l4e-1 under the Exchange Act, and any other applicable securities laws and regulations in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer and the Guarantors shall comply with such applicable securities laws and regulations and shall not be deemed to have breached their obligations under this Indenture by virtue of such conflict.
Section 4.10. Additional Amounts
All payments made under or with respect to the Notes or that the Guarantors make under or with respect to the Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any jurisdiction in which the Issuer or Guarantor is organized, engaged in business, resident for tax purposes or generally subject to tax on a net income basis or from or through which payment on the Notes is made or any political subdivision or authority thereof or therein having the power to tax (each, a Relevant Taxing Jurisdiction ) and any interest, penalties and other liabilities with respect thereto (collectively, Taxes ), unless the withholding or deduction of such Taxes is required by law or by the relevant taxing authoritys interpretation or administration thereof. In the event that the Issuer or Guarantor is required to so withhold or deduct any amount for or on account of any such Taxes from any payment made under or with respect to the Notes, the Issuer or Guarantor, as the case may be, shall pay such additional amounts ( Additional Amounts ) as may be necessary so that the net amount received by each Holder or beneficial owner of the Notes (including Additional Amounts) after such withholding or deduction shall be not less than the amount that such Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted.
Notwithstanding the foregoing, neither the Issuer nor the Guarantor shall pay Additional Amounts to a Holder or beneficial owner of any Note in respect or on account of:
(a) | any Taxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of the Holders or beneficial owners present or former connection with such Relevant Taxing Jurisdiction (including, but not limited to, citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Relevant Taxing Jurisdiction) other than the mere receipt or holding of any Note or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under such Note or this Indenture; |
(b) |
any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of any Note, prior to the relevant date on which a payment under and with respect to the Notes is due and payable (the Relevant Payment Date ) to comply with the Issuers written request addressed to the Holder or beneficial owner at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any certification, identification, information or other reporting requirements concerning nationality, residence, identity or connection with the Relevant Taxing Jurisdiction which the Holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice, in each such case by the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of |
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deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction); |
(c) | any estate, inheritance, gift, sales, transfer, personal property or similar Taxes; |
(d) | any Tax that is payable other than by deduction or withholding from payments made under or with respect to any Note or Guarantee; |
(e) | any Tax which would not have been so imposed but for the presentation (where presentation is required in order to receive payment) by the Holder or beneficial owner of a Note for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts on presenting the same for payment on any day (including the last day) within such 30-day period; |
(f) | any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any Directive otherwise implementing the conclusions of the ECOFIN Council meetings of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, any such Directive; |
(g) | any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by requesting that a payment on the Note be made by, or presenting a Note for a payment to, another paying agent in an EU Member State or; |
(h) | any Tax that is imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note. |
In addition, Additional Amounts shall not be payable with respect to any Taxes that are imposed in respect of any combination of the above items.
The Issuer or Guarantor shall also make or cause to be made such withholding or deduction of Taxes and remit the full amount of Taxes so deducted or withheld to the relevant taxing authority in accordance with all applicable laws. The Issuer shall, upon request, make available to the Holders, within 30 days after the date on which the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or if, notwithstanding the Issuers reasonable efforts to obtain such receipts, the same are not obtainable, other evidence reasonably satisfactory to the Trustee of such payment by the Issuer.
At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or a Guarantor shall be obliged to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts
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arises after the 30 th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), the Issuer or Guarantor shall deliver to the Trustee an Officers Certificate stating that such Additional Amounts shall be payable and the amounts so payable and setting forth such other information as is necessary to enable such Trustee or Paying Agent to pay such Additional Amounts to the Holders and beneficial owners on the payment date. The Trustee shall be entitled to rely solely on such Officers Certificate as conclusive proof that such payments are necessary. The Issuer shall promptly publish a notice in accordance with the provisions set forth in Section 13.01 stating that such Additional Amounts shall be payable and describing the obligation to pay such amounts.
If the Issuer or a Guarantor conducts business in any jurisdiction (an Additional Taxing Jurisdiction ) other than a Relevant Taxing Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to withhold or deduct any amount on account of the Taxes imposed by such Additional Taxing Jurisdiction from payment under the Notes or any Guarantee, as the case may be, which would not have been required to be so withheld or deducted but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply as if references in such provision to Taxes included taxes imposed by way of withholding or deduction by any such Additional Taxing Jurisdiction (or any political subdivision thereof or therein).
In addition, the Issuer or the Guarantor shall pay: (i) any present or future stamp, issue, registration, transfer, documentation, court, excise or property taxes or other similar taxes, charges and duties, including interest, penalties and Additional Amounts with respect thereto imposed or levied by the European Union, the United States of America, the Swiss Confederation, the Cayman Islands, or any political subdivision or authority thereof or therein having the power to tax (each, a Stamp Duty Jurisdiction ), in respect of the execution, issue, delivery, registration, redemption or retirement of, or receipt of payments under the Notes, this Indenture or the Guarantees, or any other document or instrument referred to thereunder (other than transfers of the Notes following the initial resale of the Notes by the Initial Purchasers); (ii) any such taxes, charges or duties imposed by any Stamp Duty Jurisdiction as a result of, or in connection with, the enforcement of the Notes, Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes; and (iii) any stamp, court or documentary taxes (or similar charges or levies) imposed by any Stamp Duty Jurisdiction with respect to the receipt of any payments with respect to the Notes or the Guarantees.
The foregoing provisions shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined below) or successor person to the Issuer or a Guarantor is organized, engaged in business, resident for tax purposes or otherwise subject to taxation on a net income basis or any political subdivision or taxing authority or agency thereof or therein.
Whenever in this Indenture there is mentioned, in any context, the payment of principal (and premiums, if any), Redemption Price, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to any Guarantee), such mention shall be deemed to include mention of the payment of Additional Amounts.
Section 4.11. | Limitation on Issuances and Sales of Capital Stock of Restricted Subsidiaries |
(1) | The Issuer shall not sell or otherwise dispose of, and shall not permit any Restricted Subsidiary (other than as permitted under Section 4.05), directly or indirectly, to issue or sell, any shares of Capital Stock of a Restricted Subsidiary (including options, warrants or other rights to purchase shares of such Capital Stock). |
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(2) | The foregoing clause (1), however, shall not apply to: |
(a) | any issuance or sale of shares of Capital Stock of a Restricted Subsidiary to the Issuer or a Restricted Subsidiary; |
(b) | any issuance or sale to directors of directors qualifying shares or issuances or sales of shares of Capital Stock of a Restricted Subsidiary to be held by third parties, in each case to the extent required by applicable law; |
(c) | any issuance or sale of shares of Capital Stock of a Restricted Subsidiary made in compliance with Section 4.07; provided the Net Proceeds of any such issuance or sale of shares of Capital Stock are applied in accordance with Section 4.07; |
(d) | any issuance or sale of shares of Capital Stock of a Restricted Subsidiary if, immediately after giving effect to such issuance or sale, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any remaining Investment in such Person would have been permitted to be made under Section 4.06 if made on the date of such issuance or sale; |
(e) | Capital Stock issued by a Person prior to the time: |
(i) | such Person becomes a Restricted Subsidiary; |
(ii) | such Person consolidates or merges with or into a Restricted Subsidiary; or |
(iii) | a Restricted Subsidiary consolidates or merges with or into such Person; |
but only if such Capital Stock was not issued or Incurred by such Person in anticipation of it becoming a Restricted Subsidiary; or
(f) | any issuance of shares of Capital Stock of a Restricted Subsidiary, if after giving effect to such issuance, the Issuer directly or indirectly maintains at least the same percentage ownership of such Restricted Subsidiary as it owned immediately prior to such issuance. |
Section 4.12. | Limitation on Sale and Leaseback Transactions |
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, enter into any sale and leaseback transaction with respect to any property or assets (whether now owned or hereafter acquired), unless: |
(a) | Section 4.07 is complied with, including the provisions concerning the application of Net Cash Proceeds (treating all of the net consideration received in such sale and leaseback transaction as Net Cash Proceeds for the purposes of Section 4.07); |
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(b) | the Issuer or such Restricted Subsidiary, as applicable, would be permitted to Incur Debt under Section 4.04 in the amount of the Attributable Debt Incurred in respect of such sale and leaseback transaction; and |
(c) | the Issuer or such Restricted Subsidiary, as applicable, would be permitted to grant a Lien to secure Debt under Section 4.05 in the amount of the Attributable Debt in respect of such sale and leaseback transaction. |
(2) | Notwithstanding the foregoing, nothing shall prevent the Issuer or any Restricted Subsidiary from engaging in a sale and leaseback transaction solely between the Issuer and any Restricted Subsidiary or solely between or among Restricted Subsidiaries. |
Section 4.13. | Limitation on Guarantees of Debt by Restricted Subsidiaries |
(1) | The Issuer shall not permit any Restricted Subsidiary that is not a Guarantor, directly or indirectly, to guarantee, assume or in any other manner become liable for the payment of any Debt of the Issuer or any Guarantor (other than the Notes), unless: |
(a) (i) | such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to this Indenture providing for a Guarantee of payment of the Notes by such Restricted Subsidiary on the same terms as the guarantee of such other Debt; and |
(ii) | with respect to any guarantee of Subordinated Debt by such Restricted Subsidiary, any such guarantee shall be subordinated to such Restricted Subsidiarys Guarantee with respect to the Notes at least to the same extent as such Subordinated Debt is subordinated to the Notes; and |
(b) | to the maximum extent permitted by law, such Restricted Subsidiary waives and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Issuer or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee. |
(2) | Paragraph (1) shall not be applicable to any guarantee of any Restricted Subsidiary: |
(i) | guaranteeing Debt existing on the Issue Date; |
(ii) | that existed at the time such Person became a Restricted Subsidiary if the guarantee was not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; or |
(iii) |
given to a bank or trust company incorporated in any member state of the European Union as of the date of this Indenture or any commercial banking institution (or any branch, Subsidiary or Affiliate thereof) in each case having combined capital and surplus and undivided profits of not less than 500 million, whose debt has a rating, at the time such |
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guarantee was given, of at least A or the equivalent thereof by S&P and at least A2 or the equivalent thereof by Moodys, in connection with the operation of cash management programs established for the Issuers benefit or that of any Restricted Subsidiary. |
(3) | Notwithstanding the foregoing, any Guarantee of the Notes created pursuant to the provisions described in paragraph (1) above may provide by its terms that it shall be automatically and unconditionally released and discharged upon: |
(a) | any sale, exchange or transfer, to any Person who is not the Issuers Affiliate, of all of the Capital Stock owned by the Issuer and its Restricted Subsidiaries in, or all or substantially all the assets of, such Restricted Subsidiary (which sale, exchange or transfer is not prohibited by this Indenture); or |
(b) | (with respect to any Guarantee created after the Issue Date) the release by the holders of the Issuers or the Guarantors Debt described in paragraph (1) above, of their guarantee by such Restricted Subsidiary (including any deemed release upon payment in full of all obligations under such Debt other than as a result of payment under such guarantee), at a time when: |
(i) | no other Debt of the Issuer (other than the Notes) or any Guarantor (other than the Guarantees) has been guaranteed by such Restricted Subsidiary; or |
(ii) | the holders of all such other Debt that is guaranteed by such Restricted Subsidiary also release their guarantee by such Restricted Subsidiary (including any deemed release upon payment in full of all obligations under such Debt other than as a result of payment under such guarantee); or |
(c) | the release of the Guarantees on the terms and conditions and in the circumstances described in Section 10.12. |
(4) | Notwithstanding the foregoing, the Issuer shall not be obligated to cause such Restricted Subsidiary to guarantee the Notes to the extent such Guarantee would reasonably be expected to give rise to or result in: |
(a) | any conflict with or violation of applicable law; |
(b) | material risk of personal liability for the officers, directors, shareholders or partners of such Restricted Subsidiary; or |
(c) | any cost, expense, liability or obligation (including with respect to any Taxes but excluding any reasonable guarantee or similar fee payable to the Issuer or any Restricted Subsidiary) other than reasonable expenses and other than reasonable governmental expenses incurred in connection with any governmental or regulatory filings required as a result of, or any measures pursuant to clause (1) undertaken in connection with, such Guarantee. |
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Section 4.14. | Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries |
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to: |
(a) | pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits; |
(b) | pay any Debt owed to the Issuer or any other Restricted Subsidiary; |
(c) | make loans or advances to the Issuer or any other Restricted Subsidiary; or |
(d) | transfer any of its properties or assets to the Issuer or any other Restricted Subsidiary, |
provided that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (ii) the subordination of (including the application of any standstill requirements to) loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(2) | The provisions of Section 4.14 described in paragraph (1) above shall not apply to: |
(a) | encumbrances and restrictions imposed by the Notes, this Indenture, the Guarantees, the Revolving Credit Facility, the Intercreditor Agreement and the Security Documents; |
(b) | encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantee thereof in accordance with Section 4.04 or pursuant to paragraph (2) of such Section 4.04; provided that in the case of any such encumbrances or restrictions imposed under any Credit Facilities, such encumbrances or restrictions are not materially more restrictive taken as a whole than those imposed by the Revolving Credit Facility as at the Issue Date; |
(c) | encumbrances or restrictions contained in any agreement in effect on the Issue Date (other than an agreement described in another clause of this paragraph (2)); |
(d) |
with respect to restrictions or encumbrances referred to in clause (1)(d) above, encumbrances and restrictions: (i) that restrict in a customary manner the subletting, assignment or transfer of any properties or assets that are subject to a lease, license, conveyance or other similar agreement to which the Issuer or any Restricted Subsidiary is a party; and (ii) contained in operating leases for real property and restricting only the transfer of such real property upon |
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the | occurrence and during the continuance of a default in the payment of rent; |
(e) | encumbrances or restrictions contained in any agreement or other instrument of a Person or relating to assets acquired by the Issuer or any Restricted Subsidiary in effect at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; |
(f) | encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by Section 4.07 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Issuers Subsidiaries by another Person; |
(g) | encumbrances or restrictions imposed by applicable law or regulation or by governmental licenses, concessions, franchises or permits; |
(h) | encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the ordinary course of business; |
(i) | customary limitations on the distribution or disposition of assets or property of a Restricted Subsidiary in joint venture agreements entered into the ordinary course of business and in good faith; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary; provided further, that: |
(i) | the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable agreements (as determined in good faith by the Issuer); and |
(ii) | the Issuer determines in good faith that any such encumbrance or restriction shall not materially affect the ability of the Issuer or any Guarantor to make any principal or interest payments on the Notes; |
(j) | in the case of clause 1(d) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business; |
(k) | any encumbrance or restriction arising by reason of customary non-assignment provisions in agreements; |
(l) |
any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clauses (a), (b), (c) or (e) of this paragraph (2) (an Initial Agreement) or contained in any amendment, supplement or other |
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modification to an agreement referred to in clauses (a), (b), (c) or (e) of this paragraph (2); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the holders of the Notes taken as a whole than the encumbrances and restrictions contained in such agreements and instruments referred to in clauses (a), (b), (c) or (e) of this paragraph (2) (as determined in good faith by the Issuer); |
(m) | any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Debt permitted to be Incurred after the Issue Date pursuant to the provisions of Section 4.04: (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Issuer); or (ii) if such encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financings (as determined in good faith by the Issuer) and either: (x) the Issuer determines that such encumbrance or restriction shall not materially affect the Issuers ability to make principal or interest payments on the Notes as and when they come due; or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Debt; |
(n) | any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (l) and (m) of this paragraph; provided that such amendments, modifications, restatements, renewals, extension, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuers Board of Directors, no more restrictive (taken as a whole) with respect to such encumbrances or restrictions than those contained in the encumbrances or restrictions prior to such amendment, modification, restatement, renewal, extension, increase, supplement, refunding, replacement or refinancing; or |
(o) | with respect to restrictions or encumbrances referred to in clause (1)(d) above, encumbrances or restrictions existing by reason of any Lien permitted under Section 4.05. |
Section 4.15. | Designation of Unrestricted and Restricted Subsidiaries |
(1) | The Issuers Board of Directors may designate any Subsidiary (including newly acquired or newly established Subsidiaries) to be an Unrestricted Subsidiary only if: |
(a) | no Default has occurred and is continuing at the time of or after giving effect to such designation; |
(b) | the Issuer would be permitted to make an Investment at the time of designation (assuming the effectiveness of such designation) pursuant to Section 4.06 in an amount equal to the greater of (i) the net book value of the Issuers interest in such Subsidiary calculated in accordance with IFRS or (ii) the Fair Market Value of the Issuers interest in such Subsidiary; |
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(c) | the Issuer would be permitted under this Indenture to Incur at least 1.00 of additional Debt pursuant to the ratio set forth in paragraph (1) of Section 4.04 at the time of such designation (assuming the effectiveness of such designation); |
(d) | neither the Issuer nor any Restricted Subsidiary has a contract, agreement, arrangement, understanding or obligation of any kind, whether written or oral, with such Subsidiary unless the terms of such contract, arrangement, understanding or obligation are no less favorable to the Issuer or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer or of any Restricted Subsidiary; |
(e) | such Subsidiary does not own any Capital Stock, Redeemable Capital Stock or Debt of, or own or hold any Lien on any property or assets of, or have any Investment in, the Issuer or any other Restricted Subsidiary; |
(f) | such Subsidiary is not liable, directly or indirectly, with respect to any Debt, Lien or other obligation that, if in default, would result (with the passage of time or giving of notice or otherwise) in a default on any of the Issuers Debt or Debt of any Restricted Subsidiary; provided that an Unrestricted Subsidiary may provide a Guarantee for the Notes; |
(g) | such Subsidiary, either alone or in the aggregate with all other Unrestricted Subsidiaries, does not operate, directly or indirectly, all or substantially all of the businesses of the Issuer and its Subsidiaries; and |
(h) | such Subsidiary is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation to: |
(i) | subscribe for additional Capital Stock of such Person; or |
(ii) | maintain or preserve such Persons financial condition or to cause such Person to achieve any specified levels of operating results. |
(2) | In the event of any such designation, the Issuer shall be deemed to have made an Investment constituting a Restricted Payment pursuant to Section 4.06 for all purposes of this Indenture in an amount equal to the greater of (i) the net book value of the Issuers interest in such Subsidiary calculated in accordance with IFRS or (ii) the Fair Market Value of the Issuers interest in such Subsidiary. |
(3) | Neither the Issuer nor any Restricted Subsidiary shall at any time: |
(a) | provide a guarantee of, or similar credit support to, any Debt of any Unrestricted Subsidiary (including of any undertaking, agreement or instrument evidencing such Debt); provided that the Issuer may pledge Capital Stock or Debt of any Unrestricted Subsidiary on a non-recourse basis as long as the pledgee has no claim whatsoever against the Issuer other than to obtain such pledged property, except to the extent permitted under Section 4.06 and Section 4.08; |
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(b) | be directly or indirectly liable for any Debt of any Unrestricted Subsidiary, except to the extent permitted under Section 4.06 and Section 4.08; or |
(c) | be directly or indirectly liable for any other Debt that provides that the holder thereof may (upon giving notice, the lapse of time or both) declare a default thereof (or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity) upon the occurrence of a default with respect to any other Debt that is Debt of an Unrestricted Subsidiary (including any corresponding right to take enforcement action against such Unrestricted Subsidiary). |
(4) | The Issuers Board of Directors may designate any Unrestricted Subsidiary as a Restricted Subsidiary: |
(a) | if no Default or Event of Default has occurred and is continuing at the time of, or shall occur and be continuing after giving effect to, such designation; and |
(b) | unless such designated Unrestricted Subsidiary shall not have any Debt outstanding (other than Debt that would be Permitted Debt), immediately before and after giving effect to such proposed designation, and after giving pro forma effect to the Incurrence of any such Debt of such designated Unrestricted Subsidiary as if such Debt was Incurred on the date of its designation as a Restricted Subsidiary, the Issuer could Incur at least 1.00 of additional Debt pursuant to the ratio set forth in paragraph (1) of Section 4.04. |
(5) | Any such designation as an Unrestricted Subsidiary or Restricted Subsidiary by the Issuers Board of Directors shall be evidenced to the Trustee by filing a resolution of the Issuers Board of Directors with the Trustee giving effect to such designation and an Officers Certificate certifying that such designation complies with the foregoing conditions, and giving the effective date of such designation. Any such filing with the Trustee must occur within 45 days after the end of the Issuers fiscal quarter in which such designation is made (or, in the case of a designation made during the last fiscal quarter of the Issuers fiscal year, within 90 days after the end of such fiscal year). |
Section 4.16. | Reports to Holders |
(1) | So long as any Notes are outstanding, the Issuer shall furnish to the Trustee (who, at the Issuers expense shall, following a written request from a holder, furnish by mail to such holder of the Notes): |
(a) |
within 120 days after the end of the Issuers fiscal year beginning with the fiscal year ended 31 December 2009, annual reports containing: (i) information with a level of detail that is substantially comparable in all material respects to the sections in the Offering Memorandum entitled Risk Factors, Selected Consolidated Financial Data, Operating and Financial Review and Prospects, Business, Management, Related Party Transactions and Description of Other Debt; and (ii) the audited consolidated balance sheet of the |
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Issuer as at the end of the most recent fiscal year and audited consolidated income statements and statements of cash flow of the Issuer for the most recent two fiscal years, including appropriate footnotes to such financial statements, for and as at the end of such fiscal years and the report of the independent auditors on the financial statements; |
(b) | within 90 days following the end of the fiscal quarter ended 31 March 2010 and within 60 days following the end of each of the first three fiscal quarters in each fiscal year of the Issuer thereafter, quarterly financial statements containing the following information: (i) the Issuers unaudited condensed consolidated balance sheet as at the end of such quarter and unaudited condensed statements of income and cash flow for the most recent quarter year-to-date period ending on the unaudited condensed balance sheet date and the comparable prior period, together with condensed footnote disclosure; and (ii) an operating and financial review of the unaudited financial statements, including a discussion of the results of operations, financial condition, and material changes in liquidity and capital resources of the Issuer; and |
(c) | promptly after the occurrence of a material event, acquisition, disposition, restructuring, senior management changes at the Issuer or a change in auditors of the Issuer, a report containing a description of such event. |
(2) | In addition, the Issuer shall furnish to the holders of the Notes and to prospective investors, upon the request of such holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act for so long as the Notes are not freely transferable under the Exchange Act by Persons who are not affiliates under the Securities Act. |
(3) | The Issuer shall also make available copies of all reports furnished to the Trustee: (a) on the Issuers public website; (b) through the newswire service of Bloomberg, or, if Bloomberg does not then operate, any similar agency; and (c) if and so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and traded on the Euro MTF Market and to the extent that the rules of the Luxembourg Stock Exchange so require, copies of such reports furnished to the Trustee shall also be made available at the specified office of the paying agent in Luxembourg. |
(4) | No report need include separate financial statements for any Guarantors or non-Guarantor Subsidiaries of the Issuer or any disclosure with respect to the results of operations or any other financial or statistical disclosure not of a type included in the Offering Memorandum. |
(5) | At any time that any of the Issuers subsidiaries are Unrestricted Subsidiaries and any such Unrestricted Subsidiary or a group of Unrestricted Subsidiaries, taken as a whole, constitutes a Significant Subsidiary of the Issuer, then the quarterly and annual financial information required by the paragraph (1) of this Section 4.16 shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer. |
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(6) | All reports provided pursuant to this Section 4.16 shall be made in the English language. |
Section 4.17. | Impairment of Security Interest |
(1) | Subject to paragraphs (2) and (3) below, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, take or knowingly or negligently omit to take, any action which action or omission might or would have the result of materially impairing any security interest over any of the assets comprising the Collateral for the benefit of the Holders (including the priority thereof), and the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, grant to any Person other than the Security Trustee, for the benefit of the Holders and the other beneficiaries described in the Security Documents, any interest whatsoever in any of the Collateral; provided that nothing in this provision shall restrict the Issuer from Incurring Permitted Collateral Liens; |
(2) | At the direction of the Issuer and without the consent of the Holders, the Trustee and the Security Trustee may from time to time enter into one or more amendments to the Security Documents to: (i) cure any ambiguity, omission, defect or inconsistency therein; (ii) provide for any Permitted Collateral Liens; (iii) add to the Collateral; or (iv) make any other change thereto that does not adversely affect the Holders in any material respect; provided, however, that, in the case of clauses (ii) and (iii) above, no Security Document may be amended, extended, renewed, restated, supplemented or otherwise modified or replaced, unless contemporaneously with such amendment, extension, renewal, restatement, supplement, modification or renewal, the Issuer delivers to the Trustee, either: |
(1) | a solvency opinion, in form and substance reasonably satisfactory to the Trustee, from an Independent Financial Advisor confirming the solvency of the Issuer and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such amendment, extension, renewal, restatement, supplement, modification or replacement; or |
(2) | an opinion of counsel, in form and substance satisfactory to the Trustee confirming that, after giving effect to any transactions related to such amendment, extension, renewal, restatement, supplement, modification or replacement, the Lien or Liens securing the Notes created under the Security Documents as so amended, extended, renewed, restated, supplemented, modified or replaced remain valid and perfected Liens not otherwise subject to any limitation, imperfection or new hardening period, in equity or at law, that such Lien or Liens were not otherwise subject to immediately prior to such amendment, extension, renewal, restatement, supplement, modification or replacement, which shall be substantially in the form attached to this Indenture. |
(3) | Nothing in this Section 4.17 shall restrict the release or replacement of any security interests in compliance with the provisions of this Indenture, the Security Documents and the Intercreditor Agreement. |
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(4) | In the event that the Issuer complies with the requirements of this Section 4.17, the Trustee and/or the Security Trustee (as the case may be) shall consent to any such amendment, extension, renewal, restatement, supplement, modification or replacement without the need for instructions from the Holders; provided such amendments do not impose any personal obligations on the Trustee or adversely affect the rights, duties, liabilities or immunities of the Trustee under this Indenture or the Intercreditor Agreement. |
Section 4.18. | Limitations with Respect to the Issuer |
Notwithstanding anything contained in this Indenture to the contrary the Issuer shall not engage in any business activity or undertake any other activity, except: (a) any activity relating to the offering, sale, issuance, acquisition, retirement, refinancing, redemption and servicing of Indebtedness represented by the Notes (including Additional Notes, if any), lending or otherwise advancing the proceeds thereof to a Restricted Subsidiary and any other activities in connection therewith; (b) any activity relating to the offering, sale, issuance, acquisition, splits and reverse-splits of the share capital of the Issuer permitted under this Indenture and any other activity customary for a public company; (c) any activity undertaken with the purpose of, and directly related to, forming Midco and consummating the Offering and using the proceeds therefrom as set forth in the Offering Memorandum or fulfilling any other obligations under any Indebtedness of the Issuer permitted under this Indenture (including for the avoidance of doubt, any repurchase or purchase, repayment, redemption, prepayment of such Indebtedness, the granting of Guarantees and the introduction of subsidiary holding companies); (d) any activity relating to holding share capital of Subsidiaries and interests in joint ventures permitted under this Indenture; (e) any activity directly related or reasonably incidental to the establishment and/or maintenance of the Issuers corporate existence; (f) any activity directly related to investing amounts received by the Issuer in such manner not otherwise prohibited by this Indenture or the Intercreditor Agreement; and (g) other activities not specifically enumerated above that are de minimis in nature.
Section 4.19. | Business Activities |
The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to the extent that would not be material to the Issuer and its Restricted Subsidiaries taken as a whole.
Section 4.20. | Payments for Consent |
The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all holders of the Notes that consent, waive or agree to amend in the time frame set forth in any documents distributed relating to such consent, waiver or agreement.
Section 4.21. | Additional Intercreditor Agreement |
At the request of the Issuer, at the time of, or prior to, the Incurrence of any Indebtedness that is permitted to share the Collateral, the Issuer, the relevant Guarantors, the Trustee and the Security Trustee shall enter into an additional intercreditor agreement on terms substantially similar to the Intercreditor Agreement or an amendment to the Intercreditor Agreement (which amendment does not adversely affect the rights of the Holders); provided that such Intercreditor Agreement or additional intercreditor agreement shall not impose any personal obligations on the Trustee or the Security Trustee or adversely affect the rights, duties, liabilities or immunities of the Trustee under this Indenture or the Intercreditor Agreement.
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Each holder of a Note, by accepting such Note, shall be deemed to have agreed to and accepted the terms and conditions of each Intercreditor Agreement and additional intercreditor agreement and the Trustee or the Security Trustee shall not be required to seek the consent of any holders of Notes to perform its obligations under and in accordance with this Section 4.21.
Section 4.22. | Additional Guarantors |
The Issuer shall take, and shall cause its Restricted Subsidiaries to procure, such actions as may be necessary so that additional Restricted Subsidiaries (the Additional Guarantors) provide guarantees of the Notes on the same terms as the Initial Guarantors such that the Guarantors shall, as of the date that is five months after the Issue Date, represent at least 70% of the Issuers consolidated Adjusted EBITDA for the nine months ended September 30, 2009.
The Issuer shall take, and shall cause its Spanish Subsidiaries to take, such actions as may be necessary so that the Spanish Subsidiaries incorporated as private limited companies (sociedad de responsabilidad limitada) become public limited companies (sociedad de responsabilidad anónima) in order that they may be Additional Guarantors under this Section 4.22.
The Issuer shall take, and shall cause its French Subsidiary to take, such actions as may be necessary so that the French Subsidiary incorporated as a société à responsabilité limitée becomes a French société par actions simplifiée in order that it may be an Additional Guarantor under this Section 4.22.
Such Additional Guarantors shall execute supplemental indentures in the form of Exhibit D which shall be raised to the status of a public document in Spain before a Spanish Notary Public if the relevant supplemental indenture is entered into by a Spanish Subsidiary. Additionally, the public deed raising the supplemental indenture of a Spanish Subsidiary to the status of a public document shall confirm in the Spanish language: (i) the guarantee to be provided under Article Ten of this Agreement; (ii) the provisions of Section 12.02 related to the powers of attorney to be granted by the Holders and the Trustee to the Security Trustee; and (iii) the Special Provisions Regarding Enforcement Under the Laws of Spain established in the supplemental indenture by which a Spanish company becomes Additional Guarantor under this Agreement.
Section 4.23. Additional Collateral
The Issuer shall, and shall cause its Restricted Subsidiaries to, take such actions as may be necessary so that the Additional Guarantors provide, subject to Article Twelve, the following Collateral:
(1) | security over the share capital of each Additional Guarantor (on the date such Additional Guarantor provides its Guarantee in accordance with Section 4.22); and |
(2) | security over certain bank accounts and intercompany loan receivables in each case consistent with the security granted in respect of the Revolving Credit Facility. |
Section 4.24. Further Instruments and Acts
Upon request of the Trustee (but without imposing any duty or obligation of any kind on the Trustee to make any such request), the Issuer and the Guarantors shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
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ARTICLE FIVE
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 5.01. | Consolidation, Merger or Sale of Assets |
(a) | Issuer |
(1) | The Issuer shall not, in a single transaction or through a series of transactions, merge, consolidate, amalgamate or other combine with or into any other Person or sell, assign, convey, transfer, lease or otherwise dispose of, or take any action pursuant to any resolution passed by the Issuers Board of Directors or shareholders with respect to a demerger or division pursuant to which the Issuer would dispose of, all or substantially all of the Issuers properties and assets to any other Person or Persons and the Issuer shall not permit any Restricted Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the aggregate, would result in the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of the Issuer and its Restricted Subsidiaries on a consolidated basis to any other Person or Persons. The previous sentence shall not apply if at the time and immediately after giving effect to any such transaction or series of transactions: |
(a) | either: (i) the Issuer shall be the continuing corporation; or (ii) the Person (if other than the Issuer) formed by or surviving any such merger, consolidation, amalgamation or other combination or to which such sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of the Issuer and the Restricted Subsidiaries on a consolidated basis has been made (the Surviving Entity ): |
(x) | shall be a corporation duly incorporated and validly existing under the laws of any member state of the European Union as at the Issue Date, the United States of America, any state thereof, or the District of Columbia; and |
(y) | shall expressly assume, by a supplemental indenture in form satisfactory to the Trustee, the Issuers obligations under the Notes, this Indenture, the Intercreditor Agreement and the Security Documents, and the Notes, this Indenture, the Intercreditor Agreement and the Security Documents shall remain in full force and effect as so supplemented; |
(b) | immediately after giving effect to such transaction or series of transactions on a pro forma basis (and treating any obligation of the Issuer or any Restricted Subsidiary Incurred in connection with or as a result of such transaction or series of transactions as having been Incurred by the Issuer or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; |
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(c) | immediately after giving effect to such transaction or series of transactions on a pro forma basis (on the assumption that the transaction or series of transactions occurred on the first day of the two-quarter fiscal period immediately prior to the consummation of such transaction or series of transactions with the appropriate adjustments with respect to the transaction or series of transactions being included in such pro forma calculation), (i) the Issuer (or the Surviving Entity if the Issuer is not the continuing obligor under this Indenture) could Incur at least 1.00 of additional Debt pursuant to the ratios set forth in paragraph (1) of Section 4.04 or (ii) (A) the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding such transaction is not less than the Consolidated Fixed Charge Coverage Ratio immediately before such transaction and (B) the Consolidated Senior Leverage Ratio for the four full fiscal quarters immediately preceding such transaction is not greater than the Consolidated Senior Leverage Ratio immediately before such transaction; |
(d) | any Guarantor, unless it is the other party to the transactions described above, has, by way of execution of a supplemental indenture, confirmed that its Guarantee shall apply to such Persons obligations under this Indenture and the Notes; |
(e) | if any of the Issuers or any Restricted Subsidiarys property or assets shall thereupon become subject to any Lien, the provisions of Section 4.05 are complied with; and |
(f) | the Issuer or the Surviving Entity has delivered to the Trustee, in form and substance satisfactory to the Trustee, an Officers Certificate (attaching the computations to demonstrate compliance with clause (c) above) and an opinion of counsel, each stating that such merger, consolidation, amalgamation or other combination or sale, assignment, conveyance, transfer, lease or other disposition, and if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with the requirements of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied and that this Indenture and the Notes constitute legal, valid and binding obligations of the Issuer or the Surviving Entity, enforceable in accordance with their terms. |
(2) | Nothing in this Indenture shall prevent any Restricted Subsidiary from consolidating with, merging into or transferring all or substantially all of its properties and assets to the Issuer, a Guarantor or any other Restricted Subsidiary. The Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer in another jurisdiction or changing the legal form of the Issuer. |
(3) | The Issuer shall publish a notice of any merger, consolidation, amalgamation or other combination or sale of assets described above in accordance with Section 13.01 and, for as long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and traded on the Euro MTF Market and to the extent that the rules of the Luxembourg Stock Exchange so require, notify such exchange of any such merger, consolidation, amalgamation or other combination or sale. |
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(b) | Guarantors |
(1) | Subject to Section 10.12, no Guarantor shall, in a single transaction or through a series of transactions, merge, consolidate, amalgamate or other combine with or into any other Person or sell, assign, convey, transfer, lease or otherwise dispose of, or take any action pursuant to any resolution passed by such Guarantors Board of Directors or shareholders with respect to a demerger or division pursuant to which such Guarantor shall dispose of, all or substantially all of such Guarantors properties and assets to any other Person or Persons. The previous sentence shall not apply if at the time and immediately after giving effect to any such transaction or series of transactions: |
(a) | such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under any EU Member State as at the Issue Date, the United States of America, any state thereof, or the District of Columbia (such Guarantor or such Person, as the case may be, being herein called the Successor Guarantor ); |
(b) | the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under its Guarantee, this Indenture, the Intercreditor Agreement and the Security Documents, pursuant to supplemental indentures and/or agreements in form reasonably satisfactory to the Trustee; |
(c) | immediately after giving pro forma effect to such transaction, no Default or Event of Default exists and is continuing; and |
(d) | the Guarantor or the Successor Guarantor has delivered to the Trustee, in form and substance satisfactory to the Trustee, an Officers Certificate and an opinion of counsel, each stating that such merger, consolidation, amalgamation or other combination or sale, assignment, conveyance, transfer, lease or other disposition, and if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with the requirements of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied and that this Indenture and the Guarantee constitutes a legal, valid and binding obligation of the Guarantor or Successor Guarantor, enforceable in accordance with its terms. |
(2) | The Successor Guarantor will succeed to, and be substituted for, and may exercise every right and power of, the relevant Guarantor under this Indenture. |
(3) | Nothing in this Indenture shall prevent any Restricted Subsidiary from consolidating with, merging into or transferring all or substantially all of its properties and assets to the Issuer, a Guarantor or any other Restricted Subsidiary. |
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Section 5.02. | Successor Substituted |
Upon any consolidation or merger, or any sale, conveyance, transfer, lease or other disposition of all or substantially all of the property and assets of the Issuer in accordance with Section 5.01 of this Indenture, any Surviving Entity formed by such consolidation or into which the Issuer is merged or to which such sale, conveyance, transfer, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture, the Security Documents and the Intercreditor Agreement with the same effect as if such Surviving Entity had been named as the Issuer herein; provided, however, that the Issuer shall not be released from its obligation to pay the principal of, premium, if any, or interest on the Notes in the case of a lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. | Events of Default |
(1) | Each of the following shall be an Event of Default: |
(a) | default for 30 days in the payment when due of any interest or any Additional Amounts on any Note; |
(b) | default in the payment of the principal of or premium, if any, on any Note at its Maturity (upon acceleration, optional or mandatory redemption, if any, required repurchase or otherwise); |
(c) | failure to comply with the provisions of Section 4.22, Section 4.23 and Section 5.01; |
(d) | failure to make or consummate an Excess Proceeds Offer in accordance with the provisions of Section 4.07; |
(e) | failure to make or consummate a Change of Control Offer in accordance with the provisions of Section 4.09; |
(f) | failure to comply with any covenant or agreement of the Issuer or of any Restricted Subsidiary that is contained in this Indenture or any Guarantee (other than specified in clause (a), (b), (c), (d) or (e) above) and such failure continues for a period of 30 days or more; |
(g) | default under the terms of any instrument evidencing or securing the Debt of the Issuer or any Restricted Subsidiary having an outstanding principal amount in excess of 15.0 million individually or in the aggregate, if that default: |
(x) | results in the acceleration of the payment of such Debt; or |
(y) | is caused by the failure to pay such Debt at final maturity thereof after giving effect to the expiration of any applicable grace periods (and other than by regularly scheduled required prepayment) and such failure to make any payment has not been waived or the maturity of such Debt has not been extended; |
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(h) | any Guarantee ceases to be, or shall be asserted in writing by any Guarantor, or any Person acting on behalf of any Guarantor, not to be in full force and effect or enforceable in accordance with its terms (other than as provided for in this Indenture, any Guarantee or the Intercreditor Agreement); |
(i) | one or more of the Security Documents shall, at any time, cease to be in full force and effect, or a Security Document shall be declared invalid or unenforceable by a court of competent jurisdiction or the relevant grantor of the security granted pursuant to a Security Document asserts, in any pleading in any court of competent jurisdiction, that any such Security Document is invalid or unenforceable for any reason other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture, other than, in each case, pursuant to limitations on enforceability, validity or effectiveness imposed by applicable law or the terms of such Security Document or except in accordance with the terms of such Security Document, the Intercreditor Agreement or this Indenture, including the release provisions thereof; |
(j) | one or more final judgments, orders or decrees (not subject to appeal and not covered by insurance) shall be rendered against the Issuer or any Restricted Subsidiary either individually or in an aggregate amount, in each case in excess of 15.0 million, and either a creditor shall have commenced an enforcement proceeding upon such judgment, order or decree or there shall have been a period of 60 consecutive days or more during which a stay of enforcement of such judgment, order or decree was not (by reason of pending appeal or otherwise) in effect; |
(k) | the entry by a court of competent jurisdiction of (A) a decree or order for relief in respect of the Issuer, any Guarantor or any Significant Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or (B) a decree or order adjudging the Issuer, any Guarantor or any Significant Subsidiary bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or composition of or the Issuers, any Guarantors or any Significant Subsidiarys debts generally under any applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer, any Guarantor or any Significant Subsidiary or of any substantial part of their respective properties or ordering the winding up or liquidation of their affairs, and any such decree, order or appointment pursuant to any Bankruptcy Law for any similar relief shall continue to be in effect, or any such other decree, appointment or order shall be unstayed and in effect, for a period of 60 consecutive days; or |
(l) | (A) the Issuer, any Guarantor or any Significant Subsidiary (x) commences a voluntary case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent or (y) consents to the filing of a petition, application, answer or consent seeking reorganization or relief under any applicable Bankruptcy Law, (B) the Issuer, any Guarantor or any Significant Subsidiary consents to the entry of a decree or order for relief in respect of the Issuer, any Guarantor or any Significant |
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Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against it or, (C) the Issuer, any Guarantor or any Significant Subsidiary (x) consents to the appointment of, or taking possession by, a custodian, receiver, liquidator, examiner, administrator, supervisor, assignee, trustee, sequestrator or similar official of the Issuer, any Guarantor or any Significant Subsidiary or of any substantial part of their respective properties, (y) makes an assignment for the benefit of creditors generally or (z) admits in writing its inability to pay its debts generally as they become due. |
(2) | If a Default or an Event of Default occurs and is continuing and is known to the Trustee, the Trustee shall provide notice of the Default or Event of Default within 15 Business Days after its occurrence in accordance with Section 4.03 and Section 13.01. Except in the case of a Default or an Event of Default in payment of principal of, premium, if any, on the Notes or interest, if any, or Additional Amounts, if any, on any Note, the Trustee may withhold the giving of such notice to the Holders if and so long as a committee of its Trust Officers in good faith determines that withholding the giving of such notice is in the best interests of the Holders. The Trustee shall not be deemed to have knowledge of a Default unless a Trust Officer has actual knowledge of such Default or written notice of such Default has been received by the Trustee at its Corporate Trust Office in London. The Issuer shall also notify the Trustee within 15 Business Days of the occurrence of any Event of Default. |
Section 6.02. | Acceleration |
(1) | If an Event of Default (other than as specified in Section 6.01(1)(k) or (l)) occurs and is continuing, the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer (and to the Trustee if such notice is given by the holders) may, and the Trustee, upon the written request of such holders, shall, declare the principal of, premium, if any, any Additional Amounts and accrued interest on all of the outstanding Notes immediately due and payable, and upon any such declaration all such amounts payable in respect of the Notes shall become immediately due and payable. |
(2) | If an Event of Default specified in Section 6.01(1)(k) or (l) occurs and is continuing, then the principal of, premium, if any, Additional Amounts and accrued and unpaid interest on all of the outstanding Notes shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any holder of Notes. |
(3) | At any time after a declaration of acceleration under this Indenture, but before a judgment or decree for payment of the money due has been obtained by the Trustee, the Holders of a majority in aggregate principal amount of the outstanding Notes, by written notice to the Issuer and the Trustee, may waive all past Defaults and rescind and annul such declaration of acceleration and its consequences if: |
(i) | the Issuer or a Guarantor has paid or deposited with the Trustee a sum sufficient to pay: |
(A) | all overdue interest, if any, and Additional Amounts, if any, on all Notes then outstanding; |
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(B) | all unpaid principal of and premium, if any, on any outstanding Notes that has become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Notes; |
(C) | to the extent that payment of such interest is lawful, interest upon overdue interest, if any, at the rate borne by the Notes; and |
(D) | all sums paid or advanced by the Trustee under this Indenture and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; |
(ii) | the rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and |
(iii) | all Events of Default, other than the non-payment of amounts of principal of, premium, if any, and any Additional Amounts and interest, if any, on the Notes that has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.04. |
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 6.03. | Other Remedies |
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
Notwithstanding the foregoing provisions of this Section 6.03 or anything to the contrary contained in this Indenture or the Security Documents, it is hereby understood and agreed that: (i) the Security Documents may be enforced in accordance with their terms; (ii) neither the Trustee nor the Holders may, individually or collectively, take any direct action to enforce any rights in their favor under the Security Documents; and (iii) the Holders may only act in respect of the Security Documents through the Security Trustee.
Section 6.04. | Waiver of Past Defaults |
The Holders of not less than a majority in principal amount of the outstanding Notes may on behalf of the Holders of all the Notes waive any past or existing Default or Event of Default hereunder and its consequences, except a Default or Event of Default:
(a) | in respect of the payment of the principal of (or premium, if any), Additional Amounts, if any or interest on any Note, or |
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(b) | in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of 90% in principal amount of the outstanding Notes, |
in each case which may be waived by the Holders of not less than 90% in principal amount of the outstanding Notes.
Upon any such waiver pursuant to this Section 6.04, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.05. | Control by Majority |
The Holders of not less than a majority in aggregate principal amount of the Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee under this Indenture; provided, that:
(a) | the Trustee may refuse to follow any direction that conflicts with law, this Indenture or that the Trustee determines in good faith may be unduly prejudicial to the rights of holders not joining in the giving of such direction; |
(b) | the Trustee may refuse to follow any direction that the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability; and |
(c) | the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. |
Section 6.06. | Limitation on Suits |
A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(a) | the Holder has previously given the Trustee written notice of a continuing Event of Default; |
(b) | the Holders of at least 25% in aggregate principal amount of outstanding Notes shall have made a written request to the Trustee to pursue such remedy; |
(c) | such Holder or Holders offer the Trustee indemnity and/or security satisfactory to the Trustee against any costs, liability or expense; |
(d) | the Trustee does not comply with the request within 30 days after receipt of the request and the offer of indemnity and/or security; and |
(e) | during such 30-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request. |
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The limitations in the foregoing provisions of this Section 6.06, however, do not apply to a suit instituted by a Holder for the enforcement of the payment of the principal of, premium, if any, Additional Amounts, if any, or interest, if any, on such Note on or after the respective due dates expressed in such Note.
A Holder may not use this Indenture to prejudice the rights of any other Holder or to obtain a preference or priority over another Holder.
Section 6.07. | Unconditional Right of Holders To Receive Payment |
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of, premium, if any, Additional Amounts, if any, and interest, if any, on the Notes held by such Holder, on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of Holders of not less than 90% in principal amount of the outstanding Notes.
Section 6.08. | Collection Suit by Trustee |
(1) | Issuer covenants that if default is made in the payment of: |
(a) | any installment of interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or |
(b) | the principal of (or premium, if any, on) any Note at the Maturity thereof, |
the Issuer shall, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium, if any), Additional Amounts, if any and interest, and interest on any overdue principal (and premium, if any) and Additional Amounts, if any and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the rate borne by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the amounts provided for in Section 7.05 and such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
(2) | If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer or any other obligor upon the Notes, wherever situated. |
Section 6.09. | Trustee May File Proofs of Claim |
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.05) and the Holders allowed in any judicial proceedings relative to the Issuer or any Guarantor, their
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creditors or their property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders at their direction in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.05.
Nothing herein contained shall be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. | Application of Money Collected |
If the Trustee collects any money or property pursuant to this Article Six, it shall pay out the money or property in the following order:
FIRST: | to the Trustee for amounts due under Section 7.05; | |
SECOND: | to Holders for amounts due and unpaid on the Notes for principal of, premium, if any, interest, if any, and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest, if any, and Additional Amounts, if any, respectively; and | |
THIRD: | to the Issuer, any Guarantor or any other obligors of the Notes, as their interests may appear, or as a court of competent jurisdiction may direct. |
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11. | Undertaking for Costs |
A court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in the suit of an undertaking to pay the costs of such suit, and such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by Holders of more than 10% in aggregate principal amount of the outstanding Notes or to any suit by any Holder pursuant to Section 6.07.
Section 6.12. | Restoration of Rights and Remedies |
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, then and in each case, subject to any determination in such proceeding, the Issuer, any Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
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Section 6.13. | Rights and Remedies Cumulative |
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.14. | Delay or Omission not Waiver |
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.15. | Record Date |
The Issuer may set a record date for purposes of determining the identity of Holders entitled to vote or to consent to any action by vote or consent authorized or permitted by Section 6.04 and Section 6.05.
Section 6.16. | Waiver of Stay or Extension Laws |
The Issuer covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
TRUSTEE
Section 7.01. | Duties of Trustee |
(a) | If an Event of Default has occurred and is continuing of which a Trust Officer of the Trustee has actual knowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such persons own affairs. |
(b) |
Except during the continuance of an Event of Default of which a Trust Officer of the Trustee has actual knowledge: (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions |
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furnished to the Trustee and conforming to the requirements of this Indenture. In the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine same to determine whether they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). |
(c) | The Trustee shall not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: |
(i) | this paragraph does not limit the effect of paragraph (b) of this Section 7.01; |
(ii) | the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and |
(iii) | the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.02, Section 6.04 or Section 6.05; |
(d) | the Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer or a Guarantor. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law; |
(e) | no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; and |
(f) | every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.01. |
Section 7.02. | Certain Rights of Trustee |
(a) | Subject to Section 7.01: |
(i) | the Trustee may rely, and shall be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper person; |
(ii) | before the Trustee acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel, which shall conform to Section 13.04. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion; |
(iii) | the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder; |
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(iv) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; |
(v) | the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers; provided that the Trustees conduct does not constitute negligence or bad faith; |
(vi) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate; and |
(vii) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled at reasonable times upon written request to examine the books, records and premises of the Issuer personally or by agent or attorney. |
(b) | The Trustee may request that the Issuer deliver an Officers Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an Officers Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. |
(c) | The Trustee will not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. |
(d) | The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. |
(e) | The Trustee may consult with other professional advisors and the written advice of such professional advisor will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. |
(f) |
The Trustee shall have no duty to inquire as to the performance of the covenants of the Issuer, any Guarantor and/or any of their Subsidiaries. In addition, the Trustee shall not be deemed to have knowledge of any Default or Event of Default except: (i) any Event of Default occurring pursuant to Section 6.01(a) or Section 6.01(b) (provided it is acting as a Paying Agent); and (ii) any Default or Event of Default of which a Trust Officer shall have |
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received written notification. Delivery of reports, information and documents to the Trustee under Section 4.16 is for informational purposes only and the Trustees receipt of the foregoing shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates). |
(g) | The Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of minimum denominations imposed under this Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption, purchase or repurchase, as applicable, of any interest in any Notes. |
(h) | The rights, privileges, protections, immunities and benefits given to the Trustee under this Article Seven, including its right to be indemnified and/or secured to its satisfaction, are extended to, and shall be enforceable by The Bank of New York Mellon in each of its capacities hereunder and by The Bank of New York Mellon (Luxembourg) S.A. and each agent, custodian and other person employed to act hereunder. Absent willful misconduct or negligence, each Paying Agent, Registrar and Transfer Agent shall not be liable for acting in good faith on instructions believed by it to be genuine and from the proper party. |
(i) | In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole discretion, may determine what action, if any, will be taken and shall not incur any liability for its failure to act until such inconsistency or conflict is, in its reasonable opinion, resolved. |
(j) | In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by acts of war or terrorism involving the United States, the United Kingdom or any member state of the European Monetary Union or any other national or international calamity or emergency (including natural disasters or acts of God), it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. |
(k) | The Trustee is not required to give any bond or surety with respect to the performance or its duties or the exercise of its powers under this Indenture or the Notes. |
(l) | The permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do so. |
(m) | The Trustee will not be liable to any person if prevented or delayed in performing any of its obligations or discretionary functions under this Indenture by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control. |
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(n) | The Trustee shall not under any circumstances be liable for any consequential loss (being loss of business, goodwill, opportunity or profit of any kind) of the Issuer, any Restricted Subsidiary or any other Person (or, in each case, any successor thereto), even if advised of it in advance and even if foreseeable. |
(o) | No provision of this Indenture shall require the Trustee to do anything which, in its opinion, may be illegal or contrary to applicable law or regulation. |
Section 7.03. | Individual Rights of Trustee |
The Trustee, any Paying Agent, any Registrar or any other agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 7.04. | Trustees Disclaimer |
The recitals contained herein and in the Notes, except for the Trustees certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder. The Trustee shall not be accountable for the use or application by the Issuer of the Notes or the proceeds thereof.
Section 7.05. | Compensation and Indemnity |
The Issuer shall pay to the Trustee such compensation as shall be agreed in writing for its services hereunder. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all properly incurred out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Upon request and delivery of reasonably detailed supporting documentation, such expenses shall include the properly incurred compensation and out-of-pocket expenses of the Trustees agents and counsel.
The Issuer, failing which (subject to Article Ten) the Guarantors, shall indemnify the Trustee against any and all loss, liability or expense (including attorneys fees and expenses) properly incurred by it without willful misconduct, negligence or bad faith on its part arising out of or in connection with the administration of this Indenture and the performance of its duties hereunder (including the costs and expenses of defending itself against any claim, whether asserted by the Issuer, the Guarantors, any Holder or any other Person), in each case, as such duties may be qualified, limited or otherwise affected by the provisions of the Intercreditor Agreement. The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. Except in cases where the interests of the Issuer and the Trustee may be adverse, the Issuer shall defend the claim and the Trustee shall cooperate in such defense. If the Issuer has not assumed such defense within a reasonable amount of time, the Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer and the Guarantors need not pay for any settlement made without its consent, which consent may not be unreasonably withheld. The Issuer and the Guarantors need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustees own willful misconduct, negligence or bad faith.
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To secure the Issuers payment obligations in this Section 7.05, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, premium, if any, and interest on particular Notes.
When the Trustee incurs expenses after the occurrence of an Event of Default specified in Section 6.01(1)(k) or (l) with respect to the Issuer, the Guarantor, or any Restricted Subsidiary, such expenses are intended to constitute expenses of administration under Bankruptcy Law.
The Issuers obligations under this Section 7.05 and any claim arising hereunder shall survive the resignation or removal of any Trustee, the satisfaction and discharge of the Issuers obligations pursuant to Article Eight, and the termination of this Indenture.
Section 7.06. | Replacement of Trustee |
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section 7.06.
The Trustee may resign at any time by so notifying the Issuer. The Holders holding a majority in outstanding principal amount of the outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer shall remove the Trustee if:
(a) | the Trustee fails to comply with Section 7.08; |
(b) | the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; |
(c) | a Custodian or other public officer takes charge of the Trustee or its property; or |
(d) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer. If the successor Trustee does not deliver its written acceptance required by the next succeeding paragraph of this Section 7.06 within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders of a majority in principal amount of the outstanding Notes may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer and shall succeed the retiring Trustee as a party to the Intercreditor Agreement. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders, which shall include the name and address of the principal corporate trust office of the successor Trustee. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee.
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If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, (i) the retiring Trustee, the Issuer or the Holders of at least 25% in outstanding principal amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee at the expense of the Issuer; or (ii) the retiring Trustee may appoint a successor Trustee at any time prior to the date on which a successor Trustee takes office, provided such appointment is reasonably satisfactory to the Issuer.
If the Trustee fails to comply with Section 7.08, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.06, the Issuers and the Guarantors obligations under Section 7.05 shall continue for the benefit of the retiring Trustee.
Section 7.07. | Successor Trustee by Merger |
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified and eligible under this Article Seven, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes. In case at that time any of the Notes shall not have been authenticated, any successor Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 7.08. | Eligibility: Disqualification |
The Trustee shall at all times be a corporation organized and doing business under, or licensed to do business pursuant to, the laws of the United States of America (or of any state thereof or the District of Columbia) or any EU Member State that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by governmental authorities, if applicable, and that has a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of such federal, state, territorial or other governmental supervising or examining authority, then for the purposes of this Section 7.08, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. No obligor upon the Notes or Person directly controlling, controlled by, or under common control with such obligor shall serve as trustee upon the Notes.
Section 7.09. | Preferential Collection of Claims Against Issuer |
The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein.
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ARTICLE EIGHT
DEFEASANCE; SATISFACTION AND DISCHARGE
Section 8.01. | Issuers Option to Effect Defeasance or Covenant Defeasance |
The Issuer may, at its option by a resolution of its Board of Directors, at any time, with respect to the Notes, elect to have either Section 8.02 or Section 8.03 be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article Eight.
Section 8.02. | Defeasance and Discharge |
Upon the Issuers exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer shall be deemed to have been discharged from its obligations with respect to the Notes on the date the conditions set forth in Section 8.04 are satisfied (hereinafter, legal defeasance ). For this purpose, such legal defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all its other obligations under the Notes and this Indenture (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Notes to receive, solely from the trust fund described in Section 8.08 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any, on) and interest on such Notes when such payments are due, (b) the provisions set forth at Section 8.06 below and (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder. Subject to compliance with this Article Eight, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 below with respect to the Notes. If the Issuer exercises its legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default (other than an Event of Default described in Section 6.01(1)(a) or Section 6.01(1)(b)).
Section 8.03. | Covenant Defeasance |
Upon the Issuers exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer shall be released from its obligations under any covenant contained in Article Four (other than Section 4.01 and Section 4.02) and Section 5.01 with respect to the Notes on and after the date the conditions set forth below are satisfied (hereinafter, covenant defeasance ). For this purpose, such covenant defeasance means that, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
Section 8.04. | Conditions to Defeasance |
In order to exercise either legal defeasance or covenant defeasance:
(a) | the Issuer must irrevocably deposit or cause to be deposited on trust with the Trustee, for the benefit of the holders of the Notes, cash in Euro, European Government Obligations or a combination thereof, in such amounts as shall be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay and discharge the principal of, premium, if any, Additional Amounts and interest, on the outstanding Notes on the Stated Maturity or on the applicable Redemption Date, as the case may be, and the Issuer must: (i) specify whether the Notes are being defeased to maturity or to a particular Redemption Date; and (ii) if applicable, have delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes; |
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(b) | in the case of legal defeasance, the Issuer must have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that: (x) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling; or (y) since the Issue Date, there has been a change in applicable U.S. federal income tax law, in either case to the effect that (and based thereon such opinion shall confirm that) the holders of the outstanding Notes shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal defeasance and shall be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred; |
(c) | in the case of legal defeasance, the Issuer must have delivered to the Trustee Opinions of Counsel reasonably acceptable to the Trustee to the effect that the holders of the outstanding Notes shall not recognize income, gain or loss for tax purposes in The Netherlands as a result of such legal defeasance and shall be subject to tax in The Netherlands on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred; |
(d) |
no Default or Event of Default shall have occurred and be continuing: (i) on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit); or (ii) insofar as bankruptcy or insolvency events described in Section 6.01(1)(k) or (l) are concerned, at any time during the period ending on the 123 rd day after the date of such deposit; |
(e) | such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit), this Indenture or any material agreement or instrument to which the Issuer or any Restricted Subsidiary is a party or by which the Issuer or any Restricted Subsidiary is bound; |
(f) | such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940 unless such trust shall be registered under such act or be exempt from registration thereunder; |
(g) |
the Issuer must have delivered to the Trustee an opinion of counsel in the country of the Issuers incorporation to the effect that after the 123 rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally and an opinion of counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the holders of the Notes; |
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(h) the Issuer must have delivered to the Trustee an Officers Certificate stating that the deposit was not made by the Issuer with the intent of preferring the holders of the Notes over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or other creditors, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuer to the detriment of the relevant creditors;
(i) |
no event or condition exists that would prevent the Issuer from making payments of the principal of, premium, if any, Additional Amounts and interest on the Notes on the date of such deposit or at any time ending on the 123 rd day after the date of such deposit; and |
(j) | the Issuer must have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the legal defeasance or the covenant defeasance, as the case may be, have been complied with. |
If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, Additional Amounts and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuer and the Guarantors shall remain liable for such payments.
Section 8.05. | Satisfaction and Discharge of Indenture |
This Indenture shall be discharged and shall cease to be of further effect as to all Notes issued thereunder when either:
(a) | the Issuer has irrevocably deposited or caused to be deposited with the Trustee as funds on trust for such purpose an amount in Euro or European Government Obligations sufficient to pay and discharge the entire Debt on such Notes that have not, prior to such time, been delivered to the Trustee for cancellation, for principal of, premium, if any, and any Additional Amounts and accrued and unpaid interest on the Notes to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be, and the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of Notes at Stated Maturity or on the Redemption Date, as the case may be and either: |
(i) | all of the Notes that have been authenticated and delivered (other than destroyed, lost or stolen Notes that have been replaced or paid and Notes for which payment money has been deposited on trust or segregated and held on trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust as provided for in this Indenture) have been delivered to the Trustee for cancellation; or |
(ii) | all Notes that have not been delivered to the Trustee for cancellation: (x) have become due and payable (by reason of the mailing of a notice of redemption or otherwise); (y) will become due and payable within one year of Stated Maturity; or (z) are to be called for redemption within one year of the proposed discharge date under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Issuers name and at the Issuers expense; |
(b) | the Issuer has paid or caused to be paid all sums payable by the Issuer under this Indenture; and |
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(c) | the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that: |
(i) | all conditions precedent provided in this Indenture relating to the satisfaction and discharge of this Indenture have been satisfied; and |
(ii) | such satisfaction and discharge will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer or any Subsidiary is a party or by which the Issuer or any Subsidiary is bound. |
Section 8.06. | Survival of Certain Obligations |
Notwithstanding Section 8.01 and Section 8.03, any obligations of the Issuer and the Guarantors in Article Two (except for Section 2.01 and Section 2.12), Section 6.07, Section 7.05, Section 7.06, Section 8.07, Section 8.08 and Section 8.09 shall survive until the Notes have been paid in full. Thereafter, any obligations of the Issuer and the Guarantors in Section 7.05, Section 8.07 and Section 8.08 shall survive such satisfaction and discharge. Nothing contained in this Article Eight shall abrogate any of the obligations or duties of the Trustee under this Indenture.
Section 8.07. | Acknowledgment of Discharge by Trustee |
Subject to Section 8.09, after the conditions of Section 8.02 or Section 8.03 have been satisfied, the Trustee upon written request shall acknowledge in writing the discharge of all of the Issuers obligations under this Indenture except for those surviving obligations specified in this Article Eight.
Section 8.08. | Application of Trust Money |
Subject to Section 8.09, the Trustee shall hold in trust all cash in Euro or European Government Obligations deposited with it pursuant to this Article Eight. It shall apply the deposited cash or European Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of, premium, if any, interest, and Additional Amounts, if any, on the Notes; but such money need not be segregated from other funds except to the extent required by law.
Section 8.09. | Repayment to Issuer |
Subject to Section 7.05, and Section 8.01 through Section 8.04, the Trustee and the Paying Agent shall promptly pay to the Issuer upon request set forth in an Officers Certificate any excess money held by them at any time and thereupon shall be relieved from all liability with respect to such money. The Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal, premium, if any, interest or Additional Amounts, if any, that remains unclaimed for two years; provided that the Trustee or Paying Agent before being required to make any payment may cause to be published (a) in The Wall Street Journal or another leading newspaper in London, England and (b) through the newswire service of Bloomberg or, if Bloomberg does not then operate, any similar agency or mail to each Holder entitled to such money at such Holders address (as set forth in the Security Register) notice that such money remains unclaimed and that after a date specified therein (which shall be at least 30 days from the date of such publication or mailing) any unclaimed balance of such money then remaining will be repaid to the Issuer. After payment to the Issuer, Holders entitled to such money must look to the Issuer for payment as general creditors unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.
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Section 8.10. | Indemnity for Government Securities |
The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against European Government Obligations deposited pursuant to Section 8.05 or the principal, premium, if any, interest, if any, and Additional Amounts, if any, received on such European Government Obligations (other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes).
Section 8.11. | Reinstatement |
If the Trustee or Paying Agent is unable to apply cash in Euro or European Government Obligations in accordance with this Article Eight by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers and each of the Guarantors obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article Eight until such time as the Trustee or any such Paying Agent is permitted to apply all such cash or European Government Securities in accordance with this Article Eight; provided, however, that, if the Issuer has made any payment of principal of, premium, if any, interest, if any, and Additional Amounts, if any, on any Notes following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the cash in Euro or Euro Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS AND WAIVERS
Section 9.01. | Without Consent of Holders |
The Issuer, when authorized by a resolution its Board of Directors (as evidenced by the delivery of such resolution to the Trustee), the Guarantors, the Security Trustee and the Trustee may modify, amend or supplement this Indenture, the Notes, the Intercreditor Agreement and/or the Security Documents without notice to or the consent of any Holder:
(i) | to evidence the succession of another Person to the Issuer or a Guarantor and the assumption by any such successor of the covenants in this Indenture and in the Notes in accordance with Article Five; |
(ii) | to add to the Issuers covenants and those of any Guarantor or any other obligor in respect of the Notes for the benefit of the holders of the Notes or to surrender any right or power conferred upon the Issuer or any Guarantor or any other obligor in respect of the Notes, as applicable, in this Indenture, the Notes or any Guarantee; |
(iii) | to cure any ambiguity, or to correct or supplement any provision in this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document that may be defective or inconsistent with any other provision in this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document or make any other provisions with respect to matters or questions arising under this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document; provided that, in each case, such provisions shall not materially adversely affect the interests of the holders of the Notes; |
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(iv) | to conform the text of this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document to any provision of the section in the Offering Memorandum entitled Description of the Notes to the extent that such provision in the Description of the Notes was intended to be a verbatim recitation of a provision of this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document; |
(v) | to release any Guarantor in accordance with (and if permitted by) the terms of this Indenture and the Intercreditor Agreement; |
(vi) | to add a Guarantor or other guarantor under this Indenture; |
(vii) | to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture; |
(viii) | to mortgage, pledge, hypothecate or grant a security interest in favor of the Trustee for the benefit of the holders of the Notes as additional security for the payment and performance of the Issuers and any Guarantors obligations under this Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Trustee pursuant to this Indenture or otherwise; and |
(ix) | to provide for the issuance of Additional Notes in accordance with and if permitted by the terms of and limitations set forth in this Indenture. |
In formulating its opinion on such matters, the Trustee shall be entitled to request and rely on such evidence as it deems fit, including, but not limited to, Officers Certificates and opinions of counsel.
Section 9.02. | With Consent of Holders |
(a) | Except as provided in Section 9.02(b) below and Section 6.04 and without prejudice to Section 9.01, the Issuer, the Guarantors, the Security Trustee and the Trustee may: |
(i) | amend or supplement this Indenture, the Intercreditor Agreement and/or the Security Documents; or |
(ii) | waive compliance by the Issuer with any provision of this Indenture, the Intercreditor Agreement and/or the Security Documents or the Notes, |
with the written consent of the Holders of not less than a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or in exchange for the Notes).
(b) | Without the consent of the holders of 90% in principal amount of the Notes then outstanding, no amendment, modification, supplement or waiver, including a waiver pursuant to Section 6.04 and an amendment, modification or supplement pursuant to Section 9.01, may: |
(1) | change the Stated Maturity of the principal of, or any installment of or Additional Amounts or interest on, any Note (or change any Default or Event of Default under Section 6.01(1)(a); |
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(2) | reduce the principal amount of any Note (or Additional Amounts or premium, if any) or the rate of or change the time for payment of interest on any Note (or change any Default or Event of Default under Section 6.01(1)(b)); |
(3) | change the coin or currency in which the principal of any Note or any premium or any Additional Amounts or the interest thereon is payable; |
(4) | impair the right to institute suit for the enforcement of any payment of any Note in accordance with the provisions of such Note, this Indenture and the Intercreditor Agreement; |
(5) | reduce the principal amount of Notes whose holders must consent to any amendment, supplement or waiver of provisions of this Indenture requiring the consent of 90% in principal amount of the Notes then outstanding; |
(6) | modify any of the provisions relating to supplemental indentures requiring the consent of 90% in principal amount of the Notes then outstanding; |
(7) | except as otherwise permitted under Section 5.01, consent to the assignment or transfer by the Issuer of any of the Issuers rights or obligations under this Indenture; |
(8) | release any Guarantee except in compliance with the terms of this Indenture and the Intercreditor Agreement; or |
(9) | release any Lien on the Collateral granted for the benefit of the holders of the Notes, except in compliance with the terms of the Security Documents, this Indenture and the Intercreditor Agreement. |
(c) | The consent of the Holders is not necessary to approve the particular form of any proposed amendment, modification, supplement or waiver. It is sufficient if such consent approves the substance of the proposed amendment, modification, supplement or waiver. |
Section 9.03. | Effect of Supplemental Indentures |
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.04. | Notation on or Exchange of Notes |
If an amendment, modification or supplement changes the terms of a Note, the Issuer or Trustee may require the Holder to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note and on any Note subsequently authenticated regarding the changed terms and return it to the Holder. Alternatively, if the Issuer so determines, the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment, modification or supplement.
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Section 9.05. | Notice of Amendment or Waiver |
Promptly after the effectiveness of any amendment, supplemental indenture or waiver pursuant to the provisions of Section 9.01, the Issuer shall give notice thereof to the Holders of each outstanding Note affected, in the manner provided for in Section 13.01, setting forth in general terms the substance of such amendment, supplemental indenture or waiver. Any failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplemental indenture or waiver.
Section 9.06. | Process for Consents |
Upon the request of the Issuer accompanied by resolutions of its Board of Directors and the Board of Directors of each Guarantor authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02, the Trustee shall join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture or other waiver or amendment unless such amended or supplemental indenture directly affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture or other waiver or amendment.
ARTICLE TEN
GUARANTEE
Section 10.01. | Guarantee |
(a) | Each of the Guarantors hereby fully and unconditionally guarantees, on a joint and several basis, to each Holder and to the Trustee and its successors and assigns on behalf of each Holder, the full payment of principal, premium, if any, interest and Additional Amounts, if any on, the Notes and all other monetary obligations of the Issuer under this Indenture and the Notes (including obligations to the Trustee) with respect to each Note authenticated and delivered by the Trustee or its agent pursuant to and in accordance with this Indenture, in accordance with the terms of this Indenture (all the foregoing being hereinafter collectively called the Obligations ). Each of the Guarantors further agrees that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from the Guarantors and that the Guarantors will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Obligation. All payments under such Guarantees will be made in Euro. |
(b) |
Each of the Guarantors hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, unaffected by, and irrespective of, any validity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Issuer with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided, however, that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of each of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter any Stated Maturity in respect thereof. Nothing in this Indenture prevents the assertion of any claim, set-off |
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or other rights, whether by separate suit, compulsory counterclaim or otherwise, which any Guarantor may have at any time against the Issuer, the Trustee or any other Person, whether in connection with this Indenture or any unrelated transactions. Each of the Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Issuer prior to exercising its rights under the Guarantee (including, for the avoidance of doubt, any right which the Guarantors may have to require the seizure and sale of the assets of the Issuer to satisfy the outstanding principal of, interest on or any other amount payable under each Note prior to recourse against the Guarantors or its assets), protest or notice with respect to any Note or the Debt evidenced thereby and all demands whatsoever, and covenants that the Guarantee will not be discharged with respect to any Note except by payment in full of the principal thereof and interest thereon or as otherwise provided in this Indenture, including Section 10.03. If at any time any payment of principal of, premium, if any, interest, if any, or Additional Amounts, if any, on such Note is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Issuer, the Guarantors obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or returns as though such payment had become due but had not been made at such times. |
(c) | The Guarantors also agree to pay any and all costs and expenses (including properly incurred attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01. |
(d) | The obligations of a Spanish Guarantor under this Section will not be affected by any benefit (beneficio) under Spanish Law, including but not limited to, benefits of prior exhaustion of the main debtors assets (excusión), division (división) and order (orden), which shall not in any event apply. |
Section 10.02. | Subrogation |
The Guarantors shall be subrogated to all rights of the Holders against the Issuer in respect of any amounts paid to such Holders by a Guarantor pursuant to the provisions of their respective Guarantees.
Each of the Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations. Each of the Guarantors further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Section 6.02 for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purposes of this Section 10.02.
Section 10.03. | General Limitation of Guarantee |
Any term or provision of this Indenture to the contrary notwithstanding, each party to this Indenture, and by its acceptance of Notes, each Holder, hereby by confirms that is the intention of all such Persons that the maximum aggregate amount of Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be guaranteed
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by the relevant Guarantor without rendering such Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer of similar laws affecting the rights of the creditors generally.
Section 10.04. | Limitation of Guarantee The Netherlands |
Notwithstanding any other provision of this Article Ten, the guarantee, indemnity and other obligations of any Guarantor incorporated under the laws of The Netherlands expressed to be assumed in this Article Ten shall be deemed not to be assumed by such Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of Article 2:207c or 2:98c Dutch Civil Code or any other applicable financial assistance rules under any relevant jurisdiction (the Prohibition ) and the provisions of this Indenture and the Notes shall be construed accordingly. For the avoidance of doubt, it is expressly acknowledged that the relevant Dutch Guarantors will continue to guarantee all such obligations which, if included, do not constitute a violation of the Prohibition.
Section 10.05. | Limitation of Guarantee Germany |
(a) | Enforcement of any rights under Section 10.01 against the German Guarantor is limited if and to the extent that: |
(i) | the Guarantee secures the obligations of a debtor which is (x) a direct or indirect shareholder of the Guarantor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the Guarantor (other than the Guarantor and its subsidiaries) (the Up-Stream and/or Cross-Stream Security ); and |
(ii) | the enforcement would have the effect of (x) reducing the Guarantors net assets (Reinvermögen) (the Net Assets ) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) thereby causing a violation of the capital maintenance requirements as set forth in section 30, para. 1 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) as amended from time to time provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the agent under the Revolving Credit Facility. |
(b) | The Net Assets shall be calculated as an amount equal to the sum of the values of the Guarantors assets (consisting of all assets which correspond to the items set forth in section 266 sub-section (2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the Guarantors liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section (3) B, C and D of the German Commercial Code), save that: |
(i) |
any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that can be realized shall be taken into account with its market value, to the extent that such assets are not necessary for the |
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Guarantors business (nicht betriebsnotwendig) and to the extent that such realization is necessary to satisfy the amount owed under the Guarantee (for the purpose of this clause a book value being significantly lower than the market value shall as a general rule be assumed if the book value is 35% lower than the market value); |
(ii) | obligations under loans provided to the Guarantor by any member of the Group shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Guarantor; and |
(iii) | obligations under loans or other contractual liabilities incurred by the Guarantor in a culpable (schuldhaft) violation of the provisions of the Debt Documents (as defined in the Intercreditor Agreement) shall not be taken into account as liabilities. |
The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and, to the extent such accounting principles provide for discretion, be based on the same principles that were applied by the Guarantor in the preparation of its most recent annual balance sheet (Jahresbilanz) and, in any event, in accordance with the jurisprudence from time to time of the German Federal Court of Justice (Bundesgerichtshof) relating to the protection of liable capital under Sections 30 and 31 of the German Limited Liability Companies Act.
(c) | The limitations set out in paragraph (b) above shall only apply if: |
(i) | the Guarantor delivers to the Trustee, without undue delay but not later than within 10 Business Days (or such longer period as has been agreed between the Guarantor and the Trustee) after receipt of a request for payment under the Guarantee by the Trustee, a determination prepared by the Guarantors management stating which amount of the Up-Stream and/or Cross-Stream Security cannot be enforced as it would cause the Net Assets of the Guarantor being less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (taking into account the adjustments set out in paragraph (c) above (the Management Determination ); and |
(v) | provided that the Trustee disagrees with the Management Determination, the Guarantor delivers to the Trustee, without undue delay but not later than within 20 Business Days (or such longer period as has been agreed between the Guarantor and the Trustee) from the date the Trustee has contested the Management Determination, an up to date balance sheet prepared by a firm of auditors of international standard and reputation which shows the amount of the Up-Stream and/or Cross-Stream Security that cannot be enforced without the Net Assets of the Guarantor becoming less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (the Balance Sheet ). The Balance Sheet shall be prepared in accordance with the principles set out in paragraph (c) above and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to paragraph (c) above. |
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If the Guarantor fails to deliver the Management Determination or the Balance Sheet within the aforementioned time periods, the Trustee, acting for and on behalf of the Trustee and the Holders of Notes, shall be entitled to enforce the Guarantee irrespective of the limitations set out in paragraph (b) above.
(d) | If the Trustee disagrees with the Management Determination and/or the Balance Sheet, the Trustee, acting for and on behalf of the Trustee and the Holders of Notes, shall be entitled to enforce the Guarantee up to the amount which, according to the Management Determination or the Balance Sheet, as the case may be, can be enforced in compliance with the limitations set out in paragraph (b) above. In relation to any additional amounts for which the Guarantor is liable under the Guarantee, the Trustee, acting for and on behalf of the Trustee and the Holders of Notes, shall be entitled to further pursue their claims (if any) and the Guarantor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the demand under the Guarantee was made). |
(e) | No reduction of the amount enforceable under this Article Ten will prejudice the right of the Trustee and the Holders of Notes to continue enforcing the Guarantee (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured. |
(f) | After the complete, unconditional, irrevocable, and full payment and discharge of all Obligations any remaining proceeds resulting from the enforcement of the Guarantee (or part thereof) shall be transferred to the Guarantor at the cost and expense of the Guarantor. |
Section 10.06. | Limitation of Guarantee France |
Notwithstanding anything to the contrary in the Guarantee provided by a French company, pursuant to this Article Ten, such Guarantee will be subject to the following limitations:
(a) | the obligations and liabilities of a French company under such Guarantee will not include any obligation or liability which if incurred would constitute the provision of financial assistance within the meaning of article L. 225-216 of the French Code de commerce and/or would constitute a misuse of corporate assets or powers within the meaning of article L.241-3 or L.242-6 of the French Code de commerce or any other law or regulations having the same effect, as interpreted by French courts; and |
(b) | the obligations and liabilities of a French company under such Guarantee for the obligations of a parent company shall be limited, at any time, to an amount equal to the amount (if any) directly or indirectly on-lent or otherwise provided to the French company and/or any subsidiary(ies) of such French company under intercompany loan or similar arrangements and outstanding at the date a payment is to be made by such French company under its Guarantee, it being specified that any payment made by a French company under this Guarantee shall automatically reduce pro tanto the outstanding amount of the relevant intercompany loans or similar arrangements due by such French company to the parent company or its subsidiary(ies). |
(c) | It is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and that no French Guarantor shall be considered as co-debiteur solidaire as to its obligations pursuant to the guarantee given pursuant to this Article Ten. |
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Section 10.07. | Limitation of Guarantee Spain |
(a) | The obligations under this Article Ten of any Spanish Guarantor shall: (i) not extend to any obligation incurred by any Guarantor as a result of such Guarantor borrowing (or guaranteeing the borrowing of) funds (but only in respect of those funds) for the purpose of (A) acquiring shares (acciones) representing the share capital of such Spanish Guarantor or shares ( acciones ) or quotas (participaciones sociales) representing the share capital of its holding company or (B) refinancing a previous debt incurred by any Guarantor for the acquisition of shares (acciones) representing the share capital of such Spanish Guarantor or shares (acciones) or quotas (participaciones sociales) representing the share capital of its holding company, and shall (ii) be deemed not to be undertaken or incurred by a Spanish Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of article 81 of the Royal Decree-Law on Spanish Stock Companies (Texto Refundido de la Ley de Sociedades Anónimas), and, in that case, all provisions of this Indenture shall be construed accordingly in the sense that, in no case, can any guarantee or Security given by a Spanish Guarantor secure repayment of the above-mentioned funds. |
(b) | For the purposes of paragraph (a) above, a reference to a holding company of a Spanish Guarantor shall mean the company which, directly or indirectly, owns the majority of the voting rights of such Spanish Guarantor or that may have a dominant influence on such Spanish Guarantor. It shall be presumed that one company has a dominant influence on another company when: |
(i) | any of the scenarios set out in section 1 of article 42 of the Spanish Commercial Code (Código de Comercio) are met; or |
(ii) | when at least half plus one of the members of the managing body of the Spanish Guarantor are also members of the managing body or top managers (altos directivos) of the dominant company or of another company controlled by such dominant company. |
Section 10.08. | Limitation of Guarantee Republic of Ireland |
No Guarantee shall apply to any liability to the extent that it would result in such Guarantee constituting unlawful financial assistance within the meaning of Section 60 of the Companies Act 1963 or any equivalent and applicable provisions under the laws of any relevant jurisdiction.
Section 10.09. | Limitation of Guarantee Belgium |
Belgian Guarantor means any Guarantor incorporated and existing under Belgian law.
The guarantee, indemnity and other obligations of the Belgian Guarantor under this Article Ten shall not include any liability which would constitute unlawful financial assistance within the meaning of Article 629 of the Belgian Company Code and shall be limited, at any time, to a maximum aggregate amount equal to the greater of:
(i) | an amount equal to 5 million; and |
(ii) | an amount equal to 90% of the Belgian Guarantors net assets (as determined in accordance with the Belgian Companies Code and accounting principles generally accepted in Belgium, but not taking intra-group debts into account as debts) as shown by the latest audited financial statements publicly available on the date on which the relevant demand is made; and |
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(iii) | the aggregate amount outstanding on the day prior to the date on which the relevant demand is made of any intra-group loans or facilities made to the Belgian Guarantor by the Issuer or any Subsidiary of the Issuer using all or part of the proceeds of the Notes (whether or not such intra-group loan is retained by the Belgian Guarantor for its own purposes or on-lent to the Issuer or another Subsidiary of the Issuer) outstanding on the day prior to the date on which the relevant demand is made, it being understood that such aggregate amount shall be limited, at any time, to an aggregate amount of 10 million; and |
(iv) | the aggregate value of the enforcement proceeds of the assets that have been pledged, charged, assigned by way of security or mortgaged to the benefit of the Security Trustee by the Belgian Guarantor. |
It is agreed between Parties that paragraph (iii) shall only apply if the Belgian Guarantors net assets (as determined in accordance with the Belgian Companies Code and accounting principles generally accepted in Belgium, but not taking intra-groups debts into account as debts) as shown by the latest audited financial statements publicly available on the date on which the relevant demand is made, exceed 2.5 million.
Section 10.10. | Limitation of Guarantee Denmark |
Notwithstanding any provision of this Indenture and in particular this Article Ten, any guarantee, indemnity and other obligations (as well as any security created in relation thereto) of any Guarantor incorporated in Denmark (the Danish Guarantor ) expressed to be assumed pursuant to this Indenture and in particular this Article Ten:
(1) | shall be deemed not to be assumed (and any security created in relation thereto shall be limited) to if and to the extent required to comply with Danish statutory provisions on unlawful financial assistance, at the date of this Agreement including, but not limited to, Sections 115 and 115a of the Danish Public Limited Companies Act or Sections 49 and 50 of the Danish Private Limited Companies Act; and |
(2) | shall, in relation to obligations not incurred as a result of borrowings by the Danish Guarantor, further be limited to an amount equal to the higher of (i) the equity of the Danish Guarantor at the date of this Agreement or (ii) the equity at the date when a claim is made against the Danish Guarantor, in both events calculated in accordance with the Danish Guarantors generally accepted accounting principles at the relevant time. However, adjusted to include a statutory reserve in respect of any unpaid portion of the subscription price for shares issued by the Danish Guarantor calculated in accordance with the Danish Guarantors generally accepted accounting principles at the relevant time (if not already included). |
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Section 10.11. | Notation Not Required |
Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof.
Section 10.12. | Release of the Guarantees |
A Guarantee will be automatically and unconditionally released (and thereupon will terminate and be discharged and be of no further force and effect):
(1) | upon the sale or disposition (including through merger, consolidation, amalgamation or other combination) or conveyance, transfer or lease of the Capital Stock, or all or substantially all of the assets, of the Guarantor (or a Holding Company thereof) if such sale is made in compliance either with Section 4.07 or with Section 5.01; |
(2) | as provided in the Intercreditor Agreement; |
(3) | upon a defeasance or satisfaction and discharge of this Indenture that complies with the provisions under Article Eight; |
(4) | upon the designation by the Issuer of the Guarantor (or a Holding Company thereof) as an Unrestricted Subsidiary in compliance with the terms of this Indenture; |
(5) | upon repayment in full of the Notes; or |
(6) | as described under Article Nine. |
Upon any occurrence giving rise to a release of a Guarantee as specified in this Section 10.12, the Trustee will execute any documents reasonably required in order to evidence or effect such release, discharge and termination in respect of such Guarantee.
Section 10.13. | Successors and Assigns |
This Article Ten shall be binding upon the Guarantors and each of their successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assigns, all subject to the terms and conditions of this Indenture.
Section 10.14. | No Waiver |
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article Ten shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and are not exclusive of any other rights, remedies or benefits which either may have under this Article Ten at law, in equity, by statute or otherwise.
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Section 10.15. | Modification |
No modification, amendment or waiver of any provision of this Article Ten, nor the consent to any departure by the Guarantors therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Guarantors in any case shall entitle the Guarantors to any other or further notice or demand in the same, similar or other circumstance.
ARTICLE ELEVEN
INTERCREDITOR AGREEMENT
Section 11.01. | Intercreditor Agreement Controls |
(a) | The Issuer agrees, and each Holder by accepting a Note agrees, that this Indenture is subject to the Intercreditor Agreement. In the event of any inconsistency between this Indenture and the Intercreditor Agreement, the Intercreditor Agreement shall prevail. |
(b) | Each Holder of Notes authorizes and directs the Trustee and the Security Trustee to execute the Intercreditor Agreement and any additional intercreditor agreement as contemplated by Section 4.21 and the Trustee and the Security Trustee shall incur no liability for doing so. |
(c) | Each Holder (including, without limitation, each Holder, if any, of Additional Notes), by accepting a Note, authorizes and requests the Trustee and the Security Trustee to, on such Holders behalf, make all undertakings, representations, offers and agreements of the Trustee and the Security Trustee (as applicable) set forth in the Intercreditor Agreement and any additional intercreditor agreement as contemplated by Section 4.21. |
ARTICLE TWELVE
COLLATERAL AND SECURITY
Section 12.01. | Creation of Parallel Debt |
(a) | For the purposes of (a) creating Liens on Collateral in, or subject to the laws of, Germany, The Netherlands, Belgium and France (and such other jurisdictions as the Trustee (on the instructions of the Holders) and the Issuer (each acting reasonably) agree) (together, the Agreed Jurisdictions ) and (b) ensuring the initial and continued validity of such Liens, the Security Trustee, the Issuer and the Guarantors agree that notwithstanding anything to the contrary contained in this Indenture, the Notes, the Guarantees, the Security Documents or the Intercreditor Agreement: |
(1) | the Issuer and each Guarantor shall pay to the Security Trustee, as creditor in its own right and not as representative of the Trustee or the Holders, sums equal to, and in the currency of, its Principal Obligations (as defined below) as and when the same fall due for payment under this Indenture, the Notes, the Guarantees, the Security Documents or the Intercreditor Agreement (the Parallel Obligations); provided that the total amount of the Parallel Obligations shall never exceed the total amount of the Principal Obligations; |
(2) | the rights of the Trustee and the Holders, as applicable, to receive payment of the Principal Obligations are several and are separate from, and without prejudice to, the rights of the Security Trustee to receive payment in respect of the Parallel Obligations; |
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(3) | the Security Trustee shall have its own independent right, in its own name and stead, to demand payment of the Parallel Obligations by the Issuer and each of the Guarantors upon the occurrence and during the continuance of an unremedied and unwaived Event of Default; |
(4) | the payment by the Issuer or any Guarantor of its Parallel Obligations to the Security Trustee in accordance with this Section 12.01 (whether through direct payment by the Issuer or any Guarantor or any Lien held by the Security Trustee securing the Parallel Obligations) shall be a good discharge in the corresponding amount of the corresponding Principal Obligations and, similarly, the payment by the Issuer or any Guarantor of the Principal Obligations shall be a good discharge in the corresponding amount of the corresponding Parallel Obligations owed to the Security Trustee under this Section 12.01, in each case provided that the receiving party is able to retain the relevant payment made by the Issuer or such Guarantor; and |
(5) | nothing in this Section 12.01 shall in any way limit the Security Trustees right to act in the protection or preservation of, the rights under, or to enforce any, Security Document as contemplated by this Indenture or the relevant Security Document. |
Despite the foregoing, any such payment by the Issuer or any Guarantor shall be made to or to the order of the Trustee, unless the Trustee directs the Issuer or such Guarantor in writing to make such payment to the Security Trustee.
Without limiting or affecting the Security Trustees rights against the Issuer and the Guarantors (whether under this Section 12.01 or under any other provision of this Indenture, the Notes, the Guarantees, the Security Documents or the Intercreditor Agreement and subject to the following paragraph), the Security Trustee agrees with the Trustee and each Holder (on a several basis) that it will not exercise its rights in respect of the Parallel Obligations except with the consent of the Trustee or such Holder, as applicable.
Nothing in this Section 12.01 shall in any way negate or affect the obligations which each of the Issuer and the Guarantors has to the Trustee and the Holders under this Indenture. For the purpose of this Section 12.01, the Security Trustee acts in its own name and on behalf of itself and not as agent or representative of any other party hereto or as trustee and the security over the Collateral granted under this Indenture, the Notes, the Guarantees, the Security Documents and the Intercreditor Agreement to the Security Trustee to secure the Parallel Obligations is granted to the Security Trustee in its capacity as creditor in respect of the Parallel Obligations (or to do any act reasonably incidental to any of the foregoing).
(b) | For the purposes of this Section 12.01, Principal Obligations means, in respect of each Agreed Jurisdiction and in relation to the Issuer or any Guarantor, any sums owing by it to the Trustee or any Holder under this Indenture. |
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(c) | French Security : The Security Trustee is hereby appointed as agent (mandataire) of each of the Issuer, the Guarantors and the Holders pursuant to Article 1984 et seq. of the French Code Civil, to represent and act on behalf of each of the Issuer, the Guarantors and the Holders in relation to any actions required or advisable in connection with the entry into, performance, management and foreclosure of, and in respect of any dispute arising from or in connection with, any security interest created pursuant to any Security Document governed by French law. |
Section 12.02. | Security Documents |
(a) | The due and punctual payment of the principal of and interest, if any, on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and performance of all other obligations of the Issuer to the Holders of Notes or the Trustee under this Indenture and the Notes, according to the terms hereunder or thereunder, are secured as provided in the Security Documents which the Guarantors and the Issuer have entered into simultaneously with the execution of this Indenture. |
(b) | Each Holder of Notes, by its acceptance thereof, consents and agrees to (A) the appointment of the Security Trustee and any other security trustee appointed under the terms of the Security Documents and/or the Intercreditor Agreement and (B) the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure and release of security over the Collateral) as the same may be in effect or may be amended from time to time in accordance with its terms and authorizes and directs the Security Trustee and any other security trustee appointed under the terms of the Security Documents and/or the Intercreditor Agreement to enter into the Security Documents and to perform its respective obligations and exercise its respective rights thereunder in accordance therewith. |
(c) | The Issuer will take, and will cause its Subsidiaries to take, upon request of the Trustee, any and all actions reasonably required to cause the Security Documents to create and maintain, as security for the Obligations of the Guarantors and the Issuer hereunder, a valid and enforceable perfected Lien in and on all the Collateral, in favor of the Security Trustee and any other security trustee appointed under the terms of the Security Documents for the benefit of the Holders of Notes, in accordance with the provisions of this Indenture, the Security Documents and the Intercreditor Agreement. |
(d) | The Holders authorize and direct the Trustee and the Security Trustee to finalize the Security Documents with the Issuer without the further consent of the Holders. |
(e) | Each Holder by accepting a Note and the Trustee hereby: |
(i) | grant the Security Trustee all powers and authorities to, in their name and on their behalf, in good faith and acting reasonably, accept, negotiate and approve the terms and conditions of such Security Documents and any amendment, addendum or accession thereto, execute such Security Documents, any amendment, addendum or accession thereto and any other agreement, deed or instrument ancillary or otherwise related to such Security Documents, give or receive any notice and take any other action in relation to the creation, perfection, maintenance, enforcement, administration and release of the security granted thereunder; |
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(ii) | undertake to ratify and approve all activities performed in their name and on their behalf by the Security Trustee, in good faith and acting reasonably, acting in its appointed capacity; and |
(iii) | undertake to execute such powers of attorney or other instruments as may be necessary or appropriate in order to enable the Security Trustee, in good faith and acting reasonably, to exercise the powers and authorities granted to it hereunder. |
Section 12.03. | Release of Collateral |
(a) | The Collateral shall be released from the Lien and security interest created by the Security Documents and the Trustee and the Security Trustee shall be authorized and directed to release the Collateral under the Security Documents: |
(1) | upon repayment in full of the Notes; |
(2) | as provided in the Intercreditor Agreement; |
(3) | upon the defeasance, satisfaction or discharge of the Notes as provided in Article Eight in accordance with the terms and conditions of this Indenture; |
(4) | upon certain dispositions of the Collateral in compliance with Section 4.07; |
(5) | in the case of a Guarantor that is released from its Guarantee pursuant to the terms of this Indenture, the release of the property and assets and Capital Stock of such Guarantor; or |
(6) | to the extent necessary for the formation and introduction of Midco in the corporate structure; provided that, in the case of this clause (6), the security interest over the Collateral is replaced by new security in favor of Notes and Guarantees (or the Trustee for the benefit of the Notes and Guarantees) on substantially the same terms as prior to release (other than with respect to any new hardening period). |
(b) | In addition, if a refinancing or an increase of the Revolving Credit Facility is implemented in a manner that releases the security interests over all or some of the Collateral, the security interest over such Collateral shall be released automatically and replaced by new security in favor of the Notes and Guarantees (or the Trustee for the benefit of the Notes and Guarantees), on substantially the same terms as prior to release; provided that either (i) there is delivered to the Trustee, in form and substance satisfactory to it, an Opinion of Counsel opining that, following such release and retaking any new hardening period in respect of the Collateral is no longer than any hardening periods in respect of the facility refinancing or increasing the Revolving Credit Facility, as applicable, or (ii) an Independent Financial Advisor delivers a solvency opinion, in form and substance reasonably satisfactory to the Trustee, confirming the solvency of the Issuer and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such refinancing. |
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(c) | The Trustee shall deliver an appropriate instrument evidencing the release of Collateral upon receipt of a request by the Issuer accompanied by an Officers Certificate and an Opinion of Counsel certifying as to the compliance with this Section 12.03; provided the legal counsel delivering such Opinion of Counsel may rely as to matters of fact on one or more Officers Certificates. |
Section 12.04. | Authorization of Actions to Be Taken by the Security Trustee or the Trustee Under the Security Documents |
Subject to the provisions of Section 6.03, Section 7.01 and Section 7.02 hereof, the Intercreditor Agreement and the Security Documents, the Trustee may, in its sole discretion and without the consent of the Holders of Notes, direct, on behalf of the Holders of Notes, the Security Trustee and any other security trustee appointed under the terms of the Security Documents to, take all actions it deems necessary or appropriate in order to:
(1) | enforce any of the terms of the Security Documents; and |
(2) | collect and receive any and all amounts payable in respect of the Obligations of the Guarantors or the Issuer hereunder. |
The Security Trustee will have power to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the security over the Collateral by any acts that may be unlawful or in violation of the Security Documents or this Indenture, and such suits and proceedings as the Security Trustee may deem expedient to preserve or protect its interests and the interests of the Holders of Notes in the security over the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders of Notes, the Trustee or of the Security Trustee).
Section 12.05. | Authorization of Receipt of Funds by the Security Trustee and the Trustee Under the Security Documents |
The Trustee and the Security Trustee are authorized to receive any funds for the benefit of the Holders of Notes distributed under the Security Documents, and to make further distributions of such funds to the Holders of Notes according to the provisions of this Indenture.
Section 12.06. | French Security |
The Trustee is hereby appointed as agent (mandataire) of each of the Issuer, the Guarantors and the Holders pursuant to Article 1984 et seq. of the French Code Civil, to represent and act on behalf of each of the Issuer, the Guarantors and the Holders in relation to any actions required or advisable in connection with the entry into, performance, management and foreclosure of, and in respect of any dispute arising from or in connection with, any security interest created pursuant to any Security Document governed by French law.
Section 12.07. | No Obligation to Perfect |
Notwithstanding any other provision of this Indenture, neither the Trustee nor the Security Trustee shall have any responsibility for the validity, perfection, sufficiency, adequacy, insuring of, priority or enforceability of any lien, Collateral, Security Documents or other security interest.
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ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. | Notices |
(a) | Any notice or communication shall be in writing and delivered in person or mailed by first class mail addressed as follows: |
if to the Issuer or a Guarantor:
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Facsimile: +32(0) 208 880 7601
Attention: D.C. Ruberg
if to the Trustee, Principal Paying Agent or Transfer Agent:
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
United Kingdom
Facsimile: +44 (0)20 7964 2536
Attention: Trustee Administration
if to the Luxembourg Paying Agent or Registrar:
The Bank of New York Mellon (Luxembourg) S.A.
Aerogolf Center, 1A, Hoehenhoff
L-1736 Senningerberg
Luxembourg
Facsimile: +352 34 20 90 60 35
Attention: P. Bun
With copies to:
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
United Kingdom
Facsimile: +44 (0)20 7964 2536
Attention: Trustee Administration
if to the Security Trustee:
Barclays Bank PLC
1 Churchill Place
London E14 5HP
United Kingdom
Facsimile: +44 (0)20 7773 4893
Attention: Duncan Nash;
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provided that: (i) any notice, direction, request or other communication by the Issuer or any Holder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made by facsimile transmission at the Corporate Trust Office, and (ii) all certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
The Issuer, the Guarantors, the Trustee or the Security Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. All communications delivered to the Trustee shall be deemed effective when received.
(b) | Notices to the Holders regarding the Notes shall be: |
(i) | published (A) in The Wall Street Journal, The Financial Times or another leading newspaper having general circulation in London, England, as the case may be, (B) through the newswire service of Bloomberg or, if Bloomberg does not then operate, any similar agency and, (C) if and so long as the Notes are listed on Official List of the Luxembourg Stock Exchange and traded on the Euro MTF Market and to the extent that the rules and regulations of such exchange so require, on the exchanges website at www.bourse.lu ; and |
(ii) | in the case of Definitive Registered Notes, mailed to each Holder by first-class mail at such Holders respective address as it appears on the registration books of the Registrar. |
Notices given by first-class mail shall be deemed given five calendar days after mailing and notices given by publication shall be deemed given on the first date on which publication is made. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
(c) | If and so long as the Notes are listed on any securities exchange instead of or in addition to the Luxembourg Stock Exchange, notices shall also be given in accordance with any applicable requirements of such alternative or additional securities exchange. |
(d) | If and so long as the Notes are represented by Global Notes, notice to Holders, in addition to being given in accordance with Section 13.01 above, shall also be given by delivery of the relevant notice to the Depositary for communication to entitled account holdings in substitution for the previously-mentioned publication. |
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(e) | Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. |
Section 13.02. Communications
In no event shall an Agent, the Trustee or any other entity of The Bank of New York Mellon group (the BNYM Group) be liable for any Losses to any party arising from an Agent or any BNYM Group member receiving any data from the Issuer, any Authorized Person or any party to this Indenture via any non-secure method of transmission or communication, such as, but without limitation, by facsimile or email.
The Issuer and any Guarantors each accept that some methods of communication are not secure and an Agent or any other BNYM Group member shall incur no liability for receiving instructions via any such non-secure method. An Agent or any other BNYM Group member is authorized to comply with and rely upon any such notice, instructions or other communications believed by it to have been sent or given by an Authorized Person or an appropriate party to the transaction (or authorized representative thereof). The Issuer shall use all commercially reasonable efforts to ensure that instructions by the Issuer transmitted to an Agent or any other BNYM Group member pursuant to this Indenture are complete and correct.
Section 13.03. Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Issuer or any Guarantor to the Trustee to take or refrain from taking any action under this Indenture (except in connection with the original issuance of the Notes on the date hereof), the Issuer or any Guarantor, as the case may be, shall furnish upon request to the Trustee:
(a) | an Officers Certificate in form reasonably satisfactory to the Trustee stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
(b) | an Opinion of Counsel in form reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with. |
Any Officers Certificate may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless the officer signing such certificate knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the matters upon which such Officers Certificate is based are erroneous. Any Opinion of Counsel may be based and may state that it is so based, insofar as it relates to factual matters, upon an Officers Certificate, unless the counsel signing such Opinion of Counsel knows, or in the exercise of reasonable care should know, that the Officers Certificate with respect to the matters upon which such Opinion of Counsel is based are erroneous.
Section 13.04. Statements Required in Certificate or Opinion
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) | a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; |
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(b) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
(c) | a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
(d) | a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. |
Section 13.05. | Rules by Trustee, Paying Agent and Registrar |
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
Section 13.06. | Legal Holidays |
If an Interest Payment Date or other payment date is not a Business Day, payment shall be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. If a Record Date is not a Business Day, the Record Date shall not be affected.
Section 13.07. | Governing Law |
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.08. | Jurisdiction |
Each of the parties hereto agrees that any suit, action or proceeding brought by any other party hereto arising out of or based upon this Indenture, the Guarantees or the Notes may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Guarantee or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. Each of the parties hereto agrees that final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon it, and may be enforced in any court to the jurisdiction of which such Person is subject by a suit upon such judgment; provided, however, that service of process is effected upon the Issuer or the applicable Guarantor, as the case may be, in the manner provided by this Indenture. Each of the Issuer and the Guarantors has appointed CT Corporation System, 111 Eighth Avenue, New York, NY 10011, USA as its authorized agent (the Authorized Agent), upon whom process may be served in any suit, action or proceeding arising out of or based upon this Indenture, the Guarantees or the Notes or the transactions contemplated herein which may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, by any Holder or the Trustee, and expressly
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accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. Each of the Issuer and the Guarantors hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer and the Guarantors agree to take any and all action, including the filing of any and all documents, that may be reasonably necessary to continue such respective appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer and the Guarantors.
Section 13.09. | No Recourse Against Others |
No past, present or future director, officer, employee, incorporator, stockholder or agent of the Issuer or any Guarantor or any of their respective Subsidiaries, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, this Indenture, the Guarantees, the Intercreditor Agreement or the Security Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 13.10. | Successors |
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of any Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.12. All agreements of the Trustee in this Indenture shall bind its successors.
Section 13.11. | Counterparts |
This Indenture may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Indenture.
Section 13.12. | Table of Contents, Cross-Reference Sheet and Headings |
The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 13.13. | Severability |
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.14. | Currency Indemnity |
Euro is the sole currency of account and payment for all sums payable under the Notes, the Guarantees and this Indenture. Any amount received or recovered in respect of the Notes or the Guarantees in a currency other than Euro (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding up or dissolution of the Issuer, any Subsidiary or otherwise) by the Trustee and/or a Holder in respect of any sum expressed to be due to such Holder from the Issuer or the Guarantors will constitute a discharge of their obligation only to the extent of the Euro amount which the recipient is able to purchase with the amount so received or recovered in such other currency on the date of that receipt or recovery (or, if it is not possible to purchase Euro on
InterXion Holding N.V. Indenture | Page 119 |
that date, on the first date on which it is possible to do so). If the Euro amount that could be recovered following such a purchase is less than the Euro amount expressed to be due to the recipient under any Note, the Issuer and the Guarantors will jointly and severally indemnify the recipient against the cost of the recipients making a further purchase of Euro in an amount equal to such difference. For the purposes of this Section 13.14, it will be sufficient for the Trustee and/or holder to certify that it would have suffered a loss had the actual purchase of Euro been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of Euro on that date had not been possible, on the first date on which it would have been possible). These indemnities, to the extent permitted by law:
(a) | constitute a separate and independent obligation from the Issuers and the Guarantors other obligations; |
(b) | give rise to a separate and independent cause of action; |
(c) | apply irrespective of any waiver granted by any holder of a Note; and |
(d) | will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note or any other judgment or order. |
Section 13.15. No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret any other indenture, deed, loan, intercreditor or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, deed, loan, intercreditor or debt agreement may not be used to interpret this Indenture.
Section 13.16. Agents
The names of the initial Registrar, the initial Transfer Agent and the initial Paying Agent and their specified offices are set out in this Indenture. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Transfer Agent or Paying Agent and to appoint additional or other Transfer Agents or Paying Agents; provided that the Issuer will at all times maintain a Transfer Agent and a Paying Agent in London.
(Signature pages follow.)
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
InterXion Holding N.V., | ||
as Issuer | ||
By: | /s/ David C. Ruberg | |
Name: | David C. Ruberg | |
Title: | Managing Director | |
InterXion Nederland B.V. | ||
as Initial Guarantor | ||
By: | /s/ David C. Ruberg | |
Name: | David C. Ruberg | |
Title: | Managing Director | |
InterXion HeadQuarters B.V. | ||
as Initial Guarantor | ||
By: | /s/ David C. Ruberg | |
Name: | David C. Ruberg | |
Title: | Managing Director | |
InterXion Carrier Hotel (UK) Ltd | ||
as Initial Guarantor | ||
By: | ||
Name: | ||
Title: | ||
InterXion Deutschland GmbH | ||
as Initial Guarantor | ||
By: | ||
Name: | ||
Title: |
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
InterXion Holding N.V., | ||
as Issuer | ||
By: | ||
Name: | ||
Title: | ||
InterXion Nederland B.V. | ||
as Initial Guarantor | ||
By: | ||
Name: | ||
Title: | ||
InterXion HeadQuarters B.V. | ||
as Initial Guarantor | ||
By: | ||
Name: | ||
Title: | ||
InterXion Carrier Hotel Ltd | ||
as Initial Guarantor | ||
By: | /s/ Brad Anthony | |
Name: | Brad Anthony | |
Title: | Director | |
InterXion Deutschland GmbH | ||
as Initial Guarantor | ||
By: | /s/ Brad Anthony | |
Name: | Brad Anthony | |
Title: | Director |
Interxion Holding N.V. Indenture | Signature Pages |
The Bank of New York Mellon, London Branch | ||
as Trustee, Principal Paying Agent and Transfer Agent | ||
By: | /s/ Marco Thuo | |
Name: | Marco Thuo | |
Title: | Vice President | |
The Bank of New York Mellon (Luxembourg) S.A. | ||
as Registrar and Luxembourg Paying Agent | ||
By: | /s/ Marco Thuo | |
Name: | Marco Thuo | |
Title: | Vice President | |
Barclays Bank PLC | ||
as Security Trustee | ||
By: | /s/ J. Atkinson | |
Name: |
J. Atkinson |
|
Title: | Associate Director |
Interxion Holding N.V. Indenture | Page 1 |
EXHIBIT A
[FORM OF FACE OF NOTE]
No.
THIS GLOBAL NOTE IS HELD BY THE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
[Include if Restricted Global Note THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE SECURITIES ACT), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT: (A) IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON IT AND ANY PERSON ACTING ON ITS BEHALF REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER; (B) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT; OR (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUERS AND THE TRUSTEES RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (B) OR (C) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR RESALES OF THIS SECURITY.
[Include if Regulation S Global Note UNTIL MARCH 24, 2010, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT OF 1933 (THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A UNDER THE U.S. SECURITIES ACT.
THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE REGISTERED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).]
Interxion Holding N.V. Indenture | Page 2 |
EACH PURCHASER OF THIS GLOBAL NOTE OR ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT THE SELLER OF THIS GLOBAL NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
Interxion Holding N.V. Indenture | Page 3 |
[If Regulation S Global Note Common Code /ISIN Number ]
[If Restricted Global Note Common Code /ISIN Number ]
9.50% SENIOR SECURED NOTE DUE 2017
InterXion Holding N.V., a limited liability company organized under the laws of The Netherlands and with its corporate seat at Amsterdam, The Netherlands, for value received promises to pay to The Bank of New York Depository (Nominees) Limited or registered assigns the sum of (or such lesser or greater amount as indicated in Schedule A (Schedule of Principal Amount) on the reverse hereof) on February 12, 2017.
From February 12, 2010, or from the most recent interest payment date to which interest has been paid or provided for, cash interest on this Note will accrue at 9.50%, payable semiannually on February 12 and August 12 of each year, beginning on August 12, 2010, to the Person in whose name this Note (or any predecessor Note) is registered at the close of business on the preceding January 29 or July 29, as the case may be.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature of an authorized signatory, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof and to the provisions of the Indenture, which provisions shall for all purposes have the same effect as if set forth at this place. Capitalized terms not otherwise defined shall have the meanings set forth in the Indenture.
Interxion Holding N.V. Indenture | Page 4 |
IN WITNESS WHEREOF, InterXion Holding N.V. has caused this Note to be signed manually or by facsimile by its duly authorized signatory.
Dated:
InterXion Holding N.V. | ||
By: | ||
Name: | ||
Title: |
Interxion Holding N.V. Indenture | Page 5 |
TRUSTEES CERTIFICATE OF AUTHENTICATION
The Bank of New York Mellon, London Branch | ||
as Trustee, certifies that this is one of the Notes referred to in the Indenture. | ||
By: | ||
Authorized Officer |
Interxion Holding N.V. Indenture | Page 6 |
[FORM OF REVERSE SIDE OF NOTE]
9.50% Senior Secured Note Due 2017
1. | Interest |
InterXion Holding N.V., a limited liability company organized under the laws of The Netherlands and with its corporate seat at Amsterdam, The Netherlands, (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the Issuer ), for value received promises to pay interest on the principal amount of this Note from February 12, 2010, at the rate per annum shown above. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Issuer will pay interest on overdue principal at a rate that is 1.0% higher than the interest rate borne by the Notes, payable semiannually, and it shall pay interest on overdue installments of interest at a rate that is 1.0% higher than the rate borne by the Notes payable semiannually to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth in this Note.
2. | Additional Amounts |
All payments made under or with respect to the Notes or that the Guarantors make under or with respect to the Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any jurisdiction in which the Issuer or Guarantor is organized, engaged in business, resident for tax purposes or generally subject to tax on a net income basis or from or through which payment on the Notes is made or any political subdivision or authority thereof or therein having the power to tax (each, a Relevant Taxing Jurisdiction) and any interest, penalties and other liabilities with respect thereto (collectively, Taxes ), unless the withholding or deduction of such Taxes is required by law or by the relevant taxing authoritys interpretation or administration thereof. In the event that the Issuer or Guarantor is required to so withhold or deduct any amount for or on account of any such Taxes from any payment made under or with respect to the Notes, the Issuer or Guarantor, as the case may be, shall pay such additional amounts (Additional Amounts) as may be necessary so that the net amount received by each Holder or beneficial owner of the Notes (including Additional Amounts) after such withholding or deduction shall be not less than the amount that such Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted.
Notwithstanding the foregoing, neither the Issuer nor the Guarantor shall pay Additional Amounts to a Holder or beneficial owner of any Note in respect or on account of:
(a) | any Taxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of the Holders or beneficial owners present or former connection with such Relevant Taxing Jurisdiction (including, but not limited to, citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Relevant Taxing Jurisdiction) other than the mere receipt or holding of any Note or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under this Note or the Indenture; |
(b) |
any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of any Note, prior to the relevant date on which a payment under and with respect to the Notes is due and payable (the Relevant |
Interxion Holding N.V. Indenture | Page 7 |
Payment Date) to comply with the Issuers written request addressed to the Holder or beneficial owner at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any certification, identification, information or other reporting requirements concerning nationality, residence, identity or connection with the Relevant Taxing Jurisdiction which the Holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice, in each such case by the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction); |
(c) | any estate, inheritance, gift, sales, transfer, personal property or similar Taxes; |
(d) | any Tax that is payable other than by deduction or withholding from payments made under or with respect to any Note or Guarantee; |
(e) | any Tax which would not have been so imposed but for the presentation (where presentation is required in order to receive payment) by the Holder or beneficial owner of a Note for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts on presenting the same for payment on any day (including the last day) within such 30-day period; |
(f) | any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any Directive otherwise implementing the conclusions of the ECOFIN Council meetings of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, any such Directive; |
(g) | any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by requesting that a payment on the Note be made by, or presenting a Note for a payment to, another paying agent in a Member State of the European Union or; |
(h) | any Tax that is imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note. |
In addition, Additional Amounts shall not be payable with respect to any Taxes that are imposed in respect of any combination of the above items.
The Issuer or Guarantor shall also make or cause to be made such withholding or deduction of Taxes and remit the full amount of Taxes so deducted or withheld to the relevant taxing authority in accordance with all applicable laws. The Issuer shall, upon request, make
Interxion Holding N.V. Indenture | Page 8 |
available to the Holders, within 30 days after the date on which the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or if, notwithstanding the Issuers reasonable efforts to obtain such receipts, the same are not obtainable, other evidence reasonably satisfactory to the Trustee of such payment by the Issuer.
At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or a Guarantor shall be obliged to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30 th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), the Issuer or Guarantor shall deliver to the Trustee an Officers Certificate stating that such Additional Amounts shall be payable and the amounts so payable and setting forth such other information as is necessary to enable such Trustee or Paying Agent to pay such Additional Amounts to the Holders and beneficial owners on the payment date. The Trustee shall be entitled to rely solely on such Officers Certificate as conclusive proof that such payments are necessary. The Issuer shall promptly publish a notice in accordance with the provisions set forth in Section 13.01 of the Indenture stating that such Additional Amounts shall be payable and describing the obligation to pay such amounts.
If the Issuer or a Guarantor conducts business in any jurisdiction (an Additional Taxing Jurisdiction) other than a Relevant Taxing Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to withhold or deduct any amount on account of the Taxes imposed by such Additional Taxing Jurisdiction from payment under the Notes or any Guarantee, as the case may be, which would not have been required to be so withheld or deducted but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply as if references in such provision to Taxes included taxes imposed by way of withholding or deduction by any such Additional Taxing Jurisdiction (or any political subdivision thereof or therein).
In addition, the Issuer or the Guarantor shall pay: (i) any present or future stamp, issue, registration, transfer, documentation, court, excise or property taxes or other similar taxes, charges and duties, including interest, penalties and Additional Amounts with respect thereto imposed or levied by the European Union, the United States of America, the Swiss Confederation, the Cayman Islands, or any political subdivision or authority thereof or therein having the power to tax (each, a Stamp Duty Jurisdiction ), in respect of the execution, issue, delivery, registration, redemption or retirement of, or receipt of payments under this Notes, the Indenture or the Guarantees, or any other document or instrument referred to thereunder (other than transfers of the Notes following the initial resale of the Notes by the Initial Purchasers); (ii) any such taxes, charges or duties imposed by any Stamp Duty Jurisdiction as a result of, or in connection with, the enforcement of the Notes, Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes; and (iii) any stamp, court or documentary taxes (or similar charges or levies) imposed by any Stamp Duty Jurisdiction with respect to the receipt of any payments with respect to the Notes or the Guarantees.
The foregoing provisions shall survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined below) or successor person to the Issuer or a Guarantor is organized, engaged in business, resident for tax purposes or otherwise subject to taxation on a net income basis or any political subdivision or taxing authority or agency thereof or therein.
Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premiums, if any), Redemption Price, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to any Guarantee), such mention shall be deemed to include mention of the payment of Additional Amounts.
Interxion Holding N.V. Indenture | Page 9 |
3. | Method of Payment |
The Issuer shall pay interest on this Note (except defaulted interest) to the persons who are registered Holders of this Note at the close of business on the Record Date for the next Interest Payment Date even if this Note is cancelled after the Record Date and on or before the Interest Payment Date. The Issuer shall pay principal and interest in Euro in immediately available funds that at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Issuer by check mailed to the Holder.
The amount of payments in respect of interest on each Interest Payment Date shall correspond to the aggregate principal amount of this Note, as established by the Registrar at the close of business on the relevant Record Date. Payments of principal shall be made upon surrender of the Regulation S Global Note and the Restricted Global Note to the Paying Agent.
4. | Paying Agent and Registrar |
Initially, The Bank of New York Mellon or one of its affiliates will act as Principal Paying Agent and The Bank of New York Mellon (Luxembourg) S.A. will act as Luxembourg Paying Agent and Registrar. The Issuer or any of its Affiliates may act as Paying Agent, Registrar or co-Registrar.
5. | Indenture |
The Issuer issued the Notes under an indenture dated as of February 12, 2010 (the Indenture ), among, inter alios, the Issuer, the Guarantors, The Bank of New York Mellon, London Branch, as trustee (the Trustee ) a nd Barclays Bank PLC, as security trustee (the Security Trustee). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture.
The Notes are secured senior guaranteed obligations of the Issuer and are issued in an initial aggregate principal amount of . The Indenture imposes certain limitations on the Issuer, the Guarantors and their affiliates, including, without limitation, limitations on the incurrence of indebtedness and issuance of stock, the payment of dividends and other payment restrictions affecting the Issuer and its subsidiaries, the sale of assets, transactions with and among affiliates of the Issuer and the Restricted Subsidiaries, change of control and Liens. In the event of any conflicts or inconsistencies between the terms of this Note and the Indenture, the provisions of the Indenture shall control and govern.
6. | Optional Redemption |
Optional Redemption prior to February 12, 2013 upon Equity Offering
At any time prior to February 12, 2013, upon not less than 30 nor more than 60 days notice, the Issuer may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes at a redemption price of 109.500% of their principal amount, plus accrued and unpaid interest, if any, to the Redemption Date, with the net proceeds from one or more Equity Offerings other than an Initial Public Offering within 6 months of the Issue Date. The Issuer may only do this, however, if:
(a) | at least 65% of the aggregate principal amount of Notes that were initially issued would remain outstanding immediately after the proposed redemption; and |
Interxion Holding N.V. Indenture | Page 10 |
(b) | the redemption occurs within 90 days after the closing of such Equity Offering. |
Optional Redemption prior to February 12, 2014
At any time prior to February 12, 2014, upon not less than 30 nor more than 60 days notice, the Issuer may also redeem all or part of the Notes at a redemption price equal to 100% of the principal amount thereof plus the Applicable Redemption Premium and accrued and unpaid interest to the Redemption Date.
Optional Redemption on or after February 12, 2014
At any time on or after February 12, 2014 and prior to maturity, upon not less than 30 nor more than 60 days notice, the Issuer may redeem all or part of the Notes. These redemptions will be in amounts of 50,000 or integral multiples of 1,000 in excess thereof at the following redemption prices (expressed as percentages of their principal amount at maturity), plus accrued and unpaid interest, if any, to the Redemption Date, if redeemed during the 12-month period commencing on February 12, of the years set forth below.
Year |
Redemption Price | |||
2014 |
104.750 | % | ||
2015 |
102.375 | % | ||
2016 and thereafter |
100.000 | % |
Any optional redemption or notice thereof may, at the Issuers discretion, be subject to one or more conditions precedent.
7. | Redemption Upon Changes in Withholding Taxes |
The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon giving not less than 30 nor more than 60 days notice to the Holders, at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon, if any, to the Redemption Date and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is or, on the next date on which any amount would be payable in respect of the Notes, would be obliged to pay Additional Amounts which are more than a de minimis amount in respect of the Notes pursuant to the terms and conditions thereof, which the Issuer or Guarantor cannot avoid by the use of reasonable measures available to it (including making payment through a paying agent located in another jurisdiction) as a result of:
(a) | any change in, or amendment to, the laws or treaties (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the date of the Indenture or, if the Relevant Taxing Jurisdiction has changed since the date of the Indenture, on or after the date on which the then current Relevant Taxing Jurisdiction became the Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor person, on or after the date of assumption by the successor person of the Issuers obligations hereunder); or |
Interxion Holding N.V. Indenture | Page 11 |
(b) | any change in the official application, administration, or interpretation of the laws, treaties, regulations or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment or order by a court of competent jurisdiction) on or after the date of the Indenture or, if the Relevant Taxing Jurisdiction has changed since the date of the Indenture, on or after the date on which the then current Relevant Taxing Jurisdiction became the Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor person, on or after the date of assumption by the successor person of the Issuers obligations hereunder) (each of the foregoing clauses (a) and (b), a Change in Tax Law ). |
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if the Relevant Taxing Jurisdiction changes under the Indenture and the Issuer is obliged to pay Additional Amounts as a result of a Change in Tax Law of the then current Relevant Taxing Jurisdiction which, at the time the latter became the Relevant Taxing Jurisdiction under the Indenture, had been publicly announced as being or having been formally proposed.
In the case of a Guarantor that becomes a party to the Indenture after the Issue Date or a successor person, the Change in Tax Law must become effective after the date that such entity (or another person organized or resident in the same jurisdiction) becomes a party to the Indenture. In the case of Additional Amounts required to be paid as a result of the Issuer conducting business in an Additional Taxing Jurisdiction (as defined above), the Change in Tax Law must become effective after the date the Issuer begins to conduct the business giving rise to the relevant withholding or deduction.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Issuer or Guarantor would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the publication or, where relevant, mailing of any notice of redemption pursuant to the foregoing, the Issuer will deliver to the Trustee:
(a) | an Officers Certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by the Issuer or Guarantor taking reasonable measures available to it); and |
(b) | an opinion of independent tax counsel of recognized standing, qualified under the laws of the Relevant Taxing Jurisdiction and reasonably satisfactory to the Trustee to the effect that the Issuer or Guarantor, as the case may be, is or would be obliged to pay such Additional Amounts as a result of a Change in Tax Law. |
The Trustee will accept such Officers Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.
The foregoing provisions will apply mutatis mutandis to any successor person, after such successor person becomes a party to the Indenture, with respect to a Change in Tax Law occurring after the time such successor person becomes a party to the Indenture.
Interxion Holding N.V. Indenture | Page 12 |
8. | Notice of Optional Redemption |
Notice of redemption will be made at least 30 days but not more than 60 days before the Redemption Date. If this Note is in a denomination larger than 50,000 of principal amount, it may be redeemed in part but only in integral multiples of 1,000 in excess of 50,000. In the event of a redemption of less than all of the Notes, the Notes for redemption will be chosen by the Trustee in accordance with the Indenture. If this Note is redeemed subsequent to a Record Date with respect to any Interest Payment Date specified above, then any accrued interest will be paid to the Holder at the close of business on such Record Date. If money sufficient to pay the Redemption Price of and accrued interest on all Notes (or portions thereof) to be redeemed on the Redemption Date is deposited with the applicable Paying Agent on or before the Redemption Date and certain other conditions are satisfied, interest ceases to accrue on such Notes (or such portions thereof) called for redemption on or after the Redemption Date.
9. | Repurchase at the Option of Holders |
If a Change of Control occurs (as defined in the Indenture) at any time, the Issuer shall be required to offer to purchase on the Change of Control Purchase Date all or any part (equal to 50,000 or an integral multiple of 1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest and Additional Amounts, if any, to the Change of Control Purchase Date (subject to the rights of holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date), which date shall be no earlier than 30 days nor later than 60 days from the date notice of such offer is mailed, other than as required by law. The Issuer shall purchase all Notes properly and timely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the procedures that Holders of the Notes must follow to accept the Change of Control Offer.
When the aggregate amount of Excess Proceeds exceeds 15.0 million, the Issuer shall, within 30 Business Days, make an Excess Proceeds Offer to all holders of Notes and, at the Issuers election, to the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in this Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount, in the case of the Notes (expressed as a minimum amount of 50,000 and integral multiples of 1,000 in excess thereof) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt shall be payable in cash in an amount equal to (solely in the case of the Notes) 100% of the principal amount of such Note and (solely in the case of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, as applicable) of such Pari Passu Debt, plus, in each case, accrued and unpaid interest, if any, to the date of purchase.
10. | Denominations |
The Notes are in denominations of 50,000 and integral multiples of 1,000 in excess thereof). The transfer of Notes may be registered, and Notes may be exchanged, as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
Interxion Holding N.V. Indenture | Page 13 |
11. | Unclaimed Money |
All moneys paid by the Issuer or the Guarantors to the Trustee or a Paying Agent for the payment of the principal of, or premium, if any, or interest on, any Notes that remain unclaimed at the end of two years after such principal, premium or interest has become due and payable may be repaid to the Issuer or the Guarantors, subject to applicable law and certain optional notice provisions, and the Holder of such Note thereafter may look only to the Issuer or the Guarantors for payment thereof.
12. | Discharge and Defeasance |
Subject to certain conditions, the Issuer at any time may terminate some or all of its obligations and the obligations of the Guarantors under the Notes, the Guarantees and the Indenture if the Issuer irrevocably deposits with the Trustee Euro or European Government Obligations for the payment of principal and interest on the Notes to redemption or maturity, as the case may be.
13. | Amendment, Supplement and Waiver |
(a) | The Issuer, when authorized by a resolution its Board of Directors (as evidenced by the delivery of such resolution to the Trustee), the Guarantors, the Security Trustee and the Trustee may modify, amend or supplement this Indenture, the Notes, the Intercreditor Agreement and/or the Security Documents without notice to or consent of any Holder: |
(i) | to evidence the succession of another Person to the Issuer or a Guarantor and the assumption by any such successor of the covenants in the Indenture and in the Notes in accordance with Article Five; |
(ii) | to add to the Issuers covenants and those of any Guarantor or any other obligor in respect of the Notes for the benefit of the holders of the Notes or to surrender any right or power conferred upon the Issuer or any Guarantor or any other obligor in respect of the Notes, as applicable, in the Indenture, the Notes or any Guarantee; |
(iii) | to cure any ambiguity, or to correct or supplement any provision in the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document that may be defective or inconsistent with any other provision in the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document or make any other provisions with respect to matters or questions arising under the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document; provided that, in each case, such provisions shall not materially adversely affect the interests of the holders of the Notes; |
(iv) | to conform the text of the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document to any provision of the Description of the Notes in the Offering Memorandum to the extent that such provision in the Description of the Notes in the Offering Memorandum was intended to be a verbatim recitation of a provision of the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document; |
(v) | to release any Guarantor in accordance with (and if permitted by) the terms of the Indenture and the Intercreditor Agreement; |
Interxion Holding N.V. Indenture | Page 14 |
(vi) | to add a Guarantor or other guarantor under the Indenture; |
(vii) | to evidence and provide the acceptance of the appointment of a successor Trustee under the Indenture; |
(viii) | to mortgage, pledge, hypothecate or grant a security interest in favor of the Trustee for the benefit of the holders of the Notes as additional security for the payment and performance of the Issuers and any Guarantors obligations under the Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Trustee pursuant to the Indenture or otherwise; and |
(ix) | to provide for the issuance of Additional Notes in accordance with and if permitted by the terms of and limitations set forth in the Indenture. |
(b) | Except as provided in Section 9.02(b) and Section 6.04 of the Indenture and without prejudice to Section 9.01 of the Indenture, the Issuer and the Trustee may: |
(i) | amend or supplement the Indenture, the Intercreditor Agreement and/or the Security Documents; or |
(ii) | waive compliance by the Issuer with any provision of the Indenture, the Intercreditor Agreement and/or the Security Documents or the Notes, |
with the written consent of the Holders of a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or in exchange for the Notes).
(c) | Without the consent of the holders of 90% of the then outstanding Notes, no amendment, modification, supplement or waiver, including a waiver pursuant to Section 6.04 of the Indenture and an amendment, modification or supplement pursuant to Section 9.01 of the Indenture, may: |
(1) | change the Stated Maturity of the principal of, or any installment of or Additional Amounts or interest on, any Note (or change any Default or Event of Default under clause (a) of the definition thereof related thereto); |
(2) | reduce the principal amount of any Note (or Additional Amounts or premium, if any) or the rate of or change the time for payment of interest on any Note (or change any Default or Event of Default under clause (b) of the definition thereof related thereto); |
(3) | change the coin or currency in which the principal of any Note or any premium or any Additional Amounts or the interest thereon is payable; |
(4) | impair the right to institute suit for the enforcement of any payment of any Note in accordance with the provisions of such Note, the Indenture and the Intercreditor Agreement; |
(5) | reduce the principal amount of Notes whose holders must consent to any amendment, supplement or waiver of provisions of the Indenture requiring the consent of 90% of holders of the Notes; |
Interxion Holding N.V. Indenture | Page 15 |
(6) | modify any of the provisions relating to supplemental indentures requiring the consent of 90% of holders of the Notes; |
(7) | except as otherwise permitted under Section 5.01 of the Indenture, consent to the assignment or transfer by the Issuer of any of the Issuers rights or obligations under the Indenture; |
(8) | release any Guarantee except in compliance with the terms of the Indenture and the Intercreditor Agreement; or |
(9) | release any Lien on the Collateral granted for the benefit of the holders of the Notes, except in compliance with the terms of the Security Documents, the Indenture and the Intercreditor Agreement. |
(d) | The consent of the Holders is not necessary to approve the particular form of any proposed amendment, modification, supplement or waiver. It is sufficient if such consent approves the substance of the proposed amendment, modification, supplement or waiver. |
14. | Defaults and Remedies |
The Notes have the Events of Default as set forth in Section 6.01 of the Indenture. If an Event of Default occurs and is continuing, the Trustee, by notice to the Issuer, or the registered Holders of not less than 25% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer and the Trustee, subject to certain limitations, may declare all the Notes to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default and shall result in the Notes being due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives an indemnity satisfactory to it. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee may rescind any acceleration and its consequence if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest that has become due solely because of such acceleration. The above description of Events of Default, remedies, waivers and rescissions thereof is qualified by reference, and subject in its entirety, to the more complete description thereof contained in the Indenture.
15. | Trustee Dealings with the Issuer |
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer, the Guarantors or any of their Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, co-Registrar or co-Paying Agent may do the same with like rights.
16. | No Recourse Against Others |
No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, will have any liability for any obligations of the Issuer or the Guarantors under this Note, the Indenture, the Guarantees, the Security Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of Notes by accepting a Note will waive and release all such liability. The waiver and release will be part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under U.S. federal securities laws.
Interxion Holding N.V. Indenture | Page 16 |
17. | Authentication |
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.
18. | CUSIP, ISIN and Common Code Numbers |
The Issuer in issuing the Notes may use CUSIP, ISIN and Common Code numbers (if then generally in use), and, if so, the Issuer shall use CUSIP, ISIN and Common Code numbers, as appropriate, in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers or codes either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers.
19. | Governing Law |
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Issuer shall furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Attention: General Counsel
Interxion Holding N.V. Indenture | Page 17 |
ASSIGNMENT FORM
To assign and transfer this Note, fill in the form below:
(I) or (the Issuer) assign and transfer this Note to
(Insert assignees social security or tax I.D. no.)
(Print or type assignees name, address and postal code)
and irrevocably appoint agent to transfer
this Note on the books of the Issuer. The agent may substitute another to act for him.
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guaranty:
(Participant in a recognized signature guaranty medallion program)
Date:
Certifying Signature:
Interxion Holding N.V. Indenture | Page 18 |
In connection with any transfer of any Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which the Notes were owned by the Issuer or any Affiliate of the Issuer, the undersigned confirms that such Notes are being transferred in accordance with the transfer restrictions set forth in such Notes and:
CHECK ONE LINE BELOW
(1) ¨ to the Issuer or any Affiliate of the Issuer; or
(2) ¨ pursuant to and in compliance with Rule 144A under the U.S. Securities Act of 1933; or
(3) ¨ pursuant to and in compliance with Regulation S under the U.S. Securities Act of 1933; or
(4) ¨ pursuant to another available exemption from the registration requirements of the U.S. Securities Act of 1933.
Unless one of the lines is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if line (2) is checked, by executing this form, the Transferor is deemed to have certified that such Notes are being transferred to a person it reasonably believes is a qualified institutional buyer as defined in Rule 144A under the U.S. Securities Act of 1933 who has received notice that such transfer is being made in reliance on Rule 144A; if line (3) is checked, by executing this form, the Transferor is deemed to have certified that such transfer is made pursuant to an offer and sale that occurred outside the United States in compliance with Regulation S under the U.S. Securities Act; and if line (4) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuer reasonably requests to confirm that such transfer is being made pursuant to an exemption from or in a transaction not subject to, the registration requirements of the U.S. Securities Act of 1933.
Signature: | ||||||
Signature Guaranty: | ||||||
(Participant in a recognized signature guaranty medallion program) | ||||||
Certifying Signature: | ||||||
Date: | ||||||
Signature Guaranty: | ||||||
(Participant in a recognized signature guaranty medallion program) |
Interxion Holding N.V. Indenture | Page 19 |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased pursuant to Section 4.07 or Section 4.09 of the Indenture, check the line:
If he purchase is in part, indicate the portion (in denominations of 50,000 or any integral multiple of 1,000 in excess thereof) to be purchased:
Your Signature: | ||||
(Sign exactly as your name appears on the other side of this Note) |
Signature Guaranty: | ||
(Participant in a recognized signature guaranty medallion program) | ||
Date: | ||
Certifying Signature: |
Interxion Holding N.V. Indenture | Page 20 |
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The following decreases/increases in the principal amount of this Security have been made:
Date of
|
Decrease in
|
Increase in
|
Principal Amount
|
Notation Made
|
||||||||||||||||||||
InterXion Holding N.V. Indenture | Exhibit B Page 1 |
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
United Kingdom
Facsimile No.: +44 (0) 20 7964 2536
Attention: | Manager, Corporate Trust Operations |
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Facsimile No.: +
Attention: | General Counsel |
Re: | 9.50% Senior Secured Notes due 2017 of InterXion Holding N.V. |
Reference is hereby made to the Indenture, dated February 12, 2010 (the Indenture ), among, inter alios, InterXion Holding N.V. (the Issuer ), the Guarantors and The Bank of New York Mellon, London Branch, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
, (the Transferor ) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of (the Transfer ), to (the Transferee ), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
1. | Check if transfer is pursuant to Rule 144A: ¨ |
The Transfer is being effected pursuant to and in accordance with Rule 144A (Rule 144A) under the U.S. Securities Act of 1933, as amended (the Securities Act) and, accordingly, the Transferor hereby further certifies that the Book-Entry Interest or Definitive Registered Note is being transferred to a Person that the Transferor reasonably believes is purchasing the Book-Entry Interest or Definitive Registered Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a qualified institutional buyer within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with all applicable securities laws of any other jurisdiction. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred Book-Entry Interest or Definitive Registered Note will be subject to the restrictions on transfer enumerated in the 144A Legend printed on the Restricted Global Note and/or the 144A Definitive Registered Note and in the Indenture and the Securities Act.
2. | Check if transfer is pursuant to Regulation S: ¨ |
The Transfer is being effected pursuant to and in accordance with Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that: (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the
InterXion Holding N.V. Indenture | Exhibit B Page 2 |
United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States; (ii) no directed selling efforts have been made in contravention of the requirements of Rule 904(b) of Regulation S under the Securities Act; and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred Book-Entry Interest or Definitive Registered Note will be subject to the restrictions on transfer enumerated in the Regulation S Legend and in the Indenture and the Securities Act.
3. | Check if Transfer is pursuant to Rule 144: ¨ |
(i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and all applicable securities laws of any other jurisdiction; (ii) the Transferor is not (and during the three months preceding the Transfer was not) an Affiliate of the Issuer or any Guarantor, and (iii) at least one year has elapsed since such Transferor (or any previous transferor of such Book-Entry Interest or Definitive Registered Note that was not an Affiliate of the Issuer or any Guarantor) acquired such Book-Entry Interest or Definitive Registered Note from the Issuer or any Guarantor or an Affiliate of the Issuer or any Guarantor. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred Book-Entry Interest or 144A Definitive Registered Note will no longer be subject to the restrictions on transfer enumerated in the private placement legend set forth in Section 2.06(k) of the Indenture printed on the Restricted Global Note and/or the 144A Definitive Registered Notes and in the Indenture.
InterXion Holding N.V. Indenture | Exhibit B Page 3 |
This certificate and the statements contained herein are made for the benefit the Trustee, the Issuer and any Guarantor.
[Insert Name of Transferor] | ||
By: | ||
Name: | ||
Title: |
Dated:
InterXion Holding N.V. Indenture | Exhibit B Page 4 |
ANNEX A TO CERTIFICATE OF TRANSFER
1. | The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (a), (b) OR (c)]
(a) | ¨ a Book-Entry Interest held through Euroclear Account No. or Clearstream, Luxembourg Account No. , in the: |
(i) | ¨ Restricted Global Note (ISIN or CUSIP ), or |
(ii) | ¨ Regulation S Global Note (ISIN or CUSIP ), or |
(b) | ¨ a 144A Definitive Registered Note; or |
(c) | ¨ a Regulation S Definitive Registered Note. |
2. | After the Transfer the Transferee will hold: |
[CHECK ONE]
(a) | ¨ a Book-Entry Interest held through Euroclear Account No. or Clearstream, Luxembourg Account No. , in the: |
(i) | ¨ Restricted Global Note (ISIN or CUSIP ), or |
(ii) | ¨ Regulation S Global Note (ISIN or CUSIP ), |
(b) | ¨ a 144A Definitive Registered Note; or |
(c) | ¨ a Regulation S Definitive Registered Note. or |
(d) | ¨ an Unrestricted Definitive Registered Note. |
InterXion Holding N.V. Indenture | Exhibit C Page 1 |
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
United Kingdom
Facsimile No.: +44 (0) 20 7964 2536
Attention: | Manager, Corporate Trust Operations |
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Facsimile No.: +
Attention: | General Counsel |
Re: | 9.50% Senior Secured Notes due 2017 of InterXion Holding N.V. |
Reference is hereby made to the Indenture, dated February 12, 2010 (the Indenture ), among, inter alios, InterXion Holding N.V. (the Issuer ), the Guarantors and The Bank of New York Mellon, London Branch, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
, (the Owner ) owns and proposes to exchange the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of in such Note[s] or interests (the Exchange ) to be held following such Exchange as specified below and in Annex A hereto. In connection with the Exchange, the Owner hereby certifies that:
1. | Check for all Exchanges (UNLESS THIS LINE IS CHECKED, YOU WILL NOT BE PERMITTED TO COMPLETE THE EXCHANGE): |
¨ | In connection with the Exchange of the Owners Book-Entry Interest in the Global Note or Restricted Definitive Registered Notes for Definitive Registered Notes or a Book-Entry Interest in a Global Note with an equal principal amount, the Owner hereby certifies that such Definitive Registered Notes or such Book-Entry Interest is being acquired for the Owners own account without transfer. |
[CHECK THOSE THAT ARE APPLICABLE (IF ANY)
2. | Exchange after March 24, 2010 of Book-Entry Interests in Regulation S Global Notes or Regulation S Definitive Registered Notes for Unrestricted Definitive Registered Notes or for Book-Entry Interests in the Regulation S Global Note. |
¨ | In connection with the Exchange, the Owner hereby certifies that (i) it acquired its Regulation S Definitive Registered Notes or Book-Entry Interest in the Regulation S Global Note in a transaction complying with Rule 903 or 904 under the Securities Act and it is not an Affiliate of the Issuer or any Guarantor and (ii) the Note(s) are being acquired in compliance with all applicable securities laws of any other jurisdiction. |
InterXion Holding N.V. Indenture | Exhibit C Page 2 |
3. | Exchange of Book-Entry Interests in Restricted Global Notes or 144A Definitive Registered Notes for Unrestricted Definitive Registered Notes or for Book-Entry Interests in Regulation S Global Note. |
¨ | In connection with the Exchange: (i) such Owner is not (and during the three months preceding the Exchange was not) an Affiliate of the Issuer or any Guarantor; (ii) at least one year has elapsed since the Owner (or any previous transferor of such Book-Entry Interest that was not an Affiliate of the Issuer or any Guarantor) acquired the Notes to be exchanged from the Issuer or any Guarantor or an Affiliate of the Issuer or any Guarantor; and (iii) the Note(s) is/are being acquired in compliance with all applicable securities laws of any other jurisdiction. |
If you are exchanging a Book-Entry Interest in a Global Note, unless you checked either line 2 or 3 above, you will receive Definitive Registered Notes that bear the same legends as those applicable to the Global Notes in which you hold your Book-Entry Interests that are being exchanged. If you are exchanging 144A Definitive Registered Notes, unless you checked either line 2 or 3 above, you will receive a Book-Entry Interest in the Restricted Global Note.
InterXion Holding N.V. Indenture | Exhibit C Page 3 |
This certificate and the statements contained herein are made for the benefit the Trustee, the Issuer and each Guarantor.
[Insert Name of Owner] | ||
By: | ||
Name: | ||
Title: |
Dated:
Interxion Holding N.V. Indenture | Exhibit C Page 4 |
ANNEX A TO CERTIFICATE OF EXCHANGE
1. | The Transferor owns and proposes to transfer the following: |
[ CHECK ONE OF (a), (b) OR (c) ]
(a) | ¨ a Book-Entry Interest held through Euroclear Account No. or Clearstream, Luxembourg Account No. , in the: |
(i) | ¨ Restricted Global Note (ISIN or CUSIP ), or |
(ii) | ¨ Regulation S Global Note (ISIN or CUSIP ), or |
(b) | ¨ a 144A Definitive Registered Note; or |
(c) | ¨ a Regulation S Definitive Registered Note. |
2. | After the Transfer the Transferee will hold: |
[ CHECK ONE ]
(a) | ¨ a Book-Entry Interest held through Euroclear Account No. or Clearstream, Luxembourg Account No. , in the: |
(i) | ¨ Restricted Global Note (ISIN or CUSIP ), or |
(ii) | ¨ Regulation S Global Note (ISIN or CUSIP ), |
(b) | ¨ a 144A Definitive Registered Note; or |
(c) | ¨ a Regulation S Definitive Registered Note; or |
(d) | ¨ an Unrestricted Definitive Registered Note. |
Interxion Holding N.V. Indenture | Exhibit D Page 1 |
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT
GUARANTORS
SUPPLEMENTAL INDENTURE (this Supplemental Indenture ), dated as of , 201__, among (the Guaranteeing Entity ), InterXion Holding N.V. (the Issuer ), the Guarantors, The Bank of New York Mellon, London Branch, as trustee under the Indenture referred to below (the Trustee ) and Barclays Bank PLC, as security trustee (the Security Trustee ).
W IT N E S S E T H
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture (the Indenture ), dated as of February 12, 2010 providing for the issuance of 9.50% Senior Secured Notes due 2017 (the Notes );
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Entity shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Entity shall unconditionally guarantee all of the Issuers Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the Guarantee ); and
WHEREAS, pursuant to Article Nine of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Entity and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. | CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. |
2. | AGREEMENT TO GUARANTEE. The Guaranteeing Entity hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Guarantee and in the Indenture including but not limited to Article Ten thereof. Such guarantee includes the limitations set out in Article Ten and may include limitations to the extent a similar guarantee is also made to holders of other Indebtedness and such guarantee includes such limitations. |
3. | NO RECOURSE AGAINST OTHERS. No director, member of any supervisory or management board, shareholders committee, officer, employee, incorporator, or shareholder of the Guaranteeing Entity, as such, shall have any liability for any obligations of the Issuer or any of its Subsidiaries or any Parent of the Issuer under the Notes, the Intercreditor Agreement, any Guarantee, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. Such waiver may not be effective to waive liabilities under the U.S. federal securities laws and it is the view of the SEC that such a waiver is against public policy. |
Interxion Holding N.V. Indenture | Exhibit D Page 2 |
4. | GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. |
5. | COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. |
6. | EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof. |
7. | THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entity and the Issuer. |
8. | [SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN [ To be applied only when the Additional Guarantor is a Spanish company ] |
8.1 | SECURITY TRUSTEE ACCOUNTING. For the purposes of the Notes and the Indenture (including the Guarantees under the Indenture), the Security Trustee, in its capacity as such, shall open and maintain in its book a special credit account for each Holder and the Trustee. In each of such accounts the Security Trustee shall debit the amounts owed by the Issuer or a Guarantor, including the interest, fees, expenses, default interest, additional costs and any other amounts that are payable by the Issuer or a Guarantor pursuant to the Notes or the Indenture (including the guarantees under the Indenture). Likewise, all amounts received by the Security Trustee from a Issuer or a Guarantor pursuant the Notes and the Indenture (including the guarantees under the Indenture) shall be credited in that account, so that the sum of the balance of the credit account represents the amount owed by the Issuer or a Guarantor a to a Holder or the Trustee at any time. |
8.2 | DETERMINATION OF BALANCE DUE IN THE EVENT OF ENFORCEMENT BEFORE THE SPANISH COURTS. In the event of enforcement of the Notes or the Indenture (including the Guarantees under the Indenture) before the Spanish courts, the Security Trustee shall settle the credit accounts referred to above in Section 8.1 (Security Trustee Accounting). It is expressly agreed for purposes of enforceability via judicial or out-of-court methods pursuant to Spanish Law, that the balance due from the accounts referred to in this Section resulting from the certificate issued for such purpose by the Security Trustee shall be deemed a liquid, due and payable amount enforceable against the Issuer or a Guarantor; provided that it is evidenced in a notarial document that the settlement was made in the form agreed to by the parties in the enforceable instrument documenting this document ( título ejecutivo ). |
The Security Trustee shall previously notify the Issuer of the amount due as a result of the settlement.
8.3 |
ENFORCEMENT BEFORE THE SPANISH COURTS. In the event that the Security Trustee decides, for the purposes of the enforcement of the Notes and the Indenture (including the Guarantees under the Indenture) before the Spanish courts, to commence the ordinary enforcement proceeding set forth in Articles 517, et seq., of the Law of Civil Procedure ( Ley de Enjuciamiento Civil ), the Parties expressly agree for purposes of Article 571, et seq., of such Law of Civil Procedure that the settlement to determine the summarily enforceable debt be made by the Security Trustee. Therefore, the following will be sufficient for the commencement of the |
Interxion Holding N.V. Indenture | Exhibit D Page 3 |
summary proceedings: (i) the notarial deed ( escritura de elevación a público ) evidencing this agreement; (ii) a certificate, issued by the Security Trustee, of the debt for which the Issuer or a Guarantor is liable, as well as the extract of the debit and credit entries and the entries corresponding to the application of interest that determines the actual balance for which enforcement is requested and the document providing evidence ( documento fehaciente ) that the settlement of the debt has been carried out in the form agreed to in this agreement; and (iii) a notarial document providing evidence of the prior notice to the Issuer of the amount due as a result of the settlement. |
The Issuer shall bear all taxes, expenses and duties accruing or that are incurred on by reason of the notarial instruments referred to in the previous paragraph.
8.4 | PUBLIC DEED. This Supplemental Indenture has been executed in a private document. Each Party shall be entitled to request to the other the formalization of this agreement before a Spanish Notary Public at any moment. The Guarantor shall bear all costs and expenses relating to such formalization. The public deed by which this agreement is raised to the status of public document will confirm in Spanish language: (i) the guarantee to be provided under Section 10 of the Indenture, (ii) the provisions of Section 12.02 of the Indenture related to the powers of attorney to be granted by the Holders and the Trustee to the Security Trustee; and (iii) this section.] |
Interxion Holding N.V. Indenture | Exhibit D Page 4 |
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: , 201
[ GUARANTEEING ENTITY ] | ||
By: | ||
Name: | ||
Title: |
InterXion Holding N.V. | ||
By: | ||
Name: | ||
Title: |
[ EXISTING GUARANTORS ] | ||
By: | ||
Name: | ||
Title: |
The Bank of New York Mellon, London Branch | ||
as Trustee | ||
By: | ||
Name: | ||
Title: |
[Barclays Bank PLC | ||
as Security Trustee | ||
By: | ||
Name: | ||
Title: ] |
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of , 2011
INTERXION HOLDING N.V.
and
CHIANNA INVESTMENT N.V.
and
LAMONT FINANCE N.V.
and
BAKER COMMUNICATIONS FUND II, L.P.
Table of Contents
Contents |
Page | |||||
1 | Definitions | 1 | ||||
2 | Demand Registration | 4 | ||||
3 | Shelf Registrations | 5 | ||||
4 | Piggyback Registrations | 6 | ||||
5 | Underwriting Terms | 7 | ||||
6 | Expenses | 7 | ||||
7 | Indemnities | 8 | ||||
8 | Obligations of the Company | 10 | ||||
9 | Conditions to Registration Obligations | 12 | ||||
10 | Delay In Registration | 12 | ||||
11 | Lock-Up and other Requirements of the Holders | 12 | ||||
12 | Rule 144 | 13 | ||||
13 | Other Registration Rights; Term | 13 | ||||
14 | Miscellaneous | 14 |
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Registration Rights Agreement
This Registration Rights Agreement (this Agreement ) made as of , 2011, by and among
(1) | InterXion Holding N.V ., a company incorporated under the laws of The Netherlands with its corporate seat at Amsterdam, The Netherlands, (the Company ); |
(2) | Chianna Investment N.V ., a company incorporated under the laws of the Netherlands Antilles ( Baker I ); |
(3) | Lamont Finance N.V ., a company incorporated under the laws of the Netherlands Antilles ( Baker II ); and |
(4) | Baker Communications Fund II, L.P. , a limited partnership organized under the laws of Delaware, U.S.A. ( Baker III ). |
Whereas , the Company consummated an initial public offering ( IPO ) of Ordinary Shares and a listing of the Ordinary Shares on the New York Stock Exchange ( NYSE ) on the date hereof (the Closing Date ); and
Whereas , the parties hereto wish to set forth certain rights and obligations with respect to the registration of Ordinary Shares under the Securities Act (as defined below).
Now Therefore , in consideration of the premises, mutual agreements, covenants and representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1 | Definitions |
1.1 | As used herein, the following terms have the following meanings: |
Affiliate of any Person means any Person that directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this definition control (inclusive its correlative meanings, controlled by and under common control with ) shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
Agreement has the meaning set forth in the heading of this Agreement.
Baker I has the meaning set forth in the list of parties above.
Baker II has the meaning set forth in the list of parties above.
Baker III has the meaning set forth in the list of parties above.
Baker means Baker I, Baker II, Baker III and Affiliates of any of them.
Board of Directors means the board of directors of the Company.
Claims has the meaning set forth in Section 7.1.
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Closing Date has the meaning set forth in the recitals to this Agreement.
Company has the meaning set forth in the list of parties above.
Company Registration has the meaning set forth in Section 4.1.
Current Managing Entities means any entity which controls, is controlled by, or is under common control with any management company or managing or general partner of Baker I, Baker II or Baker III.
Cutback has the meaning set forth in Section 2.2.
Demand has the meaning set forth in Section 2.1.1.
Demand Registration has the meaning set forth in Section 2.1.1.
Exchange Act means the United States Securities Exchange Act of 1934, as amended.
F-3 Registration has the meaning set forth in Section 3.1.
FINRA means the Financial Industry Regulatory Authority, or any successor self-regulatory organization.
Form F-3 means Form F-3 or Form S-3 under the Securities Act or any similar registration form under the Securities Act that would allow the registered resale of the Registrable Shares, is subsequently adopted by SEC and permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.
Holder means any holder of outstanding Registrable Shares.
Indemnified Party has the meaning set forth in Section 7.3.
Indemnifying Party has the meaning set forth in Section 7.3.
IPO has the meaning set forth in the recitals to this Agreement.
Ordinary Shares shall mean ordinary shares in the capital of the Company, with a nominal value 0.02 each.
Permitted Transferee means (A) with respect to an individual, any parent, spouse or lineal descendant of such individual or a company or other entity fully owned or controlled by him; and (B) with respect to an entity Holder:
(i) if such Holder is a corporation or company, any entity which controls, is controlled by or is under common control with, such Holder;
(ii) if such Holder is a general or limited partnership, or if it is an entity which, directly or indirectly has holdings in a general partnership,
(a) any of the Holders limited partners or general partners; and
(b) any partnership managed by the same management company or managing or general partner of such Holder;
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(iii) any corporation or company that is managed by the same management company or managing general partner that manages such Holder;
(iv) any shareholder or member of an entity described in (iii) that is managed by the same management company or managing general partner that manages such Holder;
(v) any entity which controls, is controlled by, or is under common control with, the same management company or managing or general partner that manages such Holder; and
(vi) any Current Managing Entities and/or any other management company or managing or general partner which may be established by substantially the same persons or entities who established any of the Current Managing Entities;
Person shall mean any individual, partnership, corporation, unincorporated organization or association, limited liability company, trust or other natural person or legal entity.
Piggyback Requests has the meaning set forth in Section 4.1.
Register , registered and registration refers to a registration effected by filing a registration statement in compliance with the Securities Act and the declaration or ordering by the SEC of effectiveness of such registration statement, or the equivalent actions under the laws of another jurisdiction.
Registrable Shares means (i) any and all Ordinary Shares owned by Baker on the date hereof; (ii) any and all Ordinary Shares acquired by Baker hereafter; and (iii) any and all securities issued or issuable with respect to the Registrable Shares by way of stock dividend or a stock split or in connection with any combination of shares, recapitalization, merger, consolidation or other reorganization or pro rata issuance to holders of all Registrable Shares; provided that Registrable Shares shall cease to be Registrable Shares as set forth in Section 13.
SEC means the Securities and Exchange Commission of the United States.
Securities Act means the United States Securities Act of 1933, as amended.
Selling Holder has the meaning set forth in Section 7.1.
Underwritten Offering means a sale of Registrable Shares to an underwriter or underwriters for reoffering to the public.
1.2 | Singular, plural, gender |
Words and defined terms denoting the singular number include the plural and vice versa and the use of any gender shall be applicable to all genders.
1.3 | Headings |
The paragraph headings are for the sake of convenience only and shall not affect the interpretation of this Agreement.
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2 | Demand Registration |
2.1 | Request for Registration |
2.1.1 | At any time following the Closing Date, holders of a majority of the Registrable Shares may request in writing (such request in writing, a Demand ) that all or part of the Registrable Shares held by them be registered under the Securities Act and approved for listing and trading on the NYSE or other national securities exchange on which the securities of the Company are listed for trading as the time of such Demand ( Demand Registration ). Holders of a majority of the Registrable Shares shall also be entitled to request an Underwritten Offering; provided, however, that a request for an Underwritten Offering must be included in such Demand and such holders shall have no right to request an Underwritten Offering at any other time. Thereupon, the Company shall use its best efforts to effect the registration of all Registrable Shares as to which it has received Demands, provided that the Company shall not be required to effect a Demand Registration with respect to Registrable Shares that may not be sold pursuant to the terms of a lock-up agreement entered into in connection with the IPO or within 90 days after the effectiveness date of a registration statement with respect to a prior F-3 Registration. The Company shall not be required to effect more than four Demand Registrations or more than four Underwritten Offerings under this Section 2.1. |
2.1.2 | A Demand which has not culminated in the sale of the requested Registrable Shares shall not be counted as a Demand for the purposes of this Section 2. |
2.1.3 | The Company shall be entitled to register securities for sale for its own account in any registration requested pursuant to this Section 2.1, provided, however, that in the event of a Cutback such securities shall be excluded from such registration to the extent necessary to satisfy such limitation, prior to any exclusion of Registrable Shares. |
2.1.4 | Unless permitted to do so by the written consent of Holders of a majority of Registrable Shares, the Company shall not allow a registration statement registering its Ordinary Shares (other than a registration statement with respect to an employee benefit plan, a registration statement on Form F-4 or S-4 with respect to an exchange offer or tender offer or a registration statement otherwise required by this Agreement) to become effective during the ninety (90) days after the effectiveness of a registration statement filed in connection with an Underwritten Offering to satisfy the Companys obligations in Section 2.1. |
2.2 | Cutback |
Notwithstanding the provisions of Section 2.1 above, if the Company advises the Holders making a Demand pursuant to Section 2.1 that, based on a written opinion of the managing underwriter or underwriters for a Demand Registration, the number of securities requested to be included in such Demand Registration exceeds the number that can be sold in such offering without adversely affecting the underwriters ability to
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effect an orderly distribution of such securities at the price per Ordinary Share in such offering ( Cutback ), the Company will include in such registration the number of Registrable Shares requested to be included that, in the opinion of such underwriter(s), can be sold without such adverse effect. In the event of a Cutback, then after applying Section 2.1.3 each Holder will be Cutback pro rata to the number of Registrable Shares such Holders requested be registered in the Demand Registration. If, as a result of a Cutback, the number of securities registered in a Demand Registration is 80% or less of the number of securities requested to be included in such Demand Registration, then such Demand Registration shall not count as one of the Demand Registration or Underwritten Offerings provided for in Section 2.1.1.
2.3 | Deferral of Filing |
If the Company shall furnish to the Holders making a Demand pursuant to Section 2.1 a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the majority of the Board of Directors not affiliated with Baker, it would be seriously detrimental to the Company or the Holder for a registration to be effected at such time, the Company shall have the right to defer the filing for a period of not more than ninety (90) days after a Demand pursuant to Section 2.1; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period and the Company shall not register any other of its securities during such ninety-day period (other than a registration effected solely with respect to an employee benefit plan).
3 | Shelf Registrations |
3.1 | From such time as the Company becomes eligible to register securities on a Form F-3, the Company shall, at the request of holders of a majority of the Registrable Shares, file a shelf registration statement pursuant to Rule 415 under the Securities Act with the SEC for the sale of all Registrable Shares requested to be included in the registration statement, and the Company will maintain the effectiveness of each registration statement as set forth in Section 8.1 and will use its reasonable best efforts to allow their continued use by the holders of the Registrable Shares, including the timely filing of all required reports under the Securities Act ( F-3 Registration ). The holders of a majority of the Registrable Shares may request an unlimited number of F-3 Registrations (but no more than one in any six-month period), provided however that the aggregate anticipated offering price of the Registrable Shares to be sold in such F-3 Registration equals at least US$500,000. |
Unless permitted to do so by the written consent of Holders of a majority of Registrable Shares, the Company shall not allow a registration statement registering its Ordinary Shares (other than a registration statement with respect to an employee benefit plan, a registration statement on Form F-4 or S-4 with respect to an exchange offer or tender offer or a registration statement otherwise required by this Agreement) to become effective during the ninety (90) days after the effectiveness of a shelf registration statement filed to satisfy the Companys obligations in this Section 3.1.
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3.2 | Notwithstanding the above, the Company shall not be required to effect a registration pursuant to this Section 3 if: |
3.2.1 | the Company shall furnish to the Holders requesting the registration pursuant to Section 3.1, a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of a majority of the Board of Directors not affiliated with Baker, it would be seriously detrimental to the Company or the Holder for such registration to be effected at such time, in which case the Company shall have the right to defer the filing for a period of not more than ninety (90) days after receipt of the request of the Holders pursuant to Section 3.1; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period and the Company shall not register any other of its shares during such ninety-day period (other than a registration effected solely with respect to an employee benefit plan); and |
3.2.2 | the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) F-3 Registration for the Holders pursuant to this Section 3. |
4 | Piggyback Registrations |
4.1 | At least twenty (20) days prior to the initial filing of a registration statement or similar document with the relevant securities authority with respect to the registration of any of the Ordinary Shares under the Securities Act (other than a registration statement pursuant to a Demand Registration, a registration statement on S-8 or any similar form for the registration of an employee share option, share purchase or similar benefit plan, a registration statement in connection with a merger or exchange offer, or a registration statement that does not include or incorporate substantially the same information as would be required to be included in a registration statement covering the sale of Registrable Shares) (a Company Registration ), the Company will give written notice to the Holders of its intention to effectuate such a Company Registration. Subject to the provisions of Section 4.2 below, the Company will use its best efforts to include in such Company Registration all Registrable Shares with respect to which the Company has received written requests for inclusion therein within twenty (20) days after the Company gives such notice ( Piggyback Requests ). |
4.2 | If a Company Registration is an Underwritten Offering and the managing underwriters advise the Company in writing that, in their opinion, the number of Registrable Shares included in Piggyback Requests exceeds the number that can be sold in such offering without adversely affecting such underwriters ability to effect an orderly distribution of the Ordinary Shares, the Company will only include in such Company Registration: (i) the Ordinary Shares to be sold by the Company; and (ii) the number of Registrable Shares included in Piggyback Requests which, in the opinion of such underwriters, can be sold without such adverse effect if added to the Ordinary Shares to be sold by the Company, divided pro rata among the holders of such Registrable Shares, on the basis of the number of Registrable Shares such Holders requested be registered. |
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5 | Underwriting Terms |
5.1 | In connection with any registration of Ordinary Shares by the Company, the Company shall select the underwriters, who shall be internationally recognized underwriters and acceptable to the Board of Directors; provided, however, that with respect to an Underwritten Offering made pursuant to a Demand Registration, the Company shall select the underwriters, who shall be nationally recognized underwriters and acceptable to Baker to be included in such registration. |
5.2 | In connection with any Underwritten Offering, the Company shall make available upon reasonable notice at reasonable times and for reasonable periods for inspection by each Selling Holder, by any managing underwriter or underwriters participating in any disposition to be effected pursuant to such registration statement, and by any attorney, accountant or other agent retained by any Selling Holder or any managing underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Companys officers, directors and employees and the independent public accountants who have certified the Companys financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Selling Holders, managing underwriters, attorneys, accountants or agents in connection with such registration statement as shall be necessary to enable them to exercise their due diligence responsibility (subject to entry by each party referred to in this Section 5.12 into customary confidentiality agreements in a form reasonably acceptable to the Company). |
5.3 | In connection with any Underwritten Offering made pursuant to a Demand Registration, the price, underwriting discount and other financial terms for the Registrable Shares of the related underwriting agreement shall be determined by the Selling Holders holding a majority of the Registrable Shares to be included in such offering. |
6 | Expenses |
All costs and expenses (other than underwriting discounts and commissions) incurred in connection with up to two registrations under Section 2 above and up to two registrations under Section 3 above, including the reasonable fees of one legal counsel for the selling Holders, shall be borne by the Company. All costs and expenses (other than underwriting discounts and commissions relating to Ordinary Shares sold by the Company, if any) incurred in connection with any other registration under Sections 2 or 3 above shall be borne by the selling Holders. All costs and expenses (other than (x) underwriting discounts and commissions relating to Registrable Shares sold by the selling Holders and (y) fees of legal counsel for the selling Holders) incurred in connection with any registration under Section 4 above shall be borne by the Company.
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7 | Indemnities |
In the event of any registered offering pursuant to this Agreement:
7.1 | Company Indemnity |
To the extent permitted by law, the Company shall indemnify and hold the Holder selling shares in any registration hereunder ( Selling Holder ), and the officers, directors, employees, legal counsel and accountants of the Holder and each person, if any, who controls the Holder within the meaning of the Securities Act, harmless from and against any and all losses, damages, liabilities, and charges, joint or several fees and expenses ( Claims ), to which any of them may be subject under the Securities Act and/or any other applicable securities law, or any other statute (whether U.S. or otherwise) or at common law, insofar as such Claims arise out of, or are based upon, (i) any untrue statement of any material fact included by the Company in any registration statement or prospectus under which such securities were sold; or (ii) any omission by the Company to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; or (iii) any other violation by the Company of the Securities Act or any state, Federal or foreign jurisdiction securities laws in connection with each such registration, and shall reimburse each such person entitled to indemnification for any legal or other expenses reasonably incurred by such person and/or entity in connection with investigating or defending any such Claim, as and when such expenses are incurred; provided, however, that the Company shall not be liable to any such person and/or entity in any such case to the extent that any such Claim arises out of or is based upon any untrue statement or omission made in such registration statement or prospectus in reliance upon and in conformity with written information furnished to the Company by the Selling Holder and/or any person acting on its behalf specifically for use in the preparation thereof.
7.2 | Holder Indemnity |
Each Selling Holder shall, severally and not jointly, indemnify and hold the Company and the officers, directors, employees, legal counsel and accountants of the Company, and each person and/or entity, if any, who controls the Company, within the meaning of the Securities Act, harmless from and against any Claims which arise out of, or are based upon: (i) any untrue statement of any material fact contained in any registration statement or prospectus under which such securities were sold, furnished in writing by the Selling Holder specifically for inclusion in the prospectus; or (ii) any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and relating to any statement furnished in writing by the Selling Holder specifically for inclusion in the prospectus, and shall reimburse each such person and/or entity entitled to indemnification for any legal or other expenses reasonably incurred by such person and/or entity in connection with investigating or defending any such Claim, as and when such expenses are incurred; provided, however, that the Selling Holder shall not be liable to any such person and/or entity in any such case to the extent that any such Claim arises out of or is based upon any untrue statement or omission made in such registration statement or prospectus in reliance upon and in conformity with written information furnished to the Selling Holder by such person and/or entity and/or any person acting on its behalf specifically for use in the preparation thereof, and provided further that the maximum liability of the Selling Holder under this Section 7.2 shall be limited to the net proceeds received by the Selling Holder from the sale of Ordinary Shares pursuant to the offering in respect of which indemnity is required hereunder.
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7.3 | Indemnity Procedure |
Promptly after receipt by the Selling Shareholder or the Company of a notice of the commencement of any action, proceeding, or investigation in respect of which indemnity may be sought as provided above, such party (the Indemnified Party ) shall notify the party from whom indemnification is claimed (the Indemnifying Party ). The omission to notify the Indemnifying Party will not relieve it from any liability which it may have to any Indemnified Party, unless the failure to give such notice is prejudicial to the Indemnifying Partys ability to defend such an action. In case such action is brought against any Indemnified Party and it notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party shall have the right to participate in, and, to the extent that it may wish, jointly with any other Indemnifying Parties similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such Indemnified Party; provided, however, that if the defendants in any action include both the Indemnified Party and the Indemnifying Party and there is a conflict of interests which would prevent counsel for the Indemnifying Party from also representing the Indemnified Party, the Indemnified Party or Parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such Indemnified Party or Parties. After notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party will not be liable to such Indemnified Party pursuant to the provisions of Sections 7.1 or 7.2 for any legal or other expense subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provision of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after the notice of the commencement of the action and within 15 days after written notice of the Indemnified Partys intention to employ separate counsel pursuant to the previous sentence, or (iii) the Indemnifying Party has authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. No Indemnifying Party will consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. In addition, the Indemnified Party shall in no event enter into any settlement without obtaining the Indemnifying Partys prior written consent, which shall not be unreasonably withheld. Each Indemnified Party shall provide such information regarding itself or the claim in question as an Indemnifying Party has reasonably requested in writing and shall otherwise cooperate with the Indemnifying Party as shall be reasonably required in the defense of such claim and any litigation resulting therefrom.
7.4 | Survival |
The obligations of the Company and the Selling Holders under this Section 7 shall survive the completion of any offering of Registrable Shares in a registration statement under this Agreement, and otherwise.
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8 | Obligations of the Company |
Whenever required under this Agreement to effect the registration of any Registrable Shares, the Company shall, subject to the provisions of this Agreement, as expeditiously as possible:
8.1 | prepare and file with the SEC a registration statement with respect to such Registrable Shares and use its best efforts to cause such registration statement to become effective; |
8.2 | upon the request of the holders of a majority of the Registrable Shares registered thereunder, keep a registration statement filed pursuant to Section 2 above effective for a period of ninety (90) days or, if sooner, until the distribution contemplated in the registration statement has been completed; |
8.3 | upon the request of the holders of a majority of the Registrable Shares registered thereunder, keep a registration statement filed pursuant to Section 3 above effective for a period of up to four months or, if sooner, until the distribution contemplated in the Registration Statement has been completed; provided, however, that the Company may suspend sales at any time under the registration statement immediately upon notice to the selling Holders or their assigns for a period of time not to exceed in the aggregate 90 days during any twelve (12) month period, if there then exists material, non-public information relating to the Company which, in the reasonable good faith opinion of the majority of the Board of Directors not affiliated with Baker, would be seriously detrimental to the Company to disclose during that time and further provided that the period during which the registration statement must be kept effective will be extended for a number of days equal to the length of any such suspension period; |
8.4 | prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be (i) reasonably requested by any Selling Holder (to the extent such request relates to information relating to such Selling Holder) or (ii) reasonably necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Shares covered by such registration statement; |
8.5 | furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Shares owned by them; |
8.6 | use every reasonable effort to register or qualify the securities covered by such registration statement under such securities or blue sky laws of such jurisdictions within the United States as the Holders shall request, and do any and all other acts and things which may be necessary under such securities or blue sky laws to enable such Holders to consummate the public sale or other disposition in such jurisdictions of the securities to be sold by such Holders, except that the Company shall not for any such purpose be required to qualify to do business as a foreign corporation in any jurisdiction wherein it is not qualified or consent to general service of process in any jurisdiction where it is not otherwise subject to such service, with respect to the latter, except in such jurisdictions where the Ordinary Shares are already registered; |
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8.7 | within a reasonable time before each filing of a registration statement or prospectus or amendments or supplements thereto with the SEC, furnish to counsel selected by the Selling Holders copies of such documents proposed to be filed, which documents shall be subject to the review, comment and approval of such counsel; |
8.8 | in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement; |
8.9 | notify each holder of Registrable Shares covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; and, as promptly as practicable thereafter, prepare and file with the SEC and a supplement or amendment to such registration statement or prospectus so that, as thereafter deliverable to the purchasers of such Registrable Shares, such registration statement or prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in light of the circumstances then existing; |
8.10 | use its best efforts to cause all Registrable Shares registered hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed; |
8.11 | provide a transfer agent and registrar for all Registrable Shares registered pursuant hereunder and a CUSIP number for all such Registrable Shares, in each case not later than the effective date of such registration; |
8.12 | to the extent reasonably requested by the managing underwriter or underwriters, in connection with an Underwritten Offering, send appropriate officers of the Company to attend any road shows scheduled in connection with such Underwritten Offering, with all out of pocket costs and expenses incurred by the Company or such officers in connection with such attendance to be paid by the Company; |
8 .13 | use its best efforts to furnish, at the request of any Holder requesting registration of Registrable Shares pursuant to this Agreement, on the date that such Registrable Shares are delivered to the underwriters for sale in connection with a registration pursuant to this Agreement, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective: |
8.13.1 | an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Shares; and |
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8.13.2 | a letter dated such date, from the independent registered public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Shares; |
8.14 | cooperate with each Selling Holder and each underwriter or agent, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA; |
8.15 | make available to each Selling Holder, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first month after the effective date of the applicable registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; and |
8.16 | otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and take all other steps necessary to effect the registration of the Registrable Shares contemplated hereby. |
9 | Conditions to Registration Obligations |
The Company shall not be obligated to effect the registration of a Holders Registrable Shares pursuant to this Agreement unless such Holder agrees to the following:
9.1 | such Holder will comply with all applicable provisions of the Securities Act and the Exchange Act including, but not limited to, the prospectus delivery requirements of the Securities Act, and will furnish to the Company information about any sales to the extent necessary for the Company to make required filings with the government of the United States or other jurisdictions within the United States; and |
9.2 | such Holder will not, upon receipt of telegraphic or written notice from the Company that it is required by law to correct or update the registration statement or prospectus, effect sales of the Registrable Shares until the Company has completed the necessary correction or updating. |
10 | Delay In Registration |
No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Agreement.
11 | Lock-Up and other Requirements of the Holders |
In connection with the IPO, all Holders agree that any sales of Registrable Shares may be subject to a customary lock-up period if so required by the underwriter in such a registration, restricting such sales for up to 90 days, and all Holders will agree to abide by such customary lock-up period of up to 90 days if so required by the underwriter in such a registration; provided that management and all directors of the Company agree to a similar lock-up, unless
12
such condition is waived by holders of a majority of the Registrable Shares. In addition, no Holder may participate in any underwritten registration hereunder unless such person: (a) agrees to sell such persons securities on the basis provided in any customary underwriting arrangements and (b) provides any relevant information and completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, and other documents required under the terms of such underwriting arrangements.
12 | Rule 144 |
At any time and from time to time after the earlier of the close of business on such date as (a) a registration statement filed by the Company under the Securities Act becomes effective, and (b) the Company registers a class of securities under Section 12 of the Exchange Act, the Company shall:
12.1 | make and keep available adequate current public information with respect to the Company within the meaning of Rule 144(c) under the Securities Act (or similar rule then in effect); |
12.2 | furnish to any holder of Registrable Shares forthwith upon request (a) a written statement by the Company as to its compliance with the informational requirements of Rule 144(c) (or similar rule then in effect) or (b) a copy of the most recent annual or quarterly report of the Company; and |
12.3 | use its best efforts to comply with all other necessary filings and other requirements so as to enable the Registrable Shares and any transferee thereof to sell Registrable Shares under Rule 144 under the Securities Act (or similar rule then in effect). |
13 | Other Registration Rights; Term |
13.1 | The Company shall not grant registration rights with respect to any securities of the Company to any person that are equal to or superior to the registration rights granted to the Holders pursuant to this Agreement without the consent of Baker. |
13.2 | The registration rights provisions of this Agreement shall cease to apply to any particular Registrable Share when: (i) at any time after consummation of an IPO, such security is sold by the holder thereof pursuant to Rule 144 under circumstances in which any legend borne by such security relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed by the Company; (ii) a registration statement covering such Registrable Shares has been declared effective under the Securities Act and such Registrable Shares have been disposed of pursuant to such effective registration statement; (iii) (A) the entire amount of the Registrable Shares owned by a Holder may be sold in a single sale pursuant to Rule 144 and (B) the Registrable Shares collectively represent less than 1% of the then outstanding Ordinary Shares; (iv) the Registrable Share has been sold or distributed to a Person not entitled to registration rights pursuant to this Agreement; or (v) such Holder elects in writing to no longer be a Party to this Agreement. For purposes of determining compliance with this Section 13.2, the Company shall, promptly upon the request of any Holder, furnish to such Holder evidence of the number of Registrable Shares then outstanding. For the avoidance of doubt, the rights set forth in Section 7 shall not expire due to the foregoing. |
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14 | Miscellaneous |
14.1 | Further Assurances |
Each of the parties hereto shall perform such further acts and execute such further documents as may reasonably be necessary to carry out and give full effect to the provisions of this Agreement and the intentions of the parties as reflected thereby.
14.2 | Governing Law; Jurisdiction |
This Agreement shall be governed by and construed in accordance with, the laws of the State of New York.
In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each of the parties hereto unconditionally accepts the non-exclusive jurisdiction and venue of the courts of the State of New York in New York County or the United States District Court for the Southern District of New York, and the appellate courts to which orders and judgments thereof may be appealed. In any such judicial proceeding, the parties hereto agree that in addition to any method for the service of process permitted or required by such courts, to the fullest extent permitted by Law, service of process may be made by delivery provided pursuant to the directions in Section 14.5. EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR RELATING TO THE COMPANY OR ITS OPERATIONS.
14.3 | Successors and Assigns; Assignment; Aggregation |
Except as otherwise expressly limited herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.
Other than as expressly set out in this Agreement, none of the rights, privileges, or obligations set forth in, arising under, or created by this Agreement may be assigned or transferred without the prior consent in writing of each party to this Agreement, except that any Holder may make an assignment or transfer to a Permitted Transferee of such Holder; provided, however, that no such assignment or transfer shall become effective unless such assignee or transferee has agreed in writing to be bound by all terms and conditions of this Agreement as if it were an original party hereto.
14.4 | Entire Agreement; Amendment and Waiver ; |
14.4.1 | This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matters hereof. |
14.4.2 | Subject to any provision herein to the contrary, any term of this Agreement may be amended and the observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of: |
(i) | the Holders of a majority of the Registrable Shares; and |
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(ii) | the Company, if the amendment or waiver adversely affects the rights or obligations of the Company. |
14.5 | Notices |
All notices or other communications hereunder shall be in writing and shall be given in person, by registered mail (registered international air mail if mailed internationally), by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile transmission (provided that written confirmation of receipt is provided) with a copy by mail, addressed as set forth below:
(i) | if to Baker: |
Baker Capital Corp.
540 Madison Avenue
New York, NY 10022
Telephone: +1 212 848 2000
Fax: +1 212 486 0660
with a copy (which shall not constitute notice) to:
Gibson Dunn & Crutcher
200 Park Avenue
New York, NY 10166
Telephone: +1 212 351 3918
Fax: +1 212 351 5217
Attention: Edward D. Sopher
(ii) | if to the Company: |
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Phone: +31 20 880 7600
Fax: +31 20 880 7601
Attention: Jaap Camman
with a copy (which shall not constitute notice) to:
Linklaters LLP
1345 Avenue of the Americas
New York, NY 10105
Phone: +1 212 903 9000
Fax: + 1 212 903 9100
Attention: Jeffrey C. Cohen
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All communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile transmission shall be deemed given on the business day following transmission with confirmed answer back, and all notices and other communications sent by registered mail (or air mail if the posting is international) shall be deemed given ten (10) days after posting.
14.6 | Delays or Omissions |
No delay or omission to exercise any right, power, or remedy accruing to any party upon any breach or default under this Agreement, shall be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any of the parties, shall be cumulative and not alternative.
14.7 | Severability |
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
14.8 | Counterparts, Facsimile Signatures |
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the parties actually executing such counterpart, and all of which together shall constitute one and the same instrument. A signed Agreement received by a party to this Agreement via facsimile will be deemed an original, and binding upon the party who signed it.
[Remainder of the page intentionally left blank]
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In witness whereof this Agreement has been duly executed and delivered on the date herein above set forth.
INTERXION HOLDING N.V. | ||
By: | ||
Name: Title: |
||
LAMONT FINANCE N.V. | ||
By: | ||
Name: Title: |
||
CHIANNA INVESTMENTS N.V. | ||
By: | ||
Name: Title: |
||
BAKER COMMUNICATIONS FUND II, L.P. | ||
By: | ||
Name: Title: |
17
Exhibit 10.1
EXECUTION COPY
Dated 1 February 2010
EUR 60,000,000
FACILITY AGREEMENT
for
INTERXION HOLDING N.V.
arranged by
BARCLAYS BANK PLC
CITIGROUP GLOBAL MARKETS LIMITED
FORTIS BANK (NEDERLAND) N.V.
MERRILL LYNCH INTERNATIONAL
CREDIT SUISSE AG, LONDON BRANCH
JEFFERIES FINANCE LLC
with
BARCLAYS BANK PLC
acting as Agent
and
BARCLAYS BANK PLC
acting as Security Trustee
SENIOR MULTICURRENCY
REVOLVING FACILITY AGREEMENT
CONTENTS
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29. |
SHARING AMONG THE FINANCE PARTIES |
106 | ||||
30. |
PAYMENT MECHANICS |
108 | ||||
31. |
SET-OFF |
111 | ||||
32. |
APPLICATION OF PROCEEDS |
111 | ||||
33. |
NOTICES |
112 | ||||
34. |
CALCULATIONS AND CERTIFICATES |
115 | ||||
35. |
PARTIAL INVALIDITY |
116 | ||||
36. |
REMEDIES AND WAIVERS |
116 | ||||
37. |
CONFIDENTIALITY |
116 | ||||
38. |
AMENDMENTS AND WAIVERS |
121 | ||||
39. |
COUNTERPARTS |
122 | ||||
40. |
GOVERNING LAW |
122 | ||||
41. |
ENFORCEMENT |
122 | ||||
42. |
SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN |
123 | ||||
SCHEDULE 1 THE ORIGINAL PARTIES |
125 | |||||
Part 1 The Original Borrower |
125 | |||||
The Original Guarantor |
125 | |||||
Part 2 The Original Lenders |
126 | |||||
SCHEDULE 2 CONDITIONS PRECEDENT |
127 | |||||
Part 1 Conditions Precedent to Initial Utilisation |
127 | |||||
Part 2 Conditions Precedent required to be delivered by an Additional Obligor |
132 | |||||
SCHEDULE 3 UTILISATION REQUEST |
135 | |||||
SCHEDULE 4 MANDATORY COST FORMULAE |
136 | |||||
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE |
139 | |||||
SCHEDULE 6 FORM OF ASSIGNMENT AGREEMENT |
142 | |||||
SCHEDULE 7 FORM OF ACCESSION LETTER |
145 | |||||
SCHEDULE 8 FORM OF RESIGNATION LETTER |
148 | |||||
SCHEDULE 9 FORM OF COMPLIANCE CERTIFICATE |
149 | |||||
SCHEDULE 10 LMA FORM OF CONFIDENTIALITY UNDERTAKING |
150 | |||||
SCHEDULE 11 TIMETABLES |
154 |
ii
SCHEDULE 12 INITIAL TRANSACTION SECURITY DOCUMENTS |
155 | |||||
SCHEDULE 13 FORM OF INCREASE CONFIRMATION |
157 | |||||
SCHEDULE 14 ALTERNATIVE REFERENCE BANKS |
160 | |||||
Part 1 Alternative Reference Banks in relation to Loans in currencies other than Euro |
160 | |||||
Part 2 Alternative Reference Banks in relation to Loans in Euro |
161 | |||||
SCHEDULE 15 CONTINUING FINANCING AGREEMENTS |
162 | |||||
Part 1 Financial Indebtedness |
162 | |||||
Part 2 Guarantees |
163 | |||||
SCHEDULE 16 CONTINUING SECURITY |
164 | |||||
SCHEDULE 17 DORMANT SUBSIDIARIES |
165 |
iii
THIS AGREEMENT is dated 1 February 2010 and made between:
(1) | INTERXION HOLDING N.V. , a public company with limited liability ( naamloze vennootschap ), incorporated under the laws of The Netherlands, having its corporate seat ( statutaire zetel ) in Amsterdam, The Netherlands and its address at Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands, registered with the Trade Register of the Chamber of Commerce under registration number 33301892 (the Original Borrower and the Company ); |
(2) | THE COMPANIES listed in Part 1 of Schedule 1 ( The Original Parties ) as original guarantors (the Original Guarantors ); |
(3) | BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS LIMITED, FORTIS BANK (NEDERLAND) N.V., JEFFERIES FINANCE LLC, CREDIT SUISSE AG, LONDON BRANCH and MERRILL LYNCH INTERNATIONAL as mandated lead arrangers (whether acting individually or together the Arranger ); |
(4) | THE FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 ( The Original Parties ) as lenders (the Original Lenders ); |
(5) | BARCLAYS BANKS PLC as hedge counterparty (the Original Hedge Counterparty ); |
(6) | BARCLAYS BANKS PLC as agent of the other Finance Parties (the Agent ); and |
(7) | BARCLAYS BANK PLC as security trustee and security agent for the Secured Parties (the Security Trustee ). |
IT IS AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
In this Agreement:
Acceptable Bank means:
(a) | each Lender; or |
(b) | a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A or higher by Standard & Poors Rating Services or Fitch Ratings Ltd or A3 or higher by Moodys Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or |
(c) | any other bank or financial institution approved by the Agent. |
Accession Letter means a document substantially in the form set out in Schedule 7 ( Form of Accession Letter ).
Accounting Principles means:
(a) | in relation to the consolidated financial statements of the Company, IFRS and practices and financial reference periods used in the preparation of the Original Financial Statements and the Business Plan; and |
(b) | in relation to any other member of the Group, generally accepted accounting principles and practices in its jurisdiction of incorporation used in the preparation of the Original Financial Statements. |
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Additional Borrower means a person which becomes an Additional Borrower in accordance with Clause 26 ( Changes to the Obligors ).
Additional Cost Rate has the meaning given to it in Schedule 4 ( Mandatory Cost formulae ).
Additional Guarantor means a person which becomes an Additional Guarantor in accordance with Clause 26 ( Changes to the Obligors ).
Additional Obligor means an Additional Borrower or an Additional Guarantor.
Adjusted EBITDA has the meaning given to it in Clause 22.1 ( Financial definitions ).
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.
Agents Spot Rate of Exchange means the Agents spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.
Alternative Market Disruption Event has the meaning given to that term in Clause 12.2 ( Market disruption ).
Alternative Reference Bank Rate has the meaning given to that term in Clause 12.3 ( Alternative Reference Bank Rate ).
Alternative Reference Banks means, in relation to a Loan in a currency other than Euro, the principal London offices of the banks listed in Part 1 of Schedule 14 ( Alternative Reference Banks ) and, in relation to a Loan in Euro, the principal office in London of the banks listed in Part 2 of Schedule 14 ( Alternative Reference Banks ) or such other banks as may be appointed by the Agent in consultation with the Obligors Agent.
Ancillary Commencement Date means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day within the Availability Period.
Ancillary Commitment means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 7 ( Ancillary Facilities ), to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.
Ancillary Document means each document relating to or evidencing the terms of an Ancillary Facility.
Ancillary Facility means any ancillary facility made available by an Ancillary Lender in accordance with Clause 7 ( Ancillary Facilities ).
Ancillary Lender means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 7 ( Ancillary Facilities ).
Ancillary Outstandings means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) in the Base Currency of the following amounts outstanding under that Ancillary Facility:
(a) | the principal amount under each overdraft facility and on demand short term loan facility; |
2
(b) | the face amount of each guarantee under that Ancillary Facility; and |
(c) | the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility, |
in each case net of any credit balances on any account of any Borrower of an Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that such credit balances are freely available to be set-off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility and as determined by such Ancillary Lender in accordance with the relevant Ancillary Document or normal banking practice.
Annual Financial Statements has the meaning given to that term in Clause 21 ( Information Undertakings ).
Assignment Agreement means an agreement substantially in the form set out in Schedule 6 ( Form of Assignment Agreement ) or any other form agreed between the relevant assignor and assignee.
Auditors means one of PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche or such other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed).
Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
Availability Period means the period from and including the date of this Agreement to and including the date falling one month prior to the Termination Date.
Available Ancillary Commitment means, in relation to an Ancillary Facility, an Ancillary Lenders Ancillary Commitment less the Ancillary Outstandings in relation to that Ancillary Facility.
Available Commitment means a Lenders Commitment minus (subject to Clause 7.8 ( Affiliates of Lenders as Ancillary Lenders ) and as set out below):
(a) | the Base Currency Amount of its participation in any outstanding Loans and the Base Currency Amount of the aggregate of its Ancillary Commitments; and |
(b) | in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date and the Base Currency Amount of its Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date. |
For the purposes of calculating a Lenders Available Commitment in relation to any proposed Utilisation, the following amounts shall not be deducted from a Lenders Commitment:
(i) | that Lenders participation in any Loans or part thereof that are due to be repaid or prepaid on or before the proposed Utilisation Date; and |
(ii) | that Lenders (or its Affiliates) Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date. |
Available Facility means the aggregate for the time being of each Lenders Available Commitment.
Base Currency means Euro.
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Base Currency Amount means:
(a) | in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agents Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request in accordance with the terms of this Agreement); and |
(b) | in relation to an Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Obligors Agent pursuant to Clause 7.2 ( Availability ) (or, if the amount specified is not denominated in the Base Currency, that amount converted into the Base Currency at the Agents Spot Rate of Exchange on the date which is three Business Days before the Ancillary Commencement Date for that Ancillary Facility or, if later, the date the Agent receives the notice of the Ancillary Commitment in accordance with the terms of this Agreement), |
as adjusted to reflect any repayment or prepayment of a Loan, or (as the case may be) cancellation or reduction of an Ancillary Facility.
Base Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Base Reference Banks:
(a) | in relation to LIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the London interbank market; or |
(b) | in relation to EURIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the European interbank market, |
in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.
Base Reference Banks means, in relation to LIBOR, the principal office in London of Citibank N.A., London Branch, Bank of America, N.A. (London Branch), Fortis Bank (Nederland) N.V. and Barclays Bank PLC and, in relation to EURIBOR, the principal office in London of Citibank N.A., London Branch, Bank of America, N.A. (London Branch), Fortis Bank (Nederland) N.V. and Barclays Bank PLC and/or, in each case, such other banks as may be appointed by the Agent in consultation with the Obligors Agent.
Belgian Guarantor means a Guarantor incorporated and existing under Belgian law;
Bond Indenture means the indenture dated on or about the Closing Date between, among others, the Company as the issuer and the Bond Trustee, which governs the terms of the Bonds.
Bond Trustee means The Bank of New York Mellon, as trustee under the Bond Indenture for and on behalf of the holders of Bonds from time to time, and any successor trustee.
Bonds means the EUR 200,000,000 high yield notes issued or to be issued by the Company under the Bond Indenture.
Borrower means the Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 26 ( Changes to the Obligors ).
Break Costs means the amount (if any) by which:
(a) | the interest (excluding the Margin and Mandatory Costs) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period; |
4
exceeds:
(b) | the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period. |
Budget means:
(a) | in relation to the period beginning on 1 January 2010 and ending on 31 December 2010, the Business Plan; and |
(b) | in relation to any other period, any budget delivered by the Company to the Agent in respect of that period pursuant to Clause 21.4 ( Budget ). |
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London and Amsterdam and:
(a) | (in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; or |
(b) | (in relation to any date for payment or purchase of euro) any TARGET Day. |
Business Plan means the business plan for the Group in the agreed form and dated 11 January 2010.
Charged Property means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.
Closing Date means the date on which the Company has received the proceeds of the offering of the Bonds.
Commitment means:
(a) | in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading Commitment in Part 2 of Schedule 1 ( The Original Parties ) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Increase ); and |
(b) | in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Increase ), |
to the extent not cancelled, reduced or transferred by it under this Agreement.
Compliance Certificate means a certificate substantially in the form set out in Schedule 9 ( Form of Compliance Certificate ).
Confidential Information means all information relating to any Obligor, the Group, the Finance Documents or the Facility in respect of which a Finance Party becomes aware in its capacity as or for the purpose of becoming a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
(a) | any member of the Group or any of its advisers; or |
5
(b) | another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that: |
(i) | is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 37 ( Confidentiality ); or |
(ii) | is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or |
(iii) | is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. |
Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 10 ( LMA Form of Confidentiality Undertaking ) or in any other form agreed between the Company and the Agent.
Continuing Financing Agreements means each financing agreement under which the financial indebtedness or guarantee (as the case may be) listed in Schedule 15 ( Continuing Financing Agreements ) arises.
Continuing Security means any Security listed in Schedule 16 ( Continuing Security ).
Danish Guarantor means a Guarantor incorporated and existing under Danish law.
Default means an Event of Default or any event or circumstance specified in Clause 23.32 ( Events of Default ) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
Defaulting Lender means any Lender:
(a) | which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 ( Lenders participation ); |
(b) | which has otherwise rescinded or repudiated a Finance Document; or |
(c) | with respect to which an Insolvency Event has occurred and is continuing, |
unless, in the case of paragraph (a) above:
(i) | its failure to pay is caused by: |
(A) | administrative or technical error; or |
(B) | a Disruption Event; and |
payment is made within three Business Days of its due date; or
(ii) | the Lender is disputing in good faith whether it is contractually obliged to make the payment in question. |
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Delegate means any delegate, agent, attorney or co-trustee appointed by the Security Trustee.
Disruption Event means either or both of:
(a) | a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or |
(b) | the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party: |
(i) | from performing its payment obligations under the Finance Documents; or |
(ii) | from communicating with other Parties in accordance with the terms of the Finance Documents, |
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
Dormant Subsidiary means those members of the Group identified in Schedule 17 ( Dormant Subsidiaries ) and a member of the Group which does not trade (for itself or as agent for any person) and does not own, legally or beneficially, assets (including, without limitation, indebtedness owed to it) which in aggregate have a value of EUR 50,000 or more (or its equivalent in any other currency).
Dutch Civil Code means the Dutch Civil Code ( Burgerlijk Wetboek ).
Dutch FSA means the Financial Supervision Act ( Wet op het financieel toezicht ), including any regulations issued pursuant thereto.
Dutch Obligor means an Obligor incorporated in The Netherlands.
Environment means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:
(a) | air (including, without limitation, air within natural or man-made structures, whether above or below ground); |
(b) | water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and |
(c) | land (including, without limitation, land under water). |
Environmental Claim means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.
Environmental Law means any applicable law or regulation which relates to:
(a) | the pollution or protection of the Environment; |
(b) | the conditions of the workplace; or |
(c) | the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste. |
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Environmental Permits means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group.
Existing Facilities means:
(a) | the EUR 135,000,000 revolving credit facility agreement with term out dated 4 September 2008 (as amended and restated on 18 June 2009) and made between, amongst others, InterXion Holding N.V. as borrower and Fortis Bank (Nederland) N.V., and Coöperatieve Rabobank Regio Schiphol U.A. and ING Bank N.V. as lenders; and |
(b) | the EUR 45,000,000 junior term loan facility agreement dated 18 June 2009 between InterXion Holding N.V. as borrower and Fortis Bank (Nederland) N.V., and Coöperatieve Rabobank Regio Schiphol U.A. and ING Corporate Investments Mezzanine Fonds B.V. as lenders. |
Existing Security means any security granted under the Existing Facilities.
EURIBOR means in relation to any Loan:
(a) | the applicable Screen Rate; or |
(b) | (if no Screen Rate is available for the Interest Period of that Loan) the Base Reference Banks Rate; |
as of the Specified Time on the Quotation Day for euro and for a period comparable to the Interest Period of that Loan.
Event of Default means any event or circumstance specified as such in Clause 24 ( Events of Default ).
Facility means the revolving loan facility made available under this Agreement as described in Clause 2 ( The Facility ).
Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement.
Fee Letter means any letter or letters dated on or about the date of this Agreement between the Arranger and the Company, the Agent and the Company or the Security Trustee and the Company setting out any of the fees referred to in Clause 13 ( Fees ), any letter between the Obligors Agent and an Increase Lender referred to in paragraph (e) of Clause 2.2 ( Increase ) and any other letter designated a Fee Letter by the Agent and the Company.
Finance Document means this Agreement, the Intercreditor Agreement, the Transaction Security Documents, any Hedging Agreement, any Ancillary Document, any Compliance Certificate, any Fee Letter, any Accession Letter, any Resignation Letter, any Utilisation Request and any other document designated as a Finance Document by the Agent and the Company, provided that where the term Finance Document is used in, and construed for the purposes of, this Agreement or the Intercreditor Agreement, a Hedging Agreement shall be a Finance Document only for the purposes of:
(a) | the definition of Material Adverse Effect; |
(b) | paragraph (a) of the definition of Permitted Transaction; |
(c) | the definition of Transaction Security Documents; |
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(d) | paragraph (a)(v) of Clause 1.2 ( Construction ); |
(e) | Clause 16.1 ( Currency indemnity ); |
(f) | Clause 19 ( Guarantee and Indemnity ); and |
(g) | Clause 24 ( Events of Default ) (other than Clause 24.18 ( Acceleration )). |
Finance Lease has the meaning given to that term in Clause 22.1 ( Financial definitions ).
Finance Party means the Agent, the Arranger, the Security Trustee, a Lender, a Hedge Counterparty, or any Ancillary Lender, provided that where the term Finance Party is used in, and construed for the purposes of, this Agreement or the Intercreditor Agreement, a Hedge Counterparty shall be a Finance Party only for the purposes of:
(a) | the definition of Secured Parties; |
(b) | paragraph (a)(i) of Clause 1.2 ( Construction ); |
(c) | paragraph (c) of the definition of Material Adverse Effect; |
(d) | Clause 16.1 ( Currency indemnity ); |
(e) | Clause 19 ( Guarantee and Indemnity ); and |
(f) | Clause 28 ( Conduct of business by the Finance Parties ). |
Financial Indebtedness means any indebtedness for or in respect of:
(a) | moneys borrowed and debit balances at banks or other financial institutions; |
(b) | any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
(c) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; |
(d) | the amount of any liability in respect of Finance Leases; |
(e) | receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis); |
(f) | any amount raised under any other transaction (including any forward sale or purchase agreement, sale and sale back or sale and leaseback agreement) required by Accounting Principles to be shown as a borrowing in the audited consolidated financial statements of the Company or having the commercial effect of a borrowing; |
(g) | any Treasury Transaction (and, when calculating the value of any Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close out of that Treasury Transaction, that amount) shall be taken into account); |
(h) | any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of an underlying liability of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition; |
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(i) | any amount raised by the issue of shares which are redeemable before the Termination Date or are otherwise classified as borrowings under the Accounting Principles; |
(j) | any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind the entry into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply and is not entered into in the ordinary course of business; and |
(k) | (without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above. |
Financial Quarter has the meaning given to it in Clause 22.1 ( Financial definitions ).
Financial Support Direction means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004.
Financial Year has the meaning given to it in Clause 22.1 ( Financial definitions ).
French Guarantor means a Guarantor incorporated in France.
German GmbH Guarantor means a Guarantor incorporated in the Federal Republic of Germany.
Group means the Company and each of its Subsidiaries from time to time.
Guarantor means an Original Guarantor or an Additional Guarantor unless it has ceased to be a Guarantor in accordance with Clause 26 ( Changes to the Obligors ).
Hedging Agreement means any master agreement, confirmation, schedule or other agreement entered into or to be entered into by a Debtor (as defined in the Intercreditor Agreement) and a Hedge Counterparty for the purpose of hedging risks which, at the time that the master agreement, confirmation, schedule or other agreement (as the case may be) is entered into, is permitted pursuant to paragraph Clause 23.27 (Treasury Transactions) of this Agreement.
Hedge Counterparty means:
(a) | the Original Hedge Counterparty; and |
(b) | any person which has become a Party as a Hedge Counterparty in accordance with Clause 25.9 ( Accession of Hedge Counterparties ), |
which, in each case, is or has become a party to the Intercreditor Agreement as a Hedge Counterparty in accordance with the provisions of the Intercreditor Agreement.
Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
HQ means Interxion HeadQuarters B.V.
IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
Impaired Agent means the Agent at any time when:
(a) | it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment; |
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(b) | the Agent otherwise rescinds or repudiates a Finance Document; |
(c) | (if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of Defaulting Lender; or |
(d) | an Insolvency Event has occurred and is continuing with respect to the Agent, |
unless, in the case of paragraph (a) above:
(i) | its failure to pay is caused by: |
(A) | administrative or technical error; or |
(B) | a Disruption Event; and |
payment is made within three Business Days of its due date; or
(ii) | the Agent is disputing in good faith whether it is contractually obliged to make the payment in question. |
Increase Confirmation means a confirmation substantially in the form set out in Schedule 13 ( Form of Increase Confirmation ).
Increase Lender has the meaning given to that term in Clause 2.2 ( Increase ).
Insolvency Event in relation to a Finance Party means that the Finance Party:
(a) | is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
(b) | becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; |
(c) | makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
(d) | has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); |
(e) | becomes subject to the appointment of an administrator, liquidator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; |
(f) | has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; |
(g) | causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (f) above; or |
(h) | becomes subject to either a bank insolvency or bank administration within the meaning given to such terms by the United Kingdom Banking Act 2009. |
Intercreditor Agreement means the intercreditor agreement dated on or about the date hereof and made between, amongst others, the Company, the Original Debtors as named therein, the Security Trustee, the Lenders, the Hedge Counterparties (if any) (as defined in the Intercreditor Agreement) and the Bond Trustee.
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Interest Period means, in relation to a Loan, each period determined in accordance with Clause 11 ( Interest Periods ) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.3 ( Default interest ).
Intermediate Holdco has the meaning given to it in Clause 23.32 ( Conditions subsequent ).
IPO means a successful application being made for the admission of any part of the share capital of the Company (or any other member of the Group) to any stock or investment exchange or market.
Joint Venture means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.
Lender means:
(a) | any Original Lender; and |
(b) | any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.2 ( Increase ) or Clause 25 ( Changes to the Lenders ), |
which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.
Leverage has the meaning give to that term in Clause 22.1 ( Financial definitions ).
LIBOR means, in relation to any Loan:
(a) | the applicable Screen Rate; or |
(b) | (if no Screen Rate is available for the currency or Interest Period of that Loan) the Base Reference Bank Rate, |
as of the Specified Time on the Quotation Day for the currency of that Loan and for a period comparable to the Interest Period of that Loan.
LMA means the Loan Market Association.
Loan means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.
Majority Lenders means:
(a) | (for the purposes of paragraph (a) of Clause 38.1 ( Required consents ) in the context of a waiver in relation to a proposed Utilisation of the Facility of the condition in Clause 4.2 ( Further conditions precedent )), a Lender or Lenders whose Commitments aggregate at least 66 per cent. of the Total Commitments; and |
(b) |
(in any other case), a Lender or Lenders whose Commitments aggregate at least 66 2 / 3 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 66 2 / 3 per cent. of the Total Commitments immediately prior to the reduction). |
Mandatory Cost means the percentage rate per annum calculated by the Agent in accordance with Schedule 4 ( Mandatory Cost formulae ).
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Margin means 4.00 per cent. per annum, provided that if:
(a) | No Event of Default has occurred and is continuing; and |
(b) | Leverage in respect of the most recently completed Relevant Period is within a range set out below, |
then the Margin for each Loan will be the percentage per annum set out below opposite that range:
Leverage |
Margin
(% per annum) |
|||
Greater than or equal to 2.75:1 |
4.00 | |||
Less than 2.75:1 but greater than or equal to 2.00:1 |
3.50 | |||
Less than 2.00:1 |
3.00 |
However:
(i) | any increase or decrease in the Margin for a Loan shall take effect on the date (the reset date ) which is five Business Days after receipt by the Agent of the Compliance Certificate for that Relevant Period pursuant to Clause 21.2 ( Provision and contents of Compliance Certificate ); |
(ii) | if the effect of the above would be to cause the Margin to reduce by more than one level on any reset date then the Margin will decrease by one level only on that reset date; |
(iii) | if, following receipt by the Agent of the Annual Financial Statements and related Compliance Certificate, those statements and Compliance Certificate do not confirm the basis for a reduced Margin, then the provisions of Clause 10.2 ( Payment of interest ) shall apply and the Margin for that Loan shall be the percentage per annum determined using the table above and the revised ratio of Leverage calculated using the figures in the Compliance Certificate; |
(iv) | while an Event of Default is continuing, the Margin for each Loan shall be the highest percentage per annum set out above for a Loan; and |
(v) | for the purpose of determining the Margin, Leverage and Relevant Period shall be determined in accordance with Clause 22.1 ( Financial definitions ). |
Material Adverse Effect means a material adverse effect on:
(a) | the business, operations, property or financial condition of the Group taken as a whole; or |
(b) | the ability of the Obligors (taken as a whole) to perform their payment obligations under the Finance Documents or the ability of the Company to comply with Clause 22 ( Financial Covenants ); or |
(c) | the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents. |
Material Company means, at any time:
(a) | an Obligor; or |
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(b) | a wholly-owned member of the Group that holds shares in an Obligor; or |
(c) | a Subsidiary of the Company which has earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) representing five per cent. or more of Adjusted EBITDA, or has gross assets (calculated on an unconsolidated basis and excluding intra-group items and investments in Subsidiaries of any Member of the Group) representing five per cent. or more of the gross assets, of the Group calculated on a consolidated basis. |
Compliance with the conditions set out in paragraph (c) shall be determined by reference to the most recent Compliance Certificate supplied by the Company and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited consolidated financial statements of the Group. However, if a Subsidiary has been acquired since the date as at which the latest audited consolidated financial statements of the Group were prepared, the financial statements shall be deemed to be adjusted in order to take into account the acquisition of that Subsidiary (that adjustment being certified by the Companys Auditors as representing an accurate reflection of the revised Adjusted EBITDA or gross assets of the Group).
A report by the Auditors of the Company that a Subsidiary is or is not a Material Company shall, in the absence of manifest error, be conclusive and binding on all parties.
Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
(a) | (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; |
(b) | if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
(c) | if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. |
The above rules will only apply to the last Month of any period.
Monthly shall be construed accordingly.
New Lender has the meaning given to it in Clause 25.1 ( Assignments and transfers by the Lenders ).
Obligor means a Borrower or a Guarantor.
Obligors Agent has the meaning given to it in Clause 2.4 ( Obligors Agent ).
Optional Currency means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 ( Conditions relating to Optional Currencies ).
Original Financial Statements means, in relation to the Company:
(a) | the audited consolidated financial statements for its financial year ended 31 December 2008; and |
(b) | its unaudited consolidated management accounts for 31 December 2009. |
Original Obligor means the Original Borrower or any Original Guarantor.
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Participating Member State means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
Party means a party to this Agreement.
Permitted Acquisition means the acquisition of any company or any shares or securities or business or undertaking (each, an acquired entity ) where:
(a) | if the acquisition is an acquisition of a company or shares in a company, the acquired entity has been established with limited liability and the member of the Group making the acquisition shall be entitled to proportionate voting rights and a proportionate share of the distributions to be made by the acquired entity equal to at least 50.1% of the shares; |
(b) | if the acquisition is an acquisition of a company or shares in a company, the acquired entity is incorporated under the laws of a member of the OECD; |
(c) | the acquired entity is in a similar or complementary business to that of the Group; |
(d) | no Default is continuing on the contract date for the acquisition or would occur as a result of the acquisition, including, without limitation, a breach of any covenant contained in Clause 22.2 ( Financial condition ); and |
(e) | the total aggregate purchase price in respect of any single acquisition in any Financial Year shall not exceed EUR 30,000,000 (or its equivalent in any other currency) and the total aggregate purchase price in respect of all such acquisitions in any Financial Year shall not exceed EUR 60,000,000 (or its equivalent in any other currency), where total aggregate purchase price means the aggregate of: |
(i) | the total purchase price paid by the purchaser; |
(ii) | the associated costs and expenses; and |
(iii) | any Financial Indebtedness, including, without limitation, any actual or contingent liabilities that would constitute Financial Indebtedness and any off balance sheet Financial Indebtedness in the acquired entity and any Financial Indebtedness assumed in connection with the acquisition. |
Permitted Disposal means any sale, lease, licence, transfer or other disposal:
(a) | of stock in trade made in the ordinary course of trade and on arms length terms of the disposing entity; |
(b) | of assets (other than shares) in exchange for other assets comparable or superior as to type, value and quality; |
(c) | of assets by one Obligor to another Obligor provided the Agent is satisfied that following a disposal the Secured Parties will enjoy the same or substantially equivalent Security over those assets; |
(d) | for cash on arms length terms of any obsolete assets not required for the efficient operation of the business of the Group by any member of the Group; |
(e) | of cash where that disposal is not otherwise prohibited by the Finance Documents; |
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(f) | of assets (other than shares) with a book value of less than 5 per cent. of the consolidated tangible assets of the Company based on the consolidated balance sheet accompanying the last set of financial statements delivered by the Company pursuant to paragraphs (a) or (b) of Clause 21.1 ( Financial statements ), provided that pro forma for such disposal the aggregate book value of all such disposals under this paragraph (f) does not exceed 10 per cent. of the total consolidated tangible assets of the Company based on the consolidated balance sheet accompanying that set of financial statements; |
(g) | of businesses (not including shares) with Adjusted EBITDA for the twelve Month period ending on the Quarter Date of the most recent set of financial statements delivered pursuant to paragraph (a) or (b) of Clause 21.1 ( Financial statements ) amounting to less than 5 per cent. of the consolidated Adjusted EBITDA of the Company for such twelve Month period, provided that pro forma for such disposal the aggregate Adjusted EBITDA of all such businesses disposed of under this paragraph (g) does not exceed 10 per cent. of the consolidated Adjusted EBITDA of the Company for such twelve Month period; |
(h) | of assets (other than shares) for cash where the proceeds of any such sale, lease, transfer or other disposal are invested in substantially similar assets within six Months from the date of the relevant sale, lease, transfer or other disposal; and |
(i) | in respect of which the Agent, acting on the instructions of the Majority Lenders, has granted its prior written consent. |
Permitted Financial Indebtedness means Financial Indebtedness:
(a) | arising under the Finance Documents; |
(b) | arising under the Bond Documents; |
(c) | on any day prior to the Closing Date, arising under or pursuant to the Existing Facilities; |
(d) | to the extent covered by a letter of credit, guarantee or indemnity issued under an Ancillary Facility; |
(e) | incurred in relation to a Finance Lease or vendor financing provided that the aggregate amount payable by any member of the Group in respect of such arrangements does not exceed EUR 3,000,000 (or its equivalent in any other currency) in respect of any single arrangement or a total aggregate amount of EUR 15,000,000 at any time in respect of all such arrangements; |
(f) | arising pursuant to an interest rate hedging arrangement entered into in the ordinary course of business and not for speculative purposes; |
(g) | arising pursuant to hedging arrangements in respect of power costs entered into in the ordinary course of business and not for speculative purposes; |
(h) | arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuations in currency rates where that foreign exchange exposure arises in the ordinary course of business but not a foreign exchange transaction for investment or speculative purposes; |
(i) | in respect of any rental guarantees entered into by any member of the Group in the ordinary course of business; |
(j) | in respect of any deferred payment arrangements and liens relating thereto entered into by any member of the Group on arms length terms with its suppliers in the ordinary course of business; |
(k) | arising under a Permitted Loan or a Permitted Guarantee; |
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(l) | arising under the Continuing Financing Agreements described in Part 1 of Schedule 15 ( Continuing Financing Agreements ) provided that the maximum principal amount of Financial Indebtedness that may be incurred under those Continuing Financing Agreements is not increased after the date of this Agreement, save to the extent of any increase in such Financial Indebtedness incurred under paragraph (m) below; |
(m) | not permitted pursuant to paragraphs (a) to (l) above provided that the aggregate outstanding principal amount of such Financial Indebtedness across the Group does not, when aggregated with any increased Financial Indebtedness incurred under this paragraph in respect of any Continuing Financing Agreement referred to in paragraph (k) above or any increased liability incurred under paragraph (g) of the definition of Permitted Guarantee, exceed EUR 15,000,000 (or its equivalent in any other currency) in aggregate at any time, and provided further that no Financial Indebtedness may be incurred under this paragraph that is owed to a Restricted Person unless it is incurred by the Company and is subordinated on terms satisfactory to the Agent (acting on the instructions of the Majority Lenders); and |
(n) | not permitted pursuant to paragraphs (a) to (m) above in respect of which the Agent, acting on the instructions of the Majority Lenders, has granted its prior written consent. |
Permitted Guarantee means:
(a) | the endorsement of negotiable instruments in the ordinary course of trade; |
(b) | any performance or similar bond guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of trade; |
(c) | any guarantee permitted under Clause 23.20 ( Financial Indebtedness ); |
(d) | any guarantee of a Joint Venture to the extent permitted by Clause 23.9 ( Joint ventures ); |
(e) | any guarantee given in respect of the netting or set-off arrangements permitted pursuant to paragraph (g) of the definition of Permitted Security; |
(f) | any indemnity given in the ordinary course of the documentation of an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal which indemnity is in a customary form and subject to customary limitations; and |
(g) | any guarantee arising under the Continuing Financing Agreements described in Part 2 of Schedule 15 ( Continuing Financing Agreements ) provided that the maximum aggregate liability (whether actual or contingent) of a member of the Group under those Continuing Financing Agreements is not increased after the date of this Agreement, save to the extent that any such increase, when aggregated with any increased Financial Indebtedness incurred under paragraph (l) of the definition of Permitted Financial Indebtedness, does not exceed EUR 15,000,000 (or its equivalent in any other currency) in aggregate at any time. |
Permitted Joint Venture means any investment in any Joint Venture where:
(a) | the Joint Venture is a limited liability entity engaged in a business similar or complementary to that carried on by the Group; and |
(b) | the aggregate (the Joint Venture Investment ) of: |
(i) | all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group; |
(ii) | the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and |
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(iii) | the market value of any assets transferred by any member of the Group to any such Joint Venture, |
does not (when aggregated with all Joint Venture Investments since the date of this Agreement) exceed EUR 15,000,000 (or its equivalent in any other currency).
Permitted Loan means:
(a) | any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities; |
(b) | a loan made by an Obligor to another Obligor or made by a member of the Group which is not an Obligor to another member of the Group (other than the Company); |
(c) | any loan made by an Obligor to a member of the Group which is not an Obligor provided that all such loans shall be made by either HQ or the Company other than loans that in aggregate for all such loans by Obligors to members of the Group that are not Obligors do not exceed EUR 2,000,000 at any time; |
(d) | a loan made by a member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group does not exceed EUR 1,000,000 (or its equivalent in any other currency) at any time; and |
(e) | any loan (other than a loan made by a member of the Group to another member of the Group) so long as the aggregate amount of the Financial Indebtedness under any such loans does not exceed EUR 1,000,000 (or its equivalent in any other currency) at any time, |
provided that in the case of paragraphs (b) and (c) above, to the extent required by the Intercreditor Agreement, the creditor and the debtor of such Financial Indebtedness are or become party to the Intercreditor Agreement as an Intra-Group Lender and a Debtor (as defined, in each case, in the Intercreditor Agreement) respectively.
Permitted Security means:
(a) | any Security granted in support of the Bonds provided the same is granted in support of the obligations under the Finance Documents on at least a pari passu basis no later than the time at which it is granted in support of the Bonds; |
(b) | the Transaction Security; |
(c) | on any day prior to the Closing Date, the Existing Security; |
(d) | the Continuing Security provided that the principal amount of Financial Indebtedness or other obligation secured by that Security does not exceed the amount stated in Schedule 16 ( Continuing Security ); |
(e) | any Security or Quasi-Security arising as a consequence of any Finance Lease permitted pursuant to paragraph (e) of the definition of Permitted Financial Indebtedness; |
(f) | any security arising under Dutch General Banking Terms and Conditions ( Algemene Bankvoorwaarden ) or the equivalent in any other jurisdiction of relevant banking or financing institutions in each case with whom any member of the Group maintains a banking relationship in the ordinary course of business; |
(g) | any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances; |
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(h) | any payment or close out netting or set-off arrangement pursuant to any hedging transaction entered into by a member of the Group for the purpose of: |
(A) | hedging any risk to which any member of the Group is exposed in its ordinary course of business and for non-speculative purposes only; or |
(B) | its interest rate or currency management operations which are carried out in the ordinary course of business and for non-speculative purposes only, |
excluding, in each case, any Security or Quasi-Security under a credit support arrangement in relation to a hedging transaction;
(i) | any lien arising by operation of law and in the ordinary course of business and any lien arising under customary extended retention of title arrangements ( verlängerter Eigentumsvorbehalt ) in the ordinary course of business; |
(j) | any Security or Quasi-Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if: |
(A) | the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Group; |
(B) | the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and |
(C) | the Security or Quasi-Security is removed or discharged within six months of the date of acquisition of such asset; |
(k) | any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group, if: |
(A) | the Security or Quasi-Security was not created in contemplation of the acquisition of that company; |
(B) | the principal amount secured has not increased in contemplation of or since the acquisition of that company; and |
(C) | the Security or Quasi-Security is removed or discharged within six months of that company becoming a member of the Group; and |
(l) | any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security given by any member of the Group other than any permitted under paragraphs (e) to (k) above) does not exceed EUR 10,000,000 (or its equivalent in any other currency) at any time. |
Permitted Share Issue means an issue of:
(a) | ordinary shares by the Company paid for in full in cash upon issue and which by their terms are not redeemable and where such issue does not lead to the occurrence of an event described under Clause 9.2(b) ( Change of control or sale of assets ); or |
(b) | shares by a member of the Group which is a Subsidiary to its immediate Holding Company where (if the existing shares of the Subsidiary are the subject of Transaction Security) the newly-issued shares also become subject to Transaction Security on the same terms. |
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Permitted Transaction means:
(a) | any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or Quasi-Security given, or other transaction arising, under the Finance Documents; |
(b) | the solvent liquidation or reorganisation of any member of the Group where: |
(i) | all of the business and assets of that member of the Group remain within the Group (and, if that member of the Group was an Obligor immediately prior to such liquidation or reorganisation being implemented, all of the business and assets of that member are retained by one or more other Obligors); and |
(ii) | if it or its assets or the shares in it were subject to Transaction Security immediately prior to such reorganisation, the Finance Parties will enjoy (in the reasonable opinion of the Agent) substantially the same or equivalent Transaction Security over the same assets or, as the case may be, over it or the shares in it (or in each case over the shares of its successor) and, if a new holding company is inserted as part of such liquidation or reorganisation, security over the shares of such holding company, |
and provided that no Default would arise from such liquidation or reorganisation;
(c) | transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading on arms length terms; or |
(d) | the conversion of Interxion S.A.R.L. into a société par actions simplifiée and the conversion of Interxion España S.L. into a sociedad anónima , provided in each case that the Transaction Security granted over their shares remains in full force and effect or, if required to be released in order to effect such conversion, is released and immediately retaken over the shares of the new entity and such Transaction Security Documents, Authorisations, opinions and other documents or assurance as the Agent considers to be necessary or desirable in connection with any of the foregoing or the validity or enforceability of any Finance Document are delivered to the Agent. |
Qualifying IPO has the meaning given to it in Clause 21 ( Information Undertakings ).
Qualifying Lender has the meaning given to it in Clause 14 ( Tax gross-up and indemnities ).
Quarter Date has the meaning given to it in Clause 22.1 ( Financial definitions ).
Quotation Day means, in relation to any period for which an interest rate is to be determined:
(a) | (if the currency is Sterling) the first day of that period; |
(b) | (if the currency is Euro) two TARGET Days before the first day of that period; or |
(c) | (for any other currency) two Business Days before the first day of that period, |
unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
Receiver means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property, not including a Dutch curator or bewindvoerder .
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Related Fund in relation to a fund (the first fund ), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
Relevant Interbank Market means in relation to euro, the European interbank market and, in relation to any other currency, the London interbank market.
Relevant Jurisdiction means:
(a) | the jurisdiction of incorporation of each member of the Group; and |
(b) | the jurisdiction where any asset subject to or intended to be subject to the Transaction Security is situated. |
Repayment Date means the last day of an Interest Period for a Loan.
Repeating Representations means each of the representations set out in Clauses 20.1 ( Status ) to 20.6 ( Governing law and enforcement ) (inclusive), Clause 20.10 ( No default ), paragraph (d) of Clause 20.11 ( No Misleading Information ), paragraph (d) of Clause 20.12 ( Financial Statements ), Clause 20.13 ( No proceedings pending or threatened ), Clause 20.19 ( Good title to assets ) to Clause 20.21 ( Shares ) (inclusive) and Clause 20.24 ( Centre of main interests and establishments ).
Resignation Letter means a letter substantially in the form set out in Schedule 8 ( Form of Resignation Letter ).
Restricted Person means:
(a) | a direct or indirect shareholder of the Company or any fund, partnership or other entity managed or controlled by such a shareholder; |
(b) | any person with an interest (direct or indirect) in the shares in the Company; and |
(c) | any joint venture, consortium, partnership or similar arrangement of which any person described in paragraphs (a) or (b) above is a member but excluding any trading company. |
Rollover Loan means one or more Loans:
(a) | made or to be made on the same day that one or more maturing Loan(s) is or are due to be repaid; |
(b) | the aggregate amount of which is equal to or less than the maturing Loan(s); |
(c) | in the same currency as the maturing Loan(s) (unless it arose as a result of the operation of Clause 6.2 ( Unavailability of a currency )); and |
(d) | made or to be made to the same Borrower for the purpose of refinancing the maturing Loan(s). |
Screen Rate means:
(a) | in relation to LIBOR, the British Bankers Association Interest Settlement Rate for the relevant currency and period; and |
(b) |
in relation to EURIBOR, the percentage rate per annum determined by the Banking Federation of the European Union for the relevant period, |
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displayed on the appropriate page of the Reuters screen. If the agreed page is replaced or service ceases to be available, the Agent may specify another page or service displaying the appropriate rate after consultation with the Obligors Agent and the Lenders. |
Secured Obligations means all obligations at any time due, owing or incurred by any Obligor to any Secured Party under the Finance Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as principal or surety or in some other capacity).
Secured Parties means the Security Trustee, any Receiver or Delegate, the Agent, each Lender, each Hedge Counterparty and the Arranger and each Ancillary Lender from time to time party to this Agreement.
Security means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
Separate Loan has the meaning given to that term in Clause 8 ( Repayment ).
Spanish Obligor means an Obligor incorporated in Spain.
Specified Time means a time determined in accordance with Schedule 11 ( Timetables ).
Subsidiary means:
(a) | in relation to any company or corporation incorporated in The Netherlands, a company or corporation which is a subsidiary of such company or corporation within the meaning of Article 24a of Book 2 of the Dutch Civil Code; and |
(b) | in relation to any company or corporation not incorporated in The Netherlands, a company or corporation: |
(i) | which is controlled, directly or indirectly, by the first mentioned company or corporation; |
(ii) | more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or |
(iii) | which is a Subsidiary of another Subsidiary of the first mentioned company or corporation, |
and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body whether through the ownership of voting capital, by contract or otherwise.
Super Majority Lenders means a Lender or Lenders whose Commitments (and for this purpose the amount of any Lenders Commitment shall not be reduced by the amount of its Ancillary Commitment) aggregate at least 90 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 90 per cent. of the Total Commitments immediately prior to that reduction).
TARGET means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises interlinked national real time gross settlement systems and the European Central Banks payment mechanism and which began operations on 4 January 1999.
TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
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TARGET Day means:
(a) | until such time as TARGET is permanently closed down and ceases operations, any day on which both TARGET and TARGET2 are open for the settlement of payments in Euro; and |
(b) | following such time as TARGET is permanently closed down and ceases operations, any day on which TARGET2 is open for the settlement of payments in Euro. |
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure by an Obligor to pay or any delay by an Obligor in paying any of the same).
Termination Date means the date falling three years after the date of this Agreement.
Total Commitments means the aggregate of the Commitments, being EUR 60,000,000 at the date of this Agreement.
Transaction Security means the Security created or expressed to be created pursuant to the Transaction Security Documents.
Transaction Security Documents means each of the documents listed as being a Transaction Security Document in Schedule 12 ( Initial Transaction Security Documents ) and any document required to be delivered to the Agent under paragraph 3 of Part 1 and paragraphs 15 to 17 inclusive of Part 2 of Schedule 2 ( Conditions Precedent ), together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents.
Transfer Certificate means a certificate substantially in the form set out in Schedule 5 ( Form of Transfer Certificate ) or any other form agreed between the Agent and the Company.
Transfer Date means, in relation to a transfer or assignment, the later of:
(a) | the proposed Transfer Date specified in the Transfer Certificate or Assignment Agreement (as the case may be); and |
(b) | the date on which the Agent executes the Transfer Certificate or Assignment Agreement (as the case may be). |
Treasury Transactions means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.
Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.
Utilisation means a utilisation of the Facility.
Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made.
Utilisation Request means a notice substantially in the form set out in Schedule 3 ( Utilisation Request ).
VAT means turnover tax or value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature.
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1.2 | Construction |
(a) | Unless a contrary indication appears any reference in this Agreement to: |
(i) | the Agent , the Arranger , the Security Trustee , any Finance Party , any Secured Party , any Lender , any Hedge Counterparty , any Obligor or any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Security Trustee, any person for the time being appointed as Security Trustee or Security Trustees in accordance with this Agreement; |
(ii) | a document in agreed form is a document which is previously agreed in writing by or on behalf of the Obligors Agent and the Agent or, if not so agreed, is in the form specified by the Agent; |
(iii) | acting in concert has the meaning given to that term in Clause 9.2 ( Change of control or sale of assets ); |
(iv) | assets includes present and future properties, revenues and rights of every description; |
(v) | a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated; |
(vi) | guarantee means (other than in Clause 19 ( Guarantee and Indemnity )) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness; |
(vii) | 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; |
(viii) | a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality); |
(ix) | a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; |
(x) | a provision of law is a reference to that provision as amended or re-enacted; |
(xi) | words importing the plural shall include the singular and vice versa; and |
(xii) | a time of day is a reference to London time. |
(b) | Section, Clause and Schedule headings are for ease of reference only. |
(c) | Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement. |
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(d) | A Borrower providing cash cover for an Ancillary Facility means that Borrower paying an amount in the currency of that Ancillary Facility to an interest-bearing account in the name of that Borrower and the following conditions being met: |
(i) | the account is with the Ancillary Lender in respect of that Ancillary Facility; |
(ii) | until no amount is or may be outstanding under that Ancillary Facility, withdrawals from the account may only be made to pay the Ancillary Lender amounts due and payable to it under this Agreement in respect of that Ancillary Facility; and |
(iii) | that Borrower has executed a security document over that account, in form and substance satisfactory to the Ancillary Lender with which that account is held, creating a first ranking security interest over that account. |
(e) | A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been remedied or waived. |
(f) | A Borrower repaying or prepaying Ancillary Outstandings means: |
(i) | that Borrower providing cash cover in respect of those Ancillary Outstandings; |
(ii) | the maximum amount payable under that Ancillary Facility being reduced in accordance with its terms; or |
(iii) | the Ancillary Lender being satisfied that it has no further liability under that Ancillary Facility, |
and the amount by which Ancillary Outstandings are repaid or prepaid under paragraphs 1.2(f) (i) and (ii) above is the amount of the relevant cash cover or reduction.
(g) | An amount borrowed includes any amount utilised under an Ancillary Facility. |
(h) | Dutch Terms |
In this Agreement, where it relates to a Dutch entity, a reference to:
(i) | a necessary action to authorise, where applicable, includes without limitation: |
(A) | any action required to comply with the Dutch Works Council Act ( Wet op de ondernemingsraden ); and |
(B) | obtaining unconditional positive advice ( advies ) from each competent works council; |
(ii) | a winding-up, administration or dissolution includes a Dutch entity being: |
(A) | declared bankrupt ( failliet verklaard ); |
(B) | dissolved ( ontbonden ); |
(iii) | a moratorium includes ( voorlopige ) surséance van betaling and granted a moratorium includes ( voorlopige ) surséance van betaling verleend ; |
(iv) | a trustee in bankruptcy includes a curator ; |
(v) | an administrator includes a bewindvoerde r; |
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(vi) | a Receiver or an administrative receiver does not include a curator or bewindvoerder ; and |
(vii) | an attachment includes a conservatoir beslag or executoriaal beslag . |
(i) | Spanish Terms |
In this Agreement, a reference to any of the following (in the case of paragraph (a) or (b) below, in relation to (or to the obligations of) a company incorporated in Spain):
(i) | a winding up, administration or dissolution includes any disolución, liquidación, procedimiento concursal, concurso or any other similar proceedings; |
(ii) | a receiver, administrative receiver, administrator or the like includes a depositario, administrador judicial or administrador concursal or any other person performing the same function of each of the foregoing; |
(iii) | a matured obligation includes any crédito vencido, líquido y exigible ; |
(iv) | a security interest includes any prenda ( con o sin desplazamiento ), hipoteca ( mobiliaria o inmobiliaria ) and any other garantia real o personal, derecho de retentión or other transactions having the same effect as each of the foregoing; |
(v) | a person being unable to pay its debts includes that person being in a state of insolvencia or concurso ; and |
(vi) | control has the meaning provided in Article 42 of the Spanish Code of Commerce. |
1.3 | Currency Symbols and Definitions |
EUR , euro and Euro means the single currency unit of the Participating Member States, Sterling or £ means the lawful currency of the United Kingdom, US Dollars or $ means the lawful currency of the United States of America and CHF or Swiss Francs means the lawful currency of Switzerland.
1.4 | Intercreditor Agreement override |
This Agreement is subject to the terms of the Intercreditor Agreement. In the event of any inconsistency between this Agreement and the Intercreditor Agreement, the Intercreditor Agreement will prevail.
1.5 | Third party rights |
(a) | Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Act ) to enforce or enjoy the benefit of any term of this Agreement. |
(b) | Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. |
2. | THE FACILITY |
2.1 | The Facility |
(a) | Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency revolving loan facility in an aggregate amount the Base Currency Amount of which is equal to the Total Commitments. |
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(b) | Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available to a Borrower an Ancillary Facility in place of all or part of its Commitment under the Facility. |
2.2 | Increase |
(a) | The Obligors Agent may by giving prior notice to the Agent by no later than the date falling 20 Business Days after the effective date of a cancellation of: |
(i) | the Available Commitments of a Defaulting Lender in accordance with Clause 9.7 ( Right of cancellation in relation to a Defaulting Lender ); or |
(ii) | the Commitments of a Lender in accordance with Clause 9.1 ( Illegality ), |
request that the Total Commitments be increased (and the Total Commitments under the Facility shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments so cancelled as follows:
(A) | the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an Increase Lender ) selected by the Obligors Agent (each of which shall not be a member of the Group and which is further acceptable to the Agent (acting reasonably)) and each of which confirms, at that time, its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender, provided that for the avoidance of doubt no Lender shall have any obligation under this paragraph (A) to make such a confirmation; |
(B) |
each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender; 1 |
(C) | each Increase Lender shall become a Party as a Lender and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender; |
(D) | the Commitments of the other Lenders shall continue in full force and effect; and |
(E) | any increase in the Total Commitments shall take effect on the date specified by the Obligors Agent in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied. |
(b) | An increase in the Total Commitments will only be effective on: |
(i) | the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and |
1 |
The Transaction Security and guarantees provided under this Agreement may not in all jurisdictions continue to secure or guarantee the Increased Commitment or be for the benefit of the Increase Lender. It is the responsibility of the Increase Lender to ascertain whether any other documents or other formalities are required to confirm the Transaction Security and/or guarantees in any jurisdiction and/or for it to benefit from such Transaction Security and/or guarantees and, if so, to arrange for execution of those documents and completion of those formalities. |
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(ii) | in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase: |
(A) | the Increase Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and |
(B) | the performance by the Agent of all necessary know your customer or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Obligors Agent, and the Increase Lender. |
(c) | Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective. |
(d) | Unless the Agent otherwise agrees, the Obligors Agent shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee of EUR 2,000 and the Obligors Agent shall promptly on demand pay the Agent and the Security Trustee the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Trustee, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.2. |
(e) | The Obligors Agent may pay to the Increase Lender a fee in the amount and at the times agreed between the Obligors Agent and the Increase Lender in a Fee Letter. |
(f) | Clause 25.5 ( Limitation of responsibility of Existing Lenders ) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to: |
(i) | an Existing Lender were references to all the Lenders immediately prior to the relevant increase; |
(ii) | the New Lender were references to that Increase Lender ; and |
(iii) | a re-transfer and re-assignment were references to, respectively, a transfer and an assignment . |
2.3 | Finance Parties rights and obligations |
(a) | The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. |
(b) | 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. |
(c) | A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents. |
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2.4 | Obligors Agent |
(a) | Each Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company (in such capacity, the Obligors Agent ) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises: |
(i) | the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Accession Letter, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect such Obligor, without further reference to or the consent of that Obligor; and |
(ii) | each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company, |
and in each case such Obligor shall be bound as though such Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.
(b) | Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors Agent or given to the Obligors Agent under any Finance Document on behalf of any Obligor or in connection with any Finance Document (whether or not known to any Obligor and whether occurring before or after such Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors Agent and the Obligor, those of the Obligors Agent shall prevail. |
(c) | The Obligors Agent shall be released from the restrictions of Section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ). |
3. | PURPOSE |
3.1 | Purpose |
Each Borrower shall apply all amounts borrowed by it under the Facility and any utilisation of any Ancillary Facility towards the general corporate and working capital (including capital expenditure) purposes of the Group (but not, in any event, towards the refinancing of any Financial Indebtedness in existence on the Closing Date or to fund a Permitted Acquisition).
3.2 | Monitoring |
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4. | CONDITIONS OF UTILISATION |
4.1 | Initial conditions precedent |
The Lenders will only be obliged to comply with Clause 5.4 ( Lenders participation ) in relation to any Loan if on or before the Utilisation Date for that Utilisation the Agent has received or is satisfied that it will have received all of the documents and other evidence listed in Schedule 2 ( Conditions precedent ) in form and substance satisfactory to the Agent. The Agent shall notify the Obligors Agent and the Lenders promptly upon being so satisfied.
4.2 | Further conditions precedent |
Subject to Clause 4.1 ( Initial conditions precedent ), the Lenders will only be obliged to comply with Clause 5.4 ( Lenders participation ) in relation to a Loan if on the date of the Utilisation Request and on the proposed Utilisation Date:
(a) | in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan; and |
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(b) | in the case of any other Loan: |
(i) | no Default is continuing or would result from the proposed Loan; and |
(ii) | no notice has been delivered to the Agent pursuant to Clause 21.9 ( Potential breach of financial covenants ); and |
(c) | the Repeating Representations to be made by each Obligor are true in all material respects. |
4.3 | Conditions relating to Optional Currencies |
(a) | A currency will constitute an Optional Currency in relation to a Utilisation if: |
(i) | it is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market at the Specified Time or, if later, on the date the Agent receives the relevant Utilisation Request and the Utilisation Date for that Utilisation; and |
(ii) | it is US Dollars, Sterling, Swiss Francs or has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Utilisation. |
(b) | If the Agent has received a written request from the Obligors Agent for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Obligors Agent by the Specified Time: |
(i) | whether or not the Lenders have granted their approval; and |
(ii) | if approval has been granted, the minimum amount for any subsequent Utilisation in that currency. |
4.4 | Maximum number of Loans |
(a) | A Borrower (or the Obligors Agent) may not deliver a Utilisation Request if as a result of the proposed Utilisation more than 10 Loans would be outstanding. |
(b) | Any Loan made by a single Lender under Clause 6.2 ( Unavailability of a currency ) shall not be taken into account in this Clause 4.4. |
(c) | Any Separate Loan shall not be taken into account in this Clause 4.4. |
5. | UTILISATION - LOANS |
5.1 | Delivery of a Utilisation Request |
A Borrower (or the Obligors Agent on its behalf) may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.
5.2 | Completion of a Utilisation Request |
(a) | Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: |
(i) | the proposed Utilisation Date is a Business Day within the Availability Period falling after the Closing Date; |
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(ii) | the currency and amount of the Utilisation comply with Clause 5.3 ( Currency and amount ); and |
(iii) | the proposed Interest Period complies with Clause 11 ( Interest Periods ). |
(b) | Only one Loan may be requested in each Utilisation Request. |
5.3 | Currency and amount |
(a) | The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency. |
(b) | The amount of the proposed Loan must be |
(i) | an amount which is not more than the Available Facility; and |
(ii) | if the currency selected is the Base Currency, a minimum of EUR 1,000,000 or, if less, the Available Facility; or |
(iii) | if the currency selected is an Optional Currency, the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 ( Conditions relating to Optional Currencies ) or, if less, the Available Facility. |
5.4 | Lenders participation |
(a) | If the conditions set out in this Agreement have been met and subject to Clause 8 ( Repayment ), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office. |
(b) | The amount of each Lenders participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan. |
(c) | The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation in that Loan, in each case by the Specified Time. |
5.5 | Cancellation of Commitment |
The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for the Facility.
6. | OPTIONAL CURRENCIES |
6.1 | Selection of currency |
A Borrower (or the Obligors Agent on its behalf) shall select the currency of a Utilisation in a Utilisation Request.
6.2 | Unavailability of a currency |
If before the Specified Time on any Quotation Day:
(a) | a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or |
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(b) | a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it, |
the Agent will give notice to the relevant Borrower or the Obligors Agent to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 6.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lenders proportion of the Base Currency Amount, or in respect of a Rollover Loan, an amount equal to that Lenders proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.
6.3 | Agents calculations |
Each Lenders participation in a Loan will be determined in accordance with paragraph (b) of Clause 5.4 ( Lenders participation ).
7. | ANCILLARY FACILITIES |
7.1 | Type of Facility |
An Ancillary Facility may be made available by way of:
(a) | an overdraft facility; |
(b) | a guarantee, bonding, documentary or stand-by letter of credit facility; |
(c) | a short term loan facility; |
(d) | a derivatives facility; |
(e) | a foreign exchange facility; or |
(f) | any other facility or accommodation required in connection with the business of the Group and which is agreed by the Obligors Agent with an Ancillary Lender. |
7.2 | Availability |
(a) | If the Company and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide an Ancillary Facility on a bilateral basis in place of part of that Lenders unutilised Commitment (which shall (except for the purpose of determining the Majority Lenders) be reduced by the amount of the Ancillary Commitment under that Ancillary Facility). |
(b) | An Ancillary Facility shall not be made available unless, not later than ten Business Days prior to the Ancillary Commencement Date for an Ancillary Facility (or such later date as the Agent may agree), the Agent has received from the Obligors Agent: |
(i) | a notice in writing requesting the establishment of an Ancillary Facility and specifying: |
(A) | the proposed Borrower(s) which may use the Ancillary Facility; |
(B) | the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility; |
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(C) | the proposed type of Ancillary Facility to be provided; |
(D) | the proposed Ancillary Lender; |
(E) | the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, if the Ancillary Facility is an overdraft facility comprising more than one account, its maximum gross amount (that amount being the Designated Gross Amount ) and its maximum net amount (that amount being the Designated Net Amount ); and |
(F) | the proposed currency of the Ancillary Facility (if not denominated in the Base Currency); |
(ii) | a copy of the proposed Ancillary Document; and |
(iii) | any other information which the Agent may reasonably request in connection with the Ancillary Facility. |
The Agent shall promptly notify the Obligors Agent, the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility.
No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause). In such a case, the provisions of this Agreement with regard to amendments and waivers will apply.
(c) | Subject to compliance with paragraph (b) above: |
(i) | the Lender concerned will become an Ancillary Lender; and |
(ii) | the Ancillary Facility will be available, |
with effect from the date agreed by the Obligors Agent and the Ancillary Lender (such date to be promptly notified by the Obligors Agent to the Agent).
7.3 | Terms of Ancillary Facilities |
(a) | Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Obligors Agent. |
(b) | However, those terms: |
(i) | must be based upon normal commercial terms at that time (except as varied by this Agreement); |
(ii) | may allow only Borrowers to use the Ancillary Facility; |
(iii) | may not allow the Ancillary Outstandings to exceed the Ancillary Commitment; |
(iv) | may not allow the Ancillary Commitment of a Lender to exceed the Available Commitment of that Lender; and |
(v) | must require that the Ancillary Commitment is reduced to zero, and that all Ancillary Outstandings are repaid (or cash cover provided in respect of all the Ancillary Outstandings) not later than the Termination Date (or such earlier date as the Commitment of the relevant Ancillary Lender is reduced to zero). |
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(c) | If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for (i) Clause 34.3 ( Day count convention ) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility, (ii) an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts, and (iii) where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail. |
(d) | Interest, commission and fees on Ancillary Facilities are dealt with in Clause 13.5 ( Interest, commission and fees on Ancillary Facilities ). |
7.4 | Repayment of Ancillary Facility |
(a) | An Ancillary Facility shall cease to be available on the Termination Date or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement. |
(b) | If an Ancillary Facility expires in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced to zero (and its Available Commitment shall be increased accordingly). |
(c) | No Ancillary Lender may demand repayment or prepayment of any amounts made available, or demand cash cover for any liabilities incurred, by it under its Ancillary Facility (except where the Ancillary Facility is provided on a net limit basis to the extent required to bring any gross outstandings down to the net limit) unless: |
(i) | the Total Commitments have been cancelled in full, or all outstanding Loans have become due and payable in accordance with the terms of this Agreement, or the Agent has declared all outstanding Loans immediately due and payable, or the expiry date of the Ancillary Facility occurs; or |
(ii) | it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility; or |
(iii) | the Ancillary Outstandings (if any) under that Ancillary Facility can be refinanced by a Loan and the Ancillary Lender gives sufficient notice to enable a Loan to be made to refinance those Ancillary Outstandings. |
(d) | For the purposes of determining whether or not the Ancillary Outstandings under an Ancillary Facility mentioned in paragraph (c)(iii) above can be refinanced by a Loan: |
(i) | the Available Commitment of the Ancillary Lender will be increased by the amount of its Ancillary Commitment; and |
(ii) | the Loan may (so long as paragraph (c)(i) above does not apply) be made irrespective of whether a Default is outstanding or any other applicable condition precedent is not satisfied (but only to the extent that the proceeds are applied in refinancing those Ancillary Outstandings) and irrespective of whether Clause 4.4 ( Maximum number of Loans ) or paragraph (a)(iii) of Clause 5.2 ( Completion of a Utilisation Request ) applies. |
(e) | On the making of a Loan to refinance Ancillary Outstandings: |
(i) | each Lender will participate in that Loan in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in Loans then outstanding bearing the same proportion to the aggregate amount of the Loans then outstanding as its Commitment bears to the Total Commitments; and |
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(ii) | the relevant Ancillary Facility shall be cancelled. |
(f) | In relation to an Ancillary Facility which comprises an overdraft facility where a Designated Net Amount has been established, the Ancillary Lender providing that Ancillary Facility shall only be obliged to take into account for the purposes of calculating compliance with the Designated Net Amount those credit balances which it is permitted to take into account by the then current law and regulations in relation to its reporting of exposures to applicable regulatory authorities as netted for capital adequacy purposes. |
7.5 | Ancillary Outstandings |
The Borrower and each Ancillary Lender agrees with and for the benefit of each Lender that:
(a) | the Ancillary Outstandings under any Ancillary Facility provided by that Ancillary Lender shall not exceed the Ancillary Commitment applicable to that Ancillary Facility and where the Ancillary Facility is an overdraft facility comprising more than one account, Ancillary Outstandings under that Ancillary Facility shall not exceed the Designated Net Amount in respect of that Ancillary Facility; and |
(b) | where all or part of the Ancillary Facility is an overdraft facility comprising more than one account, the Ancillary Outstandings (calculated on the basis that the words in brackets in paragraph (a) of the definition of that term were deleted) shall not exceed the Designated Gross Amount applicable to that Ancillary Facility. |
7.6 | Adjustment for Ancillary Facilities upon acceleration |
In this Clause 7.6 :
Outstandings means, in relation to a Lender, the aggregate of the equivalent in the Base Currency of (i) its participation in each Loan then outstanding (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender under the Facility), and (ii) if the Lender is also an Ancillary Lender, the Ancillary Outstandings in respect of Ancillary Facilities provided by that Ancillary Lender (together with the aggregate amount of all accrued interest, fees and commission owed to it as an Ancillary Lender in respect of the Ancillary Facility).
Total Outstandings means the aggregate of all Outstandings.
(a) | If a notice is served under Clause 24.18 ( Acceleration ) (other than a notice declaring Loans to be due on demand), each Lender and each Ancillary Lender shall promptly adjust by corresponding transfers (to the extent necessary) their claims in respect of amounts outstanding to them under the Facility and each Ancillary Facility to ensure that after such transfers the Outstandings of each Lender bear the same proportion to the Total Outstandings as such Lenders Commitment bears to the Total Commitments, each as at the date the notice is served under Clause 24.18 ( Acceleration ). |
(b) | If an amount outstanding under an Ancillary Facility is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under paragraph (a) above, then each Lender and each Ancillary Lender will make a further adjustment by corresponding transfers (to the extent necessary) to put themselves in the position they would have been in had the original adjustment been determined by reference to the actual liability or, as the case may be, zero liability and not the contingent liability. |
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(c) | Prior to the application of the provisions of paragraph (a) of this Clause 7.6, an Ancillary Lender that has provided an overdraft comprising more than one account under an Ancillary Facility shall set-off any liabilities owing to it under such overdraft facility against credit balances on any account comprised in such overdraft facility. |
(d) | All calculations to be made pursuant to this Clause 7.6 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders. |
7.7 | Information |
Each Borrower and each Ancillary Lender shall, promptly upon request by the Agent, supply the Agent with any information relating to the operation of an Ancillary Facility (including the Ancillary Outstandings) as the Agent may reasonably request from time to time. Each Borrower consents to all such information being released to the Agent and the other Finance Parties.
7.8 | Affiliates of Lenders as Ancillary Lenders |
(a) | Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Commitment is the amount set out opposite the relevant Lenders name in Part 2 of Schedule 1 ( The Original Parties ) and/or the amount of any Commitment transferred to or assumed buy that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement. For the purposes of calculating the Lenders Available Commitment with respect to the Facility, the Lenders Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates. |
(b) | The Obligors Agent shall specify any relevant Affiliate of a Lender in any notice delivered by the Obligors Agent to the Agent pursuant to paragraph (b)(i) of Clause 7.2 ( Availability ). |
(c) | An Affiliate of a Lender which becomes an Ancillary Lender shall accede to this Agreement and the Intercreditor Agreement by delivery to the Security Trustee of a duly completed accession undertaking in the form scheduled to the Intercreditor Agreement. |
(d) | If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (as defined in Clause 25 ( Changes to the Lenders )), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document. |
(e) | Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate. |
7.9 | Commitment Amounts |
Notwithstanding any other term of this Agreement each Lender shall ensure that at all times its Commitment is not less than:
(a) | its Ancillary Commitment; or |
(b) | the Ancillary Commitment of its Affiliate. |
8. | REPAYMENT |
(a) | Subject to paragraph (c) below, each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period. |
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(b) | Without prejudice to each Borrowers obligation under paragraph (a) above, if one or more Loans are to be made available to a Borrower: |
(i) | on the same day that a maturing Loan is due to be repaid by that Borrower; |
(ii) | in the same currency as a maturing Loan (unless it arose as a result of the operation of Clause 6.2 ( Unavailability of a currency )); and |
(iii) | in whole or in part for the purpose of refinancing a maturing Loan, |
the aggregate amount of the new Loans shall be treated as if applied in or towards repayment of the maturing Loan or Loans so that:
(A) | if the amount of the maturing Loan(s) exceeds the aggregate amount of the new Loans: |
(1) | the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and |
(2) | each Lenders participation (if any) in the new Loans shall be treated as having been made available and applied by that Borrower in or towards repayment of that Lenders participation (if any) in the maturing Loan(s) and that Lender will not be required to make its participation in the new Loans available in cash; and |
(B) | if the amount of the maturing Loan(s) is equal to or less than the aggregate amount of the new Loans: |
(1) | the relevant Borrower will not be required to make any payment in cash; and |
(2) | each Lender will be required to make its participation in the new Loans available in cash only to the extent that its participation (if any) in the new Loans exceeds that Lenders participation (if any) in the maturing Loan(s) and the remainder of that Lenders participation in the new Loans shall be treated as having been made available and applied by that Borrower in or towards repayment of that Lenders participation in the maturing Loan(s). |
(c) | At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the Termination Date and will be treated as separate Loans (the Separate Loans ) denominated in the currency in which the relevant participations are outstanding. |
(d) | A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving ten Business Days prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt. |
(e) | Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the relevant Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Defaulting Lender on the last day of each Interest Period of that Loan. |
(f) | The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan. |
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9. | ILLEGALITY, PREPAYMENT AND CANCELLATION |
9.1 | Illegality |
If, at any time, it is or will become unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan:
(a) | that Lender shall promptly notify the Agent upon becoming aware of that event; |
(b) | upon the Agent notifying the Obligors Agent, the Commitment of that Lender will be immediately cancelled; and |
(c) | each Borrower shall repay that Lenders participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Obligors Agent or, if earlier, the date specified by the Lender in the notice delivered to the Agent. |
9.2 | Change of control or sale of assets |
(a) | Upon the occurrence of the sale of all or substantially all of the assets of the Group whether in a single transaction or a series of related transactions the Facility will be cancelled and all outstanding Loans and Ancillary Outstandings, together with accrued interest and all other amounts accrued under the Finance Documents, shall become immediately due and payable and shall be repaid in full. The Company shall promptly notify the Agent upon any such event occurring. |
(b) | Upon the occurrence of: |
(i) | prior to an IPO, a Material Change of Ownership of the Company which does not have the prior written consent of the Agent (acting on the instructions of all the Lenders); or |
(ii) | following an IPO, any person or group of persons acting in concert gaining control of the Company, |
the Company shall immediately notify the Agent and the Agent shall notify the Lenders. The Commitment of any Lender which within a period of 15 Business Days following notice by the Agent has not responded in writing to the Agent that it intends to remain a Lender shall, on the Business Day following such period, be cancelled and the participation of that Lender in all outstanding Loans and Ancillary Outstandings, together with accrued interest and all other amounts accrued under the Finance Documents owing to that Lender, shall become immediately due and payable and shall be repaid in full.
(c) | For the purposes of this Clause 9.2: |
acting in concert shall have the meaning attributed to that term in the City Code.
City Code means the City Code on Takeovers and Mergers of England and Wales.
control means:
(i) | prior to an IPO in respect of the Company: |
(A) | the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: |
(1) | cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the Company; or |
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(2) | appoint or remove all, or the majority, of the directors or other equivalent officers of the Company; or |
(3) | give directions with respect to the operating and financial policies of the Company which the directors or other equivalent officers of the Company are obliged to comply with; or |
(B) | the holding, directly or indirectly, of more than one-half of the issued share capital or voting rights in respect of the share capital of the Company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); and |
(ii) | following an IPO in respect of the Company, the holding, directly or indirectly, of more than 30 per cent. of the issued share capital or voting rights in respect of the share capital of the Company. |
Material Change of Ownership means:
(i) | any transfer of shares in the Company, directly or indirectly, to any person (or group of persons acting in concert) which, as at the date of this Agreement, is not a shareholder of the Company where such transfer results in that person or group of persons holding, directly or indirectly, more than 25 per cent. of the Companys issued share capital; or |
(ii) | any transfer of shares in the Company between persons which, as at the date of this Agreement, are shareholders of the Company where such transfer involves, in aggregate, a transfer (in one transaction or a combination of transactions) of more than 25 per cent. of the Companys issued share capital. |
9.3 | Voluntary cancellation |
The Obligors Agent may, if it gives the Agent not less than three Business Days (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of EUR 5,000,000) of the Available Facility. Any cancellation under this Clause 9.3 shall reduce the Commitments of the Lenders rateably.
9.4 | Voluntary prepayment of Loans |
A Borrower to which a Loan has been made may, if it or the Obligors Agent gives the Agent not less than five Business Days (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but if in part, being an amount that reduces the amount of the Loan by a minimum amount of EUR 1,000,000 (or its equivalent in any other currency).
9.5 | Right of cancellation and repayment in relation to a single Lender |
(a) | If: |
(i) | any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 ( Tax gross-up ); |
(ii) | any Lender claims indemnification from the Obligors Agent or an Obligor under Clause 14.3 ( Tax indemnity ) or Clause 15.1 ( Increased costs ); or |
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(iii) | any Lender notifies the Agent of its Additional Cost Rate under paragraph 3 of Schedule 4 (Mandatory Cost formulae) , |
the Obligors Agent may, whilst (in the case of paragraphs (i) and (ii) above) the circumstance giving rise to the requirement for that increase or indemnification continues or (in the case of paragraph (iii) above) that Additional Cost Rate is greater than zero, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lenders participation in the Loans.
(b) | On receipt of a notice referred to in paragraph (a) above in relation to a Lender, the Commitment of that Lender shall immediately be reduced to zero. |
(c) | On the last day of each Interest Period which ends after the Obligors Agent has given notice under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Obligors Agent in that notice), each Borrower to which a Loan is outstanding shall repay that Lenders participation in that Loan together with all interest and other amounts accrued under the Finance Documents. |
9.6 | Replacement of a Lender |
(a) | If at any time: |
(i) | an Obligor becomes obliged to repay any amount in accordance with Clause 9.1 ( Illegality ) or to pay additional amounts pursuant to Clause 14.2 ( Tax gross-up ) or Clause 15.1 ( Increased costs ) to any Lender in excess of amounts payable to the other Lenders generally; |
(ii) | any Lender becomes a Non-Consenting Lender (as defined in paragraph (c) below); or |
(iii) | any Lender has become and continues to be a Defaulting Lender, |
then the Obligors Agent may, on not less than ten Business Days prior written notice to the Agent and such Lender or its Affiliate:
(A) | replace such Lender or its Affiliate by requiring such Lender or its Affiliate (in its capacity as a Lender and/or Hedge Counterparty) to (and such Lender shall or shall procure that its Affiliate shall) transfer pursuant to Clause 25 ( Changes to the Lenders ): |
(1) | all (and not part only) of its rights and obligations under this Agreement ( Loan Participation ); and |
(2) | (if the Lender or its Affiliate is a Hedge Counterparty) all of its rights and obligations under any Hedging Agreement ( Hedge Participation ); or |
(B) | (if the Lender is a Defaulting Lender) require such Lender to (and such Lender shall) transfer pursuant to Clause 25 ( Changes to the Lenders ) all (and not part only) of the undrawn Commitment of the Lender; or |
(C) | (if the Lender is a Defaulting Lender) require such Lender to (and such Lender shall) transfer pursuant to Clause 25 ( Changes to the Lenders ) all (and not part only) of its rights and obligations in respect of the Facility, |
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in each case, to a Lender or other bank, financial institution, trust, fund or other entity (a Replacement Lender ) nominated by the Obligors Agent, and which (unless the Agent is an Impaired Agent) is acceptable to the Agent (acting reasonably), which confirms its willingness to assume and does assume all the Loan Participations and Hedge Participations of the transferring Lender and/or its Affiliate (including the assumption of the transferring Lenders participations or unfunded participations (as the case may be) on the same basis as the transferring Lender). The Loan Participation shall be transferred for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lenders participation in the outstanding Utilisations and all accrued interest, fees, Break Costs and other amounts payable in relation thereto under the Finance Documents. The Hedge Participation shall be transferred for a purchase price (which may be negative) based upon the Section 6(e) methodology in the relevant Hedging Agreement with the Obligor as the sole Affected Party .
(b) | The replacement of a Lender pursuant to this Clause shall be subject to the following conditions: |
(i) | the Obligors Agent shall have no right to replace the Agent or Security Trustee; |
(ii) | neither the Agent nor the Lender shall have any obligation to the Obligors Agent to find a Replacement Lender; |
(iii) | in the event of a replacement of a Non-Consenting Lender (as defined in paragraph (c) below) such replacement must take place no later than 180 days after the date the Non-Consenting Lender notifies the Obligors Agent and the Agent of its failure or refusal to agree to any consent, waiver or amendment to the Finance Documents requested by the Obligors Agent; |
(iv) | in the event of a replacement of a Defaulting Lender, such replacement must take place no later than 20 Business Days after the notice referred to in paragraph (a) above; and |
(v) | in no event shall the Lender replaced under this paragraph (b) be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents. |
(c) | In the event that: |
(i) | the Obligors Agent or the Agent (at the request of the Obligors Agent) has requested the Lenders to consent to a waiver or amendment of any provisions of the Finance Documents; |
(ii) | the waiver or amendment in question requires the consent of all the Lenders; and |
(iii) | the Super-Majority Lenders have consented to such waiver or amendment, |
then any Lender who does not and continues not to agree to such waiver or amendment shall be deemed a Non-Consenting Lender .
(d) |
(i) | For so long as a Defaulting Lender has any Available Commitment, in ascertaining the Majority Lenders or Super Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lenders Commitments will be reduced by the amount of its Available Commitments. |
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(ii) | For the purposes of this Clause 9.6, the Agent may assume that the following Lenders are Defaulting Lenders: |
(A) | any Lender which has notified the Agent that it has become a Defaulting Lender; |
(B) | any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender has occurred, |
unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
9.7 | Right of cancellation in relation to a Defaulting Lender |
(a) | If any Lender becomes a Defaulting Lender, the Obligors Agent may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent ten Business Days notice of cancellation of each Available Commitment of that Lender. |
(b) | On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero. |
(c) | The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders. |
9.8 | Restrictions |
(a) | Any notice of cancellation or prepayment given by any Party under this Clause 9 ( Illegality, Prepayment and Cancellation ) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment. |
(b) | Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty. |
(c) | Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid may be reborrowed in accordance with the terms of this Agreement. |
(d) | No Borrower shall repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement. |
(e) | Subject to Clause 2.2 ( Increase ), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated. |
(f) | If the Agent receives a notice under this Clause 9 ( Illegality, Prepayment and Cancellation ) it shall promptly forward a copy of that notice to either the Obligors Agent or the affected Lender, as appropriate. |
10. | INTEREST |
10.1 | Calculation of interest |
The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
(a) | Margin; |
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(b) | in relation to any Loan in Euro, EURIBOR or, in relation to any other Loan, LIBOR; and |
(c) | Mandatory Cost, if any. |
10.2 | Payment of interest |
(a) | The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six Monthly intervals after the first day of the Interest Period). |
(b) | If the Annual Financial Statements and related Compliance Certificate received by the Agent show that a higher Margin should have applied during a certain period, then the Company shall (or shall ensure the relevant Borrower shall) promptly pay to the Agent any amounts necessary to put the Agent and the Lenders in the position they would have been in had the appropriate rate of the Margin applied during such period. |
10.3 | Default interest |
(a) | If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is one per cent higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 10.3 shall be immediately payable by the Obligor on demand by the Agent. |
(b) | If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan: |
(i) | the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and |
(ii) | the rate of interest applying to the overdue amount during that first Interest Period shall be one per cent. higher than the rate which would have applied if the overdue amount had not become due. |
(c) | Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable. |
10.4 | Notification of rates of interest |
The Agent shall promptly notify the Lenders and the relevant Borrower (or the Obligors Agent) of the determination of a rate of interest under this Agreement.
11. | INTEREST PERIODS |
11.1 | Selection of Interest Periods |
(a) | A Borrower (or the Obligors Agent on behalf of the Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan. |
(b) | Subject to this Clause 11, a Borrower (or the Obligors Agent on behalf of the Borrower) may select an Interest Period for a Loan of one, three or six Months or any other period agreed between the Obligors Agent and the Agent (acting on the instructions of all the Lenders). |
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(c) | An Interest Period for a Loan shall not extend beyond the Termination Date. |
(d) | Each Interest Period for a Loan shall start on the Utilisation Date. |
(e) | A Loan has one Interest Period only. |
11.2 | Non-Business Days |
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
12. | CHANGES TO THE CALCULATION OF INTEREST |
12.1 | Absence of quotations |
Subject to Clause 12.2 ( Market disruption ):
(a) | if EURIBOR or, if applicable, LIBOR is to be determined by reference to the Base Reference Banks but a Base Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable EURIBOR or LIBOR shall be determined on the basis of the quotations of the remaining Base Reference Banks; or |
(b) | if Clause 12.3 ( Alternative Reference Bank Rate ) applies but an Alternative Reference Bank does not supply a quotation before close of business in London on the date falling one Business Day after the Quotation Day for that Loan, the applicable Alternative Reference Bank Rate shall be determined on the basis of the quotations of the remaining Alternative Reference Banks. |
12.2 | 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 Lenders 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 Alternative Reference Bank Rate or (if an Alternative Market Disruption Event has occurred with respect to that Loan for the relevant Interest Period of that Loan) the rate notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling one Business Day after the Quotation Day (or, if earlier, on the date falling one Business Day prior to the date on which 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 Lenders participation in the Loan. |
(b) | If: |
(i) | the percentage rate per annum notified by a Lender pursuant to paragraph (a)(ii) above is less than LIBOR or, in relation to any Loan in Euro, EURIBOR; or |
(ii) |
a Lender has not notified the Agent of a percentage rate per annum pursuant to paragraph (a)(ii) above, |
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the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be LIBOR or in relation to a loan in Euro, EURIBOR. |
(c) | In this Agreement: |
Alternative Market Disruption Event means:
(i) | before close of business in London on the date falling one Business Day after the Quotation Day for the relevant Interest Period of the Loan, none or only one of the Alternative Reference Banks supplies a rate to the Agent to determine the Alternative Reference Bank Rate for the relevant Interest Period of the Loan; or |
(ii) | before close of business in London on the date falling three Business Days after the Quotation Day for the relevant Interest Period of the Loan, the Agent receives notifications from a Lender or Lenders (whose participations in that Loan exceed 60 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of the Alternative Reference Bank Rate; and |
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 Base Reference Banks supplies a rate to the Agent to determine EURIBOR or, if applicable, LIBOR for the relevant currency and Interest Period; or |
(ii) | before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from not less than two Lenders (whose combined participations in a Loan exceed 30 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of EURIBOR or, if applicable, LIBOR. |
12.3 | Alternative Reference Bank Rate |
(a) | If a Market Disruption Event occurs, the Agent shall as soon as is practicable request each of the Alternative Reference Banks to supply to it the rate at which that Alternative Reference Bank could have borrowed funds in the relevant currency and for the relevant period in the London interbank market or, in relation to a Loan in Euro, the European interbank market at or about 11:00 a.m. or, in relation to a Loan in Euro, at or about 11:00 a.m. (Brussels time) on the Quotation Day for the Interest Period of that Loan, were it to have done so by asking for and then accepting interbank offers for deposits in reasonable market size in the currency of that Loan and for a period comparable to the Interest Period of that Loan. |
(b) | As soon as is practicable after receipt of the rates supplied by the Alternative Reference Banks, the Agent will notify the Obligors Agent and the Lenders of the arithmetic mean of the rates supplied to it in accordance with paragraph (a) above (rounded upwards to four decimal places) (the Alternative Reference Bank Rate ). |
12.4 | Alternative basis of interest or funding |
(a) | If an Alternative Market Disruption Event occurs and the Agent or the Obligors Agent so requires, the Agent and the Obligors Agent shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest. |
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(b) | Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Obligors Agent, be binding on all Parties. |
12.5 | Break Costs |
(a) | Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum. |
(b) | Each Lender shall, together with its demand, provide a certificate to the Agent confirming the amount and basis of calculation of its Break Costs for any Interest Period in which they accrue. |
13. | FEES |
13.1 | Commitment Fee |
(a) | The Company shall pay (or procure the payment) to the Agent (for the account of each Lender) a fee in the Base Currency computed at the rate of 42.5 per cent. of the applicable Margin on that Lenders Available Commitment for the Availability Period. |
(b) | The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period and on the cancelled amount of the relevant Lenders Commitment at the time the cancellation is effective. |
13.2 | Arrangement Fee |
The Company shall pay (or procure the payment of) an arrangement fee in the amount and at the times agreed in a Fee Letter.
13.3 | Agency Fee |
The Company shall pay (or procure the payment of) to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.
13.4 | Security Trustee Fee |
The Company shall pay (or procure the payment) to the Security Trustee (for its own account) a fee in the amount and at the terms agreed in a Fee Letter.
13.5 | Interest, commission and fees on Ancillary Facilities |
The rate and time of payment of interest, commission, fees and any other remuneration in respect of each Ancillary Facility shall be determined by agreement between the relevant Ancillary Lender and the relevant Borrower of that Ancillary Facility based upon normal market rates and terms.
14. | TAX GROSS UP AND INDEMNITIES |
14.1 | Definitions |
In this Agreement:
Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
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Tax Credit means a credit against, relief or remission for, or repayment of any Tax.
Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document.
Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 14.2 ( Tax gross-up ) or a payment under Clause 14.3 ( Tax indemnity ).
14.2 | Tax gross-up |
(a) | Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law. |
(b) | The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and the relevant Obligor. |
(c) | If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. |
(d) | 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. |
(e) | 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 Agent for the Finance Party entitled to the payment a valid original certificate of deduction of Tax or if unavailable such other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. |
14.3 | Tax indemnity |
(a) | Except as provided in (b) below, the Company shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines (in its absolute discretion) has been or will be (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document. |
(b) | Paragraph (a) above shall not apply: |
(i) | with respect to any Tax assessed on a Finance Party: |
(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 Partys Facility Office is located in respect of amounts received or receivable in that jurisdiction, |
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
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(ii) | to the extent a loss, liability or cost is compensated for by an increased payment under Clause 14.2 ( Tax gross-up ). |
(c) | A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Company. |
(d) | A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3, notify the Agent. |
14.4 | Tax Credit |
If an Obligor makes a Tax Payment and the relevant Finance Party determines (in its absolute discretion) that:
(a) | a Tax Credit is attributable either to the circumstances giving rise to the Obligors obligation to make that Tax Payment, or to that Tax Payment; and |
(b) | that Finance Party has obtained, utilised and fully retained that Tax Credit on an affiliated group basis, |
the Finance Party shall pay an amount to the Obligor which that Finance Party determines (in its absolute discretion) will leave it (after that payment) in the same after-Tax position as it would have been in had the Obligor not been required to make the Tax Payment.
14.5 | Stamp taxes |
The Borrower shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, stamp duty reserve, documentary, registration and other similar Taxes payable in respect of any Finance Document.
14.6 | Value added tax |
(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 a supply for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and accordingly, subject to paragraph (b) below, if VAT is chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party). |
(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 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. |
(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. |
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15. | INCREASED COSTS |
15.1 | Increased costs |
(a) | Subject to Clause 15.3 ( Exceptions ) the Company shall (or shall procure that an Obligor will), within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement. |
(b) | In this Agreement Increased Costs means: |
(i) | a reduction in the rate of return from the Facility or on a Finance Partys (or its Affiliates) overall capital; |
(ii) | an additional or increased cost; or |
(iii) | a reduction of any amount due and payable under any Finance Document, |
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or an Ancillary Commitment or funding or performing its obligations under any Finance Document.
15.2 | Increased cost claims |
(a) | A Finance Party intending to make a claim pursuant to Clause 15.1 ( Increased costs ) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company. |
(b) | Each Finance Party shall, together with its demand, provide a certificate to the Agent confirming the amount and basis of calculations of its Increased Costs. |
15.3 | Exceptions |
(a) | Clause 15.1 ( Increased costs ) does not apply to the extent any Increased Cost is: |
(i) | attributable to a Tax Deduction required by law to be made by an Obligor; |
(ii) | compensated for by Clause 14.3 ( Tax indemnity ) (or would have been compensated for under Clause 14.3 ( Tax indemnity ) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 14.3 ( Tax indemnity ) applied); |
(iii) | compensated for by the payment of the Mandatory Cost; |
(iv) | attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation or the gross negligence of any of them; or |
(v) | attributable to the implementation or application of or compliance with the International Convergence of Capital Measurement and Capital Standards, a Revised Framework published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement ( Basel II ) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates). |
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(b) | In this Clause 15.3, a reference to a Tax Deduction has the same meaning given to the term in Clause 14.1 ( Definitions ). |
16. | OTHER INDEMNITIES |
16.1 | Currency indemnity |
(a) | If any sum due from an Obligor under the Finance Documents (a Sum ), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the First Currency ) in which that Sum is payable into another currency (the Second Currency ) for the purpose of: |
(i) | making or filing a claim or proof against that Obligor; |
(ii) | obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Secured Party and the Arranger to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
(b) | Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable. |
16.2 | Other indemnities |
The Company shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Secured Party and the Arranger against any cost, loss or liability incurred by that Secured Party or Arranger as a result of:
(a) | the occurrence of any Event of Default; |
(b) | a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 29 ( Sharing among the Finance Parties ); |
(c) | funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or |
(d) | a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Obligors Agent. |
16.3 | Indemnity to the Agent |
The Company shall (or shall procure that an Obligor will) promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
(a) | investigating any event which it reasonably believes is a Default; or |
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(b) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised. |
16.4 | Indemnity to the Security Trustee |
(a) | Each Obligor shall promptly indemnify the Security Trustee and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of: |
(i) | the taking, holding, protection or enforcement of the Transaction Security; |
(ii) | the exercise of any of the rights, powers, discretions and remedies vested in the Security Trustee and each Receiver and Delegate by the Finance Documents or by law; and |
(iii) | any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents. |
(b) | The Security Trustee may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 16.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it. |
17. | MITIGATION BY THE LENDERS |
17.1 | Mitigation |
(a) | Each Finance Party shall, in consultation with the Obligors Agent, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 ( Illegality ), Clause 14 ( Tax gross-up and indemnities ), Clause 15 ( Increased costs ) or paragraph 3 of Schedule 4 ( Mandatory Cost formulae ) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office. |
(b) | Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents. |
17.2 | Limitation of liability |
(a) | The Company shall (or shall procure that an Obligor will) indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 17.1 ( Mitigation ). |
(b) | A Finance Party is not obliged to take any steps under Clause 17.1 ( Mitigation ) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it. |
18. | COSTS AND EXPENSES |
18.1 | Transaction expenses |
The Company shall (or shall procure that an Obligor will) promptly on demand pay the Agent, the Arranger, the Security Trustee the amount of all costs and expenses (including, but not limited to, legal fees) reasonably incurred by any of them (and, in the case of the Security Trustee, by any Receiver or Delegate) in connection with the negotiation, preparation, printing, execution, syndication and perfection of:
(a) | this Agreement and any other documents referred to in this Agreement and the Transaction Security; and |
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(b) | any other Finance Documents executed after the date of this Agreement. |
18.2 | Amendment costs |
If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 30.9 ( Change of currency ), the Company shall (or shall procure that an Obligor will), within three Business Days of demand, reimburse each of the Agent and the Security Trustee for the amount of all costs and expenses (including, but not limited to, legal fees) reasonably incurred by the Agent, the Security Trustee (and in the case of the Security Trustee, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.
18.3 | Security Trustees ongoing costs |
(a) | In the event of (i) the occurrence of a Default or (ii) the Security Trustee considering it necessary or expedient or (iii) the Security Trustee being requested by an Obligor or the Majority Lender to undertake duties which the Security Trustee and the Company agree to be of an exceptional nature and/or outside the scope of the normal duties of the Security Trustee under the Finance Documents, the Company shall pay to the Security Trustee any additional remuneration that may be agreed between them. |
(b) | If the Security Trustee and the Company fail to agree upon the nature of the duties or upon any additional remuneration, that dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Trustee and approved by the Company or, failing approval, nominated (on the application of the Security Trustee) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Company) and the determination of any investment bank shall be final and binding upon the parties to this Agreement. |
18.4 | Enforcement and preservation costs |
The Company shall (or shall procure that an Obligor will), within three Business Days of demand, pay to each Secured Party the amount of all costs and expenses (including, but not limited to, legal fees) incurred by that Secured Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any proceedings instituted by or against the Security Trustee as a consequence of taking or holding the Transaction Security or enforcing these rights.
19. | GUARANTEE AND INDEMNITY |
19.1 | Guarantee and indemnity |
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) | guarantees to each Finance Party punctual performance by each other Obligor of all the Obligors obligations under the Finance Documents; |
(b) | undertakes with each Finance Party that whenever another Obligor does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and |
(c) | agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 19 if the amount claimed had been recoverable on the basis of a guarantee. |
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19.2 | Continuing guarantee |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
19.3 | Reinstatement |
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 19 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
19.4 | Waiver of defences |
The obligations of each Guarantor under this Clause 19 ( Guarantee and Indemnity ) will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 19 ( Guarantee and Indemnity ) (without limitation and whether or not known to it or any Finance Party) including:
(a) | any time, waiver or consent granted to, or composition with, any Obligor or other person; |
(b) | the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
(c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
(d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person; |
(e) | any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Finance Document or other document or security; |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; |
(g) | any insolvency or similar proceedings; or |
(h) | any benefit ( beneficio ) under Spanish Law, including but not limited, benefits of prior exhaustion of the main debtors assets ( excusión ), division ( división ) and order ( orden ), which shall not in any event apply. |
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19.5 | Guarantor intent |
Without prejudice to the generality of Clause 19.4 ( Waiver of defences ), each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents including, but not limited to, for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
19.6 | Immediate recourse |
Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 19 ( Guarantee and Indemnity ). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
19.7 | Appropriations |
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:
(a) | refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and |
(b) | hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantors liability under this Clause 19 ( Guarantee and Indemnity ). |
19.8 | Deferral of Guarantors rights |
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 19 ( Guarantee and Indemnity ):
(a) | to be indemnified by an Obligor; |
(b) | to claim any contribution from any other guarantor of any Obligors obligations under the Finance Documents; |
(c) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party; |
(d) | to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 19.1 ( Guarantee and Indemnity ); |
(e) | to exercise any right of set-off against any Obligor; and/or |
(f) | to claim or prove as a creditor of any Obligor in competition with any Finance Party. |
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If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 30 (Payment mechanics) of this Agreement.
19.9 | Release of Guarantors right of contribution |
If any Guarantor (a Retiring Guarantor ) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:
(a) | that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and |
(b) | each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor. |
19.10 | Additional security |
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
19.11 | Dutch Guarantee Limitation |
Notwithstanding any other provision of this Clause 19 ( Guarantee and Indemnity ) the guarantee, indemnity and other obligations of any Dutch Obligor expressed to be assumed in this Clause 19 ( Guarantee and Indemnity ) shall be deemed not to be assumed by such Dutch Obligor to the extent that the same would constitute unlawful financial assistance within the meaning of Article 2:207c or 2:98c Dutch Civil Code or any other applicable financial assistance rules under any relevant jurisdiction (the Prohibition ) and the provisions of this Agreement and the other Finance Documents shall be construed accordingly. For the avoidance of doubt it is expressly acknowledged that the relevant Dutch Obligors will continue to guarantee all such obligations which, if included, do not constitute a violation of the Prohibition.
19.12 | French Guarantee Limitation |
(a) | The obligations and liabilities of any French Guarantor under this Clause 19 ( Guarantee and Indemnity ) shall not include any obligation or liability of any Obligor under the Hedging Agreements to the Hedge Counterparties. |
(b) | The obligations and liabilities of any French Guarantor under this Clause 19 ( Guarantee and Indemnity ) shall not include any obligation or liability which if incurred would (i) constitute the provision of financial assistance within the meaning of article L.255-216 of the French Code de commerce in connection with the subscription, or the acquisition or the refinancing of the acquisition of its shares or of the shares of its parent companies and/or (ii) would constitute a misuse of corporate assets or powers within the meaning of article L.241-3 or L.242-6 of the French Code de commerce , as interpreted by French courts and/or (iii) would constitute a violation of the provisions of article L.223-11 of the French Code de commerce . |
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(c) | The obligations and liabilities of each French Guarantor under this Clause 19 ( Guarantee and Indemnity ) for the obligations under the Finance Documents of any other Obligor which is not a Subsidiary of such French Guarantor shall be limited, at any time, to an amount equal to the lower of (i) that portion of the aggregate of all amounts borrowed under this Agreement by such other Obligor which has been directly or indirectly on-lent by such Obligor to such French Guarantor under intercompany loan agreements and/or shareholders advances and, (ii) the outstanding amounts under such intercompany loan agreements and/or shareholders advances at the date a payment is to be made by such French Guarantor under this Clause 19 ( Guarantee and Indemnity ), it being specified that any payment made by such French Guarantor under this Clause 19 ( Guarantee and Indemnity ) in respect of the obligations of such Obligor shall automatically reduce pro tanto the outstanding amount of the intercompany loans and/or shareholders advances due by such French Guarantor to the relevant Obligor. |
(d) | The obligations and liabilities of each French Guarantor under this Clause 19 ( Guarantee and Indemnity ) for the obligations under the Finance Documents of any Obligor which is its Subsidiary shall not be limited and shall therefore cover all amounts due by such Subsidiary as Borrower and as Guarantor. |
(e) | It is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and that no French Guarantor shall be considered as co-debiteur solidaire as to its obligations pursuant to the guarantee given pursuant to this Clause 19 ( Guarantee and Indemnity ). |
(f) | Notwithstanding any provision to the contrary in this Agreement: |
(i) | the representations made in Clause 20 ( Representations ) by each French Guarantor shall be made for itself and for each of its Subsidiaries which is an Obligor only; |
(ii) | the undertakings made in Clause 23 ( General Undertakings ) by each French Guarantor shall be made for itself and for each of its Subsidiaries which is an Obligor only. |
19.13 | German Guarantee Limitation |
If the guarantee and indemnity granted in this Clause 19 ( Guarantee and Indemnity ) (the Guarantee ) is given by a Guarantor incorporated in Germany in the legal form of a limited liability company ( Gesellschaft mit beschränkter Haftung (GmbH) ) (a German GmbH Guarantor ), the following shall apply:
(a) | The Finance Parties shall be entitled to enforce the Guarantee against the relevant German GmbH Guarantor without limitation in respect of: |
(i) | all and any amounts which are owed under the Finance Documents by such German GmbH Guarantor itself or by any of its Subsidiaries; and |
(ii) | all and any amounts which correspond to funds that have been borrowed under the Finance Documents or amounts borrowed or documentary credits or other financial accommodation provided under any ancillary facility, in each case to the extent on-lent or otherwise passed on to, or issued for the benefit of, the relevant German GmbH Guarantor or any of its Subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time ((i) and (ii) are collectively referred to as the Unlimited Enforcement Events ). |
(b) | Beyond the Unlimited Enforcement Events the Finance Parties shall not be entitled to enforce the Guarantee against the relevant German GmbH Guarantor if and to the extent that: |
(i) | the Guarantee secures the obligations of an Obligor which is (x) a direct or indirect shareholder of the German GmbH Guarantor or (y) an affiliated company ( verbundenes Unternehmen ) within the meaning of section 15 of the German Stock Corporation Act ( Aktiengesetz ) of a shareholder of the German GmbH Guarantor (other than the German GmbH Guarantor and its Subsidiaries) (the Up-Stream and/or Cross-Stream Guarantee ); and |
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(ii) | the enforcement would have the effect of (x) reducing the German GmbH Guarantors net assets ( Reinvermögen ) (the Net Assets ) to an amount of less than its stated share capital ( Stammkapital ) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) thereby causing a violation of the capital maintenance requirements as set forth in section 30, para. 1 German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) as amended from time to time provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Agent (such consent shall not be unreasonably withheld). |
(c) | The Net Assets shall be calculated as an amount equal to the sum of the values of the German GmbH Guarantors assets (consisting of all assets which correspond to the items set forth in section 266 sub-section (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch ) less the aggregate amount of the German GmbH Guarantors liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 subsection (3) B, C and D of the German Commercial Code), save that: |
(i) | any asset that is shown in the balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of such asset and that can be realised shall be taken into account with its market value, to the extent that such assets are not necessary for the relevant German GmbH Guarantors business ( nicht betriebsnotwendig ) and to the extent that such realisation is necessary to satisfy the amount owed under the Guarantee (for the purpose of this clause a book value being significantly lower than the market value shall as a general rule be assumed if the book value is 35 per cent lower than the market value); |
(ii) | obligations under loans provided to the German GmbH Guarantor by any member of the Group shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the German GmbH Guarantor; and |
(iii) | obligations under loans or other contractual liabilities incurred by the German GmbH Guarantor in a culpable ( schuldhaft ) violation of the provisions of the Finance Documents shall not be taken into account as liabilities. |
The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany ( Grundsätze ordnungsmäßiger Buchführung ) and, to the extent such accounting principles provide for discretion, be based on the same principles that were applied by the German GmbH Guarantor in the preparation of its most recent annual balance sheet ( Jahresbilanz ) and, in any event, in accordance with the jurisprudence from time to time of the German Federal Court of Justice ( Bundesgerichtshof ) relating to the protection of liable capital under Sections 30 and 31 of the German Limited Liability Companies Act.
(d) | The limitations set out in paragraph (b) above shall only apply if: |
(i) |
the German GmbH Guarantor delivers to the Agent, without undue delay but not later than within 10 Business Days (or such longer period as has been agreed between the German GmbH Guarantor and the Agent) after receipt of a request for payment under |
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the Guarantee by the Agent, a determination prepared by the German GmbH Guarantors management stating which amount of the Up-Stream and/or Cross-Stream Guarantee cannot be enforced as it would cause the Net Assets of the relevant German GmbH Guarantor being less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (taking into account the adjustments set out in paragraph (c) above (the Management Determination ); and |
(ii) | provided that the Agent (acting reasonably) disagrees with the Management Determination, the German GmbH Guarantor delivers to the Agent, without undue delay but not later than within 20 Business Days (or such longer period as has been agreed between the German GmbH Guarantor and the Agent) from the date the Agent has contested the Management Determination, an up to date balance sheet prepared by a firm of auditors of international standard and reputation which shows the amount of the Up-Stream and/or Cross-Stream Guarantee that cannot be enforced without the Net Assets of the relevant German GmbH Guarantor becoming less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (the Balance Sheet ). The Balance Sheet shall be prepared in accordance with the principles set out in paragraph (c) above and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to paragraph (c) above. |
If the German GmbH Guarantor fails to deliver the Management Determination or the Balance Sheet within the aforementioned time periods, the Finance Parties shall be entitled to enforce the Guarantee irrespective of the limitations set out in paragraph (b) above.
(e) | If the Finance Parties disagree with the Management Determination and/or the Balance Sheet, they shall be entitled to enforce the Guarantee up to the amount which, according to the Management Determination or the Balance Sheet, as the case may be, can be enforced in compliance with the limitations set out in paragraph (b) above. In relation to any additional amounts for which the German GmbH Guarantor is liable under the Guarantee, the Finance Parties shall be entitled to further pursue their claims (if any) and the relevant German GmbH Guarantor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the demand under the Guarantee was made). |
(f) | No reduction of the amount enforceable under this Clause 19.13 ( German Guarantee Limitation ) will prejudice the right of the Finance Parties to continue enforcing the Guarantee (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims guaranteed. |
19.14 | Spanish Guarantee Limitation |
(a) | The obligations under the Finance Documents and in particular under this Clause 19 ( Guarantee and Indemnity ) of any Guarantor incorporated in Spain (a Spanish Guarantor ) as a sociedad de responsabilidad limitada shall (i) not extend to any obligation incurred by any Obligor as a result of such Obligor borrowing (or guaranteeing the borrowing of) funds (but only in respect of those funds) under any Facility for the purpose of (A) acquiring quotas (participaciones sociales) representing the share capital of such Spanish Guarantor or quotas ( participaciones sociales ) or shares ( acciones ) representing the share capital of a company within its group or (B) refinancing a previous debt incurred by any Obligor for the acquisition of quotas ( participaciones sociales ) representing the share capital of such Spanish Guarantor or quotas ( participaciones sociales ) or shares ( acciones ) representing the share capital of a company within its group, and shall (ii) be deemed not to be undertaken or incurred by a Spanish Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of article 40.5 of the Spanish Limited Liability Companies Act 2/1995, 23 March ( Ley de Sociedades de Responsabilidad Limitada ) and, in that case, all provisions of this Agreement shall be construed accordingly in the sense that, in no case, can any guarantee or Security given by a Spanish Guarantor secure repayment of the abovementioned funds. |
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(b) | For the purposes of paragraph (a) above, a reference to the group of a Spanish Guarantor shall mean such Spanish Guarantor and any other companies constituting a group as such term is defined under article 42 of the Spanish Commercial Code ( Código de Comercio ). |
(c) | The obligations under this Clause 19 ( Guarantee and Indemnity ) of any Spanish Guarantor incorporated as a sociedad anónima shall (i) not extend to any obligation incurred by any Obligor as a result of such Obligor borrowing (or guaranteeing the borrowing of) funds (but only in respect of those funds) under any Facility for the purpose of (a) acquiring shares ( acciones ) representing the share capital of such Spanish Guarantor or shares ( acciones ) or quotas ( participaciones sociales ) representing the share capital of its holding company or (b) refinancing a previous debt incurred by any Obligor for the acquisition of shares ( acciones ) representing the share capital of such Spanish Guarantor or shares ( acciones ) or quotas ( participaciones sociales ) representing the share capital of its holding company, and shall (ii) be deemed not to be undertaken or incurred by a Spanish Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of article 81 of the Royal Decree-Law on Spanish Stock Companies ( Texto Refundido de la Ley de Sociedades Anónimas ), and, in that case, all provisions of this Agreement shall be construed accordingly in the sense that, in no case, can any guarantee or Security given by a Spanish Guarantor secure repayment of the above-mentioned funds. |
(d) | For the purposes of paragraph (c) above, a reference to a holding company of a Spanish Guarantor shall mean the company which, directly or indirectly, owns the majority of the voting rights of such Spanish Guarantor or that may have a dominant influence on such Spanish Guarantor. It shall be presumed that one company has a dominant influence on another company when: |
(i) | any of the scenarios set out in section 1 of article 42 of the Spanish Commercial Code ( Código de Comercio ) are met; or |
(ii) | when at least half plus one of the members of the managing body of the Spanish Guarantor are also members of the managing body or top managers ( altos directivos ) of the dominant company or of another company controlled by such dominant company. |
19.15 | Republic of Ireland Guarantee Limitation |
The guarantee and indemnity contained in this Clause 19 ( Guarantee and Indemnity ) (the Guarantee ) does not apply to any liability to the extent that it would result in the Guarantee constituting unlawful financial assistance within the meaning of Section 60 of the Companies Act 1963 or any equivalent and applicable provisions under the laws of any Relevant Jurisdiction.
19.16 | Belgian Guarantee Limitation |
Notwithstanding any other provision of this Clause 19 ( Guarantee and Indemnity ), the guarantee, indemnity and other obligations of any Belgian Guarantor expressed to be assumed in this Clause 19 ( Guarantee and Indemnity ) shall not include any liability which would constitute unlawful financial assistance within the meaning of Article 629 of the Belgian Company Code, and shall be subject to any limitation (based, inter alia, on corporate benefit rules) as set out in the Accession Letter of such Belgian Guarantor and agreed by the Agent (acting reasonably).
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19.17 | Danish Guarantee Limitation |
Notwithstanding any provision of any of the Finance Documents and in particular this Clause 19 ( Guarantee and Indemnity ), the guarantee, indemnity and other obligations (as well as any security created in relation thereto) of any Guarantor incorporated in Denmark (the Danish Guarantor ) expressed to be assumed in any of the Finance Documents and in particular this Clause 19 ( Guarantee and Indemnity ):
(a) | shall be deemed not to be assumed (and any Security created in relation thereto shall be limited) to if and to the extent required to comply with Danish statutory provisions on unlawful financial assistance, at the date of this Agreement including, but not limited to, Sections 115 and 115a of the Danish Public Limited Companies Act or Sections 49 and 50 of the Danish Private Limited Companies Act; and |
(b) | shall, in relation to obligations not incurred as a result of borrowings by the Danish Guarantor, further be limited to an amount equal to the higher of (i) the equity of the Danish Guarantor at the date of this Agreement or (ii) the equity at the date when a claim is made against the Danish Guarantor, in both events calculated in accordance with the Danish Guarantors generally accepted accounting principles at the relevant time; provided, however, that this shall be adjusted to include (if not already included) a statutory reserve in respect of any unpaid portion of the subscription price for shares issued by the Danish Guarantor calculated in accordance with the Danish Guarantors generally accepted accounting principles at the relevant time. |
19.18 | Limitation |
This guarantee does not apply to any liability to the extent that it would result in this guarantee being illegal or contravening any applicable law or regulation in the jurisdiction of a Guarantor concerning financial assistance by that Guarantor for the acquisition of, or subscription for, shares and with respect to any Additional Guarantor is subject to any limitation set out in the Accession Letter applicable to such Additional Guarantor.
20. | REPRESENTATIONS |
Each Obligor makes the representations and warranties set out in this Clause 20 to each Finance Party on the dates set out in Clause 20.26 ( Time when representations made ) (in the case of any Obligor other than the Company, only in relation to itself and its Subsidiaries and, in the case of the Company, in respect of itself and its Subsidiaries).
20.1 | Status |
(a) | It and each of its Subsidiaries is a limited liability company or a corporation, duly incorporated and validly existing under the law of its respective jurisdiction of incorporation. |
(b) | It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted. |
20.2 | Binding obligations |
(a) | The obligations expressed to be assumed by it in each Finance Document are, subject to any general principles of law as at the date of this Agreement limiting its obligations that are specifically referred to in any legal opinion delivered pursuant to Clause 4 ( Conditions of Utilisation ) or Clause 26 ( Changes to the Obligors ), legal, valid, binding and enforceable obligations; and |
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(b) | (without limiting the generality of paragraph (a) above) save, where applicable, for the filing of necessary or appropriate registrations of the Transaction Security Documents with the appropriate registries in each Relevant Jurisdiction each Transaction Security Document to which it is a party creates the Security which that Transaction Security Document purports to create and that Security is valid and effective. |
20.3 | Non-conflict with other obligations |
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents and the granting of the Transaction Security do not and will not conflict with:
(a) | any material law or regulation applicable to it; |
(b) | the constitutional documents of it or any of its Subsidiaries; or |
(c) | any agreement or instrument binding upon it or any member of the Group or any of its or any member of the Groups assets or constitute a default or termination event (however described) under any such agreement or instrument in a manner which has or is reasonably likely to have a Material Adverse Effect. |
20.4 | Power and authority |
(a) | It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents. |
(b) | No limit on its powers will be exceeded as a result of the borrowing, grant of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party. |
20.5 | Validity and admissibility in evidence |
(a) | All Authorisations required or desirable: |
(i) | to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and |
(ii) | to make the Finance Documents to which it is a party admissible in evidence in each Relevant Jurisdiction (save, where applicable, for the filing of necessary or appropriate registrations of the Transaction Security Documents with the appropriate registries in each Relevant Jurisdiction), |
have been obtained or effected and are in full force and effect.
(b) | All Authorisations necessary for the conduct of its and its Subsidiaries trade and ordinary activities have been obtained or effected and are in full force and effect if failure to obtain or effect those Authorisations has or is reasonably likely to have a Material Adverse Effect. |
20.6 | Governing law and enforcement |
(a) | The choice of governing law of each of the Finance Documents will be recognised and enforced in its Relevant Jurisdiction, subject to any general principles of law as at the date of this Agreement limiting its obligations that are specifically referred to in any legal opinion delivered pursuant to Clause 4 ( Conditions of Utilisation ) or Clause 26 ( Changes to the Obligors ). |
(b) | Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in each Relevant Jurisdiction, subject to any general principles of law as at the date of this Agreement limiting its obligations that are specifically referred to in any legal opinion delivered pursuant to Clause 4 ( Conditions of Utilisation ) or Clause 26 ( Changes to the Obligors ). |
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20.7 | Insolvency |
No:
(a) | corporate action, legal proceeding or other procedure or step described in Clause 24.7 ( Insolvency proceedings ); or |
(b) | creditors process described in Clause 24.8 (Creditors process ), |
has been taken or, to its knowledge, threatened in relation to it or any of its Subsidiaries; and none of the circumstances described in Clause 24.6 ( Insolvency ) applies to it and its Subsidiaries.
20.8 | Deduction of Tax |
It is not required to make any deduction for or on account of Tax from any payment it may make under any Finance Document.
20.9 | No filing or stamp taxes |
(a) | Subject to general principles of law as at the date of this Agreement limiting its obligations, which are specifically referred to in any legal opinion delivered pursuant to Clause 4 ( Conditions of Utilisation ) or Clause 26 ( Changes to the Obligors ) and as specified in paragraph (b) below, under the law of each Relevant Jurisdiction it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents. |
(b) (i) | The French law share pledge agreement in respect of the shares in Interxion France SARL made between the Company as pledgor and the Security Trustee must be filed before the clerk of the commercial court of the place where Interxion France SARL is incorporated for it to be binding ( opposable ) on third parties, in accordance with Articles 2337 and 2338 of the French Code civil . |
(ii) | The German law share pledge agreement in respect of the shares in Interxion Deutschland GmbH made between the Company as pledgor and the Security Trustee must be notarised. |
(iii) | The Spanish law pledge agreements must be notarised. |
(iv) | A EUR 0.15 documentary duty is due in respect of each copy of each Finance Document executed in Belgium, in accordance with the Belgian Code on certain Rights and Taxes ( Wetboek diverse rechten en taksen / Code des droits et taxes divers ). |
20.10 | No default |
(a) | No Event of Default and, on the date of this Agreement, no Default is continuing or would reasonably be expected to result from the making of any Utilisation or its entry into, its performance of, or any transaction contemplated by, any Finance Document. |
(b) | No other event or circumstances is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries) assets are subject which has or is reasonably likely to have a Material Adverse Effect. |
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20.11 | No misleading information |
(a) | The Business Plan has been prepared in accordance with the Accounting Principles as applied to the Companys Original Financial Statements, and the financial projections and forecasts contained in the Business Plan have been prepared on the basis of recent historical information, are fair and based on reasonable assumptions and have been approved by the managing board of the Company. |
(b) | The expressions of opinion or intention provided by or on behalf of an Obligor for the purposes of the Business Plan were made after careful consideration and (as at the date of the Business Plan) were fair and based on reasonable grounds. |
(c) | No event or circumstance has occurred or arisen and no information has been omitted from the Business Plan and no information has been given or withheld that results in the information, opinions, intentions, forecasts or projections contained in the Business Plan being untrue or misleading in any material respect. |
(d) | Any written factual information provided by or on behalf of any Obligor in relation to the Finance Documents was true and accurate in all material respects as at the date it was provided and is not misleading in any respect. |
20.12 | Financial statements |
(a) | The Original Financial Statements were prepared in accordance with the Accounting Principles consistently applied. |
(b) | Its unaudited Original Financial Statements fairly represent its financial condition and results of operations (consolidated in the case of the Company) for each relevant month. |
(c) | Its audited Original Financial Statements give a true and fair view of its financial condition and results of operations (consolidated in the case of the Company) during the relevant financial year. |
(d) | Its most recent financial statements delivered pursuant to Clause 21.1 ( Financial Statements ): |
(i) | have been prepared in accordance with the Accounting Principles as applied to the Original Financial Statements; and |
(ii) | give a true and fair view (if audited) or fairly present (if unaudited) its consolidated financial condition as at the end of, and consolidated results of operations for, the period to which they relate. |
(e) | The budgets and forecasts supplied under this Agreement were arrived at after careful consideration and have been prepared in good faith on the basis of recent historical information and on the basis of assumptions which were reasonable as at the date they were prepared and supplied. |
(f) | There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Company) since 31 December 2009. |
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20.13 | No proceedings pending or threatened |
No litigation, arbitration, administrative proceedings or investigations of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against it or any of its Subsidiaries (or against any of their respective directors).
20.14 | No breach of laws |
(a) | It has not (and none of its Subsidiaries has) breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect. |
(b) | No labour disputes are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against it or any of its Subsidiaries which have or are reasonably likely to have a Material Adverse Effect. |
20.15 | Environmental laws |
(a) | It and each of its Subsidiaries is in compliance with Clause 23.3 ( Environmental compliance ) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or is reasonably likely to have a Material Adverse Effect. |
(b) | No Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against it or any of its Subsidiaries where that claim has or is reasonably likely, if determined against that member of the Group, to have a Material Adverse Effect. |
(c) | The Company represents that the cost to the Group of compliance with Environmental Laws (including Environmental Permits) is (to the best of its knowledge and belief, having made due and careful enquiry) adequately provided for in the Business Plan and the cost of compliance with the recommendations contained in the Environmental Report is adequately provided for in the Business Plan. |
20.16 | Taxation |
(a) | It is not (and none of its Subsidiaries is) materially overdue in the filing of any Tax returns and it is not (and none of its Subsidiaries is) overdue in the payment of any amount in respect of Tax of Euro 500,000 (or its equivalent in any other currency) or more. |
(b) | No claims, audits or investigations are being, or are reasonably likely to be, made or conducted against it (or any of its Subsidiaries) with respect to Tax which would result, or be reasonably likely to result, in liabilities of or claims against any members of the Group which would have a Material Adverse Effect. |
(c) | It is resident for Tax purposes only in the jurisdiction of its incorporation. |
20.17 | Security and Financial Indebtedness |
(a) | No Security or Quasi-Security exists over all or any of the present or future assets of it or any of its Subsidiaries other than as permitted by this Agreement. |
(b) | Neither it nor any of its Subsidiaries has any Financial Indebtedness outstanding other than as permitted by this Agreement. |
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20.18 | Ranking |
(a) | Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally. |
(b) | With effect on the Closing Date, the Transaction Security has or will have first ranking priority and it is not subject to any prior ranking or pari passu ranking Security. |
20.19 | Good title to assets |
It and each of its Subsidiaries has a good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted.
20.20 | Legal and beneficial ownership |
It and each of its Subsidiaries is the sole legal and beneficial owner of the respective assets over which it purports to grant Security free from any claims, third party rights or competing interests other than Security permitted under Clause 23.4 ( Negative Pledge ).
20.21 | Shares |
The shares of any of its Subsidiaries which are subject to the Transaction Security are fully paid and not subject to any option to purchase or similar rights and are free from any charges, liens, encumbrances, third party rights, options, any statutory or contractual restrictions to their transfer. The constitutional documents of any of its Subsidiaries whose shares are subject to the Transaction Security do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Transaction Security (subject to the prior approval clause ( clause dagrément ) contained in Article 11.2 of the by-laws ( statuts ) of Interxion France SARL which requires the prior approval by shareholders holding at least three-quarters of Interxion France SARLs shares of the Secured Parties as potential shareholders of Interxion France SARL and any person to whom the shares are transferred in connection with enforcement of the share pledge agreement entered into between the Company as pledgor and the Security Trustee, which approval has been granted by the Company acting as sole shareholder of Interxion France SARL in accordance with Articles L223-14 and L223-15 of the French Code de commerce ) . There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share or loan capital of any member of the Group (including any option or right of pre-emption or conversion).
20.22 | Intellectual Property |
It and each of its Subsidiaries:
(a) | is the sole legal and beneficial owner of or has licensed to it all the Intellectual Property which is material in the context of its business and which is required by it in order to carry on its business as it is being conducted and as contemplated in the Business Plan; |
(b) | does not (nor does any of its Subsidiaries), in carrying on its businesses, infringe any Intellectual Property of any third party in any respect which has or is reasonably likely to have a Material Adverse Effect; and |
(c) | has taken all formal or procedural actions (including payment of fees) required to maintain any material Intellectual Property owned by it. |
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20.23 | Group Structure Chart |
The Company represents that the Group Structure Chart delivered to the Agent pursuant to Part 1 of Schedule 2 ( Conditions Precedent ) is true, complete and accurate in all material respects and shows the following information:
(a) | each member of the Group, including current name and company registration number, its jurisdiction of incorporation and/or establishment, a list of shareholders and indicating whether a company is not a company with limited liability; and |
(b) | all minority interests in any member of the Group and any person in which any member of the Group holds shares in its issued share capital or equivalent ownership interest of such person. |
20.24 | Centre of main interests and establishments |
For the purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the Regulation ), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its jurisdiction of incorporation and it has no establishment (as that term is used in Article 2(h) of the Regulations) in any other jurisdiction.
20.25 | Pensions |
(a) | Neither it nor any of its Subsidiaries is or has at any time been an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993). |
(b) | Neither it nor any of its Subsidiaries is or has at any time been connected with or an associate of (as those terms are used in sections 38 and 43 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993). |
(c) | The pension plan operated for the benefit of certain employees of Interxion (Schweiz) AG is fully funded. |
20.26 | Times when representations made |
(a) | All the representations and warranties in this Clause 20 are made by each Obligor on the date of this Agreement. |
(b) | The Repeating Representations are deemed to be made by each Obligor on the date of each Utilisation Request, on each Utilisation Date and on the first day of each Interest Period. |
(c) | All the representations and warranties in this Clause 20 (except Clause 20.11 ( No misleading information ) and Clause 20.23 ( Group Structure Chart )) are deemed to be made by each Additional Obligor on the day on which it becomes (or it is proposed that it becomes) an Additional Obligor. |
(d) | Each Obligor (other than the Company) hereby empowers ( bevollmächtigt ) the Company (in this capacity or in its capacity as Obligors Agent) to make the Repeating Representations on its behalf as its attorney ( Stellvertreter ). Each Obligor (other than the Company) hereby relieves the Company from any restrictions on representing several persons or self- dealing under any applicable law, in particular from the restrictions pursuant to section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ) for the purpose of making the Repeating Representations on its behalf as attorney ( Stellvertreter). |
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(e) | Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made. |
21. | INFORMATION UNDERTAKINGS |
The undertakings in this Clause 21 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
In this Clause 21:
Annual Financial Statements means the financial statements for a Financial Year delivered pursuant to paragraph (a) of Clause 21.1 ( Financial statements ).
Monthly Financial Statements means the financial statements delivered pursuant to paragraph (c) of Clause 21.1 ( Financial statements ).
Qualifying IPO means an IPO that generates gross proceeds for the Company of at least EUR 75,000,000 (or equivalent in any other currency).
Quarterly Financial Statements means the financial statements delivered pursuant to paragraph (b) of Clause 21.1 ( Financial statements ).
21.1 | Financial statements |
The Company shall supply to the Agent in sufficient copies for all the Lenders:
(a) | as soon as they are available, but in any event within 120 days after the end of each of its Financial Years, its audited consolidated financial statements for that Financial Year; |
(b) | as soon as they are available, but in any event within 60 days after the end of each Financial Quarter of each of its Financial Years its consolidated financial statements for that Financial Quarter; and |
(c) | as soon as they are available, but in any event within 35 days after the end of each month its financial statements on a consolidated basis for that month (to include cumulative management accounts for the Financial Year to date), provided that this obligation shall not apply in respect of any month which ends on a Quarter Date. |
21.2 | Provision and contents of Compliance Certificate |
(a) | The Company shall supply a Compliance Certificate to the Agent with each set of its audited consolidated Annual Financial Statements and each set of its consolidated Quarterly Financial Statements. The Compliance Certificate shall, amongst other things, set out (in reasonable detail) computations as to compliance with Clause 22 ( Financial covenants ). |
(b) | Each Compliance Certificate shall be signed by two officers of the Company, one of whom shall be the Chief Financial Officer, and, in respect of the consolidated Annual Financial Statements, shall be reported on by the Companys Auditors in the form agreed by the Company and all the Lenders before the date of this Agreement. |
21.3 | Requirements as to financial statements |
(a) | The Company shall procure that each set of Annual Financial Statements, Quarterly Financial Statements and Monthly Financial Statements includes a balance sheet, profit and loss account and cashflow statement. In addition the Company shall procure that: |
(i) | each set of Annual Financial Statements shall be audited by the Auditors; and |
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(ii) | each set of Monthly Financial Statements is accompanied by a statement by the Chief Financial Officer of the Company commenting on the performance of the Group for the month to which the financial statements relate and the Financial Year to date and any material developments or proposals affecting the Group or its business. |
(b) | Each set of financial statements delivered pursuant to Clause 21.1 ( Financial statements ): |
(i) | shall be certified by a managing director of the relevant company as giving a true and fair view of (in the case of Annual Financial Statements for any Financial Year), or fairly representing (in other cases), its financial condition and operations as at the date as at which those financial statements were drawn up and, in the case of the Annual Financial Statements, shall be accompanied by any letter addressed to the management of the relevant company by the Auditors and accompanying those Annual Financial Statements; |
(ii) | prior to completion of a Qualifying IPO, each set of the Companys Annual Financial Statements (commencing with the Annual Financial Statements for the financial year ending 31 December 2010) and Quarterly Financial Statements shall be accompanied by a statement by the directors of the Company comparing actual performance for the period to which the financial statements relate to: |
(A) | the projected performance for that period set out in the Budget; and |
(B) | the actual performance for the corresponding period in the preceding Financial Year of the Group; and |
(iii) | shall be prepared using the Accounting Principles, accounting practices and financial reference periods consistent with those applied: |
(A) | in the case of the Company, in the preparation of its Original Financial Statements and the Business Plan; and |
(B) | in the case of any other Obligor, in the preparation of the Original Financial Statements for that Obligor, |
unless, in relation to any set of financial statements, the Company notifies the Agent that there has been a change in the Accounting Principles or the accounting practices and its Auditors (or, if appropriate, the Auditors of the Obligor) deliver to the Agent:
(C) | a description of any change necessary for those financial statements to reflect the Accounting Principles or accounting practices upon which the Companys Original Financial Statements and the Business Plan or, as the case may be, that Obligors Original Financial Statements were prepared; and |
(D) | sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 22 ( Financial covenants ) has been complied with, to determine the Margin as set out in the definition of Margin, and to make an accurate comparison between the financial position indicated in the Companys Original Financial Statements and the Business Plan (in the case of the Company) or that Obligors Original Financial Statements (in the case of an Obligor). |
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Any reference in this Agreement to any financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Business Plan or, as the case may be, the Original Financial Statements were prepared.
(c) | If the Agent wishes to discuss the financial position of any member of the Group with the Auditors, the Agent may notify the Company, stating the questions or issues which the Agent wishes to discuss with the Auditors. In this event, the Company must ensure that the Auditors are authorised (at the expense of the Company): |
(i) | to discuss the financial position of each member of the Group with the Agent on request from the Agent; and |
(ii) | to disclose to the Agent for the Finance Parties any information which the Agent may reasonably request. |
21.4 | Budget |
(a) | Prior to completion of a Qualifying IPO, the Company shall supply to the Agent in sufficient copies for all the Lenders, as soon as the same become available but in any event within 30 days after the start of each of its Financial Years (commencing with a Budget for the Financial Year ending 31 December 2011), an annual Budget for that Financial Year. |
(b) | The Company shall ensure that each Budget: |
(i) | is in a form reasonably acceptable to the Agent and includes a projected consolidated profit and loss, balance sheet and cashflow statement and details of projected capital expenditure for the Group for that Financial Year; |
(ii) | is prepared in accordance with the Accounting Principles and the accounting practices and financial reference periods applied to financial statements under Clause 21.1 ( Financial statements ); and |
(iii) | has been approved by the managing board of the Company. |
(c) | If the Company updates or changes the Budget, it shall promptly deliver to the Agent, in sufficient copies for each of the Lenders, such updated or changed Budget together with a written explanation of the main changes in that Budget. |
21.5 | Group companies |
The Company shall supply to the Agent, together with each Compliance Certificate delivered with its Annual Financial Statements, a report issued by its Auditors stating which of its Subsidiaries are Material Companies and confirming that (i) the aggregate of earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) of the Guarantors (excluding HQ) is at least equal to 90 per cent. of the consolidated Adjusted EBITDA of the Group (including HQ) and (ii) the aggregate gross assets of the Guarantors (calculated on an unconsolidated basis and excluding all intra-Group items and investments in Subsidiaries of any member of the Group) is at least equal to 70 per cent. of consolidated gross assets of the Group.
21.6 | Presentations |
Prior to completion of a Qualifying IPO, if requested to do so by the Agent if the Agent reasonably suspects a Default is continuing or may have occurred or may occur, at least two managing directors of the Company (one of whom shall be the Chief Financial Officer) must give a presentation to the Finance Parties about the on-going business and financial performance of the Group.
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21.7 | Year-end |
The Company shall not change its Financial Year-end from 31 December.
21.8 | Information: miscellaneous |
The Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):
(a) | all documents despatched by the Company to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched; |
(b) | promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group (or against the directors of any member of the Group), and which might, if adversely determined, have a Material Adverse Effect; |
(c) | promptly, such further information regarding the financial condition, business, assets and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request except to the extent that disclosure of the information would breach any law, regulation, stock exchange requirement or, to the extent required by normal market practice, any duty of confidentiality; |
(d) | promptly, such information as the Security Trustee may reasonably require about the Charged Property and compliance of the Obligors with the terms of any Transaction Security Document; and |
(e) | such information as is required under sections 13, 13a and 18 of the German Banking Act ( Kreditwesengesetz ). |
21.9 | Potential breach of financial covenants |
If, prior to the date of a Compliance Certificate to be delivered in accordance with Clause 21.2 ( Provision and contents of Compliance Certificate ) above, on the basis of information available for the Relevant Period to which such Compliance Certificate relates, the Company is of the reasonable opinion that any of the covenants set out in Clause 22.2 ( Financial condition ) will not or are highly likely not to be complied with in respect of such Relevant Period, the Company shall promptly give notice in writing that such covenants will or are highly likely not to be complied with and provide any relevant information and evidence in relation to such non-compliance reasonably requested by the Agent.
21.10 | Notification of default |
(a) | The Company shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence. |
(b) | Promptly upon a request by the Agent, the Company shall supply to the Agent a certificate signed by the CEO, CFO or other managing director on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it). |
21.11 | Know your customer checks |
(a) | If: |
(i) | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; |
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(ii) | any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or |
(iii) | a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer, |
obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with know your customer or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
(b) | Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. |
(c) | The Company shall, by not less than ten Business Days prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 26 ( Changes to the Obligors ). |
(d) | Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with know your customer or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor. |
22. | FINANCIAL COVENANTS |
22.1 | Financial definitions |
In this Clause 22:
Adjusted EBITDA means, in respect of any Relevant Period, EBIT for that Relevant Period after adding back any amount attributable to the amortisation, depreciation or impairment of assets of members of the Group (and taking no account of the reversal of any previous impairment charge made in that Relevant Period) and any share based payments.
Capital Expenditure means any expenditure or obligation in respect of expenditure which, in accordance with the Accounting Principles, is treated as capital expenditure (and including the capital element of any expenditure or obligation incurred in connection with a Finance Lease).
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Cashflow means, in respect of any Relevant Period, Adjusted EBITDA for that Relevant Period after:
(a) | adding the amount of any decrease (and deducting the amount of any increase) in Working Capital for that Relevant Period; |
(b) | adding the amount of any cash receipts (and deducting the amount of any cash payments) during that Relevant Period in respect of any Exceptional Items not already taken account of in calculating Adjusted EBITDA for any Relevant Period; |
(c) | adding the amount of any cash receipts during that Relevant Period in respect of any Tax rebates or credits and deducting the amount actually paid or due and payable in respect of Taxes during that Relevant Period by any member of the Group; |
(d) | adding (to the extent not already taken into account in determining Adjusted EBITDA) the amount of any dividends or other profit distributions received in cash by any member of the Group during that Relevant Period from any entity which is itself not a member of the Group and deducting (to the extent not already deducted in determining Adjusted EBITDA) the amount of any dividends paid in cash during the Relevant Period to minority shareholders in members of the Group; |
(e) | adding the amount of any cash paid to a member of the Group in the Relevant Period that represents repayment of any loan made to a Joint Venture; |
(f) | adding the amount of any increase in provisions, other non-cash debits and other non-cash charges (which are not Current Assets or Current Liabilities) and deducting the amount of any non-cash credits (which are not Current Assets or Current Liabilities) in each case to the extent taken into account in establishing Adjusted EBITDA; |
(g) | deducting the amount of any Covenant Capital Expenditure; and |
(h) | deducting the amount of any cash costs of Pension Items during that Relevant Period to the extent not taken into account in establishing Adjusted EBITDA, |
and so that no amount shall be added (or deducted) more than once.
Cashflow Cover means the ratio of Cashflow to Debt Service in respect of any Relevant Period.
Covenant Capital Expenditure means, in respect of any Relevant Period, Capital Expenditure actually made (or due to be made) during that Relevant Period less an amount equal to the amount of any Capital Expenditure funded with:
(a) | the net proceeds of any IPO of the Company during the Relevant Period or any prior Relevant Period, to the extent not spent in any prior Relevant Period; |
(b) | the net proceeds of any high yield offering by the Company during the Relevant Period or any prior Relevant Period, to the extent not spent in any prior Relevant Period; |
(c) | Retained Excess Cash Flow from a prior Relevant Period to the extent not spent in any prior Relevant Period; |
(d) | the proceeds of any drawing under the Facility or an Ancillary Facility; |
(e) | the net proceeds of disposals or insurance claims permitted to be retained for this purpose; and |
(f) | cash on balance sheet as at 31 December 2009, |
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in each case to the extent invested in Capital Expenditure of the Company during the Relevant Period and without double counting.
Current Assets means the aggregate (on a consolidated basis) of all inventory, work in progress, trade and other receivables of each member of the Group including prepayments in relation to operating items and receivables (but excluding cash) maturing within twelve months from the date of computation but excluding amounts in respect of:
(a) | receivables in relation to Tax; |
(b) | Exceptional Items and other non-operating items; |
(c) | insurance claims; and |
(d) | any interest owing to any member of the Group. |
Current Liabilities means the aggregate (on a consolidated basis) of all liabilities (including trade payables, accruals and provisions) of each member of the Group falling due within twelve months from the date of computation but excluding amounts in respect of:
(a) | liabilities for Financial Indebtedness and Finance Charges; |
(b) | liabilities for Tax; |
(c) | Exceptional Items and other non-operating items; |
(d) | insurance claims; and |
(e) | liabilities in relation to dividends declared but not paid by the Company or by a member of the Group in favour of a person which is not a member of the Group. |
Debt Service means, in respect of any Relevant Period, the aggregate of:
(a) | Finance Charges for that Relevant Period; |
(b) | the aggregate of all scheduled and mandatory repayments of Financial Indebtedness falling due during that Relevant Period but excluding: |
(i) | any amounts falling due under any overdraft or revolving facility (including, without limitation, the Facility and any Ancillary Facility) and which were available for simultaneous redrawing according to the terms of that facility; |
(ii) | any such obligations owed to any member of the Group; and |
(iii) | any prepayment of Financial Indebtedness on the Closing Date with the proceeds of the Bonds which is required to be repaid on the Closing Date together with associated costs; and |
(c) | the amount of the capital element of any payments in respect of that Relevant Period payable under any Finance Lease entered into by any member of the Group, |
and so that no amount shall be included more than once.
EBIT means, in respect of any Relevant Period, the consolidated operating profit of the Group before taxation:
(a) | before deducting any Finance Charges; |
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(b) | not including any accrued interest owing to any member of the Group; |
(c) | before taking into account any Exceptional Items; |
(d) | before deducting any Transaction Costs; |
(e) | after deducting the amount of any profit (or adding back the amount of any loss) of any member of the Group which is attributable to minority interests; |
(f) | plus or minus the Groups share of the profits or losses (after finance costs and tax) of Non-Group Entities (after deducting the amount of any profit of any Non-Group Entity to the extent that the amount of the profit included in the financial statements of the Group exceeds the amount actually received in cash by members of the Group through distributions by the Non-Group Entity); |
(g) | before taking into account any unrealised gains or losses on any derivative instrument (other than any derivative instrument which is accounted for on a hedge accounting basis); and |
(h) | before taking into account any Pension Items; |
in each case, to the extent added, deducted or taken into account, as the case may be, for the purposes of determining operating profits of the Group before taxation.
Exceptional Items means any material items of an unusual or non-recurring nature which represent gains or losses including, but not limited to, those arising in respect of:
(a) | exceptional general and administrative costs including, but not limited to, additions and releases relating to the provisions for onerous lease contracts concerning the losses on real estate obligations of existing unused sites and disposals, revaluations, impairment or reversal of non-current assets; |
(b) | exceptional income including, but not limited to, sub-lease income from unused sites; and |
(c) | Transaction Costs. |
Finance Charges means, for any Relevant Period, the aggregate amount of the accrued interest, commission, fees, discounts, prepayment fees, premiums or charges and other finance payments in respect of Financial Indebtedness whether paid, payable or capitalised by any member of the Group (calculated on a consolidated basis) in respect of that Relevant Period:
(a) | excluding any Transaction Costs; |
(b) | excluding any non-cash write-offs of the un-amortised cost of debt arising on the repayment of Financial Indebtedness on the Closing Date; |
(c) | including the interest (but not the capital) element of payments in respect of Finance Leases; |
(d) | including any commission, fees, discounts and other finance payments payable by (and deducting any such amounts payable to) any member of the Group under any interest rate hedging arrangement; |
(e) | excluding any interest cost or expected return on plan assets in relation to any defined benefit pension scheme; and |
(f) | taking no account of any unrealised gains or losses on any derivative instruments other than any derivative instruments which are accounted for on a hedge accounting basis, |
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together with the amount of any cash dividends or distributions paid or made by the Company in respect of that Relevant Period and so that no amount shall be added (or deducted) more than once.
Finance Lease means any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a finance or capital lease.
Financial Quarter means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
Financial Year means the annual accounting period of the Company ending on or about 31 December in each year.
Interest Cover means the ratio of Adjusted EBITDA to Finance Charges in respect of any Relevant Period.
Leverage means, in respect of any Relevant Period, the ratio of Total Debt on the last day of that Relevant Period to Pro Forma EBITDA in respect of that Relevant Period.
Non-Group Entity means any investment or entity (which is not itself a member of the Group (including associates and Joint Ventures) in which any member of the Group has an ownership interest.
Pension Items means any income or charge attributable to a defined benefit pension scheme other than the current service costs attributable to the scheme.
Pro Forma EBITDA means, in respect of any Relevant Period, Adjusted EBITDA for that Relevant Period adjusted by:
(a) | including the operating profit before interest, tax, depreciation, amortisation and impairment charges (calculated on the same basis as Adjusted EBITDA) of a member of the Group for the Relevant Period (or attributable to a business or assets acquired during the Relevant Period) prior to its becoming a member of the Group or (as the case may be) prior to the acquisition of the business or assets; and |
(b) | excluding operating profit before interest, tax, depreciation, amortisation and impairment charges (calculated on the same basis as Adjusted EBITDA) attributable to any member of the Group (or to any business or assets) disposed of during the Relevant Period. |
Quarter Date means each of 31 March, 30 June, 30 September and 31 December.
Relevant Date means the date specified in the relevant table in Clause 22.2 ( Financial condition ) as the date as at (or to) which a particular financial ratio is being tested.
Relevant Period means each period of four consecutive Financial Quarters ending on a Relevant Date.
Retained Excess Cash Flow means, in respect of any Relevant Period, the amount by which Cashflow for that Relevant Period exceeds Debt Service for that Relevant Period.
Total Debt means, at any time, the aggregate amount of all obligations of members of the Group for or in respect of Financial Indebtedness at that time but:
(a) | excluding any such obligations to any other member of the Group; and |
(b) | including, in the case of Finance Leases only, their capitalised value, |
and so that no amount shall be included or excluded more than once.
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Transaction Costs means all non-periodic fees, costs and expenses, stamp registration and other Taxes incurred by the Company in connection with (i) the offering of the Bonds and the entry into this Agreement, including (without limitation) prepayment premia and break costs resulting from the refinancing of the Existing Facilities, (ii) any refinancing of the Bonds or the Facility, (iii) any transaction pursuant to which additional high yield bonds are issued or further credit facilities are borrowed by the Company, (iv) any offering of the Companys ordinary shares pursuant to an IPO or secondary offering of such shares following an IPO, (v) any M&A transaction (but only in respect of costs incurred prior to the closing of such transaction) and (vi) any of the foregoing transactions (other than as described under (i)) where that transaction was abandoned prior to its completion.
Working Capital means, on any date, Current Assets less Current Liabilities.
22.2 | Financial condition |
The Company shall ensure that:
(a) | Interest Cover . The ratio of Adjusted EBITDA to Finance Charges for each Relevant Period ending on a Relevant Date set out in the table below will not be less than the ratio set out in the relevant column in the table below opposite that Relevant Date: |
Column 1 |
Column 2 | |||
Relevant Period |
Ratio | |||
Relevant Period ending 30 June 2010 |
2.60:1 | |||
Relevant Period ending 30 September 2010 |
2.75:1 | |||
Relevant Period ending 31 December 2010 |
2.90:1 | |||
Relevant Period ending 31 March 2011 |
3.25:1 | |||
Relevant Period ending 30 June 2011 |
3.45:1 | |||
Relevant Period ending 30 September 2011 |
3.60:1 | |||
Relevant Period ending 31 December 2011 |
3.65:1 | |||
Relevant Period ending 31 March 2012 |
3.90:1 | |||
Relevant Period ending 30 June 2012 |
4.00:1 | |||
Relevant Period ending 30 September 2012 |
4.00:1 | |||
Relevant Period ending 31 December 2012 |
4.00:1 | |||
Thereafter |
4.00:1 |
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(b) | Leverage . The ratio of Total Debt on each Relevant Date set out in the table below to Pro Forma EBITDA for the Relevant Period ending on that Relevant Date will not exceed the ratio set out in the relevant column in the table below opposite that Relevant Date: |
Column 1 |
Column 2 | |||
Relevant Period |
Ratio | |||
Relevant Period ending 30 June 2010 |
3.75:1 | |||
Relevant Period ending 30 September 2010 |
3.75:1 | |||
Relevant Period ending 31 December 2010 |
3.60:1 | |||
Relevant Period ending 31 March 2011 |
3.25:1 | |||
Relevant Period ending 30 June 2011 |
3.05:1 | |||
Relevant Period ending 30 September 2011 |
2.95:1 | |||
Relevant Period ending 31 December 2011 |
2.90:1 | |||
Relevant Period ending 31 March 2012 |
2.70:1 | |||
Relevant Period ending 30 June 2012 |
2.50:1 | |||
Relevant Period ending 30 September 2012 |
2.50:1 | |||
Relevant Period ending 31 December 2012 |
2.50:1 | |||
Thereafter |
2.50:1 |
(c) | Cashflow Cover . Commencing with the Relevant Period ending 30 June 2010, the ratio of Cashflow to Debt Service for each Relevant Period ending on a Relevant Date will not be less than 1.00:1. |
22.3 | Financial testing |
(a) | The financial covenants set out in this Clause 22 ( Financial Covenants ) shall be calculated in accordance with the Accounting Principles and, in respect of the financial covenants set out in Clause 22.2 ( Financial condition ), tested on a rolling four quarter basis by reference to each of the financial statements delivered pursuant to paragraphs (a) and (b) of Clause 21.1 ( Financial statements ) and each Compliance Certificate delivered pursuant to Clause 21.2 ( Provision and contents of Compliance Certificate ). |
(b) | For the purposes of calculation of each financial covenant, no item shall be included or excluded more than once in any calculation. |
(c) | For the purposes of calculating Finance Charges for the purposes of Interest Cover, where any Relevant Period would otherwise include a Financial Quarter ending prior to 30 June 2010 such Relevant Period shall instead commence with the Financial Quarter ending 30 June 2010 (the part falling before such Financial Quarter being ignored). Where this would result in a Relevant Period being less than 12 Months, Finance Charges for such Relevant Period shall be equal to Finance Charges for the period commencing with the Financial Quarter ending 30 June 2010 to the end of such Relevant Period (the Finance Charges Measurement Period ) multiplied by 365/A, where A is the number of days in the Finance Charges Measurement Period. |
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(d) | For the purposes of calculating each component of Debt Service, where any Relevant Period would otherwise include a Financial Quarter ending prior to 30 June 2010 such Relevant Period shall instead commence with the Financial Quarter ending 30 June 2010 (the part falling before such Financial Quarter being ignored). Where this would result in a Relevant Period being less than 12 Months, Debt Service for such Relevant Period shall be equal to Debt Service for the period commencing with the Financial Quarter ending 30 June 2010 to the end of such Relevant Period (the Debt Service Measurement Period ) multiplied by 365/A, where A is the number of days in the Debt Service Measurement Period. |
23. | GENERAL UNDERTAKINGS |
The undertakings in this Clause 23 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
Authorisations and compliance with laws
23.1 | Authorisations |
Each Obligor shall promptly:
(a) | obtain, comply with and do all that is necessary to maintain in full force and effect; and |
(b) | supply certified copies to the Agent of, |
any Authorisation required under any law or regulation of the Relevant Jurisdictions to enable it to perform its obligations under the Finance Documents, to ensure the legality, validity, enforceability or admissibility in evidence in each Relevant Jurisdiction of any Finance Document and, where failure to do so has or is reasonably likely to have a Material Adverse Effect, carry on its business.
23.2 | Compliance with laws |
Each Obligor shall comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents.
23.3 | Environmental compliance |
Each Obligor shall (and the Company shall ensure that each member of the Group will):
(a) | comply with all Environmental Law; |
(b) | obtain, maintain and ensure compliance with all requisite Environmental Permits; |
(c) | implement procedures to monitor compliance with and to prevent liability under any Environmental Law, |
where failure to do so has or is reasonably likely to have a Material Adverse Effect.
23.4 | Environmental claims |
Each Obligor shall (through the Company), promptly upon becoming aware of the same, inform the Agent in writing of:
(a) | any Environmental Claim against any member of the Group which is current, pending or threatened; and |
(b) | any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group, |
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where the claim, if determined against that member of the Group, has or is reasonably likely to have a Material Adverse Effect.
23.5 | Taxation |
(a) | Each Obligor shall (and the Company shall ensure that each member of the Group will) pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that: |
(i) | such payment is being contested in good faith; |
(ii) | adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Agent under Clause 21.1 ( Financial statements ); and |
(iii) | such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect. |
(b) | No member of the Group may change its residence for Tax purposes. |
Restrictions on business focus
23.6 | Merger |
No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction other than a Permitted Transaction.
23.7 | Change of business |
The Company shall ensure that no substantial change is made to the general nature of the business of the Company or the Group taken as a whole from that carried on at the date of this Agreement.
23.8 | Acquisitions |
No Obligor shall (and the Company shall ensure that no other member of the Group will) acquire any company or any shares or securities or business or undertaking other than:
(a) | a Permitted Acquisition; or |
(b) | pursuant to and in accordance with Clause 23.32 ( Conditions subsequent) , the incorporation or establishment or purchase of a limited liability company which on such incorporation, establishment or purchase becomes a member of the Group provided that, if purchased, the purchase is made from a law firm or commercial formation agent and the company has not traded or carried out any business whatsoever (other than the initial board meeting following formation) or owned any assets whatsoever prior to its purchase. |
23.9 | Joint ventures |
(a) | Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no member of the Group will): |
(i) | enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture; or |
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(ii) | transfer any assets or lend to or guarantee or give an indemnity for or give Security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture (or agree to do any of the foregoing). |
(b) | Paragraph (a) above does not apply to any acquisition of or investment in (or agreement to acquire or invest), or transfer of assets (or agreement to transfer assets) or loan to, or guarantee for the obligations of, or any liability in respect of, a Permitted Joint Venture (provided that the Joint Venture Investment under and as defined in the definition of Permitted Joint Venture would not, as a result, exceed the limit set out therein). |
23.10 | Holding Companies |
The Company shall not carry on any business, own any assets or incur any liabilities except for:
(a) | the provision of administrative services to other members of the Group of a type customarily provided by a holding company to its Subsidiaries including, for the avoidance of doubt, negotiating and entering into contracts of insurance and maintenance with third party providers for the Group and the provision of treasury and IT services and director services to the Group; |
(b) | ownership of shares in its Subsidiaries, intra-Group debit balances, intra-Group credit balances and other credit balances in bank accounts, cash and Cash Equivalent Investments; |
(c) | any liabilities under the Finance Documents to which it is a party and professional fees and administration costs in the ordinary course of business as a holding company. |
23.11 | Dormant subsidiaries |
No Obligor shall (and the Company shall ensure no member of the Group will) cause or permit any member of the Group which is a Dormant Subsidiary to commence trading or cease to satisfy the criteria for a Dormant Subsidiary unless the Company has given the Agent prior written notice whereupon the relevant entity shall cease to be a Dormant Subsidiary.
23.12 | Preservation of assets |
Each Obligor shall (and the Company shall ensure that each member of the Group will) maintain in good working order and condition (ordinary wear and tear excepted) all of its material assets.
23.13 | Pari passu ranking |
Each Obligor shall ensure that at all times any unsecured and unsubordinated claims of a Finance Party or Hedge Counterparty against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.
23.14 | Negative pledge |
In this Clause 23.14, Quasi-Security means an arrangement or transaction described in paragraph (b) below.
Except as permitted under paragraph (c) below:
(a) | No Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets. |
(b) | No Obligor shall (and the Company shall ensure that no other member of the Group will): |
(i) | sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group; |
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(ii) | sell, transfer or otherwise dispose of any of its receivables on recourse terms; |
(iii) | enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or |
(iv) | enter into any other preferential arrangement having a similar effect, |
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
(c) | Paragraphs (a) and (b) above do not apply to any Security or (as the case may be) Quasi-Security, which is: |
(i) | Permitted Security; or |
(ii) | a Permitted Transaction. |
23.15 | Disposals |
(a) | Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no member of the Group will) enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset. |
(b) | Paragraph (a) above does not apply to any sale, lease, transfer or other disposal which is: |
(i) | a Permitted Disposal; or |
(ii) | a Permitted Transaction. |
23.16 | Arms length basis |
(a) | Except as permitted by paragraph (b) below, no Obligor shall (and the Company shall ensure no member of the Group will) enter into any transaction with any person except on arms length terms. |
(b) | The following transactions shall not be a breach of this Clause 23.16: |
(i) | intra-Group loans permitted under Clause 23.17 ( Loans or credit ); |
(ii) | fees, costs and expenses payable under the Finance Documents in the amounts set out in the Finance Documents delivered to the Agent under Clause 4.1 ( Initial conditions precedent ) or agreed by the Agent; |
(iii) | any transaction entered into on terms more favourable to the relevant member of the Group than it would be if it was on arms length terms; and |
(iv) | any Permitted Transaction. |
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Restrictions on movement of cash - cash out
23.17 | Loans or credit |
(a) | Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no member of the Group will) be a creditor in respect of any Financial Indebtedness. |
(b) | Paragraph (a) above does not apply to a Permitted Loan. |
23.18 | No Guarantees or indemnities |
(a) | Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person. |
(b) | Paragraph (a) does not apply to a guarantee which is: |
(i) | a Permitted Guarantee; or |
(ii) | a Permitted Transaction. |
23.19 | Dividends |
(a) | The Company shall not pay, make or declare any dividend or other distribution in respect of any of its share capital in any Financial Year. |
(b) | Paragraph (a) shall not apply to any dividend or other distribution in respect of its share capital made by the Company to its shareholders, provided that: |
(i) | if the IPO has occurred: |
(A) | the amount in cash paid by way of dividend or distribution in any Financial Year does not exceed an amount equal to 50 per cent. of the Companys consolidated Net Income for the prior Financial Year (where Net Income is calculated in accordance with IFRS); |
(B) | no dividend or distribution may be made during the period of 18 months commencing with the Closing Date; and |
(C) | no Default has occurred and is continuing or would result from the payment and no notice has been delivered pursuant to Clause 21.9 ( Potential breach of financial covenants ); |
(ii) | if the IPO has not occurred, the Company has obtained the prior written consent of the Agent, acting on the instructions of all the Lenders. |
Restrictions on movement of cash - cash in
23.20 | Financial Indebtedness |
(a) | Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no member of the Group will) incur or allow to remain outstanding any Financial Indebtedness. |
(b) | Paragraph (a) above does not apply to Financial Indebtedness which is: |
(i) | Permitted Financial Indebtedness; or |
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(ii) | a Permitted Transaction. |
23.21 | Share capital |
No Obligor shall (and the Company shall ensure no member of the Group will) issue any shares except pursuant to a Permitted Share Issue.
Miscellaneous
23.22 | Insurance |
Each Obligor shall (and the Company shall ensure that each Material Company will) maintain insurances on and in relation to its business and assets with reputable underwriters or insurance companies against those risks and to the extent as is usual for companies carrying on the same or substantially similar business.
23.23 | Pensions |
(a) | The Company shall ensure that all pension schemes operated by or maintained for the benefit of members of the Group and/or any of their employees are fully funded based on the statutory funding objective under sections 221 and 222 of the Pensions Act 2004 or, in the case of the pension plan operated for certain employees of Interxion (Schweiz) AG, any applicable Swiss regulations and that no action or omission is taken by any member of the Group in relation to such a pension scheme which has or is reasonably likely to have a Material Adverse Effect (including, without limitation, the termination or commencement of winding-up proceedings of any such pension scheme or any member of the Group ceasing to employ any member of such a pension scheme). |
(b) | The Company shall ensure that no member of the Group is or has been at any time an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pension Schemes Act 1993) or connected with or an associate of (as those terms are used in sections 38 or 43 of the Pensions Act 2004) such an employer. For the avoidance of doubt, this paragraph (b) does not apply to the pension plan operated for certain employees of Interxion (Schweiz) AG. |
(c) | The Company shall deliver to the Agent at such times as those reports are prepared in order to comply with the then current statutory or auditing requirements (as applicable either to the trustees of any relevant schemes or to the Company), actuarial reports in relation to all pension schemes mentioned in (a) above. |
(d) | The Company shall promptly notify the Agent of any material change in the rate of contributions to any pension schemes mentioned in (a) above paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or otherwise). |
(e) | Each Obligor shall immediately notify the Agent of any investigation or proposed investigation by the Pensions Regulator which may lead to the issue of a Financial Support Direction or a Contribution Notice to it. |
(f) | Each Obligor shall immediately notify the Agent if it receives a Financial Support Direction or a Contribution Notice from the Pensions Regulator. |
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23.24 | Access |
If an Event of Default is continuing or the Agent reasonably suspects an Event of Default is continuing or may occur, each Obligor shall, and the Company shall ensure that each member of the Group will, (not more than once in every Financial Year unless the Agent reasonably suspects an Event of Default is continuing or may occur) permit the Agent and/or the Security Agent and/or accountants or other professional advisers and contractors of the Agent or Security Agent free access at all reasonable times and on reasonable notice at the risk and cost of the Obligor or Company to (a) the premises, assets, books, accounts and records of each member of the Group and (b) meet and discuss matters with senior management.
23.25 | Intellectual Property |
Each Obligor shall (and the Company shall procure that each Group member will):
(a) | preserve and maintain the subsistence and validity of the Intellectual Property necessary for the business of the relevant Group member; |
(b) | use reasonable endeavours to prevent any infringement in any material respect of the Intellectual Property; |
(c) | make registrations and pay all registration fees and taxes necessary to maintain the Intellectual Property in full force and effect and record its interest in that Intellectual Property; |
(d) | not use or permit the Intellectual Property to be used in a way or take any step or omit to take any step in respect of that Intellectual Property which may materially and adversely affect the existence or value of the Intellectual Property or imperil the right of any member of the Group to use such property; and |
(e) | not discontinue the use of the Intellectual Property, |
where failure to do so, in the case of paragraphs (a), (b) and (c) above, or, in the case of paragraphs (d) and (e) above, such use, permission to use, omission or discontinuation, is reasonably likely to have a Material Adverse Effect.
23.26 | Bank Accounts and Cash Management |
(a) | With effect from the date falling 90 days after the Closing Date, no Obligor shall (and the Company shall ensure that each other Obligor will not) open or maintain any bank account other than bank accounts which are subject to valid security under the Transaction Security Documents, provided that any bank account that is a blocked account with a bank that has provided a guarantee or other assurance against loss on behalf of an Obligor in respect of rental lease, supplier or stock payments including those bank accounts listed in Schedule 16 ( Continuing Security ) shall be excluded from the requirements of this paragraph (a). |
(b) | With effect from the date falling 90 days after the Closing Date, the Company shall procure that no member of the Group which is not an Obligor will, and each Obligor will procure that none of its Subsidiaries which are not Obligors will, at any time hold cash in excess of EUR 2,000,000. |
(c) | The Company shall continue to operate the Group cash management systems in place on the date of this Agreement (or substantially similar systems) whereby at the end of each month all cash balances standing to the credit of a member of the Group in excess of EUR 1,000,000 are swept into one or more bank accounts held by HQ (or another Obligor) subject to valid security under the Transaction Security Documents, provided that to the extent that any cash held by a member of the Group may not be so transferred without breaching a legal restriction applicable to that member of the Group or its directors that cash will not be required to be transferred. Each member of the Group that is subject to any such legal restriction will use reasonable endeavours to overcome the restriction. |
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23.27 | Treasury Transactions |
No Obligor shall (and the Company will procure that no members of the Group will) enter into any Treasury Transaction, other than:
(a) | any Treasury Transaction documented by a Hedging Agreement provided that such Hedging Agreement is entered into in the ordinary course of business and not for speculative purposes; |
(b) | spot and forward delivery foreign exchange contracts entered into in the ordinary course of business and not for speculative purposes; and |
(c) | any Treasury Transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of business and not for speculative purposes. |
23.28 | Guarantor Coverage |
(a) | The Company shall ensure that at all times that (i) the aggregate of the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) of the Guarantors (excluding HQ) represents at least 90 per cent. of the consolidated Adjusted EBITDA of the Group (including HQ) and (ii) the aggregate gross assets of the Guarantors (calculated on an unconsolidated basis and excluding all intra-group items and investments in Subsidiaries of any member of the Group) represents at least 70 per cent. of the consolidated gross assets of the Group. |
(b) | In the event that paragraph (a) above is not complied with the Company shall, within 45 days of the earlier to occur of the Company becoming aware of such non-compliance and receipt of a written request from the Agent, procure that one or more of its Subsidiaries becomes an Additional Guarantor such that: |
(i) | the aggregate of the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) of the Guarantors (excluding HQ) immediately following the accession of that Subsidiary or those Subsidiaries as Additional Guarantor(s) is equal to at least 90 per cent. of the consolidated Adjusted EBITDA of the Group (including HQ); |
(ii) | the aggregate gross assets of the Guarantors (calculated on an unconsolidated basis and excluding all intra-group items and investments in Subsidiaries of any member of the Group) immediately following the accession of that Subsidiary or those Subsidiaries as Additional Guarantor(s) is equal to at least 70 per cent. of the consolidated gross assets of the Group; and |
(iii) | such Additional Guarantors (or Additional Guarantors) shares are pledged in favour of the Security Trustee. |
The Company must use all reasonable endeavours to ensure that the accession of that Subsidiary or those Subsidiaries as Additional Guarantor(s) occurs as soon as reasonably possible but in any event not later than the last day of such 45 day period.
(c) | The Company need only perform its obligations under paragraph (a) above if it is not unlawful for the relevant person to become an Additional Guarantor and that person becoming an Additional Guarantor would not result in personal liability for that persons directors or other management. Each Obligor must use, and must procure that the relevant person uses, all reasonable endeavours lawfully available to avoid any such unlawfulness or personal liability. This includes agreeing to a limit on the amount guaranteed. The Agent may (but shall not be obliged to) agree to such a limit if, in its opinion, to do so would avoid the relevant unlawfulness or personal liability. |
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23.29 | Further assurance |
(a) | Each Obligor shall (and the Company shall procure that each relevant member of the Group will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Trustee may reasonably specify (and in such form as the Security Trustee may reasonably require in favour of the Security Trustee or its nominee(s)): |
(i) | to perfect the Security created or intended to be created under or evidenced by the Transaction Security (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Trustee or the Finance Parties provided by or pursuant to the Finance Documents or by law; |
(ii) | to confer on the Security Trustee or confer on the Finance Parties, to the extent legally possible and upon receipt of a written request from the Agent, Security over any property and assets relating to a project in which that Obligor has invested; |
(iii) | to confer on the Security Trustee or confer on the Finance Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Transaction Security; and/or |
(iv) | to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security. |
(b) | Each Obligor shall (and the Company shall procure that each member of the Group shall) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Trustee or the Finance Parties by or pursuant to the Finance Documents. |
23.30 | Restrictive Covenants |
(a) | Notwithstanding this Clause 23 ( General Undertakings ), the provisions of Clauses 23.6 ( Merger ), 23.7 ( Change of business ), 23.8 ( Acquisitions ), 23.9 ( Joint ventures ), 23.19 ( Dividends ) and 23.21 ( Share capital ) (the Relevant Restrictive Covenants ) shall not restrict any such act or step by any Obligor (the German Obligor ) or any of its Subsidiaries from time to time whose Relevant Jurisdiction is Germany (together the German Group ). |
(b) | Each German Obligor shall give the Agent no less than twenty Business Days prior written notice of the intention of it or of its Subsidiaries whose Relevant Jurisdiction is Germany to carry out any of the acts or take any of the steps referred to in the Relevant Restrictive Covenants which, if all the Relevant Restrictive Covenants were applicable to that German Obligor and had thereafter remained in force, would constitute a breach of any of the Relevant Restrictive Covenants (without any applicable consent of the Lenders) by a member of the German Group. |
(c) | The Agent shall be entitled within ten Business Days of receipt of the relevant German Obligors notice under paragraph (b) above to request the relevant German Obligor to supply to the Agent in sufficient copies for the Lenders any relevant information in connection with the proposed action or steps referred to in such notice. |
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(d) | The Agent shall notify the relevant German Obligor, within ten Business Days of receipt of the relevant German Obligors notice under paragraph (b) above or, if additional information has been requested by the Agent within the prescribed time, within ten Business Days of receipt of such information, whether the proposed action or steps under paragraph (b) above is, or is in the reasonable opinion of the Agent acting on the instructions of the Majority Lenders, likely to have a Material Adverse Effect or to materially adversely change the risk evaluation of the Lenders. |
(e) | If the proposed action or steps under paragraph (b) above is or is so considered by the Agent, to have a Material Adverse Effect or to materially adversely change the risk evaluation of the Lenders and the relevant member of the German Group nevertheless takes such action or steps under paragraph (b) above, the Agent shall be entitled to make (and, if so instructed by the Majority Lenders, shall make) the declaration, request and/or instruction set out in Clause 24.18 ( Acceleration ) and call for repayment of the Utilisations and exercise the other rights in accordance with Clause 24.18 ( Acceleration ). |
23.31 | Reinvestment of insurance proceeds |
Each Obligor shall (and the Company shall ensure that each other member of the Group will) reinvest all insurance proceeds received in the business of the Group.
23.32 | Conditions subsequent |
The Company shall procure, as soon as reasonably practicable and in any event by no later than the date falling six months after the date of this Agreement, that:
(a) | it incorporates or acquires (in compliance with paragraph (b) of the definition of Permitted Acquisition) a new wholly owned Subsidiary in the form of a private company with limited liability ( besloten vennootschap ) incorporated under the laws of The Netherlands ( Intermediate Holdco ); |
(b) | Intermediate Holdco becomes an Additional Guarantor in accordance with Clause 26.4 ( Additional Guarantors ); |
(c) | (upon the incorporation or acquisition of Intermediate Holdco) the Company enters into: |
(i) | a share pledge agreement with the Security Trustee in relation to all the shares in Intermediate Holdco; and |
(ii) | a pledge agreement with the Security Trustee in relation to all inter-company receivables owed to the Company by Intermediate Holdco, |
each in form and substance satisfactory to the Agent; and
(d) | (no earlier than the date upon which paragraphs (b) and (c) above have been complied with) the Company transfers, subject to the existing Transaction Security (or, if such Transaction Security is required to be released in order to effect any transfer, it is released and immediately retaken), all of its shares in its Subsidiaries (other than Intermediate Holdco) to Intermediate Holdco provided that: |
(i) | on or prior to the date of each such transfer Intermediate Holdco enters into and delivers such Transaction Security Documents and Authorisations, opinions, other documents or assurance as the Agent considers to be necessary or desirable in connection with such transfers or the validity or enforceability of any Finance Document including, without limitation, a tax structure memorandum from PricewaterhouseCoopers (in the agreed form) together with reliance; and |
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(ii) | no Default has occurred and is continuing or would result from any such transfer. |
23.33 | Conditions subsequent related to a Spanish Obligor |
In the event that a Spanish Obligor changes its corporate form from limited liability company ( sociedad de responsabilidad limitada ) into a public limited company ( sociedad anónima ), the share pledge agreement over the shares of such Spanish Obligor shall be expressly confirmed by the Company (or the holder of the shares of the Spanish Obligor from time to time) through a public document granted before a Spanish Notary Public. Likewise, the Transaction Security Documents granted by the Spanish Obligor, as guarantor, shall be confirmed (if required) through a public document granted before a Spanish Notary Public.
24. | EVENTS OF DEFAULT |
Each of the events or circumstances set out in this Clause 24 is an Event of Default (save as for Clause 24.18 ( Acceleration )).
24.1 | Non-payment |
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:
(a) | its failure to pay is caused by: |
(i) | administrative or technical error; or |
(ii) | a Disruption Event; and |
(b) | payment is made within 3 Business Days of its due date. |
24.2 | Financial covenants |
(a) | Any requirement of Clause 22 ( Financial covenants ) is not satisfied. |
(b) | A failure to comply with any requirement set out in Clauses 21 ( Financial Statements ) or 21.2 ( Provision and contents of Compliance Certificate ), provided that no Event of Default under this paragraph (b) will occur if the failure to comply is capable of remedy and is remedied within five days of the applicable deadline for delivery set out in those Clauses. |
24.3 | Other obligations |
(a) | An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.1 ( Non-payment ) and Clause 24.2 ( Financial covenants )). |
(b) | No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 15 days of the earlier of the Agent giving notice to the Company or the relevant Obligor or the Company or the relevant Obligor becoming aware of the failure to comply. |
24.4 | Misrepresentation |
(a) | Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made. |
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(b) | No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 15 days of the earlier of the Agent giving notice to the Company or the relevant Obligor or the Company or the relevant Obligor becoming aware of the failure to comply. |
24.5 | Cross default |
(a) | Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period. |
(b) | Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described). |
(c) | Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described). |
(d) | Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described). |
(e) | No Event of Default will occur under this Clause 24.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than EUR 5,000,000 (or its equivalent in any other currency). |
24.6 | Insolvency |
(a) | A member of the Group is unable or admits inability to pay its debts as they fall due (including, in respect of a French Guarantor, cessation des paiements within the meaning of the French Code de commerce , and in respect of a Belgian Guarantor, staking van betaling / cessation de paiement within the meaning of the Belgian bankruptcy law), or suspends making payments on any of its debts, or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness (including, without limitation, in respect of a German Obligor, such Obligor is unable to pay its debts as they fall due ( Zahlungsunfähigkeit ) or is deemed unable to pay its debts as they fall due ( drohende Zahlungsunfähigkeit ) in the meaning of sections 17 and 18 of the German Insolvency Code ( Insolvenzordnung )). |
(b) | The value of the assets of any member of the Group is less than its liabilities (taking into account contingent and prospective liabilities) (including, without limitation, in respect of a German Obligor, it is over-indebted ( überschuldet ) within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung )). |
(c) | A moratorium is declared in respect of any indebtedness of any member of the Group. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium. |
24.7 | Insolvency proceedings |
Any corporate action, legal proceedings or other procedure or step is taken (regardless whether by any member of the Group or any third party) in relation to:
(a) |
the suspension of payments, a moratorium of any indebtedness (including, without limitation, a moratorium, under a conciliation procedure in accordance with articles L. 611-4 to L. 611-15 of the French Code de commerce ), winding-up, dissolution, administration, receivership or examination or reorganisation (by way of voluntary arrangement, scheme of arrangement or |
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otherwise) (including any voluntary winding-up ( dissolution or liquidation amiable ), any safeguard proceedings ( procédure de sauvegarde ), judicial reorganisation ( redressement judiciaire ), or judicial liquidation ( liquidation judiciaire ) under articles L. 620-1 to L. 670-8 of the French Code de commerce) of any member of the Group other than a solvent liquidation or reorganisation of any member of the Group (this paragraph (a) to include, without limitation, the making of an application for the opening of insolvency proceedings for the reasons set out in sections 17 to 19 of the German Insolvency Code (Insolvenzordnung) ( Antrag auf Eröffnung eines Insolvenzverfahrens ) or the competent court taking (and having not yet stayed) ( ausgesetzt ) any of the actions set out in Section 21 of the German Insolvency Code (Insolvenzordnung) or the competent court instituting or rejecting (for reason of insufficiency of its funds to implement such proceedings) insolvency proceedings against it ( Eröffnung des Insolvenzverfahrens )) and, in respect of a Belgian Guarantor, this paragraph (a) includes, without limitation, (i) the opening of a bankruptcy procedure in accordance with the Belgian bankruptcy law and (ii) an amicable settlement filed with the competent court and any judicial reorganisation described under the Belgian law of continuity of companies); |
(b) | a composition, compromise, assignment or arrangement with any creditor of any member of the Group; |
(c) | the appointment of a liquidator, examiner, receiver, receiver and manager, administrative receiver, administrator, compulsory manager or other similar officer (including, without limitation, any mandataire ad-hoc , conciliateur , administrateur judiciaire , or liquidateur judiciaire under French law, and any voorlopige bewindvoerder / administrateur provisoire, ondernemingsbemiddelaar / médiateur dentreprise, gerechtsmandataris / mandataire de justice, gedelegeerd rechter / juge délégué, sekwester / sequester, curator / curateur under Belgian law) in respect of any member of the Group or any of its assets; |
(d) | enforcement of any Security over any assets of any member of the Group; or |
(e) | a declaration of concourse ( concurso ) made in respect of any company incorporated in Spain, |
or any analogous procedure or step is taken in any jurisdiction.
24.8 | Creditors process |
Any expropriation, attachment, sequestration, distress or execution or any analogous process in any jurisdiction affects any asset or assets of an Obligor having an aggregate value of EUR 5,000,000 or more.
24.9 | Unlawfulness |
(a) | It is or becomes unlawful for an Obligor (or any other member of the Group that is a party to the Intercreditor Agreement) to perform any of its obligations under the Finance Documents or any Transaction Security created or expressed to be created or evidenced by the Transaction Security Documents ceases to be effective or any subordination created under the Intercreditor Agreement is or becomes unlawful. |
(b) | Any obligation or obligations of any Obligor under any Finance Document (or any other member of the Group that is a party to the Intercreditor Agreement) are not (subject to any general principles of law as at the date of this Agreement limiting its obligations, which are specifically referred to in any legal opinion delivered pursuant to Clause 4 ( Conditions of Utilisation ) or Clause 26 ( Changes to the Obligors )) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents. |
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(c) | Any Finance Document ceases to be in full force and effect or any Transaction Security or any subordination created under the Intercreditor Agreement ceases to be legal, valid, binding, enforceable or effective or is alleged by a party to it (other than a Finance Party) to be ineffective unless any such matter(s) is (or are) capable of remedy and is (or are) remedied within 15 days of its (or their) occurrence. |
24.10 | Repudiation |
An Obligor rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Finance Document or any Transaction Security.
24.11 | Intercreditor Agreement |
(a) | Any party to the Intercreditor Agreement (other than a Finance Party or an Obligor) fails to comply with the provisions of, or does not perform its obligations under, the Intercreditor Agreement; or |
(b) | a representation or warranty given by that party in the Intercreditor Agreement is incorrect in any material respect, |
and, if the non-compliance or circumstances giving rise to the misrepresentation are capable of remedy, it is not remedied within 15 days of the earlier of the Agent giving notice to that party or that party becoming aware of the non-compliance or misrepresentation.
24.12 | Ownership of the Obligors |
Any Obligor (other than the Company) ceases to be a wholly owned Subsidiary of the Company.
24.13 | Material adverse change |
Any event or series of events or circumstance occurs which has, or in the opinion of the Majority Lenders is reasonably likely to have, a Material Adverse Effect.
24.14 | Cessation of business |
An Obligor suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business other than as a result of a Permitted Disposal or a transaction described in paragraph (b) of the definition of Permitted Transaction.
24.15 | Audit Qualification |
The auditors of the Group qualify the audited consolidated financial statements of the Company on a going concern basis (where going concern is defined by reference to IFRS as at the date of this Agreement).
24.16 | Tax Status |
A notice under Article 36 Tax Collection Act ( Invorderingswet 1990) has been given by a member of the Group.
24.17 | Litigation |
Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened in relation to the Finance Documents or the transactions contemplated in the Finance Documents or against any member of the Group or its assets which has or is reasonably likely to have a Material Adverse Effect.
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24.18 | Acceleration |
On and at any time after the occurrence of an Event of Default which is continuing the Agent may, without mise en demeure or any other judicial or extra judicial step, and shall if so directed by the Majority Lenders, by notice to the Company:
(a) | cancel the Total Commitments and/or Ancillary Commitments, at which time they shall immediately be cancelled; |
(b) | declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, at which time they shall become immediately due and payable; |
(c) | declare that all or part of the Loans be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; |
(d) | exercise, or direct the Security Trustee to exercise, any or all of its rights, remedies, powers and discretions under any of the Finance Documents; |
(e) | declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be immediately due and payable at which time they shall become immediately due and payable; and/or |
(f) | declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders. |
25. | CHANGES TO THE LENDERS |
25.1 | Assignments and transfers by the Lenders |
(a) | Subject to this Clause 25 , a Lender (the Existing Lender ) may: |
(i) | assign any of its rights; or |
(ii) | transfer by novation any of its rights and obligations, |
under any Finance Document to another bank or financial institution or to a trust, fund 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 (the New Lender ).
(b) | The amount transferred to a New Lender in relation to a Loan or Commitment made to the Company (or other Dutch Borrower) shall be at least EUR 1,000,000 (or its equivalent in any other currency) unless it is of the whole of that Existing Lenders participation under this Agreement or, if it is less than any minimum guidelines from time to time in force, the New Lender shall confirm in writing to the Company that it, the New Lender, is a professional market party within the meaning of the Dutch FSA. |
25.2 | Conditions of assignment or transfer |
(a) | An assignment of transfer may only be made after consultation with the Company, provided that no consultation shall be required if the assignment or transfer is: |
(i) | to another Lender or an Affiliate of a Lender; or |
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(ii) | an Event of Default has occurred which is continuing. |
(b) | An assignment will only be effective on: |
(i) | receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties and the other Secured Parties as it would have been under if it was an Original Lender; and |
(ii) | the New Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and |
(iii) | performance by the Agent of all necessary know your customer or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender. |
(c) | A transfer will only be effective if the New Lender enters into the documentation required for it to accede as a party to the Intercreditor Agreement and if the procedure set out in Clause 25.6 ( Procedure for transfer ) is complied with. |
(d) | If: |
(i) | a Lender assigns or transfers 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 change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 14 ( Tax gross-up and indemnities ) or Clause 15 ( Increased costs ), |
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.
25.3 | Authority to Agent |
Each Finance Party (other than the Existing Lender and the New Lender) irrevocably authorises the Agent to execute any duly completed Transfer Certificate or Assignment Agreement on its behalf. For the purposes of this Clause 25.3, each such Finance Party hereby releases the Agent from the restrictions provided for in Section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ).
25.4 | Assignment or transfer fee |
Unless the Agent otherwise agrees and excluding an assignment or transfer (i) to an Affiliate of a Lender, (ii) to a Related Fund or (iii) made in connection with primary syndication of the Facility, New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of EUR 2,000.
25.5 | Limitation of responsibility of Existing Lenders |
(a) | Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
(i) | the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents; |
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(ii) | the financial condition of any Obligor; |
(iii) | the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or |
(iv) | the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document, |
and any representations or warranties implied by law are excluded.
(b) | Each New Lender confirms to the Existing Lender, the other Finance Parties and the Secured Parties that it: |
(i) | has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and |
(ii) | will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force. |
(c) | Nothing in any Finance Document obliges an Existing Lender to: |
(i) | accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 25; or |
(ii) | support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise. |
25.6 | Procedure for transfer |
(a) | Subject to the conditions set out in Clause 25.2 ( Conditions of assignment or transfer ) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. |
(b) | The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender. |
(c) | On the Transfer Date: |
(i) | to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another shall be cancelled (being the Discharged Rights and Obligation s); |
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(ii) | each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender; |
(iii) | the Agent, the Arranger, the Security Trustee, the New Lender, the other Lenders and any relevant Ancillary Lender shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger, the Security Trustee, the Existing Lender and any relevant Ancillary Lender shall each be released from further obligations to each other under the Finance Documents; and |
(iv) | the New Lender shall become a Party as a Lender . |
(d) | Subject to the terms of this Agreement, the obligations of each Guarantor under this Agreement will continue in full force and effect following any novation under this Clause. A novation under this clause is a novation ( novation ) within the meaning of article 1271 et seq. of the French Code Civil . In the event of an assignment, a transfer, a novation or disposal of all or part of the rights and obligations by any Lender, each Lender expressly reserves the rights, powers, privileges and actions that it enjoys under any Transaction Security Documents governed by French law in favour of its assignees or, as the case may be, its successors, in accordance with the provisions of article 1278 et seq of the French Code Civil . |
25.7 | Procedure for assignment |
(a) | Subject to the conditions set out in Clause 25.2 ( Conditions of assignment or transfer ) an assignment may be effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement. |
(b) | The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender upon its completion of all know your customer or other checks relating to any person that it is required to carry out in relation to the assignment to such New Lender. |
(c) | On the Transfer Date: |
(i) | the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement; |
(ii) | the Existing Lender will be released from the obligations (the Relevant Obligations ) expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and |
(iii) | the New Lender shall become a Party as a Lender and will be bound by obligations equivalent to the Relevant Obligations. |
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(d) | Lenders may utilise procedures other than those set out in this Clause 25.7 to assign their rights under the Finance Documents provided that they comply with the conditions set out in Clause 25.2 ( Conditions of assignment or transfer ). |
25.8 | Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Obligors Agent |
The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, an Assignment Agreement or an Increase Confirmation, send to the Obligors Agent a copy of that Transfer Certificate, Assignment Agreement or Increase Confirmation and each Obligor, to the extent permitted by the laws of its jurisdiction of incorporation, confirms that such delivery to the Obligors Agent shall be considered as a notification to it of such transfer, assignment or increase.
25.9 | Accession of Hedge Counterparties |
Any person which becomes a party to the Intercreditor Agreement as a Hedge Counterparty shall, at the same time, become a Party to this Agreement as a Hedge Counterparty in accordance with clause 18.9 ( Creditor/Representative Accession Undertaking ) of the Intercreditor Agreement.
25.10 | Security over Lenders rights |
In addition to the other rights provided to Lenders under this Clause 25, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
(a) | any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and |
(b) | in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, |
(c) | except that no such charge, assignment or Security shall: |
(i) | release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or |
(ii) | require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents. |
25.11 | German Security Interests |
Each Obligor also accepts and confirms, for the purposes of Sections 401, 412 and 1250 para (1) of the German Civil Code and all other purposes, that all guarantees, indemnities and Security granted by it under any Finance Document will, notwithstanding any such assignment and transfer, continue and be preserved for the benefit of the New Lender and each of the other Finance Parties in accordance with the terms of the Finance Documents.
25.12 | Spanish Security Documents |
Upon the effective assignment, transfer and/or novation of rights or obligations made in accordance with this Clause 25 ( Changes to the Lenders ), each Spanish Obligor accepts and confirms for the purposes of the Spanish Civil Code and all other purposes that all guarantees, indemnities and Security granted by it under any Finance Document will, notwithstanding any such assignment and transfer, continue and be preserved for the benefit of the New Lender and each of the other Finance Parties in accordance with the terms of the Finance Documents.
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25.13 | Belgian Novation |
For the purposes of Article 1271 et seq of the Belgian Civil Code, the Parties agree that upon any novation under the Finance Documents, the Transaction Security, guarantees, indemnities, and other undertakings created by the Finance Documents shall continue for the benefit of the Secured Parties, their successors, transferees and assignees, as the case may be.
26. | CHANGES TO THE OBLIGORS |
26.1 | Assignments and transfers by Obligors |
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
26.2 | Additional Borrowers |
(a) | Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 21.7 ( Know your customer checks ), the Company may request that any of its wholly owned Subsidiaries which is not a Dormant Subsidiary becomes a Borrower. That Subsidiary shall become a Borrower if: |
(i) | it is incorporated in the same jurisdiction as an existing Borrower, or is incorporated in Belgium, Denmark, England, France, Germany, Ireland, Spain or Sweden, or otherwise if all the Lenders approve the addition of that Subsidiary; |
(ii) | the Company and that Subsidiary deliver to the Agent a duly completed and executed Accession Letter; |
(iii) | the Subsidiary is (or becomes) a Guarantor prior to becoming a Borrower; |
(iv) | the Company confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and |
(v) | the Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 ( Conditions Precedent ) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent. |
(b) | The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part 2 of Schedule 2 ( Conditions Precedent ). |
26.3 | Resignation of a Borrower |
(a) | In this Clause 26.3, Clause 26.5 ( Resignation of a Guarantor ) and Clause 26.7 ( Resignation and release of security on disposal ), Third Party Disposal means the disposal of an Obligor to a person which is not a member of the Group where that disposal is permitted under Clause 23.4 ( Disposals ) or made with the approval of the Majority Lenders (and the Company has confirmed this is the case). |
(b) | The Company may request that a Borrower (other than the Company) ceases to be a Borrower by delivering to the Agent a Resignation Letter if: |
(i) | that Borrower is being disposed of by way of a Third Party Disposal and the Company has confirmed this is the case; or |
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(ii) | all the Lenders have consented to the resignation of that Borrower. |
(c) | The Agent shall accept a Resignation Letter and notify the Company and the other Finance Parties of its acceptance if: |
(i) | the Company has confirmed that no Default is continuing or would result from the acceptance of the Resignation Letter; |
(ii) | the Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents; and |
(iii) | where the Borrower is also a Guarantor (unless its resignation has been accepted in accordance with Clause 26.5 ( Resignation of a Guarantor )), its obligations in its capacity as Guarantor continue to be legal, valid, binding and enforceable and in full force and effect (subject to the Company) and the amount guaranteed by it as a Guarantor is not decreased (and the Company has confirmed this is the case). |
(d) | Upon notification by the Agent to the Company of its acceptance of the resignation of a Borrower, that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents as a Borrower except that the resignation shall not take effect (and the Borrower will continue to have rights and obligations under the Finance Documents) until the date on which the Third Party Disposal takes effect. |
(e) | The Agent may, at the cost and expense of the Company, require a legal opinion from counsel to the Agent confirming the matters set out in paragraph (c)(iii) above and the Agent shall be under no obligation to accept a Resignation Letter until it has obtained such opinion in form and substance satisfactory to it. |
26.4 | Additional Guarantors |
(a) | Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 21.7 ( Know your customer checks ), the Company may request that any of its Subsidiaries become an Additional Guarantor. That Subsidiary shall become an Additional Guarantor if: |
(i) | the Company delivers to the Agent a duly completed and executed Accession Letter; and |
(ii) | the Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 ( Conditions precedent ) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent. |
(b) | The Company shall procure that any other member of the Group which is a Material Company (other than Interxion (Schweiz) AG and Interxion Österreich GmbH) shall, as soon as possible after becoming a Material Company, become an Additional Guarantor, grant Security as the Agent may require and accede to the Intercreditor Agreement. |
(c) | The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part 2 of Schedule 2 ( Conditions precedent ). |
26.5 | Resignation of a Guarantor |
(a) | The Company may request that a Guarantor (other than the Company) ceases to be a Guarantor by delivering to the Agent a Resignation Letter. |
(b) | The Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if: |
(i) | no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); |
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(ii) | the Super Majority Lenders have consented to the Companys request; and |
(iii) | no payment is due from that Guarantor under Clause 19 ( Guarantee and Indemnity ), |
at which time that company shall cease to be a Guarantor and shall have no further rights or obligations under the Finance Documents.
(c) | If the resignation of a Guarantor is accepted in accordance with paragraph (b) of this Clause 26.5, the Agent shall instruct the Security Trustee to release any Transaction Security granted by that Guarantor, in accordance with Clause 28.19 ( Releases ). |
26.6 | Repetition of Representations |
Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.
26.7 | Resignation and release of security on disposal |
If a Borrower or Guarantor is or is proposed to be the subject of a Third Party Disposal, or if there is a disposal of Charged Property that is a Permitted Disposal or a disposal in the form of a transfer of shares required pursuant to Clause 23.32(d) ( Conditions subsequent ) or a release of security required in order to effect a conversion referred to in paragraph (d) of the definition of Permitted Transaction, then:
(a) | where that Borrower or Guarantor created Transaction Security over any of its assets or business (or Transaction Security otherwise exists over the Charged Property to be disposed of or the shares to be transferred or the shares in an entity to be converted) in favour of the Security Trustee, or Transaction Security in favour of the Security Trustee was created over the shares (or equivalent) of that Borrower or Guarantor, the Security Trustee may, at the cost and request of the Company, release those assets, business or shares (or equivalent) and issue certificates of non-crystallisation; |
(b) | the resignation of that Borrower or Guarantor and related release of Transaction Security referred to in paragraph (a) above shall not become effective until the date of that disposal; and |
(c) | if the disposal of that Borrower or Guarantor is not made, the Resignation Letter of that Borrower or Guarantor and the related release of Transaction Security referred to in paragraph (a) above shall have no effect and the obligations of the Borrower or Guarantor and the Transaction Security created or intended to be created by or over that Borrower or Guarantor shall continue in full force and effect. |
27. | ROLE OF THE AGENT AND THE ARRANGER |
27.1 | Appointment of the Agent |
(a) | Each Finance Party (other than the Agent and the Security Trustee) appoints the Agent to act as its agent under and in connection with the Finance Documents. |
(b) | Each Finance Party (other than the Agent and the Security Trustee) authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
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(c) | Each Finance Party (other than the Agent and the Security Trustee) hereby releases the Agent from any restrictions on representing several persons and self-dealing under any applicable law, and in particular from the restrictions of Section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ), to make use of any authorisation granted under this Agreement and to perform its duties and obligations as Agent hereunder, in each case to the extent legally possible to such Finance Party. A Finance Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Agent accordingly. |
27.2 | Duties of the Agent |
(a) | The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party. |
(b) | Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. |
(c) | If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties. |
(d) | If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent, the Arranger or the Security Trustee) under this Agreement it shall promptly notify the other Finance Parties. |
(e) | The Agents duties under the Finance Documents are solely mechanical and administrative in nature. |
(f) | The Agent shall promptly forward to the Security Trustee a copy of all notices issued pursuant to Clause 24.18 ( Acceleration ). |
27.3 | Role of the Arranger |
Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.
27.4 | No fiduciary duties |
(a) | Nothing in this Agreement constitutes the Agent or the Arranger as a trustee or fiduciary of any other person. |
(b) | None of the Agent, the Security Trustee, the Arranger or any Ancillary Lender shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account. |
27.5 | Business with the Group |
The Agent, the Security Trustee, the Arranger and each Ancillary Lender may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.
27.6 | Rights and discretions of the Agent |
(a) | The Agent may rely on: |
(i) | any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and |
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(ii) | any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify. |
(b) | The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: |
(i) | no Default has occurred (unless it has actual knowledge of a Default arising under Clause 24.1 ( Non-payment )); |
(ii) | any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and |
(iii) | any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors. |
(c) | The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts. |
(d) | The Agent may act in relation to the Finance Documents through its personnel and agents. |
(e) | The Agent may disclose to any other Party any information it reasonably believes it has received as Agent under this Agreement. |
(f) | Without prejudice to the generality of paragraph (e) above, the Agent may disclose the identity of a Defaulting Lender to the other Finance Parties and the Company and shall disclose the same upon the written request of the Company or the Majority Lenders. |
(g) | Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. |
(h) | The Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Agent by any Lender or Alternative Reference Bank or the identity of any such Lender or Alternative Reference Bank for the purpose of paragraph (a)(ii) of Clause 12.2 ( Market Disruption ). |
27.7 | Majority Lenders instructions |
(a) | Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders. |
(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 other than the Security Trustee. |
(c) | The Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions. |
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(d) | In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders. |
(e) | The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lenders consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (e) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security Documents or enforcement of the Transaction Security or Transaction Security Documents. |
27.8 Responsibility for documentation
None of the Agent, the Arranger or any Ancillary Lender is responsible for:
(a) | the adequacy, accuracy and/or completeness of any information (whether oral or written) provided by the Agent, the Arranger, an Ancillary Lender, an Obligor or any other person given in or in connection with any Finance Document or the transactions contemplated by the Finance Documents; |
(b) | the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document or the Transaction Security; or |
27.9 Exclusion of liability
(a) | Without limiting paragraph (b) below (and without prejudice to the provisions of paragraph (e) of Clause 31.10 ( Disruption to Payment Systems etc .), neither the Agent nor any Ancillary Lender will be liable (including, without limitation, for negligence or any other category of liability whatsoever) for any action taken by it under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct. |
(b) | No Party (other than the Agent or any Ancillary Lender as applicable) may take any proceedings against any officer, employee or agent of the Agent or any Ancillary Lender in respect of any claim it might have against the Agent or any Ancillary Lender or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent or any Ancillary Lender may rely on this Clause subject to Clause 1.5 ( Third Party Rights ) and the provisions of the Third Parties Act. |
(c) | The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose. |
(d) | Nothing in this Agreement shall oblige the Agent or the Arranger to carry out any know your customer or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Agent and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arranger. |
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27.10 Lenders indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agents gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 31.10 ( Disruption to Payment Systems etc. ) notwithstanding the Agents negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).
27.11 Resignation of the Agent
(a) | The Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom or the Netherlands as successor by giving notice to the other Finance Parties and the Company. |
(b) | Alternatively the Agent may resign by giving notice to the other Finance Parties and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Agent. |
(c) | If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Company) may appoint a successor Agent (acting through an office in the United Kingdom or the Netherlands). |
(d) | If the Agent wishes to resign because (acting reasonably) it has concluded that is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree, following consultation with the Company and the proposed successor Agent, amendments to this Clause 27 and any other term of this Agreement dealing specifically with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees and agents together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agents normal fee rates in respect of an agency appointment similar to that under this Agreement and those amendments will bind the Parties. |
(e) | The retiring Agent shall, 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 Agent under the Finance Documents. |
(f) | The Agents resignation notice shall only take effect upon the appointment of a successor. |
(g) | Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 27. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. |
27.12 Replacement of the Agent
(a) |
After consultation with the Company, the Majority Lenders may, by giving 30 days notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent |
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(acting through an office in the United Kingdom or the Netherlands), require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above. |
(b) | The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) 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 Agent under the Finance Documents. |
(c) | The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 27 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). |
(d) | Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. |
27.13 Confidentiality
(a) | In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments. |
(b) | If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it. |
(c) | Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would or might in its reasonable opinion constitute a breach of any law or a breach of a fiduciary duty. |
27.14 Relationship with the Lenders
(a) | The Agent may treat each Lender as a Lender, entitled to payments under this Agreement and acting through its Facility Office unless it has received not less than five Business Days prior notice from that Lender to the contrary in accordance with the terms of this Agreement. |
(b) | Each Lender shall supply the Agent with any information required by the Agent in order to calculate the Mandatory Cost in accordance with Schedule 4 ( Mandatory Cost formulae ). |
(c) | Each Secured Party shall supply the Agent with any information that the Security Trustee may reasonably specify (through the Agent) as being necessary or desirable to enable the Security Trustee to perform its functions as security trustee or security agent (as the case may be). Each Lender shall deal with the Security Trustee exclusively through the Agent and shall not deal directly with the Security Trustee. |
(d) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 34.5 ( Electronic Communication )) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and |
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officer by that Lender for the purposes of Clause 34.2 ( Addresses ) and paragraph (a)(iii) of Clause 34.5 ( Electronic Communication ) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender. |
27.15 Credit appraisal by the Lenders and Ancillary Lenders
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender and Ancillary Lender confirms to the Agent, the Arranger and each Ancillary Lender that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
(a) | the financial condition, creditworthiness, affairs, status and nature of each member of the Group; |
(b) | the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; |
(c) | whether that Lender or Ancillary Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; |
(d) | the adequacy, accuracy and/or completeness of any information provided by the Agent, the Security Trustee, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and |
(e) | the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property. |
27.16 Reference Banks and Alternative Reference Banks
If a Base Reference Bank or Alternative Reference Bank (or, if a Base Reference Bank or Alternative Base Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with the Company) appoint another Lender or an Affiliate of a Lender to replace that Base Reference Bank or Alternative Reference Bank.
27.17 Agents management time
In the event that an Event of Default has occurred and is continuing, any amount payable to the Agent under Clause 16.3 ( Indemnity to the Agent ), Clause 18 ( Costs and expenses ) and Clause 27.10 ( Lenders indemnity to the Agent ) shall include the cost of utilising the Agents management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Agent may notify to the Company and the Lenders, and is in addition to any fee paid or payable to the Agent under Clause 13 ( Fees ).
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27.18 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
27.19 Reliance and engagement letters
Each Finance Party and Secured Party confirms that each of the Arranger and the Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Arranger or Agent) the terms of any reliance letter or engagement letters relating to any reports or letters provided by accountants in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect of those reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.
28. | CONDUCT OF BUSINESS BY THE FINANCE PARTIES |
No provision of this Agreement will:
(a) | interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; |
(b) | oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or |
(c) | oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax. |
29. | SHARING AMONG THE FINANCE PARTIES |
29.1 | Payments to Finance Parties |
(a) | Subject to paragraph (b) below, if a Finance Party (a Recovering Finance Party ) receives or recovers any amount from an Obligor other than in accordance with Clause 30 ( Payment mechanics ) (a Recovered Amount ) or Clause 32 ( Application of Proceeds ) and applies that amount to a payment due under the Finance Documents then: |
(i) | the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent; |
(ii) | the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 30 ( Payment mechanics ), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and |
(iii) | the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the Sharing Payment ) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 30.5 ( Partial payments ). |
(b) | Paragraph (a) above shall not apply to any amount received or recovered by an Ancillary Lender in respect of any cash cover provided for the benefit of that Ancillary Lender. |
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29.2 | Redistribution of payments |
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the Sharing Finance Parties ) in accordance with Clause 30.5 ( Partial payments ).
29.3 | Recovering Finance Partys rights |
On a distribution by the Agent under Clause 29.2 ( Redistribution of payments ), of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor.
29.4 | 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 Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the Redistributed Amount ); and |
(b) | as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor. |
29.5 | Exceptions |
(a) | This Clause 29 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor. |
(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 Party of the legal or arbitration proceedings; and |
(ii) | the other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings. |
29.6 | Ancillary Lenders |
(a) | This Clause 29 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to service of notice under Clause 24.18 ( Acceleration ). |
(b) | Following service of notice under Clause 24.18 ( Acceleration ), this Clause 29 shall apply to all receipts or recoveries by Ancillary Lenders except to the extent that the receipt or recovery represents a reduction from the Designated Gross Amount for an Ancillary Facility to its Designated Net Amount. |
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30. | PAYMENT MECHANICS |
30.1 | Payments to the Agent |
(a) | On each date on which an Obligor or a Lender is required to make a payment under a Finance Document excluding a payment under the terms of an Ancillary Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment. |
(b) | Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent specifies. |
30.2 | Distributions by the Agent |
Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 30.3 ( Distributions to an Obligor ), Clause 30.4 ( Clawback ) and Clause 27.18 ( Deduction from amounts payable by the Agent ) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London).
30.3 | Distributions to an Obligor |
The Agent may (with the consent of the Obligor or in accordance with Clause 31 ( Set-off )) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
30.4 | Clawback |
(a) | Where a sum is to be paid to the Agent under the Finance Documents for another Party, the 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 Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds. |
30.5 | Partial payments |
(a) | If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts then due and payable by an Obligor under those Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under those Finance Documents in the following order: |
(i) | first , in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent, the Arranger and the Security Trustee (including, in the case of the Security Trustee, any unpaid fees, costs and expenses of any Receiver or Delegate) under those Finance Documents; |
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(ii) | secondly , in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under those Finance Documents; |
(iii) | thirdly , in or towards payment pro rata of any principal due but unpaid under those Finance Documents; and |
(iv) | fourthly , in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. |
(b) | The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above. |
(c) | Paragraphs (a) and (b) above will override any appropriation made by an Obligor. |
30.6 | No set-off by Obligors |
All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
30.7 | Business Days |
(a) | Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). |
(b) | During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date. |
30.8 | Currency of account |
(a) | Subject to paragraphs (b) and (c) below, the Base Currency is the currency of account and payment for any sum from an Obligor under any Finance Document. |
(b) | A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date. |
(c) | Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued. |
(d) | Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. |
(e) | Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency. |
30.9 | Change of currency |
(a) | Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: |
(i) | any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (acting reasonably and after consultation with the Company); and |
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(ii) | any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably and after consultation with the Company). |
(b) | If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency. |
30.10 | Disruption to Payment Systems etc. |
If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Company that a Disruption Event has occurred:
(a) | the Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances; |
(b) | the Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; |
(c) | the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances; |
(d) | any such changes agreed upon by the Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 38 ( Amendments and Waivers ); |
(e) | the Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 31.10; and |
(f) | the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above. |
30.11 | Impaired Agent |
(a) | If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 30.1 ( Payments to the Agent ) may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents. |
(b) | All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements. |
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(c) | A Party which has made a payment in accordance with this Clause 30.11 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account. |
(d) | Promptly upon the appointment of a successor Agent in accordance with Clause 27.11 ( Resignation of the Agent ), each Party which has made a payment to a trust account in accordance with this Clause 30.11 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution in accordance with Clause 30.2 ( Distributions by the Agent ). |
31. | SET-OFF |
(a) | While an Event of Default is continuing, a Finance Party may set-off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. That Finance Party shall promptly notify that Obligor of any such set-off or conversion. |
For the avoidance of doubt, the Finance Parties shall be entitled to exercise such right of set-off in relation to the Ancillary Facilities and the Hedging Agreements at any time.
(b) | Any credit balances taken into account by an Ancillary Lender when operating a net limit in respect of any overdraft under an Ancillary Facility shall on enforcement of the Finance Documents be applied first in reduction of the overdraft provided under that Ancillary Facility in accordance with its terms. |
32. | APPLICATION OF PROCEEDS |
32.1 | Order of Application |
All moneys from time to time received or recovered by the Security Trustee under clause 16.2 ( Parallel Debt ) of the Intercreditor Agreement and/or by the Security Trustee in connection with the realisation or enforcement of all or any part of the Transaction Security shall be held by the Security Trustee on trust to apply them at such times as the Security Trustee see(s) fit, to the extent permitted by applicable law, in the following order of priority:
(a) | in discharging any sums owing to the Security Trustee (in its capacity as trustee), any Receiver or any Delegate; |
(b) | in payment to the Agent, on behalf of the Secured Parties, for application towards the discharge of all sums due and payable by any Obligor under any of the Finance Documents in accordance with Clause 30.5 ( Partial Payments ); |
(c) | if none of the Obligors is under any further actual or contingent liability under any Finance Document, in payment to any person to whom the Security Trustee is (or are) obliged to pay in priority to any Obligor; and |
(d) | the balance, if any, in payment to the relevant Obligor. |
32.2 | Investment of Proceeds |
Prior to the application of the proceeds of the Transaction Security in accordance with Clause 32.1 ( Order of Application ) the Security Trustee may, at its (or their) discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Trustee or the Agent with any financial institution (including itself) and for so long as the Security Trustee think(s) fit (the interest being credited to the relevant account) pending the application from time to time of those monies at the discretion of the Security Trustee in accordance with the provisions of this Clause 32.
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32.3 | Currency Conversion |
(a) | For the purpose of or pending the discharge of any of the Secured Obligations the Security Trustee may convert any moneys received or recovered by the Security Trustee from one currency to another, at the spot rate at which the Security Trustee is (or are) able to purchase the currency in which the Secured Obligations are due with the amount received. |
(b) | The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
32.4 | Permitted Deductions |
The Security Trustee shall be entitled (a) to set aside by way of reserve amounts required to meet and (b) to make and pay, any deductions and withholdings (on account of Tax or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it (or them) under this Agreement, and to pay all Tax which may be assessed against it (or them) in respect of any of the Charged Property, or as a consequence of performing its (or their) duties, or by virtue of its (or their) capacity as Security Trustee under any of the Finance Documents or otherwise (except in connection with its (or their) remuneration for performing its (or their) duties under this Agreement).
32.5 | Discharge of Secured Obligations |
(a) | Any payment to be made in respect of the Secured Obligations by the Security Trustee may be made to the Agent on behalf of the Lenders and that payment shall be a good discharge to the extent of that payment, to the Security Trustee. |
(b) | The Security Trustee is not under an obligation to make payment to the Agent in the same currency as that in which any Unpaid Sum is denominated. |
32.6 | Sums received by Obligors |
If any of the Obligors receives any sum which, pursuant to any of the Finance Documents, should have been paid to the Security Trustee, that sum shall promptly be paid to the Security Trustee for application in accordance with this Clause 32.
32.7 | Application and consideration |
In consideration for the covenants given to the Security Trustee by each Obligor in clause 16.2 ( Parallel Debt ) of the Intercreditor Agreement, the Security Trustee agrees with each Obligor to apply all money from time to time paid by such Obligor to the Security Trustee in accordance with the provisions of Clause 32.1 ( Order of Application ).
33. | NOTICES |
33.1 | Communications in writing |
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.
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33.2 | Addresses |
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:
(a) | in the case of the Company (in that capacity or as Obligors Agent), that identified with its name below; |
(b) | in the case of each Lender, each Ancillary Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and |
(c) | in the case of the Agent and the Security Trustee, that identified with each of their names below, |
or any substitute address or fax number or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days notice.
33.3 | Delivery |
(a) | Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective: |
(i) | if by way of fax, when received in legible form; or |
(ii) | if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, |
and, if a particular department or officer is specified as part of its address details provided under Clause 33.2 ( Addresses ), if addressed to that department or officer.
(b) | Any communication or document to be made or delivered to the Agent or to the Security Trustee will be effective only when actually received by the Agent or Security Trustee and then only if it is expressly marked for the attention of the department or officer identified with the signature of the Agent or Security Trustee (as the case may be) below (or any substitute department or officer as the Agent shall specify for this purpose). |
(c) | All notices from or to an Obligor shall be sent through the Agent. |
(d) | Any communication or document made or delivered to the Company in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors. |
(e) | All notices to a Lender from the Security Trustee shall be sent through the Agent. |
33.4 | Notification of address and fax number |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 33.2 ( Addresses ) or changing its own address or fax number, the Agent shall notify the other Parties.
33.5 | Electronic communication |
(a) | Any communication to be made between the Agent, the Security Trustee and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent, the Security Trustee and the relevant Lender: |
(i) | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
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(ii) | notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and |
(iii) | notify each other of any change to their address or any other such information supplied by them. |
(b) | Any electronic communication made between the Agent and a Lender or the Security Trustee will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Agent or the Security Trustee only if it is addressed in such a manner as the Agent or Security Trustee shall specify for this purpose. |
33.6 | Use of websites |
(a) | The Obligors Agent may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the Website Lenders ) who accept this method of communication by posting this information onto an electronic website designated by the Obligors Agent and the Agent (the Designated Website ) if: |
(i) | the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method; |
(ii) | both the Obligors Agent and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and |
(iii) | the information is in a format previously agreed between the Obligors Agent and the Agent. |
If any Lender (a Paper Form Lender ) does not agree to the delivery of information electronically then the Agent shall notify the Obligors Agent accordingly and the Obligors Agent shall at its own cost supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Obligors Agent shall at its own cost supply the Agent with at least one copy in paper form of any information required to be provided by it.
(b) | The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors Agent and the Agent. |
(c) | The Obligors Agent shall promptly upon becoming aware of its occurrence notify the Agent if: |
(i) | the Designated Website cannot be accessed due to technical failure; |
(ii) | the password specifications for the Designated Website change; |
(iii) | any new information which is required to be provided under this Agreement is posted onto the Designated Website; |
(iv) | any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or |
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(v) | the Obligors Agent becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software. |
If the Obligors Agent notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Obligors Agent under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
(d) | Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligors Agent shall at its own cost comply with any such request within ten Business Days. |
33.7 | English language |
(a) | Any notice given under or in connection with any Finance Document must be in English. |
(b) | All other documents provided under or in connection with any Finance Document must be: |
(i) | in English; or |
(ii) | if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
33.8 | Communication when Agent is Impaired Agent |
If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed.
34. | CALCULATIONS AND CERTIFICATES |
34.1 | Accounts |
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.
34.2 | Certificates and determinations |
Any certification or determination by a Finance Party of a rate or amount under any Finance Document shall set out the basis of calculation in reasonable detail and is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
34.3 | Day count convention |
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market practice.
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35. | PARTIAL INVALIDITY |
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
36. | REMEDIES AND WAIVERS |
No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
37. | CONFIDENTIALITY |
37.1 | Confidential Information |
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 37.2 ( Disclosure in relation to Obligors and/or Finance Parties incorporated in jurisdictions other than France ) and Clause 37.3 ( Disclosure in relation to Obligors and/or Finance Parties incorporated in France ), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
37.2 | Disclosure in relation to Obligors and/or Finance Parties incorporated in jurisdictions other than France |
(a) | Disclosure of Confidential Information |
Subject to Clause 37.3 ( Disclosure in relation to Obligors and/or Finance Parties incorporated in France ), any Finance Party may disclose:
(i) | to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information; |
(ii) | to any person: |
(A) | to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that persons Affiliates, Related Funds, Representatives and professional advisers; |
(B) | (with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that persons Affiliates, Related Funds, Representatives and professional advisers; |
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(C) | appointed by any Finance Party or by a person to whom paragraph (ii)(A) or (ii)(B) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (d) of Clause 27.14 ( Relationship with the Lenders )); |
(D) | who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (ii)(A) or (ii)(B) above; |
(E) | to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation; |
(F) | to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 25.9 ( Security over Lenders rights ); |
(G) | to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes; |
(H) | who is a Party; or |
(I) | with the consent of the Obligors Agent; |
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
(A) | in relation to paragraphs (ii)(A), (ii)(B) and (ii)(C) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; |
(B) | in relation to paragraph (ii)(D) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; |
(C) | in relation to paragraphs (ii)(E), (ii)(F) and (ii)(G) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; |
(iii) |
to any person appointed by that Finance Party or by a person to whom paragraph (ii)(A) or (ii)(B) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a |
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confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Obligors Agent and the relevant Finance Party; and |
(iv) | to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information. |
(b) | Disclosure to numbering service providers |
(i) | Subject to Clause 37.3 ( Disclosure in relation to Obligors and/or Finance Parties incorporated in France ), any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information: |
(A) | names of Obligors; |
(B) | country of domicile of Obligors; |
(C) | place of incorporation of Obligors; |
(D) | date of this Agreement; |
(E) | the names of the Agent and the Arranger; |
(F) | date of each amendment and restatement of this Agreement; |
(G) | amount of Total Commitments; |
(H) | currencies of the Facility; |
(I) | type of Facility; |
(J) | ranking of Facility; |
(K) | Termination Date for the Facility; |
(L) | changes to any of the information previously supplied pursuant to paragraphs (A) to (K) above; and |
(M) | such other information agreed between such Finance Party and the Obligors Agent, |
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
(c) | The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider. |
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(d) | Each Obligor represents that none of the information set out in paragraphs (A) to (M) of paragraph (i) above is, nor will at any time be, unpublished price-sensitive information. |
(e) | The Agent shall notify the Obligors Agent and the other Finance Parties of: |
(i) | the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and |
(ii) | the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider. |
37.3 | Disclosure in relation to Obligors and/or Finance Parties incorporated in France |
With respect to any Obligor and/or any Finance Party incorporated in France, any Finance Party may, in particular in accordance with article L. 511-33 of the French Code monétaire et financier, disclose:
(a) | to the Commission Bancaire, the Banque de France, the Autorité des Marchés Financiers, the European Central Bank, the European System of Central Banks, TRACFIN, any taxation authority or customs, or pursuant to applicable law or regulation, such Confidential Information as may be required to be disclosed; |
(b) | to any judicial authorities acting in the course of criminal proceedings such Confidential Information as may be required to be disclosed; |
(c) | to any of its statutory auditors such Confidential Information as that Finance Party shall consider appropriate; |
(d) | to any rating agency such Confidential Information as may be required for the purpose of rating financial products (including, without limitation, in relation to the Finance Documents), |
in each case, such Confidential Information as that Finance Party shall consider appropriate provided that the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information;
(e) | to any person with which that Finance Party negotiates, enters into or carries out any of the following transactions under, or in connection, with any of the Finance Documents: |
(i) | credit transactions carried out, directly or indirectly, by one or more credit institutions; |
(ii) | transactions involving financial instruments, guarantees or insurance, for the purpose of hedging a credit risk; |
(iii) | acquisition of a stake in, or of control over, a credit institution or an investment firm; |
(iv) | sales of assets or of a business ( fonds de commerce ); |
(v) | assignments or transfers of receivables or contracts; |
(vi) | service provision agreements entered into with a third party in order to entrust such party with significant operational tasks; |
(vii) | in the course of reviewing or drawing up any type of contracts or transactions, provided that the entities concerned belong to the same group as the author of the disclosure, |
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in each case, such Confidential Information as that Finance Party shall consider appropriate provided that:
(A) | such Confidential Information is necessary for the purpose of the transactions referred to under paragraphs (e)(i) to (e)(vii) above; |
(B) | the person to whom the Confidential Information is to be given (i) is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information and (ii) has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information it receives; and |
(C) | the person to whom the Confidential Information is to be given is informed that, notwithstanding (B) above, in the event that the relevant transaction referred to under paragraphs (e)(i) to (e)(vii) above succeeds, it may in turn disclose the relevant Confidential Information under the same conditions as set out in this Clause 37 to the persons with whom it negotiates, enters into or carries out any of the transactions referred to under paragraphs (e)(i) to (e)(vii) above, subject to such persons (i) being informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information and (ii) entering into a Confidentiality Undertaking or being otherwise bound by requirements of confidentiality in relation to the Confidential Information it receives, and |
(f) | to any person on a case-by-case basis with the prior written consent of the relevant Obligor, provided that the person to whom the Confidential Information is to be given (i) is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information and (ii) has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information it receives. |
37.4 | Entire agreement |
This Clause 37 ( Confidentiality ) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
37.5 | Inside information |
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
37.6 | Notification of disclosure |
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Obligors Agent:
(a) | of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 37.2 ( Disclosure in relation to Obligors and/or Finance Parties incorporated in jurisdictions other than France ) and paragraphs (b) and (c) of Clause 37.3 ( Disclosure in relation to Obligors and/or Finance Parties incorporated in France ) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and |
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(b) | upon becoming aware that Confidential Information has been disclosed in breach of this Clause 37 ( Confidentiality ). |
37.7 | Continuing obligations |
The obligations in this Clause 37 ( Confidentiality ) are continuing and, in particular, shall survive and remain binding on each Finance Party until the earlier to occur of: (a) the date of termination of this Agreement and (b) the date falling twelve months after the date on which such Finance Party otherwise ceases to be a Finance Party.
38. | AMENDMENTS AND WAIVERS |
38.1 | Required consents |
(a) | Subject to Clause 38.2 ( Exceptions ), any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties. |
(b) | The Agent, or in respect of the Transaction Security Documents the Security Trustee, may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 38. |
(c) | The Company may effect, as agent of each Obligor pursuant to Clause 2.4 ( Obligors Agent ) any amendment or waiver permitted by this Clause 38. |
38.2 | Exceptions |
(a) | An amendment or waiver that has the effect of changing or which relates to: |
(i) | the definition of Majority Lenders and Super Majority Lenders in Clause 1.1 ( Definitions ); |
(ii) | an extension to the date of payment of any amount under the Finance Documents; |
(iii) | a reduction in the Margin (other than pursuant to the reduction provided for in the definition of that term) or a reduction in the amount of any payment of principal, interest, fees or commission payable; |
(iv) | a change in currency of payment of any amount under the Finance Documents; |
(v) | an increase in or an extension of any Commitment or the Total Commitments (other than in accordance with Clause 2.2 ( Increase )); |
(vi) | a change to the Borrowers or Guarantors other than in accordance with Clause 26 ( Changes to the Obligors ); |
(vii) | any provision which expressly requires the consent of all the Lenders; |
(viii) | Clause 2.3 ( Finance Parties rights and obligations ), Clause 9.2 ( Change of control or sale of assets ) or Clause 25 ( Changes to the Lenders ) or this Clause 38; |
(ix) | any amendment to the order of priority or subordination under the Intercreditor Agreement; or |
(x) | subject to paragraph (b) below, the nature or scope of the guarantee and indemnity granted under Clause 19 ( Guarantee and Indemnity ), the Charged Property or the manner in which the proceeds of enforcement of the Transaction Security are distributed; |
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shall not be made without the prior consent of all the Lenders.
(b) | An amendment or waiver that has the effect of releasing any guarantee or indemnity granted under Clause 19 ( Guarantee and Indemnity ) or of any Transaction Security (unless permitted under this Agreement or any other Finance Document or relating to a sale or disposal of an asset which is the subject of Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document) shall not be made without the prior consent of the Super Majority Lenders. |
(c) | An amendment or waiver which relates to the rights or obligations of the Agent, the Security Trustee, the Arranger, any Hedge Counterparty or any Ancillary Lender may not be effected without the consent of the Agent, the Security Trustee, the Arranger, that Hedge Counterparty or that Ancillary Lender as the case may be. |
39. | COUNTERPARTS |
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
40. | GOVERNING LAW |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
41. | ENFORCEMENT |
41.1 | Jurisdiction of English courts |
(a) | The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute ). |
(b) | The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. |
(c) | This Clause 41.1 is for the benefit of the Finance Parties, Secured Parties and any Receiver or Delegate only. As a result, no Finance Party or Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties and Secured Parties may take concurrent proceedings in any number of jurisdictions. |
41.2 | Service of process |
(a) | Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales): |
(i) | irrevocably appoints Interxion Carrier Hotel Ltd. as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document (and Interxion Carrier Hotel Ltd. by its execution of this Agreement, accepts that appointment); and |
(ii) | agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned. |
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(b) | If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Obligors Agent (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose. |
(c) | The Obligors Agent expressly agrees and consents to the provisions of this Clause 41 and Clause 40 ( Governing Law ). |
42. | SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN |
42.1 | Security Trustee accounting |
For the purposes of this Agreement (or any other Finance Document), the Security Trustee, in its capacity as such, shall open and maintain in its books a special credit facilities account for each Lender. In each of such accounts the Security Trustee shall debit the amounts owed by the Borrower (or an Obligor under this Agreement or any other Finance Document) to the Lenders, including the interest, fees, expenses, default interest, additional costs and any other amounts that are payable by the Borrower (or an Obligor under this Agreement or any other Finance Document) pursuant to this Agreement (or any other Finance Document). Likewise, all amounts received by the Security Trustee from the Borrower (or an Obligor under this Agreement or any other Finance Document) pursuant to this Agreement (or any other Finance Document) shall be credited in that account, so that the sum of the balance of the credit facilities account represents the amount owed by the Borrower (or an Obligor under this Agreement or any other Finance Document) to the Lenders at any time.
42.2 | Individual account of each Lender |
In addition to the unified account referred to in Clause 42.1 ( Security Trustee accounting ) above, each of the Lenders shall open and maintain in its books a special credit facilities account from which the interest, fees, expenses, default interest, additional costs and any other amounts that the Borrower (or an Obligor under this Agreement or any other Finance Document) owes to such Lender hereunder shall be debited and in which all amounts received by the Lender from the Borrower (or an Obligor under this Agreement or any other Finance Document) under this Agreement (or the remaining Finance Documents) shall be credited.
42.3 | Determination of balance due in the event of enforcement before the Spanish courts |
In the event of enforcement of (i) the Facility, (ii) the guarantee granted by an Obligor under Clause 19 ( Guarantee and indemnity ) of this Agreement, or (iii) any of the Finance Documents before the Spanish courts, the Security Trustee shall settle the credit accounts referred to above in this Clause 42 . It is expressly agreed for purposes of enforceability via judicial or out-of-court methods pursuant to Spanish Law, that the balance due from the accounts referred to in this Clause resulting from the certificate issued for such purpose by the Security Trustee shall be deemed liquid, due and payable amount enforceable against the Borrower (or an Obligor under this Agreement or any other Finance Document), provided that it is evidenced in a notarial document that the settlement was made in the form agreed to by the parties in the enforceable instrument documenting this Agreement ( título ejecutivo ) and that the balance due matches with the balance that appears in the corresponding open account of the Borrower (or an Obligor under this Agreement or any other Finance Document) in connection with the Facility.
The Security Trustee shall give prior notice to the Borrower (or an Obligor under this Agreement or any other Finance Document) of the amount due as a result of the settlement.
42.4 | Enforcement before the Spanish courts |
In the event that the Lenders decide, for the purposes of the enforcement of the Facility or the guarantee granted by an Obligor under Clause 19 ( Guarantee and indemnity ) of this Agreement or any other Finance Document (that has been raised to the status of public document in Spain) before the
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Spanish courts, to commence the ordinary enforcement proceeding set forth in Articles 517, et seq, of the Law of Civil Procedure ( Ley de Enjuciamiento Civil ), the Parties expressly agree for purposes of Article 571, et seq, of such Law of Civil Procedure that the settlement to determine the summarily enforceable debt be made by the Security Trustee. The following will be sufficient for the commencement of the summary proceedings: (i) the notarial deed ( escritura de elevación a público ) evidencing this Agreement or any other Finance Document (that has been raised to the status of public document in Spain); (ii) a certificate, issued by the Security Trustee, of the debt for which the Borrower (or an Obligor under this Agreement or any other Finance Document) is liable, as well as the extract of the debit and credit entries and the entries corresponding to the application of interest that determines the actual balance for which enforcement is requested and the document providing evidence ( documento fehaciente ) that the settlement of the debt has been carried out in the form agreed to in this Agreement; and (iii) a notarial document providing evidence of the prior notice to the Borrower and/or the Obligor of the amount due as a result of the settlement.
The Borrower (or an Obligor under this Agreement or any other Finance Document) shall bear all taxes, expenses and duties accruing or that are incurred on by reason of the notarial instruments referred to in the previous paragraph.
42.5 | Public deed |
This Agreement has been executed as a private document. Each Party shall be entitled to request the formalisation of this Agreement into a public deed at any time. The Borrower shall bear all costs and expenses relating to such formalisation.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE 1
THE ORIGINAL PARTIES
Part 1
The Original Borrower
Name of Borrower |
Place of Incorporation/
Registration |
Registration number (or equivalent, if any) |
||
Interxion Holding N.V. | Netherlands | 33301892 | ||
The Original Guarantor | ||||
Name of Guarantor |
Place of Incorporation/
Registration |
Registration number (or equivalent, if any) |
||
Interxion Holding N.V. | Netherlands | 33301892 | ||
Interxion HeadQuarters B.V.* | Netherlands | 34128125 | ||
Interxion Nederland B.V.* | Netherlands | 34116837 | ||
Interxion Belgium N.V.* | Belgium | RPR Brussels 0471.625.579 | ||
Interxion Danmark ApS* | Denmark | CVR No. 2514 7022 | ||
Interxion France Sarl* | France | 423 945 799 RCS Bobigny | ||
Interxion Deutschland GmbH* | Germany | HRB 47103, commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Frankfurt am Main | ||
Interxion Ireland Ltd* | Republic of Ireland | 321944 | ||
Interxion España SL* | Spain | CIF B82517731 (registered with the Commercial Registry of Madrid in volume 14952, section 8, book 0, page M-249071) | ||
Interxion Carrier Hotel Ltd* | United Kingdom | 03753969 |
* | Denotes Original Guarantors who accede to this Agreement prior to the Closing Date. |
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Part 2
The Original Lenders
Name of Original Lender |
Commitment (EUR) | |||
Barclays Bank PLC |
15,000,000 | |||
Citibank N.A., London Branch |
10,000,000 | |||
Bank of America, N.A. (London Branch) |
10,000,000 | |||
Fortis Bank (Nederland) N.V. |
15,000,000 | |||
Credit Suisse AG, London Branch |
5,000,000 | |||
Jefferies Finance LLC |
5,000,000 | |||
Total |
60,000,000 |
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SCHEDULE 2
CONDITIONS PRECEDENT
Part 1
Conditions Precedent to Initial Utilisation
1. | Corporate Documents |
(a) | A copy of the constitutional documents (or, in the case of a Spanish Obligor, an updated excerpt ( nota simple literal ) from the mercantile registry of Madrid together with a certification from the Secretary of the Board of Directors or the Sole Director (in case that the Obligor does not have a Board of Directors) certifying that there is no other shareholders agreement or sole director resolution pending registration)) of each Original Obligor and which: |
(i) | in respect of any French Obligor shall include (i) an original K-bis extract ( extrait K-bis ) not more than one month old, (ii) a copy of the by-laws ( statuts ) of such French Obligor certified as up-to-date by its legal representative, (iii) an original non bankruptcy certificate ( résultat des recherches en matière de procédure collective négatif ) not more than one month old and (iv) an original certificate of pledges and encumbrances ( état relatif aux inscriptions des privilèges et publications ) not more than one month old); and |
(ii) | in respect of an Obligor incorporated in the Federal Republic of Germany, shall include an officially certified commercial register extract ( beglaubigter Handelsregisterauszug ) or, if applicable, official up-to-date commercial register extracts ( chronologischer und historischer amtlicher Ausdruck des elektronischen Handelsregisters ), and an officially certified copy of the articles of association ( vom Handelsregister erstellte beglaubigte Kopie der Satzung/beglaubigte Kopie des Gesellschaftsvertrages ) of such Obligor. |
(iii) | in respect of any Belgian Guarantor shall include (i) up-to-date coordinated articles of association, (ii) a KBO certificate not more than 15 days old, and (iii) a non-insolvency certificate not more than 15 days old. |
(b) | If applicable, a copy of a resolution of the sole director or board of managing directors (or any equivalent corporate body) of each Original Obligor (and, in the case of a Spanish Obligor, notarised before a Spanish Notary Public): |
(i) | approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute, deliver and perform the Finance Documents to which it is a party, and in respect of any Belgian Guarantor setting out the reasons why the board of directors of the Belgian Guarantor considered that the entry into this Agreement, the Transaction Security and any other Finance Document to which it is a party and in particular the assumption of its guaranteed obligations in accordance with Clause 19 ( Guarantee and indemnity ) of this Agreement, is of benefit to the Belgian Guarantor; |
(ii) | authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and |
(iii) | authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party. |
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(c) | If applicable, a copy of the extract of the minutes of the meeting of the board of supervisory directors of each Original Obligor (other than the Spanish Obligor) approving the resolutions of the board of managing directors referred to under (b) above and confirming that the general meeting of shareholders has not appointed any person to represent each Original Obligor in case of a conflict of interest. |
(d) | If applicable, a copy of a resolution of the supervisory board ( Aufsichtsrat ) or advisory board ( Beirat ) of each Obligor approving the terms of, and the transactions contemplated by, the Finance Documents to which that Obligor is a party. |
(e) | A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above. In respect of a Spanish Obligor, this shall be included in (i) below. |
(f) | If required by the laws of its jurisdiction of incorporation or provided in accordance with normal market practice, a copy of a resolution signed by all the holders of the issued shares of the Obligor (other than the Company and the Spanish Obligor): |
(i) | approving the terms of, and the transactions contemplated by, the Finance Documents to which the Obligor is a party; |
(ii) | authorising a specified person or persons to: |
(A) | execute the Finance Documents to which it is a party on its behalf; and |
(B) | sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; |
(iii) | in respect of the resolution from the Company as sole shareholder of Interxion France SARL: |
(A) | modifying article 17.2 of the by-laws ( statuts ) of Interxion France SARL to conform it with the exact terms of article L.223-21 of the French code de commerce , and enclosing a copy of the updated by-laws ( statuts ) of Interxion France SARL certified by its legal representative (gérant); and |
(B) | approving the Secured Parties as potential shareholders of Interxion France SARL and any person to whom the shares are transferred in the event of enforcement action in respect of the share pledge agreement between the Company and the Security Trustee in relation to the shares in Interxion Frence SARL, in accordance with Article L223-14 and L223-15 of the French Code de commerce ; |
(iv) | in respect of any Belgian Guarantor, a resolution of the shareholders meeting or a written resolution of all shareholders of the Belgian Guarantor approving the provisions under any Finance Document requiring an early repayment in the case of a change of control over the Belgian Guarantor as well as, to the extent necessary, the Finance Documents, together with evidence that an extract of such resolution has been filed with the clerk of the commercial court of the judicial district of the Belgian Guarantor in accordance with Article 556 of the Belgian Company Code. |
(g) |
A certificate (notarised before a Spanish Notary Public) of the resolutions of each Spanish Obligors general shareholders meeting approving the entering of the Spanish Obligor in the transactions contemplated by the Finance Documents, to which such Spanish Obligor is a party and empowering the Spanish Obligors board of directors (or the relevant management body) to approve the terms of, and the transactions contemplated by, the Finance Documents, to authorise a specified person or persons to execute the Finance Documents to which such |
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Spanish Obligor is a party, and to authorise a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which the Spanish Obligor is a party. |
(h) | A certificate of each Original Obligor (signed by an authorised signatory) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded. In respect of a Spanish Obligor, this confirmation shall be included in the certificate delivered under (i) below. |
(i) | A certificate of each Original Obligor signed by an authorised signatory certifying that each copy document relating to it specified in this Part 1 of this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
(j) | A copy of a request for advice of the competant works council(s) (if any) of the Dutch Obligors and a copy of the unconditional positive or neutral advice of such works councils in respect of the transactions contemplated by the Finance Documents. |
2. | Finance Documents |
(a) | A duly executed copy of this Agreement and the Intercreditor Agreement. |
(b) | The executed Fee Letters. |
(c) | Duly executed copies of each Accession Letter for each of the Original Guarantors other than the Company. |
3. | Security |
(a) | Evidence of the release of the Existing Security and any other Security or guarantees granted by any member of the Group which is not permitted by Clause 23.3 ( Negative Pledge ) or Clause 23.18 ( No Guarantees or indemnity ) effective on the Closing Date and in respect of any Spanish Obligor or the Security Documents over the assets of a Spanish Obligor, a copy of the public deeds documenting the release of the Existing Security. |
(b) | Evidence of the release of the share pledge agreement granted over Interxion France Sarl dated 25 April 2008 in favour of Fortis Bank N.V. and Cooperatieve Rabobank Regio Schiphol U.A. for the obligations arising from a revolving facility agreement, up to an amount of EUR 90,000,000. |
(c) | At least two originals of the Transaction Security Documents executed by the Original Obligor party thereto specified in Schedule 12 ( Initial Transaction Security Documents ). In respect of any Spanish Obligor or the Security Documents over the assets of a Spanish Obligor, a copy ( copia autorizada ) of the public deed granted before a Spanish Notary Public documenting the Security. |
(d) | As applicable, a copy of all notices required to be sent under the Transaction Security Documents executed by the relevant Original Obligor and, in the case of intercompany receivables, duly acknowledged by the addressees and of all third party consents required in connection with the creation, perfection or registration of the Transaction Security Documents. |
(e) | A copy of all share certificates and stock transfer forms or equivalent duly executed by the relevant Original Obligor in blank in relation to the assets subject to or expressed to be subject to the Transaction Security Documents and other documents of title which are required to be provided under the Transaction Security Documents. |
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(f) | The details ( relevés didentité bancaire ) of the bank accounts pledged pursuant to the French law bank accounts pledge agreement between Interxion France SARL as pledgor and the Security Trustee. |
4. | Legal opinions |
The following legal opinions, each addressed to the Agent and any persons which become Lenders.
(a) | a legal opinion of Shearman & Sterling (London) LLP, legal adviser to the Agent and the Arranger as to English law substantially in the form distributed to the Original Lenders prior to signing this Agreement. |
(b) | a legal opinion of Linklaters LLP, legal advisor to the Company as to matters of Netherlands law concerning the capacity of the Obligors incorporated in the Netherlands to enter into the Finance Documents to which they are a party. |
(c) | a legal opinion of Van Doorne N.V., as to matters of Netherlands law, concerning the enforceability of each Transaction Security Document governed by Netherlands law. |
(d) | a legal opinion of Linklaters LLP in Paris, as to matters of French law, concerning the capacity of Interxion France SARL to enter into the Finance Documents to which it is a party. |
(e) | a legal opinion of Shearman & Sterling (Paris) LLP, as to matters of French law, concerning the enforceability of each Transaction Security Document governed by French law. |
(f) | a legal opinion of Linklaters LLP in Germany, as to matters of German law, concerning the capacity of Interxion Deutschland GmbH to enter into the Finance Documents to which it is a party. |
(g) | a legal opinion of Shearman & Sterling LLP, Germany, as to matters of German law, concerning the enforceability of each Transaction Security Document governed by German law. |
(h) | a legal opinion of Linklaters, S.L.P., as to matters of Spanish law, concerning the capacity of Interxion España S.L., to enter into the Finance Documents to which it is a party. |
(i) | a legal opinion of Uría Menéndez, S.L.P., as to matters of Spanish law, concerning the enforceability of each Transaction Security Document governed by Spanish law. |
(j) | a legal opinion of Lydian, as to matters of Belgian law, concerning the capacity of the Obligors incorporated in Belgium to enter into the Finance Documents to which they are a party and the enforceability of each Transaction Security Document governed by Belgian law. |
(k) | a legal opinion of Arthur Cox, as to matters of Irish law, concerning the capacity of Interxion Ireland Limited to enter into the Finance Documents to which it is a party. |
(l) | a legal opinion of A&L Goodbody, as to matters of Irish law, concerning the enforceability of each Transaction Security Document governed by Irish law. |
(m) | a legal opinion of Bech-Bruun, as to matters of Danish law, concerning the enforceability of each Transaction Security Document governed by Danish law. |
(n) | a legal opinion of Kromann Reumert, as to matters of Danish law, concerning the capacity of Interxion Danmark ApS to enter into the Finance documents to which it is a party. |
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5. | Other documents and evidence |
(a) | A certified copy of the Original Financial Statements. |
(b) | The unaudited financial statements of the Company for the period to 31 December 2009. |
(c) | If available, the latest audited financial statements of each of the Original Guarantors other than the Company. |
(d) | Evidence that the proceeds of issue of the Bonds in the amount specified in the agreed funds flow statement for the transaction have been received by the Company prior to first utilisation of the Facility and applied to refinance the Existing Facilities in full and a copy of the funds flow statement. |
(e) | Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 13 ( Fees ), Clause 14.5 ( Stamp Taxes ) and Clause 18 ( Costs and expenses ) have been paid or will be paid by the first Utilisation Date. |
(f) | The Group Structure Chart. |
(g) | A list showing all intra-group loans in excess of EUR 2,000,000 as at 31 December 2009, including the amount of each such loan and its debtor and creditor. |
(h) | The Business Plan. |
(i) | An executed copy of the Bond Indenture. |
(j) | A copy of any other authorisation or other document, opinion or assurance which is necessary in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document. |
(k) | The results of know your customer and other checks in relation to each Original Obligor under the FSA Money Laundering Regulations, the Dutch Wet ter voorkoming van witwassen en financieren van terrorisme , the Patriot Act and any other applicable laws and regulations (including, but not limited to, the German Banking Act ( Kreditwesengesetz )) being satisfactory in all respects to the Mandated Lead Arranger and the Agent. |
(l) | Evidence that the Revolving Facility Agreement, the Intercreditor Agreement, the Hedging Agreements (to the extent they have been signed by a Spanish Obligor), the indenture agreement (to the extent it has been signed by a Spanish Obligor) and the Transaction Security Documents to be granted in Spain (including those which secure the Notes) have been raised to the status of Spanish public document by means of public deed granted before a Spanish Notary Public. The public deed raising this agreement to status of public document must reproduced in Spanish (i) Clause 42 ( Special Provisions regarding enforcement under the Laws of Spain ) of this agreement, the confirmation of the personal guarantee granted by a Spanish Obligor under Clause 19 ( Guarantee and Indemnity ) of this agreement and the granting of authority by the Finance Parties to the Agent under Clause 27 ( Role of the Agent and the Arranger ) of this agreement. The public deed raising the Intercreditor Agreement to the status of public document must reproduce in Spanish Clause 29 ( Special Provisions regarding enforcement under the Laws of Spain ) of the Intercreditor Agreement, the confirmation of the personal guarantee granted by a Spanish Debtor under Clause 15 ( Hedge Counterparty Guarantee ) of this Agreement and the granting of authority by the Secured Parties to the Security Trustee under Clause 16.5 ( Appointment as agent and administrator in relation to Spanish Security Interests ) of the Intercreditor Agreement. |
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Part 2
Conditions Precedent required to be delivered by an Additional Obligor
1. | An Accession Letter, duly executed by the Additional Obligor and the Company. |
2. | A copy of the constitutional documents (or, in the case of a Spanish Additional Obligor, a literal certification ( certificacion literal ) from the mercantile registry of Madrid together with a certification from the Secretary of the Board of Directors or the Sole Director (in case that the Obligor does not have a Board of Directors) certifying that there is no other shareholders agreement or sole director resolution pending registration) of the Additional Obligor and which: |
(a) | in respect of any French Additional Obligor shall include (i) an original K-bis extract ( extrait K-bis ) not more than one month old, (ii) a copy of the by-laws ( statuts ) of such French Additional Obligor certified as up-to-date by its legal representative,(iii) an original non bankruptcy certificate ( résultat des recherches en matière de procédure collective négatif ) not more than one month old and (iv) an original certificate of pledges and encumbrances ( état relatif aux inscriptions des privilèges et publications ) not more than one month old); and |
(b) | in respect of an Additional Obligor incorporated in the Federal Republic of Germany, shall include an officially certified commercial register extract ( beglaubigter Handelsregisterauszug ) or, if applicable, official up-to-date commercial register extracts ( chronologischer und historischer amtlicher Ausdruck des elektronischen Handelsregisters ), in each case not older than fourteen (14) days prior to the date of the accession of such Additional Obligor and an officially certified copy of the articles of association ( vom Handelsregister erstellte beglaubigte Kopie der Satzung/beglaubigte Kopie des Gesellschaftsvertrages ) of such Additional Obligor. |
3. | A certificate (notarised before a Spanish Notary Public) of the resolutions of each Spanish Additional Obligors general shareholders meeting approving the entering of the Spanish Additional Obligor in the transactions contemplated by the Finance Documents and the Accession Letter, to which such Spanish Additional Obligor is a party and empowering the Spanish Additional Obligors board of directors (or the relevant management body) to approve the terms of, and the transactions contemplated by, the Finance Documents and the Accession Letter, to authorise a specified person or persons to execute the Finance Documents and Accession Letter to which such Spanish Additional Obligor is a party, and to authorise a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents and the Accession Letter to which the Spanish Additional Obligor is a party. |
4. | If applicable, a copy of a resolution of the sole director or board of directors (or any equivalent corporate body) of the Additional Obligor (and, in the case of a Spanish Obligor, notarised before a Spanish Notary Public): |
(a) | approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute, deliver and perform the Accession Letter and any other Finance Document to which it is a party; |
(b) | authorising a specified person or persons to execute the Accession Letter and other Finance Documents on its behalf; |
(c) | authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by, such Additional Obligor under or in connection with the Finance Documents to which it is a party; and |
(d) | authorising the Company to act as its agent in connection with the Finance Documents. |
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5. | If applicable, a copy of a resolution of the supervisory board ( Aufsichtsrat ) or advisory board ( Beirat ) of each Additional Obligor incorporated in the Federal Republic of Germany approving the terms of, and the transactions contemplated by, the Finance Documents to which that Additional Obligor is a party (other than any of the Spanish Obligor). |
6. | A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above. In respect of a Spanish Obligor, this shall be included in the certificate delivered under 10 below. |
7. | If required by the laws of its jurisdiction of incorporation or provided in accordance with normal market practice, a copy of a resolution signed by all the holders of the issued shares of the Additional Obligor (other than any Spanish Obligor): |
(a) | approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Obligor is a party; and |
(b) | authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf and sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party. |
8. | If applicable, a copy of the resolution of the board of supervisory directors of the Additional Obligor approving the resolutions of the board of managing directors of the Additional Obligor. |
9. | A certificate of the Additional Obligor (signed by a director duly empowered) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded. In respect of a Spanish Obligor this shall be included in the certificate delivered under 10 below. |
10. | A certificate of an authorised signatory of the Additional Obligor certifying that each copy document listed in this Part 2 of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter. |
11. | If necessary, a copy of any relevant power of attorney. |
12. | If available, the latest audited financial statements of the Additional Obligor and any additional information or documentation requested by a Lender under applicable regulatory provisions including, but not limited to, Section 18 German Banking Act ( Kreditwesengesetz ). |
13. | The following legal opinions, each addressed to the Agent, the Security Trustee and the Lenders: |
(a) | a legal opinion of the legal adviser to the Agent in England as to English law in the form approved by the Agent. |
(b) | if the Additional Obligor is incorporated in or has its centre of main interest in a jurisdiction other than England and Wales or is executing a Finance Document which is governed by a law other than English law, a legal opinion of the legal advisors to the Agent or, if customary market practice, to the Additional Obligor in the form distributed to the Lenders prior to signing the Accession Letter. |
14. | If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, evidence that the agent for service of process has accepted its appointment in relation to the proposed Additional Obligor. |
15. | Any Transaction Security Documents which are required by the Agent to be executed by the proposed Additional Obligor in substantially the same form and scope as the Transaction Security provided under Schedule 2 ( Conditions Precedent ) Part 1 ( Conditions Precedent to Initial Utilisation ) by an Obligor incorporated in the same jurisdiction as the Additional Obligor save in respect of any change in law or accepted market practice in that jurisdiction. |
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16. | Any notices or documents required to be given or executed under the terms of the Transaction Security Documents referred to in paragraph 15 above duly acknowledged by the addressees (to the extent required under such Security Documents or applicable law) and copies of all third party consents required in connection with the creation, perfection or registration of the Transaction Security Documents. |
17. | A copy of all share certificates, transfers and stock transfer forms or equivalent duly executed by the relevant Additional Obligor in blank in relation to the assets subject to or expressed to be subject to the Transaction Security created under the Transaction Security Documents to which such Additional Obligor is party and other documents of title which are required to be provided under such Transaction Security Documents endorsed with the name of the pledgee or chargee as applicable under applicable law together, where an endorsement is required, with a copy of the relevant register of members evidencing any endorsement required to create or perfect the Transaction Security. |
18. | A search in respect of each Additional Obligor at the Companies Registry or other applicable commercial register showing, to the extent such a search is capable of showing such information, no Security existing over its assets which are not permitted to exist under the Facilities Agreement and no appointment of a receiver, liquidator or administrator or the presentation of any petition or application in respect of any of the same (or any analogous procedure in any applicable jurisdiction). |
19. | The results of know your customer and other checks in relation to each Additional Obligor under the FSA Money Laundering Regulations, the Dutch Wet ter voorkoming van witwassen en financieren van terrorisme , the Patriot Act and any other applicable laws and regulations (including, but not limited to, the German Banking Act ( Kreditwesengesetz )) being satisfactory in all respects to the Agent. |
20. | In the case of a Spanish Obligor, evidence that this above referenced Accession Letter has been raised to the status of public Spanish public document by means of public deed granted before a Spanish Notary Public). The public deed raising the Accession Letter to the status of public document must reproduce in Spanish Clause 42 of this Agreement ( Special Provisions regarding enforcement under the Laws of Spain ), the confirmation of the personal guarantee granted by a Spanish Obligor under Clause 19 ( Guarantee and Indemnity ) of this Agreement and the granting of authority to the Agent under Clause 27 ( Role of the Agent and the Arranger ) of this Agreement. |
21. | In the event a Spanish Obligor becomes a Borrower under this Agreement, a financial transaction number ( número de operación financiera ) form PE-1 duly stamped by the Bank of Spain. |
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SCHEDULE 3
UTILISATION REQUEST
From: [[ Name of Borrower ] as Borrower ] [ Obligors Agent ]
To: [ ] as Agent
Dated:
Dear Sirs
Interxion Holding N.V. EUR 60,000,000 Facility Agreement
dated [ ] 2010 (the Agreement)
1. | We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request. |
2. | We wish to borrow a Loan on the following terms: |
Borrower: | [ ] | |
Proposed Utilisation Date: | [ ] (or, if that is not a Business Day, the next Business Day) | |
Currency: | [ ] | |
Amount: | [ ] or, if less, the Available Facility | |
Interest Period: | [ ] |
3. | We confirm that each condition specified in Clause 4.2 ( Further conditions precedent ) is satisfied on the date of this Utilisation Request. |
4. | The proceeds of this Loan should be credited to [ account ]. |
5. | This Utilisation Request is irrevocable. |
Yours faithfully |
authorised signatory for |
[ Name of Borrower ] [ Obligors Agent ] |
[ WARNING NOTE:
PLEASE ENSURE THAT THE SHARE OF EACH LENDER IN ANY UTILISATION IS AT LEAST EUR 50,000 (OR ITS EQUIVALENT IN ANOTHER CURRENCY). ANY LENDER WHO LENDS A LESSER AMOUNT SHOULD OTHERWISE CONFIRM THAT IT IS A PROFESSIONAL MARKET PARTY WITHIN THE MEANING OF THE DUTCH FSA .]
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SCHEDULE 4
MANDATORY COST FORMULAE
1. | The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank. |
2. | On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the Additional Cost Rate ) for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum. |
3. | The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Agent. This percentage will be certified by that Lender in its notice to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lenders participation in all Loans made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office. |
4. | The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Agent as follows: |
(a) | in relation to a sterling Loan: |
Ex 0/01 | per cent. per annum. | |
300 |
(b) | in relation to a Loan in any currency other than sterling: |
Where:
A. | is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements. |
B. | is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified in paragraph (a) of Clause 10.3 ( Default Interest ) payable for the relevant Interest Period on the Loan. |
C. | is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England. |
D. | is the percentage rate per annum payable by the Bank of England to the Agent on interest bearing Special Deposits. |
E. | is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Agent as being the average of the most recent rates of charge supplied by the Reference Banks to the Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000. |
5. | For the purposes of this Schedule: |
(a) | Eligible Liabilities and Special Deposits have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England; |
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(b) | Fees Rules means the rules on periodic fees contained in the Financial Services Authority Fees Supervision Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits; |
(c) | Fee Tariffs means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate); and |
(d) | Tariff Base has the meaning given to it in, and will be calculated in accordance with, the Fees Rules. |
6. | In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places. |
7. | If requested by the Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank. |
8. | Each Lender shall supply any information required by the Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information on or prior to the date on which it becomes a Lender: |
(a) | the jurisdiction of its Facility Office; and |
(b) | any other information that the Agent may reasonably require for such purpose. |
Each Lender shall promptly notify the Agent of any change to the information provided by it pursuant to this paragraph.
9. | The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Agent to the contrary, each Lenders obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility Office. |
10. | The Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects. |
11. | The Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above. |
12. | Any determination by the Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all Parties. |
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13. | The Agent may from time to time, after consultation with the Company and the Lenders, determine and notify to all Parties any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all Parties. |
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SCHEDULE 5
FORM OF TRANSFER CERTIFICATE 2
To: | [ ] as Agent for the Finance Parties (each as defined in the Facility Agreement referred to below); and |
[ ] as Security Trustee for itself and each of the other parties to the Intercreditor Agreement referred to below. |
From: | [ The Existing Lender ] (the Existing Lender ) and [ The New Lender ] (the New Lender ) |
Dated:
Interxion Holding N.V. EUR 60,000,000 Facility Agreement
dated [ ] 2010 (the Facility Agreement)
1. | We refer to the Facility Agreement and to the Intercreditor Agreement (as defined in the Facility Agreement). This agreement (the Agreement ) shall take effect as a Transfer Certificate for the purpose of the Facility Agreement and as a Creditor/Agent Accession Undertaking for the purposes of the Intercreditor Agreement (and as defined in the Intercreditor Agreement). Terms defined in the Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement. |
2. | We refer to Clause 25.6 ( Procedure for transfer ) of the Facility Agreement: |
(a) | The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lenders Commitment, rights and obligations referred to in the Schedule in accordance with Clause 25.6 ( Procedure for transfer ) of the Facility Agreement. |
(b) | The proposed Transfer Date is [ ]. |
(c) | The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 34.2 ( Addresses ) of the Facility Agreement are set out in the Schedule. |
3. | The New Lender expressly acknowledges the limitations on the Existing Lenders obligations set out in paragraph (c) of Clause 25.5 ( Limitation of responsibility of Existing Lenders ) of the Facility Agreement. |
4. | The New Lender hereby confirms that it has received a copy of each of the Transaction Security Documents which are governed by German law and are pledges, is aware of their contents and hereby expressly consents to the declarations of the Security Trustee made on behalf of the New Lender as future pledgee in such Transaction Security Documents |
5. | In consideration of the New Lender being accepted as a Revolving Lender for the purposes of the Intercreditor Agreement (and as defined therein), the New Lender confirms that, as from the Transfer Date, it intends to be party to the Intercreditor Agreement as a Revolving Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Revolving Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement as if it had been an original party to the Intercreditor Agreement. |
2 |
The New Lender may, in the case of a transfer of rights by the Existing Lender under this Transfer Certificate, if it considers it necessary to make the transfer effective against third parties, arrange for it to be notified by way of signification to the French Guarantors in accordance with article 1690 of the French Code civil. |
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6. | The benefit of the Transaction Security shall be maintained in favour of the New Lender, without prejudice to the limitations set out in Clause 25.5 ( Limitation of responsibility of Existing Lenders ). |
7. | This Agreement acts as an assignment of the Existing Lenders rights as a Secured Party of any Transaction Security governed by Danish law which corresponds to the portion of the Existing Lenders Commitments and participation in Loans under the Facility Agreement transferred pursuant to paragraph 2(a) above. |
8. | In accordance with Clause 25.6 (d) of the Facility Agreement, for the purposes of Article 1278 et seq. of the French Code Civil, it is agreed that the guarantees and security created by the Finance Documents shall be preserved for the benefit of the New Lender and each other Lender. |
9. | [ The New Lender expressly confirms that it [can/cannot] exempt (i) the Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) as provided for in paragraph (c) of Clause 27.1 (Appointment of the Agent) and (ii) the Security Trustee from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) as provided for in paragraph (c) of Clause 28.2 (Security Trustees rights relating to German law Transaction Security) .] |
10. | This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement. |
11. | This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
12. | This Agreement has been executed and delivered as a deed on the date stated at the beginning of this Agreement. |
Note: | The execution of this Agreement may not transfer a proportionate share of the Existing Lenders interest in the Transaction Security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lenders Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities. |
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THE SCHEDULE
Commitment/rights and obligations to be transferred
[ insert relevant details ]
[ Facility Office address, fax number and attention details for notices and account details for payments, ]
[ Existing Lender ] | [ New Lender ] | |||||||
By: | By: |
This Agreement is accepted by the Agent and the Transfer Date is confirmed as [ ].
[ Agent ] | ||
By: |
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SCHEDULE 6
FORM OF ASSIGNMENT AGREEMENT
To: | [ ] as Agent for the Finance Parties (each as defined in the Facility Agreement referred to below); and |
[ ] as Security Trustee for itself and each of the other parties to the Intercreditor Agreement referred to below. |
From: | [ The Existing Lender ] (the Existing Lender ) and [ The New Lender ] (the New Lender ). |
Dated:
Interxion Holding N.V. EUR 60,000,000 Facility Agreement
dated [ ] 2010 (the Facility Agreement)
1. | We refer to the Facility Agreement and to the Intercreditor Agreement (as defined in the Facility Agreement). This agreement (the Agreement ) shall take effect as an Assignment Agreement for the purpose of the Facility Agreement and as a Creditor/Agent Accession Undertaking for the purposes of the Intercreditor Agreement (and as defined in the Intercreditor Agreement). Terms defined in the Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement. |
We refer to Clause 25.7 ( Procedure for assignment ) of the Facilities Agreement.
(a) | The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Facilities Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lenders Commitments and participations in Loans under the Facilities Agreement as specified in the Schedule. |
(b) | The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lenders Commitments and participations in Loans under the Facilities Agreement specified in the Schedule. |
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above. 3 |
(d) | The proposed Transfer Date is [ ]. |
(i) | On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender; and |
(ii) | Party to the Intercreditor Agreement as a Revolving Lender. |
(e) | The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 34.2 ( Addresses ) are set out in the Schedule. |
2. | The New Lender expressly acknowledges the limitations on the Existing Lenders obligations set out in paragraph (c) of Clause 25.5 ( Limitation of responsibility of Existing Lenders ) of the Facilities Agreement. |
3 |
If the Assignment Agreement is used in place of a Transfer Certificate in order to avoid a novation of rights/obligations for reasons relevant to a civil jurisdiction, local law advice should be sought to check the suitability of the Assignment Agreement due to the assumption of obligations contained in paragraph 2(c). |
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3. (a) | In consideration of the New Lender being accepted as a Revolving Lender for the purposes of (and as defined in) the Intercreditor Agreement, the New Lender confirms that, as from the Transfer Date, it intends to be party to the Intercreditor Agreement as a Revolving Lender (as defined therein), and undertakes to perform all obligations expressed in the Intercreditor Agreement to be assumed by a Revolving Lender (as defined therein) and agrees that it shall be bound by all the provisions of the Intercreditor Agreement as it if had been an original party to the Intercreditor Agreement. |
(b) | This Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 25.8 ( Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to the Obligors Agent ), to the Obligors Agent (on behalf of each Obligor) of the assignment referred to in this Agreement. |
4. | The New Lender hereby expressly consents to the declarations of the Security Trustee made on behalf and in the name of the New Lender as future pledgee or chargee in the Transaction Security Documents and the New Lender confirms that it is aware of the contents of such Transaction Security Documents. For the purposes of any accessory ( akzessorisch ) Security created under German law (an Accessory Security ), the New Lender acknowledges that it will, from the Transfer Date and pro rata to its participation in the amounts secured by such Accessory Security, become a direct beneficiary of the relevant Accessory Security. |
5. | The benefit of the Transaction Security shall be maintained in favour of the New Lender, without prejudice to the limitations set out in Clause 25.5 ( Limitation of responsibility of Existing Lenders ). |
6. | Each of the Agent and Security Trustee acting for and on behalf of the New Lender under or in connection with the Finance Documents shall be released from the restrictions of section 181 of the German Civil Code (BGB) and from similar restrictions in other jurisdictions, i.e. restrictions of self-contracting and restrictions in representing several parties at the same time. |
7. | This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement. |
8. | This Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law. |
9. | This Agreement has been executed and delivered as a deed on the date stated at the beginning of this Agreement. |
Note: | The execution of this Agreement may not transfer a proportionate share of the Existing Lenders interest in the Transaction Security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lenders Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities. |
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THE SCHEDULE
Commitment/rights and obligations to be transferred by assignment, release and accession
[ insert relevant details ]
[ Facility office address, fax number and attention details for notices and account details for payments ]
[ Existing Lender ] | [ New Lender ] | |||||||
By: | By: |
This Agreement is accepted as an Assignment Agreement for the purposes of the Facilities Agreement by the Agent, and as a Creditor/Representative Accession Undertaking for the purposes of the Intercreditor Agreement by the Security Trustee , and the Transfer Date is confirmed as [ ].
Signature of this Agreement by the Agent constitutes confirmation by the Agent of receipt of notice of the assignment referred to in this Agreement, which notice the Agent receives on behalf of each Finance Party.
[ Agent ] | ||
By: | ||
[ Security Trustee ] | ||
By: |
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SCHEDULE 7
FORM OF ACCESSION LETTER
To: | [ ] as Agent for the Finance Parties (each as defined in the Facility Agreement referred to below); and |
[ ] as Security Trustee for itself and each of the other parties to the Intercreditor Agreement referred to below. |
From: | [ Subsidiary ] and Interxion Holding N.V. |
Dated: |
Dear | Sirs |
Interxion Holding N.V. EUR 60,000,000 Facility Agreement
dated [ ] 2010 (the Facility Agreement)
1. | We refer to the Facility Agreement and to the Intercreditor Agreement. This deed (the Accession Letter ) shall take effect as an Accession Letter for the purposes of the Facility Agreement and as a Debtor Accession Deed for the purposes of the Intercreditor Agreement (and as defined in the Intercreditor Agreement). Terms defined in the Facility Agreement have the same meaning in paragraphs 1 to 3 of this Accession Letter unless given a different meaning in this Accession Letter. |
2. | [[ Subsidiary ] agrees to become an Original Guarantor and to be bound by the terms of the Facility Agreement and the other Finance Documents (other than the Intercreditor Agreement) as an Original Guarantor pursuant to Clause 4.1 ( Initial conditions precedent ) of the Facility Agreement. [ Subsidiary ] is a company duly incorporated under the laws of [ name of relevant jurisdiction ] and is a limited liability company and registered number [ ].] |
[[ Subsidiary ] agrees to become an Additional [ Borrower ] / [ Guarantor ] and to be bound by the terms of the Facility Agreement and the other Finance Documents (other than the Intercreditor Agreement) as an Additional [ Borrower ] / [ Guarantor ] pursuant to [ Clause 26.2 (Additional Borrower) ] / [ Clause 26.4 (Additional Guarantors) ] of the Facility Agreement. [ Subsidiary ] is a company duly incorporated under the laws of [ name of relevant jurisdiction ] and is a limited liability company and registered number [ ].]
[ insert guarantee limitation language as appropriate for jurisdiction of incorporation of [Original] / [Additional] Guarantor if not already included in the Facility Agreement ].
3. | [ Subsidiarys ] administrative details for the purposes of the Facility Agreement and the Intercreditor Agreement are as follows: |
Address:
Fax No.:
Attention:
4. | [ Subsidiary ] (for the purposes of this paragraph 4, the Acceding Debtor ) intends to [ incur Liabilities under the following documents ]/[ give a guarantee, indemnity or other assurance against loss in respect of Liabilities under the following documents ]: |
[ Insert details (date, parties and description) of relevant documents ]
the Relevant Documents .
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IT IS AGREED as follows:
(a) | Terms defined in the Intercreditor Agreement shall, unless otherwise defined in this Accession Letter, bear the same meaning when used in this paragraph 4. |
(b) | The Acceding Debtor and the Security Trustee agree that the Security Trustee shall hold: |
(i) | [ any Security in respect of Liabilities created or expressed to be created pursuant to the Relevant Documents; |
(ii) | all proceeds of that Security; and ] |
(iii) | all obligations expressed to be undertaken by the Acceding Debtor to pay amounts in respect of the Liabilities to the Security Trustee (in the Relevant Documents or otherwise) and secured by the Transaction Security together with all representations and warranties expressed to be given by the Acceding Debtor (in the Relevant Documents or otherwise) in favour of the Security Trustee, |
[ on trust for the Secured Parties ] on the terms and conditions contained in the Intercreditor Agreement.
(c) | The Acceding Debtor confirms that it intends to be party to the Intercreditor Agreement as a Debtor, undertakes to perform all the obligations expressed to be assumed by a Debtor under the Intercreditor Agreement and agrees that it shall be bound by all the provisions of the Intercreditor Agreement as if it had been an original party to the Intercreditor Agreement. |
(d) | [ In consideration of the Acceding Debtor being accepted as an Intra-Group Lender for the purposes of the Intercreditor Agreement, the Acceding Debtor also confirms that it intends to be party to the Intercreditor Agreement as an Intra-Group Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by an Intra-Group Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement ]. |
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
THIS ACCESSION LETTER has been signed on behalf of the Security Trustee (for the purposes of paragraph 4 above only) and signed on behalf of the Obligors Agent and executed as a deed by [ Subsidiary ] and is delivered on the date stated above.
[ Subsidiary ]
EXECUTED AS A DEED
[ Subsidiary ]
By: | ||||||||
in the presence of | Signature of Witness | |||||||
Name of Witness | ||||||||
Address of Witness | ||||||||
Occupation of Witness |
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Interxion Holding N.V. | ||
By: | ||
[ Security Trustee ] | ||
By: |
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SCHEDULE 8
FORM OF RESIGNATION LETTER
To: | [ ] as Agent |
From: | [ resigning Obligor ] and Interxion Holding N.V. |
Dated: |
Dear Sirs |
Interxion Holding N.V. EUR 60,000,000 Facility Agreement
dated [ ] 2010 (the Agreement)
1. | We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter. |
2. | Pursuant to [ Clause 26.3 (Resignation of a Borrower) ] / [ Clause 26.5 (Resignation of a Guarantor) ], we request that [ resigning Obligor ] be released from its obligations as a [ Borrower ] / [ Guarantor ] under the Agreement and the Finance Documents. |
3. | We confirm that: |
(a) | no Default is continuing or would result from the acceptance of this request; and |
(b) | [ ], |
4. | This Resignation Letter and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law. |
Interxion Holding N.V. | [ resigning Obligor ] | |||||||
By: | By: | |||||||
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SCHEDULE 9
FORM OF COMPLIANCE CERTIFICATE
To: | [ ] as Agent |
From: | Interxion Holding N.V. |
Dated: |
Dear Sirs |
Interxion Holding N.V. EUR 60,000,000 Facility Agreement
dated [ ] 2010 (the Agreement)
1. | We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate. |
2. | We confirm that as at the date of this certificate, the Company is in compliance with the financial covenants set out in Clause 22.2 ( Financial condition ) of the Facility Agreement and the Schedule hereto attaches calculations confirming this. |
3. | We confirm that Leverage is [ ]:1 and that, therefore, the Margin should be [ ]%. |
4. | [ Include in Compliance Certificate delivered with Annual Financial Statements ] We confirm that the Company is in compliance with the capital expenditure requirements set out in Clause 22.3 ( Capital expenditure ) of the Facility Agreement and the Schedule hereto attaches calculations confirming this. |
5. | [ Include in Compliance Certificate delivered with Annual Financial Statements ] We confirm that as at the date of this certificate the following companies constitute Material Companies or Dormant Subsidiaries for the purposes of the Facility Agreement: [ ]. |
We confirm that (i) the aggregate of earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) of the Guarantors (excluding HQ) is at least equal to 90 per cent. of the consolidated Adjusted EBITDA of the Group (including HQ) and (ii) the aggregate gross assets of the Guarantors (calculated on an unconsolidated basis and excluding all intra-Group items and investments in Subsidiaries of any member of the Group) is at least equal to 70 per cent. of consolidated gross assets of the Group.
6. | We confirm that no Default is continuing. [ If this statement cannot be made, the certificate should identify the Default that is continuing and the steps, if any, being taken to remedy it. ] |
Signed: | ||||||||
Director of the Company | Director of the Company |
[ insert applicable certification language ] |
for and on behalf of [ name of auditors of the Company ] |
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SCHEDULE 10
LMA FORM OF CONFIDENTIALITY UNDERTAKING
To: | [ insert name of Potential Lender ] |
Re: | Interxion Holding N.V. EUR 60,000,000 Facility Agreement |
dated [ ] 2010 (the Facilities) |
Company: | Interxion Holding N.V. (the Company ) |
Amount:
Agent:
Dear Sirs,
We understand that you are considering participating in the Facilities. In consideration of us agreeing to make available to you certain information, by your signature of a copy of this letter you agree as follows:
1. | Confidentiality Undertaking |
You undertake:
(a) | to keep the Confidential Information confidential and not to disclose it to anyone except as provided for by paragraph 2 below and to ensure that the Confidential Information is protected with security measures and a degree of care that is at least the same as that which would apply to your own similar confidential information; |
(b) | to keep confidential and not disclose to anyone except as provided for by paragraph 2 below the fact that the Confidential Information has been made available or that discussions or negotiations are taking place or have taken place between us in connection with the Facilities; |
(c) | to use the Confidential Information only for the Permitted Purpose; and |
(d) | to use all reasonable endeavours to ensure that any person to whom you pass any Confidential Information (unless disclosed under paragraph 2(b) below) acknowledges and complies with the provisions of this letter as if that person were also a party to it. |
2. | Permitted Disclosure |
We agree that you may disclose Confidential Information and those matters referred to in paragraph 1(b) above:
(a) | to members of the Participant Group and their officers, directors, employees, professional advisers and auditors to the extent necessary for the Permitted Purpose and to any auditors of members of the Participant Group if any person to whom the Confidential Information is to be given pursuant to this paragraph 2(a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information, except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information; |
(b) |
(i) where requested or required by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body, (ii) where required by the rules of any stock exchange on which the shares or other securities of any member of the Participant Group are listed or (iii) where required by the laws or regulations of any country with |
150
jurisdiction over the affairs of any member of the Participant Group provided that, prior to any disclosures under any of the preceding clauses you shall give, if legally permitted, advance written notice to us so that we may determine whether to seek to void such required disclosure or take any other remedy; |
(c) | notwithstanding paragraphs 2(a) and 2(b) above, Confidential Information to such persons to whom, and on the same terms as, a Finance Party is permitted to disclose Confidential Information under the Agreement, as if such permissions were set out in full in this letter and as if references in those permissions to Finance Party were references to you; or |
(d) | with the prior written consent of us and the Company. |
3. | Notification of Required or Unauthorised Disclosure |
You agree (to the extent permitted by law and except where disclosure is to be made to any competent supervisory or regulatory body during the ordinary course of its supervisory or regulatory function over you) to inform us of the full circumstances of any disclosure under paragraph 2(b) or upon becoming aware that Confidential Information has been disclosed in breach of this letter.
4. | Return of Copies |
If we so request in writing, you shall return all Confidential Information supplied to you by us and destroy or permanently erase (to the extent technically practicable) all copies of Confidential Information made by you and use all reasonable endeavours to ensure that anyone to whom you have supplied any Confidential Information destroys or permanently erases (to the extent technically practicable) such Confidential Information and any copies made by them, in each case save to the extent that you or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with internal policy, or where the Confidential Information has been disclosed under paragraph 2(b) above.
5. | Continuing Obligations |
The obligations in this letter are continuing and, in particular, shall survive the termination of any discussions or negotiations between you and us. Notwithstanding the previous sentence, the obligations in this letter shall cease on the earlier of (a) the date you become a party to or otherwise acquire (by assignment or otherwise) a direct interest in the Facilities or (b) twelve months after you have returned all Confidential Information supplied to you by us and destroyed or permanently erased (to the extent technically practicable) all copies of Confidential Information made by you (other than any such Confidential Information or copies which have been disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or which, pursuant to paragraph 4 above, are not required to be returned or destroyed) or (c) twelve months after the date of this letter.
6. | No Representation; Consequences of Breach, etc |
You acknowledge and agree that:
(a) | neither we nor any of our officers, employees or advisers (each a Relevant Person ) (i) make any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or any other information supplied by us or any member of the Group or the assumptions on which it is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential Information or any other information supplied by us or any member of the Group or be otherwise liable to you or any other person in respect to the Confidential Information or any such information; and |
151
(b) | we or members of the Group may be irreparably harmed by the breach of the terms of this letter and damages may not be an adequate remedy; each Relevant Person or member of the Group may be granted an injunction or specific performance for any threatened or actual breach of the provisions of this letter by you. |
7. | Entire Agreement; No Waiver; Amendments, etc |
7.1 | This letter constitutes the entire agreement between us in relation to your obligations regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information. |
7.2 | No failure or delay in exercising any right or remedy under this letter will operate as a waiver thereof nor will any single or partial exercise of any right or remedy preclude any further exercise thereof or the exercise of any other right or remedy under this letter. |
7.3 | The terms of this letter and your obligations under this letter may only be amended or modified by written agreement between us. |
8. | Inside Information |
You acknowledge that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and you undertake not to use any Confidential Information for any unlawful purpose.
9. | Nature of Undertakings |
The undertakings given by you under this letter are given to us and (without implying any fiduciary obligations on our part) are also given for the benefit of the Company and each other member of the Group.
10. | Third party rights |
(a) | Subject to this paragraph 10 and to paragraphs 6 and 9, a person who is not a party to this letter has no right under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Act ) to enforce or to enjoy the benefit of any terms of this letter. |
(b) | The Relevant Persons and each member of the Group may enjoy the benefit of the terms of paragraphs 6 and 9 subject to and in accordance with this paragraph 10 and the provisions of the Third Parties Act. |
(c) | Notwithstanding any provisions of this letter, the parties to this letter do not require the consent of any Relevant Person or any member of the Group to rescind or vary this letter at any time. |
11. | Governing Law and Jurisdiction |
(a) | This letter and the agreement constituted by your acknowledgement of its terms (the Letter ) and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Letter) are governed by English law. |
(b) | The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Letter (including a dispute relating to any non-contractual obligation arising out of or in connection with either this Letter or the negotiation of the transaction contemplated by this Letter). |
152
12. | Definitions |
In this letter (including the acknowledgement set out below):
Confidential Information means any information relating to the Company, the Group, and the Facilities provided to you by us or any of our affiliates or advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that (a) is or becomes public knowledge other than as a direct or indirect result of any breach of this letter or (b) is known by you before the date the information is disclosed to you by us or any of our affiliates or advisers or is lawfully obtained by you after that date, other than from a source which is connected with the Group and which, in either case, as far as you are aware, has not been obtained in violation of, and is not otherwise subject to, any obligation of confidentiality.
Group means the Company, each of its subsidiaries and group companies, each company of which the Company is a subsidiary and each of such companys subsidiaries and group companies (as such terms are defined in sections 2:24a and 24b of the Dutch Civil Code ( Burgerlijk Wetboek ).
Participant Group means you, each of your holding companies and group companies, each company of which you are a subsidiary and each of such companys subsidiaries and group companies (as such terms are defined in sections 2:24a and 24b of the Dutch Civil Code ( Burgerlijk Wetboek ).
Permitted Purpose means considering and evaluating whether to enter into the Facilities.
Please acknowledge your agreement to the above by signing and returning the enclosed copy.
Yours faithfully |
For and on behalf of [ Bank ] |
To: [ Bank ]
Interxion Holding N.V.
We acknowledge and agree to the above: |
For and on behalf of [ Potential Lender ] |
153
SCHEDULE 11
TIMETABLES
Loans in Euro |
Loans in sterling |
Loans in other currencies |
||||
Approval as an Optional Currency, if required (Clause 4.3 ( Conditions relating to Optional Currencies )) |
||||||
Agent notifies the Obligors Agent if a currency is approved as an Optional Currency in accordance with Clause 4.3 ( Conditions relating to Optional Currencies ) | | | U-4 | |||
Delivery of a duly completed Utilisation Request (Clause 5.1 ( Delivery of a Utilisation Request )) |
U-3
11:00 a.m. |
U-1
11:00 a.m. |
U-3
11:00 a.m. |
|||
Agent determines (in relation to a Utilisation) the Base Currency Amount of the Loan, if required under Clause 5.4 ( Lenders participation ) |
U-3
Noon |
U-1
Noon |
U-3
Noon |
|||
Agent notifies the Lenders of the Loan in accordance with Clause 5.4 ( Lenders participation ) |
U-3
3:00 p.m. |
U-1
3:00 p.m. |
U-2
3:00 p.m. |
|||
Agent receives a notification from a Lender under Clause 6.2 ( Unavailability of a currency ) |
Quotation day
9:30 a.m. |
9:30 a.m. |
Quotation Day
9:30 a.m. |
|||
Agent gives notice in accordance with Clause 6.2 ( Unavailability of a currency ) |
Quotation day
5:30 p.m. |
|
Quotation Day
5:30 p.m. |
|||
LIBOR or EURIBOR is fixed | Quotation Day as of 11:00 a.m. (London time) in respect of LIBOR and as of 11:00 a.m. (Brussels time) in respect of EURIBOR | Quotation Day as of 11:00 a.m. | Quotation Day as of 11:00 a.m. |
U = date of utilisation
U - X = X Business Days prior to date of utilisation
154
SCHEDULE 12
INITIAL TRANSACTION SECURITY DOCUMENTS
1. | Transaction Security Documents |
(a) | The following share security: |
(i) | a share pledge agreement in relation to the shares in Interxion HeadQuarters B.V. made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(ii) | a share pledge agreement in relation to the shares in Interxion Nederland B.V. made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(iii) | a share pledge agreement in relation to the shares in Interxion France SARL made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(iv) | a share pledge agreement in relation to the shares in Interxion Deutschland GmbH made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(v) | a notarised deed of share pledge agreement in relation to the shares in Interxion España S.L. made between Interxion Holding N.V. as pledgor and the Security Trustee and the Lenders; |
(vi) | a share pledge agreement in relation to the shares in Interxion Carrier Hotel Limited made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(vii) | a share pledge agreement in relation to the shares in Interxion Belgium N.V. made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(viii) | a share charge agreement in relation to the shares in Interxion Ireland Limited made between Interxion Holding N.V. as chargor and the Security Trustee; and |
(ix) | a share pledge agreement in relation to the shares in Interxion Danmark ApS made between Interxion Holding N.V. as pledgor, the secured parties listed therein and the Security Trustee. |
(b) | Security granted to the Security Trustee (and in relation to a Danish Guarantor, the secured parties listed in the relevant Transaction Security Document) by the Company and each other Guarantor over its rights in respect of any inter-company loan receivables owed to it by any member of the Group. |
(c) | Security granted to the Security Trustee (and in relation to a Danish Guarantor, the secured parties listed in the relevant Transaction Security Document) by the Company and each other Guarantor over all its banks accounts other than any bank account that is a blocked account with a bank that has provided a guarantee or other assurance against loss on behalf of an Obligor in respect of rental lease or supplier payments including those bank accounts listed in Schedule 16 ( Continuing Security ). |
2. | Where applicable in the relevant jurisdiction, the original share certificates in respect of each of the companies listed at paragraphs (a)(i) to (ix) above whose shares are pledged pursuant to the Transaction Security Documents. |
3. | A certificate delivered by the Sole Director of Interxion España S.L. certifying that the share pledge at paragraph (a)(v) above has been duly recorded in the registry book of shareholders ( Libro Registro de Socios ) of Interxion España S.L. |
155
4. | In respect of the share pledge agreement listed at paragraph (a)(vi) above, a duly executed blank stock transfer form in respect of the shares of Interxion Carrier Hotel Limited. |
5. | In respect of the share charge agreement listed at paragraph (a)(viii) above, a duly executed blank stock transfer form in respect of the shares of Interxion Ireland Limited. |
156
SCHEDULE 13
FORM OF INCREASE CONFIRMATION
To: | [ ] as Agent for the Finance Parties (each as defined in the Facility Agreement referred to below); |
[ ] as Security Trustee for itself and each of the other parties to the Intercreditor Agreement referred to below; and |
[ ] and Interxion Holding N.V. as Obligors Agent, for and on behalf of each Obligor |
From: | [ the Increase Lender ] (the Increase Lender ) |
Dated: |
Interxion Holding N.V. EUR 60,000,000 Facility Agreement
dated [ ] 2010 (the Facility Agreement)
1. | We refer to the Facility Agreement and to the Intercreditor Agreement (as defined in the Facility Agreement). This agreement (the Agreement ) shall take effect as an Increase Confirmation for the purpose of the Facility Agreement and as a Creditor/Agent Accession Undertaking for the purposes of the Intercreditor Agreement (and as defined in the Intercreditor Agreement). Terms defined in the Facility Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement. |
2. | We refer to clause 2.2 ( Increase ) of the Facility Agreement. |
3. | The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the Relevant Facility Commitment ) as if it was an Original Lender under the Facility Agreement. |
4. | The proposed date on which the increase in relation to the Increase Lender and the Relevant Facility Commitment is to take effect (the Increase Date ) is [ ]. |
5. | On the Increase Date, the Increase Lender becomes: |
(a) | party to the relevant Finance Documents (other than the Intercreditor Agreement) as a Lender; and |
(b) | party to the Intercreditor Agreement as a Revolving Lender. |
6. | The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of Clause 34.2 ( Addresses ) are set out in the Schedule. |
7. | The Increase Lender expressly acknowledges the limitations on the Lenders obligations referred to in paragraph (f) of Clause 2.2 ( Increase ). |
8. | [ The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either: |
(a) | a company resident in the United Kingdom for United Kingdom tax purposes; or |
(b) | a partnership each member of which is: |
(i) | a company so resident in the United Kingdom; or |
157
(ii) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or |
(c) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company .] 4 |
9. | In consideration of the Increase Lender being accepted as a Revolving Lender for the purposes of the Intercreditor Agreement (and as defined in the Intercreditor Agreement), the Increase Lender confirms that, as from the Increase Date, it intends to be party to the Intercreditor Agreement as a Revolving Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Revolving Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement. |
10. | This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement. |
11. | This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
12. | This Agreement has been executed and delivered as a deed on the date stated at the beginning of this Agreement. |
Note: | The execution of this Increase Confirmation may not be sufficient for the Increase Lender to obtain the benefit of the Transaction Security in all jurisdictions. It is the responsibility of the Increase Lender to ascertain whether any other documents or other formalities are required to obtain the benefit of the Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities. |
4 | Include only if New Lender is a UK Non-Bank Lender, i.e. falls within paragraph (i)(B) of the definition of Qualifying Lender in Clause 18.1 ( Definitions ). |
158
THE SCHEDULE
Relevant Facility Commitment/rights and obligations to be assumed by the Increase Lender
[ insert relevant details ]
[ Facility office address, fax number and attention details for notices and account details for payments ]
[ Increase Lender ]
By: | ||
This Agreement is accepted as an Increase Confirmation for the purposes of the Facility Agreement by the Agent, and as a Creditor/Agent Accession Undertaking for the purposes of the Intercreditor Agreement by the Security Trustee and the Increase Date is confirmed as [ ].
Agent
By: | ||
Security Trustee
By: | ||
159
SCHEDULE 14
ALTERNATIVE REFERENCE BANKS
Part 1
Alternative Reference Banks in relation to Loans in currencies other than Euro
Barclays Bank PLC
Citibank N.A., London Branch
Bank of America, N.A. (London Branch)
Fortis Bank (Nederland) N.V.
160
Part 2
Alternative Reference Banks in relation to Loans in Euro
Barclays Bank PLC
Citibank N.A., London Branch
Bank of America, N.A. (London Branch)
Fortis Bank (Nederland) N.V.
161
SCHEDULE 15
CONTINUING FINANCING AGREEMENTS
Part 1
Financial Indebtedness
Country |
Type | Fund provider | Use of funds | Date of facility |
Current
|
|||||||||||||
Denmark |
||||||||||||||||||
Supplier | Codorus | Chiller | 18/04/2006 | EUR 74,240 | ||||||||||||||
Lease | Nordania | Generator | 19/02/2007 | DKK 1,397,613 | ||||||||||||||
Lease | Nordania | UPS | 19/02/2007 | DKK 1,729,008 | ||||||||||||||
Lease | Nordania | Chiller | 09/07/2007 | DKK 1,313,420 | ||||||||||||||
Austria |
||||||||||||||||||
Bank | ERSTE Bank | CAPEX | 12/12/2005 | EUR 177,833 | ||||||||||||||
Lease | S Leasing | CAPEX | 12/07/2006 | EUR 518,460 | ||||||||||||||
France |
||||||||||||||||||
Lease | AMGE | Generator | 05/05/2006 | EUR 51,847 | ||||||||||||||
Lease | AMGE | 2x Generator | 05/07/2005 | EUR 366,921 | ||||||||||||||
Germany |
||||||||||||||||||
Supplier | MJS | Chiller FRA 4 | 28/02/2007 | EUR 39,188 | ||||||||||||||
Supplier | MJS | Chiller FRA 3 | 09/03/2007 | EUR 121,784 | ||||||||||||||
Supplier | MJS | Chiller FRA 3 | EUR 395,351 | |||||||||||||||
Landlord | DIFA | CAPEX | 23/11/2004 | EUR 1,605,152 | ||||||||||||||
Switzerland |
||||||||||||||||||
Landlord | Alpine Finanz | Loan | 16/03/2009 | CHF 6,422,727 |
162
Part 2
Guarantees
Country |
Beneficiary | Use of funds | Balance - local currency | Balance (EUR) | ||||
Switzerland |
Landlord | Rental guarantee | CHF 690,558 | EUR 456,718 | ||||
Switzerland |
Landlord | Loan guarantee | CHF 690,000 | EUR 456,349 | ||||
Denmark |
Landlord | Rental guarantee | DKK 1,770,375 | EUR 237,762 | ||||
Denmark |
Supplier | CAPEX | EUR 3,200,000 | EUR 3,200,000 | ||||
Germany |
Landlord | Rental guarantee | EUR 942,055 | EUR 942,055 | ||||
Germany |
Landlord | Rental guarantee | EUR 401,772 | EUR 401,772 | ||||
Netherlands |
Landlord | Rental guarantee | EUR 296,944 | EUR 296,944 | ||||
Netherlands |
Landlord | Rental guarantee | EUR 662,831 | EUR 662,831 | ||||
Belgium |
Landlord | Rental guarantee | EUR 167,963 | EUR 167,963 | ||||
Austria |
Landlord | Rental guarantee | EUR 189,041 | EUR 189,041 | ||||
Spain |
Tax office | Guarantee for licence fee | EUR 427,349 | EUR 427,349 | ||||
Spain |
Customer | Guarantee to customer | EUR 211,770 | EUR 211,770 |
163
SCHEDULE 16
CONTINUING SECURITY
Country |
Type |
Reason |
Designation (a/c no.) |
Total Principal Amount
|
||||
Denmark |
Pledge on related equipment | Loan | EUR 29,840 | |||||
Austria |
Pledge on related equipment | Loan | EUR 121,250 | |||||
Germany |
Pledge on related equipment | Loan | EUR 13,361 | |||||
Germany |
Pledge on related equipment | Loan | EUR 67,724 | |||||
Switzerland |
Blocked cash at bank account | Rent |
RBS/AAMRO (572228856) |
CHF 690,558 | ||||
Switzerland |
Blocked cash at bank account | Loan | Fortis NL (243495064) | CHF 690,000 | ||||
Denmark |
Blocked cash at bank account | Rent |
RBS/AAMRO (572234163) |
DKK 1,770,375 | ||||
Multiple |
Blocked cash at bank account | Rent |
RBS/AAMRO (573829012) |
EUR 1,610,345 | ||||
Germany |
Blocked cash at bank account | Rent | Frankfurter Sparkasse (1245328903) | EUR 401,772 | ||||
Netherlands |
Blocked cash at bank account | Rent | Fortis NL (243096429) | EUR 220,150 | ||||
Netherlands |
Blocked cash at bank account | Customers | Fortis NL (0243154771) | EUR 2,816,024 | ||||
Spain |
Blocked cash at bank account | Tax/Legal | La Caixa (03000031820) | EUR 256,409 | ||||
Spain |
Blocked cash at bank account | Customer | La Caixa (3000082640 + 50000006301) | EUR 211,770 |
164
SCHEDULE 17
DORMANT SUBSIDIARIES
Name of Company |
Jurisdiction of Incorporation |
Registration number (or
equivalent, if any) |
||
Interxion Telecom Ltd |
United Kingdom | 03721595 | ||
Interxion Europe Ltd |
United Kingdom | 04157840 | ||
Centennium Detachering BV |
Netherlands | 27174186 | ||
Interxion BV |
Netherlands | 34153400 | ||
Interxion Consultancy Services BV |
Netherlands | 34136516 | ||
Interxion Trading BV |
Netherlands | 33303298 | ||
Interxion Telecom BV |
Netherlands | 33303297 |
Each of the companies identified in the table above is a 100% wholly owned Subsidiary of the Company.
165
SIGNATURES
THE ORIGINAL BORROWER, AN ORIGINAL GUARANTOR AND THE COMPANY
INTERXION HOLDING N.V.
Executed by: | /s/ D. C. Ruberg | |
Acting by: |
Notice Details
Address: | Tupolevlaan 24,1119 NX Schiphol-Rijk, The Netherlands | |
Facsimile: | +31 (0) 2088807601 | |
Attention: | D. C. Ruberg |
THE MANDATED LEAD ARRANGERS
BARCLAYS BANK PLC
Executed by: | /s/ Niels Pedersen | |
Acting by: | Niels Pedersen |
CITIGROUP GLOBAL MARKETS LIMITED
Executed by: | /s/ Yannick Perreve | |
Acting by: | Yannick Perreve |
FORTIS BANK (NEDERLAND) N.V.
Executed by: | /s/ J. de Vries | /s/ I.L.F. Kalthoff | ||||
Acting by: | J. de Vries | I.L.F. Kalthoff |
MERRILL LYNCH INTERNATIONAL
Executed by: | /s/ P.B. Moralek | |
Acting by: |
P.B. Moralek |
CREDIT SUISSE AG, LONDON BRANCH
Executed by: | /s/ Paul Kelly | /s/ Thomas Musio | ||||
Acting by: | Paul Kelly | Thomas Musio | ||||
Managing Director | Managing Director |
JEFFERIES FINANCE LLC
Executed by: | /s/ E. J. Hess | |
Acting by: | E. J. Hess | |
Managing Director |
THE ORIGINAL LENDERS
BANK OF AMERICA, N.A. (LONDON BRANCH)
Executed by: | /s/ Kate Davey | (Kate Davey, SVP) | ||||||
Acting by: |
BARCLAYS BANK PLC
Executed by: | /s/ Niels Pedersen | |
Acting by: | Niels Pedersen |
CITIBANK N.A., LONDON BRANCH
Executed by: | /s/ Yannick Perreve | |
Acting by: | Yannick Perreve |
FORTIS BANK (NEDERLAND) N.V.
Executed by: | /s/ J. de Vries | /s/ I.L.F. Kalthoff | ||||
Acting by: | J. de Vries | I.L.F. Kalthoff |
CREDIT SUISSE AG, LONDON BRANCH
Executed by: | /s/ Paul Kelly | /s/ Thomas Musio | ||||
Acting by: | Paul Kelly | Thomas Musio | ||||
Managing Director | Managing Director |
JEFFERIES FINANCE LLC
Executed by: | /s/ E. J. Hess | |
Acting by: | E. J. Hess | |
Managing Director |
ORIGINAL HEDGE COUNTERPARTY
BARCLAYS BANK PLC
By: | /s/ Niels Pedersen | |
Name: | Niels Pedersen | |
Title: | Director |
AGENT
BARCLAYS BANK PLC
Executed by: | /s/ Niels Pedersen | |
Acting by: | Niels Pedersen |
Notice Details
Address: |
Barclays Bank PLC 7th Floor 5 The North Colonnade Canary Wharf London E14 4BB |
|
Facsimile: | 020 77734893 | |
Attention: | Duncan Nash | |
duncan.nash@barcap.com |
SECURITY TRUSTEE
BARCLAYS BANK PLC
Executed by: | /s/ Niels Pedersen | |
Acting by: | Niels Pedersen |
Notice Details
Address: |
Barclays Bank PLC 7th Floor 5 The North Colonnade Canary Wharf London E14 4BB |
|
Facsimile: | 020 77734893 | |
Attention: | Duncan Nash | |
duncan.nash@barcap.com |
Exhibit 10.2
|
5 The North Colonnade Canary Wharf London E14 4BB United Kingdom
Tel +44 (0)20 7623 2323 |
From: | The Agent under the Facility Agreement (as defined below) | |
To: | InterXion Holding N.V. (the Company for itself and as ObligorsAgent under Clause 2.4 (Obligors Agent) of the Facility Agreement (as defined below)) |
3 November 2010
Amendment Letter to Facility Agreement
Dear Sirs
Amendment letter to the 60,000,000 senior multicurrency revolving facility agreement dated 1 February 2010 (the Facility Agreement)
We refer to the Facility Agreement. Unless otherwise specified herein, terms defined and references construed in the Facility Agreement shall have the same meaning and construction when used in this Amendment Letter.
1. | Consent |
Pursuant to a consent request dated 28 October 2010 you have requested the consent of the Majority Lenders:
(i) | to certain amendments to the Facility Agreement; and |
(ii) | to waive the provisions of the second sentence of Clause 9.3 (Voluntary cancellation) of the Facility Agreement so as to permit the application of a EUR 10,000,000 voluntary cancellation of the Available Facility to the Commitments of Jefferies Finance LLC and Credit Suisse AG, London Branch only (rather than applying the cancellation in reduction of the Commitments of the Lenders rateably), such that the Total Commitments following such reduction shall be EUR 50,000,000 (the Cancellation), |
in each case in connection with a proposed issuance of additional bonds by the Company (the Tap Issue).
Pursuant to Clause 38.1(a) (Required consents) of the Facility Agreement we are pleased to inform you that, subject to satisfaction of the applicable conditions set out in paragraph 2 below, the consent of the Majority Lenders has been obtained to amend the Facility Agreement as set out in Schedules 1 and 2 to this Amendment Letter and to the Cancellation.
2. | Conditions |
(a) | The amendments set out on Schedule 1 are conditional and shall only become effective on the date that the Agent confirms that it has received, in form and substance satisfactory to it, the conditions precedent set out in Schedule 3 to this Amendment Letter. |
(b) | The amendments set out in Schedule 2 are conditional and shall only become effective on the date that each of the following conditions have been satisfied: |
(i) | the Agent confirms that it has received, in form and substance satisfactory to it, the conditions precedent set out in Schedule 3 to this Amendment Letter; |
(ii) | the Agent confirms that it has received, no later than the closing date for the Tap Issue, a written irrevocable cancellation notice in accordance with the first sentence of Clause 9.3 (Voluntary cancellation) of the Facility Agreement requesting cancellation of EUR 10,000,000 of the Available Facility; and |
Barclays Capital - the investment banking division of Barclays Bank PLC. Registered in England 1026167.
Registered Office 1 Churchill Place, London E14 5HP Authorised and regulated by the Financial Services Authority and a member of the London Stock Exchange.
(iii) | the Agent confirms that it has received written confirmation from the Company, signed by at least one director, that the Tap Issue has closed and the proceeds of such issue have been funded to the Company. |
(c) | The Cancellation is conditional and shall not become effective prior to the date that each of the following conditions have been satisfied: |
(i) | the Agent confirms that it has received, no later than the closing date for the Tap Issue, a written irrevocable cancellation notice in accordance with the first sentence of Clause 9.3 (Voluntary cancellation) of the Facility Agreement requesting cancellation of EUR 10,000,000 of the Available Facility; and |
(ii) | the Agent confirms that it has received written confirmation from the Company, signed by at least one director, that the Tap Issue has closed and the proceeds of such issue have been funded to the Company. |
3. | Representations and Warranties |
The Company makes the representations and warranties set out in Clause 20.1 (Status) to Clause 20.6 (Governing law and enforcement) inclusive and Clause 20.10 (No default) to each Finance Party on the date of this Amendment Letter and on each date that the amendments set out in this Amendment Letter and the Cancellation become effective in accordance with paragraph 2 above.
4. | Miscellaneous |
This Amendment Letter shall constitute a Finance Document. The Facility Agreement shall remain in full force and effect in all respects save as expressly amended by this Amendment Letter.
Clauses 33 (Notices), 39 (Partial Invalidity), 39 (Counterparts) and 41 (Enforcement) of the Facility Agreement shall be deemed incorporated in this Amendment Letter (with such conforming amendments as the context requires) as if set out herein with each reference to the Agreement being deemed to be a reference to this Amendment Letter.
A person who is not a party to this Amendment Letter has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Amendment Letter.
This Amendment Letter may be executed in any number of counterparts, and this shall have the same effect as if the signatures on the counterparts were on a single copy of this Amendment Letter.
This Amendment Letter and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
We should be grateful if you would sign and return to us a copy of this letter by way of your acknowledgement and acceptance of the contents of this letter and the Schedules.
Yours faithfully |
/s/ |
For and on behalf of Barclays Bank PLC |
in its capacity as Agent (acting on the instructions of the Majority Lenders) |
Acknowledged and Agreed |
/s/ |
For and on behalf of InterXion Holding N.V. |
(for itself and as Obligors Agent) |
SCHEDULE 1
Amendment Provisions to the Facility Agreement
Subject to the terms and conditions set out in paragraph 2(a) of this Amendment Letter, the Facility Agreement shall be amended as set out below.
In respect of Clause 1.1 (Definitions) of the Facility Agreement:
(a) | the definition of Bond Indenture shall be deleted in its entirety and replaced with the following: |
Bond Indenture means the Senior Secured Indenture as such term is defined in the Intercreditor Agreement.;
(b) | the definition of Bond Trustee shall be deleted in its entirety and replaced with the following: |
Bond Trustee means the Senior Secured Trustees as such term is defined in the Intercreditor Agreement.;
(c) | the definition of Bonds shall be shall be deleted in its entirety and replaced with the following: |
Bonds means the Senior Secured Notes as such term is defined in the Intercreditor Agreement.; and
(d) | paragraph (b) of the definition of Permitted Financial Indebtedness shall be deleted in its entirety and replaced with the following: |
(b) | arising under the Bond Indenture;. |
SCHEDULE 2
Amendment Provisions to the Facility Agreement
Subject to the terms and conditions set out in paragraph 2(b) of this Amendment Letter, the Facility Agreement shall be amended as set out below.
1. | In respect of Clause 22.2(a) (Interest Cover) of the Facility Agreement, the interest ratio cover table shall be deleted in its entirety and replaced with the table set out below: |
Column 1 |
Column 2 | |||
Relevant Period |
Ratio | |||
Relevant Period ending 30 June 2010 |
2.60:1 | |||
Relevant Period ending 30 September 2010 |
2.75:1 | |||
Relevant Period ending 31 December 2010 |
2.60:1 | |||
Relevant Period ending 31 March 2011 |
2.60:1 | |||
Relevant Period ending 30 June 2011 |
2.75:1 | |||
Relevant Period ending 30 September 2011 |
2.90:1 | |||
Relevant Period ending 31 December 2011 |
3.00:1 | |||
Relevant Period ending 31 March 2012 |
3.00:1 | |||
Relevant Period ending 30 June 2012 |
3.25:1 | |||
Relevant Period ending 30 September 2012 |
3.45:1 | |||
Relevant Period ending 31 December 2012 |
3.65:1 | |||
Thereafter |
4.00:1 |
2. | In respect of Clause 22.2(b) (Leverage) of the Facility Agreement, the leverage ratio table shall be deleted in its entirety and replaced with the table set out below: |
Column 1 |
Column 2 | |||
Relevant Period |
Ratio | |||
Relevant Period ending 30 June 2010 |
3.75:1 | |||
Relevant Period ending 30 September 2010 |
3.75:1 | |||
Relevant Period ending 31 December 2010 |
3.75:1 | |||
Relevant Period ending 31 March 2011 |
3.75:1 | |||
Relevant Period ending 30 June 2011 |
3.75:1 | |||
Relevant Period ending 30 September 2011 |
3.75:1 | |||
Relevant Period ending 31 December 2011 |
3.75:1 | |||
Relevant Period ending 31 March 2012 |
3.75:1 | |||
Relevant Period ending 30 June 2012 |
3.75:1 | |||
Relevant Period ending 30 September 2012 |
3.75:1 | |||
Relevant Period ending 31 December 2012 |
3.25:1 | |||
Thereafter |
3.25:1 |
SCHEDULE 3
Conditions Precedent
1. | A certified copy of the constitutional documents of the Obligors Agent or a certificate of an authorised signatory of the Obligors Agent confirming that its constitutional documents most recently delivered to the Agent have not been amended and remain in full force and effect. |
2. | A certified copy of a resolution of the managing board of the Obligors Agent approving the Amendment Letter and designating authorised officers of it to execute the Amendment Letter and any other documents required in connection with the transactions contemplated thereby. |
3. | A certified copy of a resolution of the supervisory board of the Obligors Agent approving the Amendment Letter and designating authorised officers of it to execute the Amendment Letter and any other documents required in connection with the transactions contemplated thereby. |
4. | A certified copy of the shareholders resolution of the Obligors Agent approving the Amendment Letter and designating authorised officers of it to execute the Amendment Letter and any other documents required in connection with the transactions contemplated thereby. |
5. | A certificate of an authorised signatory of the Obligors Agent setting out the names and signatures of the persons authorised to sign on behalf of it, the Amendment Letter and all other documents to be executed in connection herewith. |
Exhibit 10.3
Confidential material has been omitted and filed separately with the Commission
RENTAL AGREEMENT
completed between | ||||
S-INVEST Beteiligungs- Gesellschaft m.b.H. |
VA TECH ELIN EBG GmbH Penzinger Strasse 76 A-1140 Vienna |
|||
Windmühlgasse 22-24 1060 Vienna |
Tax ID no. FAG 013/0467 |
|||
Doc. ref. no. 2000/7 |
||||
represented by |
Self-calculated charges ATS 1,591,621 |
|||
VA TECH ELIN EBG GmbH | ||||
Penzinger Strasse 76 1140 Vienna |
||||
as lessor (hereinafter referred to as the Lessor) and |
||||
InterXion Österreich GmbH (in formation) | ||||
Shuttleworthstrasse 4-8 A-1210 Vienna |
as lessee (hereinafter referred to as the Lessee).
The aforementioned Parties herewith wish to conclude the following:
Section 1
RENTED PROPERTY
1. | Pursuant to the corresponding purchase agreement dated 22.12.1995, S-INVEST Beteiligungsgesellschaft m.b.H. is the owner of the property EZ 50 Großjedlersdorf II and the buildings thereupon. On the basis of the administration agreement completed with the aforementioned property owner dated 12.03.1996, VA TECH ELIN EBG GmbH leases the rented property described in more detail below to the Lessee. |
2. |
The rented property comprises a warehouse and office buildings on the property at plot 50 of the ELIN Technology Park located at 1210 Vienna, Shuttleworthstraße 4-8. The rented property is marked in red on the enclosed plan and has a total area of 9,927 m ² . The enclosed plans (Annex 1) are an intrinsic component of this Agreement. |
3. | The Lessee is entitled to use without charge all access routes to the rented property. |
4. | The rented property may only be used for business and commercial purposes, in particular for companies in the fields of ISP or telecommunications and the support services for these fields. All changes to purpose of use shall require the express prior written consent of the Lessor. |
MV/InterXion | Page 1 |
14.01.2000 |
Section 2
TERM OF RENTAL AGREEMENT
5. | This Rental Agreement shall commence on 01.01.2000 and end on 31.12.2014, without prior notification of termination being necessary. |
The Parties shall meet six months prior to termination of the Rental Agreement in order to discuss a possible extension of the Rental Agreement. Furthermore, the Lessee is herewith granted the right of first refusal with regard to the rental of the property.
Section 3
PREMATURE RESCISSION OF THE RENTAL AGREEMENT
1. | The Lessor may rescind the Rental Agreement with immediate effect and without notice in the event that: |
a) | the Lessee fails to fulfil his financial obligations under this Agreement within 4 weeks of the due date despite a written reminder notice being issued and the provision of a period of grace; |
b) | the Lessee uses the property in a detrimental manner, in particular if the Lessee uses the property in a negligent manner or allows third parties to use the property in an unauthorised manner; |
c) | the Lessee carries out structural changes pursuant to section 6 below without the prior consent of the Lessor; |
d) | the Lessee significantly and repeatedly breaches the provisions of this Agreement despite written warning; |
e) | the Lessee fails to observe official statutory regulations or legislative provisions; |
f) | bankruptcy or insolvency proceedings are opened against the assets of the Lessee or if the opening of such proceedings is rejected on grounds of lack of assets. |
Section 4
RENT AND OPERATING EXPENSES
The agreed monthly rent excl. proportional operating expenses is:
***
plus the legally applicable amount of VAT; this sum is payable monthly in advance after submission of invoice on the first day of each month.
Currently operating expenses for the hall area are ATS 12.13 / m ² + 20% VAT per month and for the office area ATS 13.97 / m ² + 20% VAT per month. The stated operating expenses for the office area include water consumption costs.
MV/InterXion | Page 2 |
14.01.2000 |
For the months of January to April 2000 the following shall be agreed: The rent for January shall be 20%, for February 40%, for March 60%, for April 80% and as of May (2000) onwards 100% of the agreed rent. Operating expenses shall be payable in full as of the commencement of the Rental Agreement.
2. | The amount of rent payable shall be index-linked. The basis for the index linking of the rent shall be the consumer price index 1996 as issued by the Austrian Central Statistical Office. The starting basis shall be the index status as at January 2000. The amount of rent payable shall be adjusted pursuant to changes to the consumer price index 1996, whereby fluctuations upwards or downwards of up to and including 5% shall not be taken into consideration. However, fluctuations of more than 5% are to be taken into consideration in full. A new change in the amount of rent payable shall then be registered when the index that was the basis for the last change in the amount of rent payable changes upwards or downwards by more than 5%. If the consumer price index 1996 is discontinued and no longer published, the Parties shall agree a suitable replacement index. If no more indexes are published that are comparable with the consumer price index 1996, the amount of rent payable is to be calculated by an independent expert on the basis of the same principles on which the consumer price index 1996 is currently calculated. |
3. | The Lessee herewith declares his agreement that operating expenses (land tax, buildings fire insurance, administrative expenses, security and porter services) shall be calculated and paid to the Lessor on a lump-sum basis on the basis of the rented area and the rates set out in Annex 2 no. 2 and that there will be no annual invoice. |
4. | The supply of energy and utilities (electricity, heating, water, etc.) shall be provided via the existing supply equipment of the Lessor and shall be governed on the basis of a separate Energy and Utilities Supply Agreement completed between the Parties. Until this Energy and Utilities Supply Agreement has been completed, energy and utilities costs shall be calculated on the basis of the sub-meter readings and the applicable energy and utilities rates for the location. |
5. | The calculation of operations-dependent costs for common infrastructure (service charges) shall take place on the basis of number of employees employed at the location Floridsdorf and the calculation rates set out in Annex 2 no. 5. |
6. | The calculation rates set out in Annex 2 nos. 2 to 4 are based on cost covering calculations and are to be renegotiated by the Parties for the following calendar year on 30.11 of each year. |
Section 5
MAINTENANCE AND REPAIR OBLIGATIONS
1. | The rented property shall be handed over to the Lessee in the condition as inspected. A property handover record shall be drawn up at the time of handover of the property. The floor in the hall area shall be washed and cleaned and the office area will be thoroughly cleaned before handover. Existing installations and fixtures and fittings are included; the cost of additional items and amendments shall be borne by the Lessee and shall require the prior consent of the Lessor. Approval is granted by the Lessor upon the signing of this Agreement for the work listed in Annex 3. |
MV/InterXion | Page 3 |
14.01.2000 |
2. | In the event of the rescission or expiry of this Rental Agreement, the Lessee shall be obliged to reverse all amendments made without any claim to compensation. However, the Lessor shall be entitled to waive his claim to the reversal of amendments and the restoration of the property to its original condition. |
3. | The Lessee shall be obliged to treat all installations and fixtures and fittings with due care and to maintain all such items in good and usable condition at his own cost. |
4. | The Lessee shall be liable towards the Lessor for all damages to the rented property, irrespective of cause of such damages, and shall be responsible for the elimination and repair of any such damages. The Lessor has insured the buildings against fire damage. |
5. | In the event that the Lessee fails to fulfil his obligations pursuant to subsection 2 above within a reasonable period, despite written notification, the Lessor shall be entitled to carry out the required work at the cost of the Lessee. |
6. | Insofar as not liable for the elimination and repair of damages himself, the Lessee shall be obliged to inform the Lessor immediately of any damages to the rented property. |
7. | The Lessee shall be obliged to maintain and repair the property in a manner that ensures that the Lessor and other Lessees of the property are in no way disadvantaged. The Lessee herewith declares that no legal claims may be derived from temporary disruptions to water supply or disruptions or interruptions to the electricity supply, insofar as these disruptions/interruptions have not been caused by the Lessor through gross negligence or wilful act. The Lessor shall be obliged to eliminate disruptions/interruptions to the supply of utilities as quickly as possible. |
Section 6
STRUCTURAL CHANGES
1. | After prior notification of the Lessor, the Lessee shall be entitled to carry out structural changes within the rented property, insofar as no official permits are required for such changes. |
2. | Structural changes that affect the material integrity of the building or that require official permits from the buildings safety or planning authorities shall require the prior written consent of the Lessor. The consent of the Lessor may only be refused if there is good cause to do so. |
3. | In the event of the rescission or expiry of this Rental Agreement, the Lessee shall be obliged to reverse all amendments made without any claim to compensation. However, the Lessor shall be entitled to waive his claim to the reversal of amendments and the restoration of the property to its original condition, insofar as this does not entail any chicanery. |
4. | The Lessee shall be obliged to plan and document all structural changes that require the consent of the commercial authorities, the buildings safety or planning authorities or the fire prevention authorities and to submit a copy of all plans to the Lessor without charge. |
MV/InterXion | Page 4 |
14.01.2000 |
5. | In agreement with the Lessee, the Lessor shall disconnect and remove all energy and utilities supply equipment (water, electricity, compressed air, heating) below a height of 4 metres, measured from the hall floor, if such equipment is an obstruction or endangers the planned use of the building. Furthermore, the Lessor shall break down and remove the separating walls within the rented property (former paint shop, control cabins), insofar as these are not fire prevention walls as prescribed by the buildings safety/fire prevention authorities, and complete the required finishing work. The estimated cost of this building work shall be pre-financed by the Lessor and is estimated to be approx. *** based on the enclosed list of works. On the basis of a preliminary maximum investment sum of *** a depreciation period of 15 years and an imputed rate of interest of 5.0%, the Lessee shall pay an additional monthly amount of *** plus the legally applicable amount of VAT over and above the rent payable pursuant to section 4 of this Agreement. In the event of the premature rescission of this Rental Agreement before 31.12.2014, the Lessee shall be obliged to pay the remaining amount of this sum at the time of rescission, calculated on an accrual basis, to the Lessor within 10 days of the submission of notice of rescission. |
Section 7
SUBLEASING AND OTHER USE
1. | Without requiring the prior consent of the Lessor, the Lessee shall be entitled to sublease parts of the rented property to telecommunications companies (carriers and providers) or to companies connected with the field of ISP or to companies that carry out support services for the fields of telecommunications and ISP. Subleasing to other parties will require the prior consent of the Lessor. |
2. | The Lessee shall be obliged to structure all subleasing agreements in such a manner that these subleasing agreements do not grant any legal entitlements that disadvantage the Lessor (rights to assume main tenancy) and that the Lessor shall not suffer any damages or legal action as a result of any subleasing arrangement. |
Section 8
RETURN OF THE RENTED PROPERTY
1. | Upon rescission or expiry of the Rental Agreement the rented property is to be vacated and returned broom-clean, taking into consideration any normal wear and tear. If the property shows above average signs of wear and tear, the Lessor shall be entitled to invoice the departing Lessee for any additional adjustment costs incurred. |
2. | In the event of delays to the vacation and return of the rented property upon the rescission or expiry of the Rental Agreement, the Lessee shall be liable to pay monthly damages for use beyond the expiry of the Rental Agreement for the period of this delay, i.e. until the proper return of the rented property, in an amount of twice the agreed rent pursuant to section 4 above. |
MV/InterXion | Page 5 |
14.01.2000 |
Section 9
COSTS AND CHARGES
1. | The legal fees incurred by the Parties for the drawing up and completion of this Agreement shall be borne by each Party individually. |
2. | The costs incurred during the establishing of charges are to be borne by the Lessee. For the purposes of the fixing of charges, it has been established that the total charge to be allocated to the rental property, including operating expenses, energy costs, levies etc., for the period is *** (incl. VAT). For the establishing of charges the Lessee is to pay an amount of *** for the drawing up of the contract. |
Section 10
GUARANTEES
1. |
The Lessee and/or Interxion Holding N. V. shall be obliged to provide the Lessor upon the signing of the Agreement with a bank guarantee issued by a first-class European bank that is valid for the entire term of the Rental Agreement or a bearer passbook with password for an amount of three months gross rent. Furthermore, it is agreed between the Parties that at six-monthly intervals (in each case on the first of the month) this guarantee shall be increased by an additional one months gross rent until the maximum amount of six months rent has been reached. The increase of the guarantee shall no longer be necessary if 50% of the hall area (8,820 m ² ) has been upgraded or if the Lessor declares that he shall waive the increase in the guarantee. All costs connected with the guarantee shall be borne by the Lessee. |
2. | The Lessor shall be entitled to make use of the guarantee in order to cover all claims arising from or in connection with this Rental Agreement, notwithstanding the continuing obligation to fulfil all of his obligations under this Agreement. In the event that the Lessor makes use of the bank guarantee with which he has been provided, either in part of in full, the Lessee shall be obliged, at the request of the Lessor, to top up the bank guarantee to the agreed amount. If the Lessee fails to fulfil this obligation within 14 days of being requested to do so, the Lessor shall be entitled to rescind the Rental Agreement prematurely and with immediate effect; this shall also apply if the guarantee is not increased punctually as set out in subsection 1 above. |
3. | The Lessor shall be obliged to relinquish the bank guarantee with which it has been provided within 14 days of the expiry of the Rental Agreement and the fulfilment of all contractual obligations by the Lessee. |
Section 11
MISCELLANEOUS
1. | The Lessee is herewith granted a right of second refusal for the rental of the neighbouring rented areas, with right of first refusal having been granted to the current lessees of these rented areas. The current lessees are: Forschungsgesellschaft Technischer Umwelt GmbH, Jugend am Werk, the teaching workshop of VA TECH ELIN EBG GmbH and General Parcel Austria GmbH. The right of second refusal granted herein must be accepted within 14 days of any offer being made. |
2. | With the prior consent of the Lessor and insofar as no legislative provisions are breached, the Lessee shall be entitled to hang all required signage, posters and placards on the rented property without charge. |
MV/InterXion | Page 6 |
14.01.2000 |
3. | The Lessee shall be entitled to use ten customer parking spaces and two employee parking spaces on the premises without charge. The allocated parking spaces have been marked red on the enclosed plan. |
4. | All rights and obligations of the Lessor under this Rental Agreement shall be passed on to his legal successor; all rights and obligations of the Lessee under this Rental Agreement shall be passed on to his universal legal successor. |
5. | The Lessee herewith expressly waives any entitlements to offset his own claims against the Lessor against the Lessors claims under this Agreement; furthermore, the Lessee also herewith expressly waives any entitlements to withhold payment of the agreed rent, irrespective of grounds. |
6. |
In the event that the Lessee falls into default in payment of the agreed rent, the Lessor shall be entitled to levy interest at a rate of the secondary market rate of return [Sekundärmarktrendite, SMR * ] (on shares in the broadest sense, issued by the Austrian National Bank) plus 3% |
7. | Insofar as legally prescribed, the Lessee shall obtain all permits required for the operation of his business from the commercial authorities. |
8. | The Lessor or one of his vicarious agents shall be entitled to inspect the rented property within normal business hours and after prior arrangement. In the event of risk of default, the Lessor or one of his vicarious agents shall be entitled to inspect the rented property at any time, whereby general information shall be issued on these measures. |
9. | The Lessee shall be obliged to observe the security and emergency plans and provisos issued by the Lessor. The security and emergency plans and provisos are an intrinsic component of this Agreement. |
10. | Amendments and supplements to this Agreement shall only be valid if submitted in writing. The text of this Agreement has been read and discussed by the Parties; the Parties agree to all the conditions contained herein. |
11. | This Agreement will be concluded in duplicate, with a copy being issued to each of the Parties. |
12. | Both Parties herewith expressly waive the plea of avoidance of the Agreement on grounds of lesion beyond moiety (laesio enormis). |
13. | The Lessee shall be obliged to give the Lessor the opportunity of submitting a corresponding tender for work to be carried out within the rented property from his own catalogue of deliveries and services. |
* | Translators note: The Sekundärmarktrendite is the weighted average rate of return on shares quoted on the Vienna stock exchange. |
MV/InterXion | Page 7 |
14.01.2000 |
14. | All official notifications from the Lessor shall be deemed as having been sent and received by the Lessee if dispatched to the Lessee at the address of the rented property; this shall not be the case if it can be evidenced that the Lessee has given the Lessor another address for the sending of official notifications. |
15. | The Lessor herewith guarantees that there is no asbestos in the rented property, with the exception of the corrugated fibre cement roofing panels. |
16. | This Rental Agreement shall be concluded with InterXion Österreich GmbH, which is still in formation. The company Interxion Holding N.V. shall be obliged to ensure that InterXion Österreich GmbH is financially in a position to punctually fulfil its obligations under this Rental Agreement during the entire term of this Rental Agreement. |
17. | It is herewith agreed that the place of jurisdiction for all disputes arising from this Rental Agreement shall be the court with jurisdiction in Vienna. |
Annexes : |
Description of works (Annex 1) | |||
Property data sheet (Annex 2) | ||||
As-built drawings (Annex 3) |
Vienna, 04.02.2000
/s/ |
/s/ |
|||
InterXion Österreich GmbH (in formation) | VA TECH ELIN EBG GmbH |
/s/ |
InterXion Telecom Holding N.V. |
MV/InterXion | Page 8 |
14.01.2000 |
Annex 1
The work listed in section 6 point 5, includes the following supply equipment and this work is to be carried out in agreement with the Lessee.
Description of works:
1. Energy supply
estimated | ||||||
heating systems |
ATS | *** | ||||
compressed air connections |
ATS | *** | ||||
commercial and drinking water supply |
ATS | *** | ||||
electrical connections |
ATS | *** | ||||
fire alarm systems |
ATS | *** | ||||
access control terminal |
ATS | *** | ||||
adaptation of internal walls |
ATS | *** | ||||
disassembly of control cabins and paint shop |
ATS | *** |
2. Disassembly of overhead cranes without craneways.
3. Cleaning and repair of hall floors.
All additional work will be carried out by InterXion or on their behalf at the cost of InterXion.
MV/InterXion | Page 9 |
14.01.2000 |
Annex 2
Production areas
Axes |
a m 2 | m 2 | ||
45.00 |
196.00 | 8,820.00 |
Office and social areas
Site
|
Plot
(Objekt) |
Dept. |
Cost
centre |
Floor |
Room
no. |
Office | Workshop | Storeroom |
Social
area |
Floor
covering |
Total | |||||||||||||||||||||||
50 | InterXion | Ground | E01 | 164.26 | 164.26 | |||||||||||||||||||||||||||||
50 | InterXion | Ground | E02 | 46.36 | 46.36 | |||||||||||||||||||||||||||||
50 | InterXion | Ground | E03 | 21.78 | 21.78 | |||||||||||||||||||||||||||||
50 | InterXion | Ground | E04 | 17.27 | 17.27 | |||||||||||||||||||||||||||||
50 | InterXion | Ground | E05 | 17.27 | 17.27 | |||||||||||||||||||||||||||||
50 | InterXion | Ground | E06 | 10.38 | 10.38 | |||||||||||||||||||||||||||||
50 | InterXion | Ground | E08 | 21.78 | 21.78 | |||||||||||||||||||||||||||||
50 | InterXion | Ground | E66 | 8,820.00 | 8,820.00 | |||||||||||||||||||||||||||||
50 | InterXion | First | O09 | 10.89 | 10.89 | |||||||||||||||||||||||||||||
50 | InterXion | First | O10 | 35.15 | 35.15 | |||||||||||||||||||||||||||||
50 | InterXion | First | O11 | 35.15 | 35.15 | |||||||||||||||||||||||||||||
50 | InterXion | First | O12 | 124.55 | 124.55 | |||||||||||||||||||||||||||||
50 | InterXion | First | O13 | 17.27 | 17.27 | |||||||||||||||||||||||||||||
50 | InterXion | First | O14 | 17.27 | 17.27 | |||||||||||||||||||||||||||||
50 | InterXion | First | O15 | 68.46 | 68.46 | |||||||||||||||||||||||||||||
50 | InterXion | First | O16 | 174.82 | 174.82 | |||||||||||||||||||||||||||||
50 | InterXion | First | O17 | 35.15 | 35.15 | |||||||||||||||||||||||||||||
50 | InterXion | First | O01 | 93.52 | 93.52 | |||||||||||||||||||||||||||||
50 | InterXion | First | O02 | 103.90 | 103.90 | |||||||||||||||||||||||||||||
50 | InterXion | First | O03 | 35.15 | 35.15 | |||||||||||||||||||||||||||||
50 | InterXion | First | O04 | 9.76 | 9.76 | |||||||||||||||||||||||||||||
50 | InterXion | First | O05 | 6.85 | 6.85 | |||||||||||||||||||||||||||||
50 | InterXion | First | O06 | 9.76 | 9.76 | |||||||||||||||||||||||||||||
50 | InterXion | First | O07 | 6.85 | 6.85 | |||||||||||||||||||||||||||||
50 | InterXion | First | O08 | 12.93 | 12.93 | |||||||||||||||||||||||||||||
50 | InterXion | First | O09 | 10.89 | 10.89 | |||||||||||||||||||||||||||||
904.33 | 8,820.00 | 21.78 | 181.31 | | 9,927.42 |
MV/InterXion | Page 10 |
14.01.2000 |
Lessee: Interxion |
03.02.00 | |||||||||
Objekt [Plot] 50: 1210 Vienna, Shuttleworthstrasse 4-8 |
Month: 2000 | |||||||||
1. Rental costs: | ||||||||||
- office space and social areas |
1,107.00 m 2 aS | *** | ||||||||
- storage areas |
8,820.00 m 2 aS | *** | ||||||||
Total rental costs |
ATS | *** | ||||||||
EUR | *** | |||||||||
2. Operating expenses: |
*** | |||||||||
(land tax, insurance) |
||||||||||
- total used area |
9,927.00 m 2 aS | *** | ||||||||
- administrative costs |
||||||||||
(incl. external area yard and snow clearing) |
||||||||||
- total used area |
9,927.00 m 2 aS | *** | ||||||||
- security and porter services |
||||||||||
- total used area |
9,927.00 m 2 aS | *** | ||||||||
- industrial cleaning incl. special cleaning |
||||||||||
- total used area |
m 2 aS | 0.00 | ||||||||
Total operating expenses |
ATS | *** | ||||||||
EUR | *** | |||||||||
3. Energy costs |
||||||||||
- electricity in kWh |
kWh aS | 0.00 | *** | |||||||
- heating in MWh |
MWh aS | 0.00 | *** | |||||||
- water |
||||||||||
- total used area |
1,107.00 m 2 aS | *** | ||||||||
Total energy costs |
ATS | *** | ||||||||
EUR | *** | |||||||||
ATS | *** | |||||||||
EUR | *** |
MV/InterXion | Page 11 |
14.01.2000 |
Confidential material has been omitted and filed separately with the Commission
Re: Supplement to the Floridsdorf Technology Park Lease
Dear Sir,
With regard to the above matter, we would like to inform you that we have been in contact with Univ. Doz. DDr Mag. Ludwig Bittner, the counsel representing S-Invest Beteiligungsgesellschaft mbH and ELIN EBG Traction GmbH.
Acting upon the instructions and on behalf of InterXion Österreich GmbH, we have furthermore agreed with him verbally to make the following amendments or supplements to the existing Lease Agreement of 4 February 2000 between InterXion Österreich GmbH (hereinafter the Lessee) and S-Invest mbH (hereinafter the Lessor) regarding Building 50 in the Floridsdorf Technology Park, of which the registered owner is ELIN EBG Traction GmbH (hereinafter the Property Owner ):
Gassauer-Fleissner Rechtsanwälte GmbH |
Vienna: Law Office | Salzburg Office | ||||
Email office@gassauer.at |
Wöllnerstrasse 4 | Ernst-Grein-Str. 14a | ||||
www.gassauer.at |
A-1010 Vienna | A-5020 Salzburg | ||||
UID ATU 55497206 |
Tel.: + 43 1 205 20B - 0 | Tel.: + 43 662 643 65B - 0 | ||||
FN 234573 p HG Vienna |
Fax.: + 43 1 205 206 - 207 | Fax: + 43 662 648 658 - 60 |
ad. § 2) Leased premises
As of 1 April 2007, the Leased Premises have been enlarged by the leasing of additional floor space
of approx. 136 m 2 in Building 51
and
of approx. 196 m 2 in Building 50.
The additional areas in Buildings 50 and 51 are shown in red in the enclosed floor plans.
ad. § 2) Term of the Lease
The term of the Lease Agreement of 4 February 2000, as amended in accordance with the Addenda of 24 May 2000, 30 January 2001, and 14 May 2001 respectively, has, by mutual agreement, been extended for an additional five years. The Lease shall terminate on 31 December 2019 without need for notice.
At the same time, the Lessor grants the Lessee a non-recurring option to make one further three-year extension to the Lease Agreements term. Should the Lessee choose to exercise this option, the Lease Agreement shall be extended under the same conditions for a period of three years and shall automatically terminate on expiry of the extended period without need for notice or specific declaration.
This option may be exercised by the Lessee no sooner than 18 months and no later than 12 months prior to the expiry of the term of the Lease agreed in accordance with the above point. The exercise of the option to extend the Lease shall occur by registered mail, with the date of receipt by the Lessor or its representative being decisive in determining compliance with deadlines. This renewal option is not transferable and can naturally only be exercised and used by the Lessee as long as the existing Lease Agreement is in effect.
The Parties shall enter into negotiations concerning a possible extension of the Lease beyond 31 December 2022 as far in advance as possible. In this respect, the Lessor is required to inform the Lessee no later than 20 June 2021 if the former intends to continue leasing the Leased Premises beyond 31 December 2022 or else to proceed in another manner (e.g. demolition, sale, etc.). The Lessor is completely free to make this decision as it deems fit. Should the Lessor neglect to provide such notification by the specified date, it shall be assumed that the Lessor does not intend to continue leasing the property beyond 31 December 2022. In the case that the Lessor decides to continue leasing the Leased Premises (and only in this case), the Lessee is entitled, on expiry of the above-mentioned non-recurrent three-year extension, to exercise an additional non-recurring option to extend the Lease Agreement for a further three-year period (i.e. until 31 December 2025). Should the Lessee choose to exercise this second option, the Lease Agreement shall be extended under the same conditions for a period of three years and shall automatically terminate on expiry of the extended period without need for notice or specific declaration. This second renewal option may be exercised under the above
conditions by the Lessee no sooner than 18 months and no later than 12 months prior to the expiry of the term of the Lease agreed in accordance with the above point. Moreover, the provisions of the preceding paragraph apply mutatis mutandis.
The Lessor waives the right to terminate the Lease in order to use the property for its own purposes (of whatever nature) or under the provisions of § 30 Para 2 Z 15 of the Austrian Landlord and Tenant Act (Mietrechtsgesetz).
ad.) § 4) Rent and Operating Costs
ad 1. Rent:
On account of the additional leased space of approximately 332 m 2 (at *** per m 2 ), the monthly rent is increased as of 1 January 2007 by *** to a total of *** plus operating costs and VAT.
Miscellaneous:
In addition to the provisions of the Lease Agreement of 4 Februar.2000, it was agreed that the Property Owner is required to make this Lease Agreement binding on any legal successor in ownership of the property and to impose a corresponding requirement to make the Lease Agreement binding on any subsequent legal successor. In the event of a breach of this obligation, the Lessor and the Property Owner shall fully indemnify the Lessee and hold it harmless from third-party claims.
All other provisions of the Lease Agreement of 2 February 2000 and any addenda or supplementary agreements remain valid without change.
A further agreement has been reached with the legal representative of the other contracting party to the effect that, if this oral agreement gives rise to any contractual fees (due to formulation of any equivalent written document that may be required), these costs are to be entirely borne by the Lessee and fully reimbursed to the Lessor.
Finally, it has been agreed with the other contracting party that, on our part, the above agreements have also been completed in the name of InterXion Holding NV, as a result of which the obligations of the original Lease Agreement of 2 February 2000, which have been assumed by InterXion Holding NV, shall apply to the extended term of the agreement.
Yours sincerely, |
/s/ Klaus Fischer |
Klaus Fischer Gassauer-Fleissner Rechtsanwälte GmbH |
cc: Univ. Doz. Mag. DDr. Ludwig Bittner
Exhibit 10.4
Confidential material has been omitted and filed separately with the Commission
og\Firstcross-opstal (fg) AP. 19751
THE YEAR TWO THOUSAND AND ONE
Rep. 18.665
ON THE TWENTY-FIFTH OF JUNE .
On 25/06/2001 .
Before us, Mr. James DUPONT and Mr. Carl OCKERMAN ,
civil-law notaries established in Brussels.
BUILDING
RIGHTS
THE FOLLOWING PERSONS APPEARED :
ON THE ONE HAND :
The public limited liability company FIRST CROSS ROADS , with its registered head office at Terkamerenlaan 33, 1000 Brussels. Registered in the Trade Register of Brussels under number 523840 and registered for value added tax under number 437.830.680.
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The company was incorporated by a deed executed before civil-law notary Jacques Neyrinck, then established in Brussels, on the twenty-second of June, nineteen hundred and eighty-nine, announced in the annexes of the Belgian Bulletin of Acts, Orders and Decrees of the twentieth of July of that year, under number 890720-172. |
As represented for the purposes of this deed, in accordance with its articles of association, by : Ms. Olivette MIKOLAJCZAK, Licentiate in the notarial profession residing at Oude Molenstraat 180, 1180 Brussels, in accordance with a power of attorney executed before civil-law notary James Dupont in Brussels on the fourth of April, two thousand and one, an authenticated copy of which shall remain attached to this deed.
Hereinafter referred to as the owner of the land .
1. | The public liability company under Belgian law INTERXION BELGIUM N.V. , with its registered head office at Wezembeekstraat 2, 1930 Zaventem, registered in the Trade Register of Brussels under number 640.677. |
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The company was incorporated by a deed executed before civil-law notary Erik Spruyt, established in Brussels, on the fourth of April, two thousand, announced in the annexes of the Belgian Bulletin of Acts, Orders and Decrees of the eighteenth of April of that year, under number 20000418-337. |
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The companys articles of association have remained unchanged since its formation. |
Hereinafter referred to as the holder of the building rights .
2. | The public liability company under Dutch law INTERXION HOLDING N.V. , registered in Amsterdam with its head office at Cessnalaan 1-33, 1119 NJ Schiphol Rijk and also with offices at Breguetlaan 32/38, 1438 BC Oude Meer, registered in the Trade Register of Amsterdam (The Netherlands), under number 33301892. |
Hereinafter referred to as the surety .
Both represented for the purposes of this deed by : Mr. Fabrice DELVILLE, managing director, residing at Boulevard G. Van Halen 66, 1190 Brussels, pursuant to a power of attorney executed before junior civil-law notary Bartholmeus Johannes Kuck, established in Rotterdam, on the fourteenth of December, two thousand, provided with an apostille on the fifteenth of December, two thousand, an authenticated copy of which shall remain attached to this deed.
ON THE OTHER HAND :
THE FOLLOWING IS AGREED:
ARTICLE 1 - Object of the agreement.
1. | The owner of the land grants the holder of the building rights, who accepts, building rights subject to the following terms and conditions for the property described below: |
LOCATION OF THE PROPERTY.
Municipality of ZAVENTEM-ZUID - Section Two
A warehouse and office building with ten outdoor parking spaces located in front of the offices and the piece of land between the warehouse and the street, located at Wezembeekstraat 2, with a total surface area, according to the measurement statement, of one hectare, twenty-two ares, fifty-seven centiares and fifty-one decimilliares, registered in the Land Register in Section C, part of numbers 431/d, 429/d, 430/a, 433/a, 432/b and 431/2 and according to a recent extract from the Land Register, number 430/partly.
As clearly described under number 430b/Part 1, on the plan drawn up on the ninth of March, two thousand by Mr. Wouter LEUS, real estate land measurement expert, whose offices are registered at Rode Kruislaan 42, Zaventem, said plan is attached to this deed as annex 1. The surface area is not guaranteed.
The holder of the building rights does not require a more detailed description of the Property.
This property is hereinafter referred to as the Property or building .
ORIGIN OF OWNERSHIP
The aforementioned company First Cross Roads, with the legal status of a public limited liability company, owns the aforementioned property, having acquired it as part of a larger surface area from the company under British law Amdale Holdings Limited of Gibraltar, by deed executed before civil-law notary Guy-Laurent van der Beek, established in Schaarbeek, on the nineteenth of December, nineteen hundred and eighty-nine, transferred at the fourth mortgage office of Brussels on the twelfth of March, nineteen hundred and ninety, Book 9757, Number 6.
The aforementioned company Amdale Holdings Limited was the owner of the larger surface area, acquired as follows:
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Partly pursuant to a deed executed before the aforementioned civil-law notary Van der Beek and civil-law notary Liliane Verbruggen, established in Anderlecht, on the fourteenth of March, nineteen hundred and eighty-nine, transferred at the fourth mortgage office of Brussels on the third of May of that year, Book 9570, number 9, from the Public Centre for Social Welfare in Brussels; |
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Partly pursuant to a deed executed before the aforementioned civil-law notary Van der Beek on the seventh of June, nineteen hundred and eighty-nine, transferred at the fourth mortgage office of Brussels on the twenty-fourth of July of that year, Book 9631, number 14, from the public limited liability company N.V. Promintra International, registered in Elsene; |
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Partly pursuant to a deed executed before the aforementioned civil-law notary Van der Beek and civil-law notary Jean Jacobs, established in Brussels, on the fourteenth of March, nineteen hundred and eighty-nine, transferred at the fourth mortgage office of Brussels on the twentieth of April of that year, Book 9549, number 31, from 1. Mr. Yves Marie Ghislain Gérô me, of Brussels; 2. Mr. Michel Georges Louis Marie Ghislain de Spirlet-Lamarche, of Elsene; 3. Mr. Eric Marie Guy Ghislain de Spirlet-Lamarche, of Tuckahoe (United States of America); 4. Ms. Anne Gabrielle Andrée Marie Ghislain de Spirlet-Lamarche, of Elsene; 5. Ms. Thérèse Marie Yvonne Pierrette Andrée Ghislain de Spirlet-Lamarche, of Brussels; and 6. Mr. François Xavier Joseph Marie Yves Noël Ghislain de Spirlet-Lamarche, of Bierges; |
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Partly pursuant to a deed executed before the aforementioned civil-law notary Van der Beek and signed by civil-law notary James Dupont, established in Brussels, on the fourth of October, nineteen hundred and eighty-eight, transferred at the fourth mortgage office of Brussels on the seventh of November of that year, Book 9489, number 1, from the public limited liability company Weymeersch Invest, registered in Elsene. |
The holder of the building rights must accept the above origin of ownership and, on the basis of its building rights, may not require any title other than a copy hereof.
2. | The Property shall be delivered in its current condition, which is well known to the holder of the building rights, who had every opportunity prior to the signing of this agreement to inspect the property to its own satisfaction and to form a detailed opinion regarding its suitability for the purposes that it envisages. |
3. | The Building shall be transferred without finishes, with cabling still to be connected, any changes that need to be made in order to comply with the current regulations and the finishing are the responsibility of the holder of the building rights, to be performed at his own risk and expense. |
4. | The owner of the land hereby declares that to the best of his knowledge: |
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The Property is not encumbered with any personal servitudes or special conditions, other than those that may arise from ownership titles, and that he has not personally granted any such rights; |
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The Property is not encumbered with any rights of pre-sale, buying options or repurchasing rights, nor with any mortgage registrations, apart from: |
1° | A first registration (fourth mortgage office of Brussels, Book 2938, number 12) in favour of the company under Luxembourg law Skandinavska Enskilda Banken, as security for all amounts due to it from First Cross Road for a principal amount of one hundred and ten million Belgian francs (BEF 110,000,000), plus three years of interest at the standard rate and an additional amount of five million and five hundred thousand Belgian francs (BEF 5,500,000) for accessories, in accordance with a credit deed executed before civil-law notary Van der Beek of Schaarbeek, dated the twenty-sixth of January, nineteen hundred and ninety. |
2° |
A second registration (fourth mortgage office of Brussels, Book 3139, number 26) in favour of the company under Luxembourg law Skandinavska Enskilda Banken, as security for all amounts due to it from First Cross Road for the repayment of (i) the aforementioned credit for a sum of one hundred and ten million Belgian francs (BEF 110,000,000), |
(ii) each amount paid by the bank for the account of First Cross Roads with interests, penalties, reimbursements, costs of serving bailiffs notations, costs for declarations of guilt, etc., for a sum of five million, five hundred thousand Belgian francs (BEF 5,500,000), in accordance with a deed executed before civil-law notary Van der Beek of Schaarbeek, dated the nineteenth of February, nineteen hundred and ninety-three; |
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In a letter dated the thirtieth of March, two thousand and one, to remain attached to this deed, the company under Luxembourg law Skandinavska Enskilda Banken confirmed its consent to the establishment of the building rights. |
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The Property is unoccupied; |
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There are no compulsory purchase plans and none have been announced; |
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No dispute is pending or is threatened to be filed in relation to the Property; |
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The Property is free of defects; |
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The Building was constructed in accordance with the rules of the art and in compliance with the licences issued, apart from minor adjustments with no serious consequences; |
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No recovery taxes are due. |
5. | The soil certificate was delivered by the Public Waste Company for the Flanders District (OVAM) on the second of December, nineteen hundred and ninety nine, and literally reads as follows: |
No details of any soil contamination are available in the Land Register for this registered plot, as no details are available to the OVAM.
Note:
Since 1 October 1996, land on which an institution is or was established, or on which an activity is or was performed that is included in the list referred to in Article 3, §1 of the Soil Decontamination Decree, may be transferred only if the OVAM is provided with a survey in advance, notifying the transfer. This certificate replaces all previous certificates. Mechelen, 02.12.1999
The owner of the land declares and guarantees that no institution has been established on the land, and no activities included in the list referred to in Article 3, §1 of the Soil Decontamination Decree have been performed on the land since the first of January, nineteen hundred and ninety-three.
ARTICLE 2 - Purpose of the Property.
1. | The Property is intended, according to the building permit, for use as a warehouse and offices, except with regard to the outdoor facilities, which are intended for use as parking spaces, with the exclusion of all other trading activities within the meaning of the Commercial Lease Contracts Act of the thirtieth of April, nineteen hundred and fifty-one. |
The holder of the building rights must comply strictly with that purpose and may not use the Property for any other activities without special prior consent, in writing, of the owner of the land, who must state the reasons for any refusal of such consent at the earliest opportunity, or must state the conditions to which such consent is subject. Without prejudice to the provisions of Article 2.2 below, the owner of the land hereby grants the holder of the building rights consent, from the time that the possibility can arise, for the installation of telecommunications and/or internet service provider (ISP) equipment in the Building by the holder of the building rights or third parties and the exploitation within the building of telecommunications or ISP-related activities by the holder of the building rights or third parties, in the broadest sense.
It is explicitly agreed that the exclusive allocation of the Property for the aforementioned use forms an essential condition of this agreement, without which the parties would not have contracted the agreement.
If the holder of the building rights changes the permitted use of the Property without the special prior written consent of the owner of the land, and if the holder of the building rights does not correct any infringement within three months of receiving a warning from the owner of the land, the owner of the land has the right to demand the cancellation of the agreement, to the detriment of the holder of the building rights, as it is explicitly agreed that each change in the permitted use in such circumstances constitutes a serious breach of contract.
2. | Pursuant to the aforegoing, the performance of certain activities with the consent of the owner of the land does not entail any obligation, guarantee or duty to obtain administrative permits that are necessary in any sense to perform the activities of the holder of the building rights. |
Consequently, the holder of the building rights shall personally ensure that all administrative permits required for the performance of its activities are in order and that all amounts, rights, taxes and other charges associated with the activities performed in the Building or for the use of the Building are paid.
If the holder of the building rights should perform any activities without possessing the required permits, he is liable for all damaging consequences that may arise for the owner of the land as a result and he must indemnify the owner of the land against all claims, petitions or other demands that could be directed against the owner of the land due to those activities.
ARTICLE 3 - Duration of the building rights.
These building rights are contracted for a fixed term of fifteen successive years, commencing on the seventh of December two thousand , and legally ending fifteen years thereafter.
The duration of the building rights and their non-cancellation for a period of fifteen years are essential elements of the agreement, without which the owner of the land would not have contracted the agreement.
Neither party may request renewal of the building rights. On expiry of the building rights, the holder of the building rights has the right to contract a lease for the Property for a period of five years, by registered mail addressed to the owner of the land no earlier than fifteen months and no later than twelve months prior to the expiry of the contract. The lease contract shall be contracted on standard terms, still to be agreed, for an ordinary lease, for payment of lease instalments at commercial rates on commencement of the lease contract, whereby the quarterly payments of the lease may in no case be less than the last quarterly payment made of the royalty.
The lease instalments shall be fixed by an expert selected in agreement between the parties. If the parties cannot agree on the appointment of an expert, each party shall appoint an expert. If these experts do not agree, they shall appoint a third expert whose decision shall be final.
The parties hereby agree in advance that, in determining the lease charges, the appointed expert or experts may not take into account any work that was executed in the Property by the holder of the building rights.
ARTICLE 4 - Royalty.
4.1 | Royalty. |
These building rights are granted and accepted in exchange for a royalty of *** per year. It is payable in advance in quarterly instalments of *** calculated annually on the first of January on the basis of a fixed percentage of three per cent of the royalty for the preceding year, increased automatically by law, with no notice of default required from the owner of the land, and payable for the first time on the first of January, two thousand and one.
In the view of the owner of the land, these building rights represent only one of the elements of a refinancing operation that primarily provides for the following:
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The owner of the land is assured of an income equal to the royalty laid down in this Article; |
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That income must be net, in the sense that the income of the owner of the land may not be reduced by any expenditure of any kind relating to this agreement; |
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That income must be assured for fifteen successive years. |
The obligation of the holder of the building rights to pay the royalty is consequently irrevocable, unconditional and separate from other considerations, and is in no way associated with the use, condition or value of the Property on the commencement of or during the term of the agreement, and it remains due whatever happens, even in the event of force majeure, decisions of a higher authority, or full or partial loss of the Property.
However, the holder of the building rights is exempt from this obligation if he can no longer make use of the Property due to either a compulsory purchase of the Property for public use, or a government prohibition on the reconstruction of the Property following its full destruction by fire or earthquake, subject in the latter case to exhaustion by the holder of the building rights of all the existing legal remedies against this prohibition showing a reasonable chance of success, and for payment to the owner of the land of the total amount of the insurance benefits due to it pursuant to Article 13.
In the latter case, this agreement will also be lawfully terminated.
The holder of the building rights shall not enjoy any discount, suspension or compensation of the royalty whatsoever, for any reason, and may not invoke the defence of non-execution.
The holder of the building rights enters into this contract in full awareness of the terms, with the support of carefully considered advice of his legal and property consultants.
4.2 | Payment. |
The holder of the building rights has issued standing order instructions to ABN AMRO BANK for automatic direct debits of the royalties from his bank account, for the benefit of the account of the owner of the land, as defined below, and commits himself to maintain this standing order throughout the full duration of the agreement.
The royalty becomes payable solely through the expiry of the due date, which serves as notice of default in the event of non-payment.
4.3 | Obligation to pay into a specific account. |
Royalties must be paid to account number 310-0615219-34 or any other account designated by the owner of the land during the term of the agreement. The account may not be changed less than six weeks prior to the due date for the quarterly payment.
ARTICLE 5 - Taxes, Fees, Contributions, Rights and Expenses.
5.1 | Taxes and Fees. |
All taxes, fees and contributions in general, of any kind, and in particular land tax or other property taxes, taxes that are levied or will be levied in relation to the activities of the holder of the building rights or the occupation of the Property or on the owner and all later value added taxes due to the State, the Community, the Region, the provincial or municipal authority or any other government authority, shall be borne solely by the holder of the building rights.
If the case arises, the sums due pursuant to this article shall be paid by the holder of the building rights to the owner of the land or to a person appointed by him, within one week of the demand for payment.
The holder of the building rights is required to compensate the owner of the land for any losses that he suffers due to any delay in payment of taxes levied from the holder of the building rights that are attributable to him.
5.2 | Expenses. |
In principle, the holder of the building rights bears all costs and expenditure arising directly or indirectly from his occupation or use of the Property, without exception or reservation, and more in general from the ownership of the Building and other constructions located on the Property pursuant to article 7 of the Act of the tenth of January, eighteen hundred and twenty-four. The following examples serve as an illustration, and have no restrictive character of any kind.
The costs, for the consumption or otherwise, or if the case arises, for individual subscriptions for the distribution of water, gas, electricity, telephone, radio/TV transmission and others, shall be borne by the holder of the building rights that takes out such subscriptions directly from the relevant providers. Where there are individual meters, the consumption costs shall be shared according to the readings of those meters.
The costs of heating and ventilation of the Property (including, where relevant, the costs of meter units for cooling and heating power), the costs of consumption of water, gas and electricity and the costs of maintenance, repair and cleaning of the air conditioning, heating and fire prevention systems, the costs of maintaining the access routes, parking spaces and private roads (including the cables, pipelines and other facilities that they contain) located on the Property shall be borne solely by the holder of the building rights.
ARTICLE 6 - Interest on overdue payments and compensation for damages for extended occupation.
6.1 | Interest on overdue payments. |
Without prejudice to any other rights and claims available to the owner of the land, interest will be charged lawfully, without notice of default, on all outstanding amounts due from the holder of the building rights pursuant to this agreement from the due date, at a rate equal to the legal rate of interest in effect on that date, plus five percentage points. In any event, the interest rate shall not be less than ten per cent per annum.
6.2 | Compensation for damages for extended occupation. |
The compensation for extended occupation payable by the holder of the building rights if he still occupies the Property after the expiry of the building rights is equal to twice the latest royalty due, determined on a monthly basis for each calendar month that has already begun.
6.3 | In the event of non-payment of the royalty by the holder of the building rights, pursuant to the provisions of article 4.1, or of any other amount due by him pursuant to this agreement, and in the event of a breach of the obligations by the holder of the building rights by refraining from encumbering these rights with mortgages before the granter of the building rights has exercised the mortgage mandate provided for in article 12.3, the owner of the land has the right to lawfully dissolve this agreement, after a warning sent by registered mail has failed to produce a satisfactory response within one month, counted from the date on which the confirmation of receipt is received, with a copy to the Surety and the banker to be designated by the holder of the building rights and the owner of the land. This dissolution shall take place without prejudice to article 11.3. |
ARTICLE 7 - Use of the building Changes, fixtures and fittings.
7.1 | The holder of the building rights undertakes to use the Property with due care and to refrain from any activity that is excessively noisy or pollutant, or that causes obstruction to neighbours or could harm the reputation of the Property. |
7.2 | Without prejudice to article 2, the holder of the building rights may, while the building rights are valid, perform all refurbishment, conversion or fitting work necessary within the Building, on condition that the owner of the land is notified of this at least thirty days in advance by registered mail (or by fax on the same day) and the work cannot reduce the value of the Property, alter its use, damage the structure or stability of the Building or contaminate the Property. |
All other changes, renovations or conversions of the Property may be performed only with special prior written consent of the owner of the land. However, the owner of the land is deemed to have approved such work unless he specifically forbids this in writing, stating the reasons, within thirty days of receiving notice from the holder of the building rights requesting consent for the work, by registered mail.
The holder of the building rights must address the aforementioned notices to the persons appointed for that purpose by the owner of the land during the term of this agreement, the details of whom he must notify to the holder of the building rights by registered mail, with a copy to Architect, Max Stevens, 79 Rue de Chêne du Corbeau, 1380 Lasne, Tel: 0032/633.22.33, Fax: 0032/633.23.33.
As of todays date and until further notice from the owner of the land, this person is Mr. Magnus Schiller, Terkamerenlaan 33, 1000 Brussels, Tel: 0032/754.707.25, Fax: 0032/640.76.96.
In no case may the holder of the building rights demolish the Building or the other existing constructions.
The owner of the land hereby grants his consent in advance for the work that the holder of the building rights plans to perform on the interior or exterior of the Building in order to comply with the requirements of his activities and with a view to finish it, a description of which is attached as annex 3, on condition that the Property is returned to its original condition on the expiry of the building rights, as requested by the owner of the land in a letter dated the eighth of September two thousand.
Hereby he also grants the holder of the building rights permission for the installation of telecommunications equipment in the Property.
The owner of the land reserves the right to supervise or arrange for supervision of all work undertaken by the holder of the building rights in the Property, without accepting any liability in any way in respect of the holder of the building rights or third parties.
Prior to the performance of work of any kind, the owner of the land may require the holder of the building rights to provide evidence of appropriate insurance that covers both his contractual liability and liability for unlawful actions against the owner of the land or third parties at any time, as well as the potential liability of the owner of the land, both in respect to third parties and inter partes, on the basis of the work to be performed inside or outside the Building, with a first class insurance company registered in the BENELUX region (or another country, after approval of the owner of the land). The policy must provide for sole competence of the District Court of Brussels to hear any disputes arising in relation to the policy.
During the performance of the work, the holder of the building rights shall comply with the permits and current regulations, in particular those concerning fire prevention and safety, and all special regulations applying to the Property.
7.3 | On expiry of the building rights, in any way whatsoever, and subject to any other agreement between the parties, the holder of the building rights shall restore the Property to its original condition at his own risk and expense. |
However, if the holder of the building rights notifies the owner of the land of the reconstruction, conversion or fitting work that needs to be performed inside or outside the Building, as provided for in paragraph 2 of this article, the holder of the building rights shall list the parts inside or outside the building that he wishes to leave out on expiry of the building rights.
From the date of the receipt of the above list, the owner of the land has thirty calendar days to grant approval for the parts that will be left inside or outside the building on expiry of the building rights.
Without notice to the contrary within this term, the owner of the land is deemed to have given his consent to the list of parts that the holder of the building rights wishes to leave inside or outside the building on expiry of the building rights.
The changes or fittings installed by the holder of the building rights that may be left inside or outside the building on expiry of the building rights shall lawfully become the property of the owner of the land at that time, without any compensation.
ARTICLE 8 - Description of location Restoration to original condition.
1. | Description of location. |
The Property shall be delivered to the holder of the building rights in its current condition.
A detailed description of the location shall be drawn up by the parties when this agreement takes effect.
2. | Restoration to original condition. |
Without prejudice to the provisions of article 7, on expiry of this agreement, the holder of the building rights shall restore the Property to the condition in which it was received, without liability for normal wear and tear.
In the absence of agreement between the parties on expiry of the building rights regarding the amount to be paid for any damages, this amount shall be fixed by an expert appointed in agreement between the parties. In the absence of agreement between the parties regarding the choice of expert, the expert shall be appointed by the presiding judge of the Commercial Court in Brussels.
The parties shall each bear half of the costs of any legal fees, as well as of the costs of the experts report.
The expert shall, at the same time, fix the period during which the property will be unavailable.
During the period of unavailability fixed by the expert, or during the actual period for performing the work, if this lasts longer, the holder of the building rights shall pay a royalty equal to double the amount of the last royalty payment due. The minimum period shall be fixed to one month and the calculation of that additional royalty shall take place in full periods of one month.
ARTICLE 9 - Maintenance, repair and reconstruction
The holder of the building rights is solely and fully liable for the Property and in particular for the risks of damage, loss or full or partial destruction, whatever the reasons, including force majeure or decisions by higher authorities, and in particular, is liability pursuant to articles 1384 and 1386 of the Belgian Civil Code to indemnify the owner of the land, with no rights of recourse against him.
Consequently, all restoration, reconstruction, modernisation and maintenance work of any kind, for whatever reason and of whatever nature or scale, whether this is of an ordinary or exceptional nature, is borne, without exception or reservation solely by the holder of the building rights.
The only exception to the foregoing is that the owner of the land remains responsible for the restoration of any hidden defects that could damage the structure of the Building, if the holder of the building rights can prove that the origins of this predate the establishment of those building rights, as well as all structural repairs to the roofing of the Building, within the meaning of article 606 of the Belgian Civil Code.
The holder of the building rights must provide for all such repairs in due course, solely at his own risk and expense, to be carried out in accordance with the professional rules by dedicated and careful professionals. For other work borne by the owner of the land, as referred to in the preceding paragraph, the owner of the land must provide for all such repairs in due course, solely at his own risk and expense, to be carried out in accordance with the professional rules by dedicated and careful professionals.
The following examples serve solely for illustration purposes and are in no way restrictive.
The holder of the building rights has a particular duty to keep the Property in a perfect state of repair, operation, safety and orderliness throughout the duration of the building rights, in particular with regard to the structure, shell, roofing, mechanical systems, technical installations, accessories and equipment: he shall repair these as often as necessary and replace any elements that cannot be repaired where necessary. The holder of the building rights is required to perform all necessary work for disinfection, insect and rodent control and consequently must comply with all hygiene regulations.
Restoration, maintenance and cleaning work on the outside of the Building (access roads, gardens, parking spaces, pathways and the installations and cables and pipelines they contain) shall also be performed by the holder of the building rights at his own expense.
In the event of full or partial loss of the Building or the outbuildings, the holder of the building rights himself, or with mediation of a third party or the owner of the land, who hereby accepts in advance and for the period that the case may arise, in which that third party or the owner of the land shall then act in the name and for the account of the holder of the building rights, shall fully or partially reconstruct the Building or the outbuildings, on condition that the necessary permits and consent is granted for this by the competent authorities and, where required, in accordance with the conditions set by those authorities.
Regardless of whether the holder of the building rights is currently authorised to reconstruct the Property, the royalties remain due until the expiry of the building rights, except in the case provided for in article 4.
The owner of the land may require of the holder of the building rights, by registered mail, that all restoration, reconstruction and maintenance work provided for in this article be performed and completed as soon as possible, within a reasonable term of which the holder of the building rights is notified. If the holder of the building rights fails to do this, the owner of the land is hereby authorised to arrange to perform all that work at the risk and expense of the holder of the building rights that is in default.
The holder of the building rights must, with no compensation, grant the owner of the land or his employees, architects or all other persons appointed by the owner of the land access to the Property in order to assess the condition of the Property in general, to the extent that an appointment has been made with the holder of the building rights in advance.
The holder of the building rights may not claim any compensation for hindrance arising from any interruption in the supply of utilities to the Property, regardless of its cause, duration or scale, to the extent that the interruption is not attributable to shortcomings of the owner of the land with any of his own obligations. The holder of the building rights thus also undertakes to perform all reconstruction, renovation and maintenance work that becomes necessary during the term of the building rights, regardless of the duration, with no compensation or reduction in royalties.
ARTICLE 10 - Safety and accident prevention measures and changes in the regulations.
The Property complies with the provisions of the building permit issued prior to the construction of it ten years ago.
Except for the changes recommended by the Zaventem municipal fire brigade in its report dated the first of February, nineteen hundred and ninety-nine (annex 4), the owner of the land knows of no changes that the authorities required for the Property and confirms that to date, he has received no request from the authorities to make the Property comply with any statutory regulations.
The holder of the building rights has made contact with the competent authorities (in particular the Zaventem municipal fire brigade) in order to submit the plans concerning the layout of the Property for assessment and to obtain the necessary permits to implement the plans.
The holder of the building rights commits himself to comply with all statutory standards and regulations concerning safety and accident prevention at the Property and if necessary, to equip the Property appropriately for that purpose, at his own expense and under his own responsibility.
All costs arising from any change, adjustment or alteration of any kind that need to be applied to the Property in compliance with any statutory, regulatory, administrative, occupational or any other requirement shall be borne solely by the holder of the building rights, without exception or reservation.
The owner of the land nevertheless accepts to mediate in the costs to be borne by the holder of the building rights in order to make the Property comply with current fire safety legislation, in the sum of *** *** inclusive of VAT. This sum was paid on todays date.
The holder of the building rights shall also bear the costs of all changes to entrance connections, replacement of meters or interior installations that could be required by water, electricity or telephone distribution companies, and restrictions relating to the operation of the heating system.
ARTICLE 11 - Security.
11.1 | Guarantee for correct performance. |
On the fifth of April, two thousand, the holder of the building rights provided the owner of the land with a bank guarantee irrevocable at the earliest request, amounting to *** *** as a guarantee for correct performance of all his obligations to the owner of the land. A copy is attached to this deed.
The amount of this bank guarantee must be updated by law when the quarterly payments are adjusted, in compliance with article 4 of this agreement, with an increase of ten per cent.
In no case may the holder of the building rights offer or allocate this bank guarantee as payment of royalties or other contractual debts, in part or in full, at any time during the full duration of the building rights.
11.2 | Transfer of lease payments. |
As additional security for the correct performance of his obligations pursuant to this agreement, the holder of the building rights will ensure that his bank transfers or pays the owner of the land the lease instalments, royalties, payments and amounts in general, of any kind, that are or could be due to him for any reason by tenants or occupants of the Property and that are entrusted to the bank by the holder of the building rights in advance, as security for the financing of the works that need to be performed in the Property by the holder of the building rights pursuant to article 7, with all preferential rights and rights of precedence.
Nevertheless, this transfer by the bank of the holder of the building rights:
a. | is limited to the amount of the royalties referred to in article 4 above, after deduction of quarterly payments already made, and |
b. | may be applied only in the event of default by the holder of the building rights after the owner of the land has sent him a notice of default, with a copy sent to the bank of the holder of the building rights, demanding payment by the holder of the building rights, without result for a period of three months. |
The owner of the land may collect those sums solely with proof of receipt.
This transfer shall take place in compliance with the modalities still to be agreed by the holder of the building rights and his bank, which must be submitted to the owner of the land for approval in advance.
If the owner of the land is unable to grant approval for these modalities, the parties shall agree on a different security with equivalent legal and economic consequences, in good faith.
To the extent that the holder of the building rights does not transfer the relevant lease instalments, royalties, payments and amounts to his bank as security for the financing of his works, the holder of the building rights shall transfer these amounts to the owner of the land, directly and irrevocably, pursuant to this agreement, within the above limits.
11.3 | Joint and several indivisible security from the parent company. |
InterXion Holding N.V. shall provide joint and several indivisible security for the holder of the building rights (and all his entitled parties, under any title whatsoever, assignees, etc.) with regard to all the obligations of the holder of the building rights (and all his entitled parties, under any title whatsoever, assignees, etc.) pursuant to this agreement. This security is irrevocable.
The Surety hereby declares and guarantees that it is the parent company of the InterXion Group and is and will remain the owner of the main assets of this Group.
ARTICLE 12 - Sub-letting, transfer and mortgage.
12.1 | Sub-letting. |
The holder of the building rights may sublet the property wholly or in part to ISPs (Internet Service Providers) or companies for telecommunications services. If the future occupant/tenant is not part of the sector mentioned above, the holder of the building rights must obtain prior written consent of the owner of the land before sub-letting the property.
The duration of the lease may in no case exceed the term for which the holder of the building rights has the right to remain in the Property.
Subletting in compliance with this article involves every form under which the holder of the building rights makes part or all of the Property available to a third party, whether this is in relation to a personal or business right, or under rights granted to another party.
12.2 | Transfer. |
The holder of the building rights may transfer the benefits of this agreement, on condition that the transferring party, the party to whom the benefits are transferred and the Surety retain joint and indivisible liability to the owner of the land for all obligations arising from this agreement and its annexes.
Consequently, the holder of the building rights undertakes to ensure that the party to which such benefits are transferred also signs such an undertaking in favour of the owner of the land.
If the party acquiring the benefits does not contract such an obligation, the transfer cannot take effect. Within two weeks after the signing, the holder of the building rights shall provide the owner of the land with a certified copy of the transfer agreement.
12.3 | Mortgage registration. |
On the occasion of the transfer of the existing building rights in the mortgage register, the land registrar will be invited to register a third mortgage, after the registrations referred to in article 1.4 above, in favour of the owner of the land, as security for the correct performance by the holder of the building rights of all his obligations under this agreement, but limited to a principal sum of *** plus three years interest at the conventional rate at which the rank is protected by the Mortgage Act.
The holder of the building rights undertakes to refrain from mortgaging his building rights, partially or in full, or from allowing a mortgage mandate to be established for these rights without prior written consent of the owner of the land.
The holder of the building rights grants Ms. Olivette Mikolajczak, Licentiate in the notarial profession residing at Oude Molenstraat 180, 1180 Brussels, and Ms. Catherine Gillardin, Licenciate in the notarial profession, residing at Roodebeeksteenweg 101, 1200 Brussels, an irrevocable mandate, with power of attorney, to act jointly or individually, with the power of substitution, on behalf of the owner of the land or his entitled parties, under any title whatsoever, as security for the proper performance of all the obligations of the holder of the building rights pursuant to this agreement, to mortgage the building rights to the Property at once or on several occasions, to a maximum amount of *** *** plus three years interest at the conventional rate.
The mortgage shall be established at the earliest request of the owner of the land, solely by serving the amounts to be guaranteed, without the need to provide other documentary evidence.
All costs and fees arising from registrations in relation to the mortgage mandate shall be borne by the owner of the land.
To elect domicile for the execution and signing of all deeds and documents to that end, and in general to do all that is necessary, for which no accounting to the custodian of the mortgages is required.
12.4 | Transfer of royalties by the owner of the land. |
The holder of the building rights has notified the owner of the land of his intention to transfer the rights to the royalty arising from article 4 of this agreement to a financial third party, in observance of the formalities required pursuant to article 1689 of the Belgian Civil Code.
ARTICLE | 13 - Insurance and waiver of recourse. |
In order to avoid multiple claims, all insurance policies relating to the Property and its operation must be signed by the holder of the building rights, after notifying the owner of the land of the name of the insurance company, which must be a first class insurance company registered in the BENELUX region or another country, with the approval of the owner of the land, the terms of the policy and the insured amounts. The policies must provide that the District Court of Brussels holds sole competence to hear any disputes that may arise in relation to the policy. The holder of the building rights shall pass on to the owner of the land the charges part of the insurance policy relating specifically to the roof, as determined in the policies, and shall be paid within thirty days of receipt of the invoices by the owner of the land.
The policies shall be of the type buildings, all risks and shall cover all risks that should be covered in the interests of due care, in particular the risks of fire, explosion, lighting strike, flooding damage, broken glass, sprinkler leaks, falling aircrafts, pieces of spacecrafts, rockets, vehicle collisions, machine breakage, earthquake, terrorism, rioting, etc. and the loss of use as a result of incidences of damages.
The holder of the building rights shall also insure the liability that could arise from the Property or the activities performed therein for sufficient amounts, on the customary terms. Obviously, the holder of the building rights is free to arrange cover for his own operating risks.
The Building and its fittings shall be insured for their reconstruction value (including indexation). The fittings installed by the holder of the building rights shall be insured through a separate policy on the same terms. The policies shall also cover the costs of removing rubble (for the percentage for reconstruction of the Building), the costs of fire extinguishing, rescue and security and actions by neighbours.
The policies provide that the insurance may be terminated or suspended for any reason only in compliance with a notice period of one month in respect of the owner of the land.
The insurance premiums for these policies shall be borne by the holder of the building rights, who shall provide evidence of regular payment of the premiums at the earliest request of the owner of the land. Within two weeks of signing the policies, the holder of the building rights shall sent the owner of the land a certificate from his insurer, stating that the cover has taken effect. The holder of the building rights shall send all endorsements of these policies to the owner of the land within two weeks of their signing.
The parties explicitly agree that, whatever the provisions of the insurance policies in this regard and, in cases arising, regardless of those provisions, any payouts by the insurance company for reconstruction and for loss of use in the event of full or partial loss of the Property must be blocked in an account opened in the name of the owner of the land and the holder of the building rights, and must then be allocated as follows:
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with regard to the reconstruction, for the full or partial restoration of the Property to its former condition, as the work progresses, on submission of the invoices; |
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with regard to compensation for loss of use, for payment of the royalties due by the holder of the building rights, the royalties remaining due despite the destruction and reconstruction of the Building and regardless of any insurance payout; |
and
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any remaining amounts must be paid to the holder of the building rights. |
If the Property is not reconstructed for any reason, the policies must provide that the total sum of the insurance payouts shall be due from the insurers, as if the Building had been reconstructed.
The aforementioned insurance benefits shall then be paid in full to the owner of the land, except for benefits due under a separate policy that will be signed by the holder of the building rights for his own fittings (or his own operating losses).
Except in the case provided for in article 4, the holder of the building rights remains liable to pay the full royalties that remain outstanding on the contractual due dates, less the amounts paid out by the insurers to the owner of the land for loss of the use of the property, even if, the permits and licences needed for reconstruction or restoration of a property similar to the design of these building rights are refused as a result of a decision of a higher authority or through force majeure.
The policies must provide that the parties mutually waive all claims, within the limits of the insurance, that they could make against each other and against the lessees, sub-lessees, transferring parties, acquirers, occupants, managers or custodians of the Property and against persons in their services and their intermediaries on the grounds of any loss they could suffer through unfortunate events, such as fire, flood or accidents, and undertake to arrange for each of their lessees, sub-lessees or occupants and their insurers to accept a similar waiver of recourse, keeping the possibility of recourse in case of gross negligence or from the perpetrator of damage with malicious intent or default.
The holder of the building rights is required to maintain its fire detection system in accordance with the relevant regulations; in particular, it is forbidden to position furnishings of other objects in such a way that they could obstruct the proper functioning of the fire detection system.
The provisions of this article do not relieve the holder of the building rights of any of his obligations imposed on him by the terms of the insurers.
ARTICLE 14 - Exemption from liability of the owner of the land and his entitled parties.
The owner of the land and his entitled parties reject all liability for any action or omission on their part or by their employees that cause damage to the holder of the building rights or third parties visiting their property, both in the performance of their duties and in other ways, unless this involves gross negligence, malicious intent or deliberate recklessness on the part of the owner of the land.
The holder of the building rights must undertake the custody and effective protection of the Property; he explicitly relieves the owner of the land and his entitled parties of all liability in the event of theft, rioting or disturbances of any kind, including those that could arise in or around the Property.
In the event that administrative or legal proceedings are instituted against the owner of the land for the activities or presence of the holder of the building rights in the Property, the holder of the building rights agrees to bear the consequences of this for the owner of the land, to mediate in any proceedings instituted against the owner of the land and to indemnify him against any judgment handed down against him as a result.
ARTICLE 15 - Compulsory purchase.
In the event of the compulsory purchase of the Property for public use, the building rights shall be cancelled by law.
The holder of the building rights undertakes to waive the institution of any litigation that could reduce the amount of the compensation due to the owner of the land (who has become the full owner once again).
Equally, the holder of the building rights may not claim any compensation from the owner of the land.
ARTICLE 16 - Bankruptcy.
If the holder of the building rights goes bankrupt, this agreement shall automatically be terminated by law, without the need to comply with any formalities for that purpose. This termination shall take place without prejudice to the provisions of article 11.3.
In the event that the liquidation of the holder of the building rights is declared null and void, the owner of the land has the right, if he so wishes, to terminate this agreement by registered mail, without advance notice. In that event, the holder of the building rights is nevertheless required to pay the full royalties outstanding on the contractual due dates. The same applies if, in one of the cases described in this paragraph, the owner of the land does not terminate this agreement but the liquidator of the holder of the building rights decides to do so. That termination shall also take place without prejudice to the provisions of article 11.3.
ARTICLE 17 - Provisions concerning urban development.
The building rights are granted for the Property with the restrictions that may arise from the statutory provisions concerning planning, urban development and the living environment, regulations implemented by the competent authority for the execution of those provisions and the regional and municipal urban development regulations, where these exist.
The building rights are granted with no guarantee by, or recourse against the owner of the land in connection with the statutory servitudes of public rights of way with which the Property may be encumbered.
The holder of the building rights hereby declares that he is fully aware that the Property is encumbered with a servitude of non altius tolendi in favour of Zaventem Airport.
The owner of the land has no knowledge of any servitude of public rights of way in relation to the Property.
SPATIAL PLANNING AND URBAN DEVELOPMENT DECREE
1. | The owner of the land hereby declares that to the best of his knowledge, no permit to divide the land into plots or building permit was issued and that, apart from the submission of an urban development certificate that provides that such a permit could be obtained, no assurance can be provided regarding the possibility of building on the prescribed property or constructing any fixed or mobile installation thereon that can be used for accommodation purposes. |
2. | Furthermore, the undersigned civil-law notary refers the holder of the building rights to ARTICLE 99 of the Flemish Spatial Planning Decree, which literally reads as follows: |
§1. | Without an urban development permit issued in advance, no one may: |
1° | build one or more permanent structures on a site or demolish, reconstruct, renovate or expand an existing structure or building at a site, with the exception of maintenance and repair work; |
2° | deforest any site on which trees are growing, within the meaning of the Forestry Decree of the thirteenth of June, nineteen hundred and ninety, as referred to in article 3, §1 and §2 of that Decree; |
3° | fell tall trees, growing singly, in clumps or in rows, to the extent that they do not form part of surfaces grown with trees, within the meaning of article 3, §1 and §2 of the Forestry Decree of the thirteenth of June, nineteen hundred and ninety; |
4° | substantially alter the relief of the soil; |
5° | utilise, create or equip a site for: |
a) | storing used or scrap vehicles, of all sorts of materials, for materials or scrap; |
b) | parking vehicles, trucks or trailers; |
c) | installing one or more mobile units that can be used for residential purposes, such as trailers, caravans, scrap vehicles or tents; |
d) | installing one or more mobile units or rolling equipment that is used primarily for publicity purposes; |
6° | partially or fully alter the primary function of property with view to a new use, to the extent that said change of use appears on a list to be drawn up by the Flemish Government of changes of function requiring a permit; |
7° | change the number of residential units in a building intended for the accommodation of a family or single person, regardless of whether this involves a single family home, a flat, a block of flats, a studio apartment or a room, furnished or otherwise; |
8° | install or alter publicity units or billboards; |
9° | create or alter recreational sites, including golf courses, football grounds, tennis courts or swimming pools. Construction and installation of permanent structures, as is meant in paragraph 1 °, refers to the construction of a building or construction or installing an installation, even those made of nondurable materials, built into the ground, fixed to the ground or resting on the ground in the interests of stability, and intended to remain at that location, even though it can be dismantled, relocated or is entirely underground. This also covers the functional combination of materials through which a fixed installation or construction arises, and laying pavement. Maintenance or repair work, as is meant in paragraph 1°, refers to work that secures the use of the building for the future without change, by repairing, restoring or replacing eroded or worn materials or parts. This does not include works that relate to the structural elements of the building, such as: |
1° | replacement of roofing beams or loadbearing roofing beams, with the exception of local repairs; |
2° | full or partial reconstruction or replacement of exterior walls, even with the restoration of the existing bricks. A tall tree, as is meant in paragraph 3°, is deemed to be any tree that has a trunk circumference of one meter at a height of one meter above ground level. |
A substantial change of relief, as is meant in paragraph 4°(1), is deemed to include any filling, raising of soil levels, excavation or lowering of soil levels that changes the nature or function of the site. |
Without prejudice to the provisions of paragraph 5°, c, no urban development permit is required for camping with mobile units at a camp site within the meaning of the Decree of the third of March, nineteen hundred and ninety-three, concerning the statutes for sites for open-air recreational stays. |
§2. | The Flemish Government may establish the list of works, actions and changes for which, by way of departure from §1, no urban development permit is required, due to their nature and/or scale. |
§3. | A provincial and/or municipal urban development bye-law may supplement the works, actions and changes requiring a permit, as listed in §1. They may also introduce a requirement for an urban development permit for works and actions that are exempt for permits. |
5. | The owner of the land, as shown by a letter from Zaventem municipal authority dated the twenty-eighth of November, two thousand, declares that, according to the Halle-Vilvoorde-Asse District Plan, the property lies in an area for artisan businesses and small and medium-sized enterprises. |
In order to complete this information, the contents of the said letter from Zaventem municipal authority are reiterated here. |
The parties explicitly acknowledge that they are aware of the urban development information obtained by the Zaventem Municipal Authority and more specifically, what is reiterated here. |
They acknowledge that they have received copies of the aforementioned letter. |
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According to the Halle-Vilvoorde-Asse District Plan established by Royal Decree of 07.03.1977, the property in question lies in an area for artisan businesses and small and medium-sized enterprises. |
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Not included in a Special Building Plan approved by Royal Decree. |
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Not included in an approved division into plots. |
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Not included in a revaluation or emergency housing area. |
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Not subject to the Decree of 03.03.1976 for the protection of urban and village skylines. |
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Not subject to the Decree of 16.04.1996 concerning protection of landscapes. |
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Not affected by the plot boundary. |
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Not the subject of compulsory purchase. |
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Not encumbered with servitudes for underground use for pipelines for transportation of gaseous products, within the meaning of the Act of 12 April 1965. |
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Not included in a list of void properties (residential properties, unfit and/or uninhabitable residential properties and derelict buildings and/or residential properties); void commercial properties. |
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We do not possess a list of contaminated properties (OVAM). |
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Pursuant to the Decree of 15 July 1997, containing the Flemish Residential Code, article 85 et seq., we report that the property in question lies in a residential area. The municipal pre-sale rights do not apply here. |
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We do not yet have a register of plans and a register of permits. The urban development information is provided for the application of article 63 of the urban development legislation co-ordinated on 22 October 1996, to the extent applicable to urban development notifications. |
The above information is provided to you in the form of a single notice and remains valid only while the prospects in the field of urban development remain unchanged. They do not anticipate any decisions to be taken pursuant to applications for building and division of land into plots; they are without prejudice to such decisions in any way.
NOTIFICATIONS
The notifications of division into plots, as provided for by article 138 of the new Spatial Planning Decree of the eighteenth of May, nineteen hundred and ninety-nine, were issued by registered mail, namely to:
a. | the Municipal Executive of Zaventem Municipal Authority on the seventeenth of October, two thousand. This letter has remained unanswered to date. |
b. | the Director of Urban Development Administration, Directorate of Flemish Brabant Provincial Authority, on the seventeenth of October, two thousand. This letter has remained unanswered to date. |
ARTICLE 18 - Visits to the building.
The holder of the building rights consents to the placement of posters announcing that the Property is to let or for sale at visible locations at the property, and to visits by persons accompanied by an authorised representative of the owner of the land at any time between nine oclock in the morning and five oclock in the evening on Monday to Friday, in the company of an InterXion employee, in the twelve months prior to the expiry of the agreement.
ARTICLE 19 - Costs and Rights.
All costs of any kind arising from this deed or its implementation shall be borne by the holder of the building rights.
For the purpose of the collection of the registration rights, the parties declare that:
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the amount of the overall royalty, taking account of the automatic increase by a fixed rate of three per cent, amounts to *** |
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With no civil consequence between the parties, the charges imposed on the holder of the building rights are fixed at fifteen per cent of the overall royalty. |
The parties hereby declare that the private building rights agreement was registered on the ninth of April, two thousand and one, at the Zaventem registration office, with the following notice:
registered twenty-three rolls, no insurance in Zaventem on 9 April 2001, book 6/13, page 98, section 14, received: *** The Receiver L DESMAELE, First inspector present.
ARTICLE 20 - Changes Tolerance Indivisibility.
This agreement may be amended only by an explicit written provision.
Consequently, in no case may a change be deduced from the passive position of the owner of the land or the holder of the building rights, or even from simple tolerance, however frequent or lengthy, and the owner of the land or the holder of the building rights, depending on the case, is free at all times to require the strict application of the provisions and requirements that have not formed the subject of an explicit, written change.
This agreement is declared to be indivisible sole in the favour of the owner of the land, in particular with regard to the entitled parties of the holder of the building rights.
ARTICLE 21 - Election of domicile.
For all purposes concerning this agreement, the holder of the building rights elects domicile in the Property.
ARTICLE 22 - Dates of notices.
All notices made by registered mail for the implementation of this agreement are deemed to have been made as of the date on which the registered letter is delivered, and the date of the receipt has evidentiary value in that regard.
ARTICLE 23 - Any nullity of a provision.
The nullity of any provision of this agreement does not lead to the nullity of the agreement. The provision that is invalid is deemed not to have been written to the extent that it is unlawful, and in cases arising, the parties undertake to replace that provision with a provision equivalent in economic terms.
ARTICLE 24 - Waiver of right to compensation on the basis of article 6 of the Act of the tenth of January, eighteen hundred and twenty-four concerning building rights. To the extent necessary, the holder of the building rights waives the right to any compensation on termination of this agreement, on the grounds of article 6 of the Act of the tenth of January, eighteen hundred and twenty-four concerning building rights.
ARTICLE 25 - Act of the tenth of January, eighteen hundred and twenty-four.
The Act of the tenth of January, eighteen hundred and twenty-four concerning building rights applies in all cases for which no explicit provision is made in this agreement.
PRO FISCO DECLARATION
In compliance with article 168 of the Code of Registration of Mortgages and Registry Fees, the undersigned parties hereby declare that the existing buildings on the land to which the building rights pertain belong solely to the holder of the building rights during the term of these rights, pursuant to article 7 of the Act of the tenth of January, eighteen hundred and twenty-four concerning building rights. The ownership rights of the holder of the building rights to said buildings are consequently of a highly restricted nature, such that he holds no absolute ownership rights to these within the meaning of article 544 of the Belgian Civil Code. The establishment of these building rights therefore does not entail any transfer of ownership within the meaning of articles 1582 et seq. of the Belgian Civil Code.
ARTICLE 26 - Applicable law and choice of legal forum.
This agreement is governed by Belgian law.
The District Courts in the legal district of Brussels hold sole competence to hear any disputes arising in relation to this agreement.
FISCAL DECLARATION.
A. | Registration rights. |
The parties acknowledge that they have taken cognisance of article 203 of the Code of Registration Rights, reading as follows: In the event of any understatement of the price and charges or the agreed value, each of the contract parties is liable to pay a penalty equal to the evaded rights. This right is indivisible and payable by all parties.
B. | Value added tax. |
The parties acknowledge that they have taken cognisance, through the undersigned Civil-Law Notaries, of article 61, paragraph 6 and article 73 of the Value Added Tax Code.
The owner of the land hereby declares that he is liable for tax within the meaning of the Value Added Tax Code, under number 437.830.680 at the office in Brussels.
WHEREOF DEED.
Drawn up and executed in Brussels.
On the date hereinbefore mentioned.
Following the reading of the deed, with explanation, the deed was signed by the persons appearing and by Us, Civil-Law Notaries. The original of the deed shall be in the custody of Mr. James Dupont.
Signatures to follow.
Registered 20 page(s), 6 note(s), at the 1 st Registration Office of Vorst on 6 July 2001, Book 5/26, Page 91, Section 8, Receiver: 1000 francs. The acting receiver, A. Wauters.
Additional receipt at the 1 st Registration Office of Vorst on 13 July 2001, Book 5/27, Page 93, Section 16, Receiver: 399,000 francs. The acting receiver, A. Wauters.
Exhibit 10.5
Confidential material has been omitted and filed separately with the Commission
TABLE OF CONTENTS
Background and purpose
1. | The Leased Premises | 3 | ||||
2. | Application | 5 | ||||
3. | Commencement/takeover | 6 | ||||
4. | Notice/termination | 7 | ||||
5. | Subletting/expiry | 9 | ||||
6. | Annual fee and deposit | 9 | ||||
7. | Utilities accounts (heating and water) | 10 | ||||
8. | Property accounts (taxes, charges, operating expenses and other costs) | 11 | ||||
9. | Other expenses and expense types | 13 | ||||
10. | Agreed regulation of rent | 13 | ||||
11. | Regulation of rent to market rent | 14 | ||||
12. | Maintenance and renewals | 14 | ||||
13. | Liability and risk | 14 | ||||
14. | Vacation and return of the Leased Premises | 15 | ||||
15. | VAT | 16 | ||||
16. | Disputes | 16 | ||||
17. | Pre-emption right | 16 | ||||
18. | Registration and costs | 17 |
This lease agreement includes the following appendices:
Appendix 1. |
Plan drawings, basement and ground floor, buildings 1 and 11, dated 15.03.00, as well as drawings, building 11, office plan, dated 07.04.00. | |
Appendix 2. |
Description of the design and arrangement as of the commencement date, dated 25.04.00. | |
Appendix 3. |
Specification of charges pursuant to clauses 7 and 8, dated 25.04.00. | |
Appendix 4. |
Checklist from Ministry of Housing and Urban Affairs. | |
Appendix 5. |
Section 24 of AB 92. |
Page 1 of 16
interxion
The parties:
This lease agreement is concluded between
Lessor: |
Keops A/S Rådhuspladsen 14 1550 København V Denmark CVR no. 36 85 00 16 (hereinafter the Lessor) |
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and |
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Lessee: |
InterXion Headquarters BV Cessmalaan 1 1119 NJ Schipol Rijk The Netherlands CVR no. (hereinafter the Lessee) |
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1. | The leased premises |
1.1 | The leased premises comprise the following provisional areas: |
Building 1: |
||||
Basement: |
approx. | 544 m 2 | ||
Ground floor: |
| 5,400 m 2 | ||
Proportion of communal areas: |
| 16 m 2 | ||
Total: |
approx. | 5,960 m 2 | ||
Building 11: |
||||
Basement: |
approx. | 507 m 2 | ||
Ground floor: |
| 580 m 2 | ||
Proportion of communal areas: |
| 16 m 2 | ||
Total: |
approx. | 1,103 m 2 | ||
Total gross area: |
approx. | 7,063 m 2 |
hereinafter the Leased Premises.
1.2 | In connection with the Commencement Date, the Lessor is responsible for the final measurement of the Leased Premises. Executive order no. 311 of 27 June 1983 on land area is applied, although the gross area includes a proportion defined in binding terms by the Lessor of all communal areas, including entrance areas, staircases, evacuation routes, evacuation corridors, emergency exits, air raid shelters, equipment rooms, terraces, etc., notwithstanding any restrictions associated with them. |
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1.3 |
The proportional share is defined as the Leased Premises gross area divided by the total gross area of 30,237 m 2 . |
1.4 | If the gross area, following final measurement, deviates from the provisional measurement by 5% or more, regulation is performed of the rent and deposit as well as all other payments, including contributions to utilities, with retrospective force from the Commencement Date. There is no regulation in the event of deviations of less than 5%. |
1.5 | The Leased Premises are situated on title no. 18 a Ballerup, the land and buildings of which are referred to hereafter as the Property. The postal address of the Leased Premises is Industriparken 20-32, Ballerup, Buildings 1 and 11. The location of the leased Premises is indicated on the attached drawing Appendix 1. |
1.6 | The design and arrangement of the Leased Premises on the Commencement Date are indicated in the attached description Appendix 2. To the extent that the parties have agreed that the Lessor shall undertake renovation, repairs or new installation work in the Leased Premises, this is specified in the description. The Lessee plans to install equipment and to undertake new installation work in the Leased Premises as specified in the description, Appendix 2. |
The Lessee plans to invest approx. * * * in the Leased Premises.
1.7 | In association with the Leased Premises the Lessee is granted the exclusive right of use of a total of 12 car parking spaces. The location of these spaces is indicated in Appendix 1. |
1.8 | In association with the Leased Premises there is also the right to use a traffic zone and an area in the communal yard for goods deliveries/unloading. This zone is highlighted in the attached Appendix 1. |
1.9 | The Lessor grants the Lessee first refusal of tenancy to any free areas in the property known as Industriparken 20-32 and to any properties belonging to the Lessor or an associated company that adjoins Industriparken 20-32. The Lessor makes the same offer to the Lessee that a potential lessee would receive. The Lessee must give the Lessor a response within 15 working days of receipt of the offer. If the Lessee fails to respond within 15 working days, the Lessor is free to conclude a lease agreement with the potential lessee. If the Lessee exercises his right of first refusal of tenancy, the terms and conditions of the new Leased Premises must be essentially the same as those offered to the potential lessee. |
1.10 | For a period of six months from the date on which the parties sign this agreement, the Lessor offers the Lessee the opportunity to lease the property known as Industriparken 20-32, Building 3, for the same rent (per square metre) and with the same expenses as for the current Leased Premises. If the Lessee notifies the Lessor before the expiry of this six-month period that the Lessee wishes to exercise the right to lease Building 3, the Lessee shall be granted three months free rent. |
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2. | Application |
2.1 | The Leased Premises shall be used for industrial use, production, telecommunication business/business as an Internet Service Provider, and may not be used for any other purpose without the Lessors written consent. |
The Lessor is responsible for ensuring that the use of the Leased Premises for the commercial purpose described above on the Commencement Dates specified in clause 3.1 is not in breach of the local plan or other public planning.
The Lessor bears neither liability nor risk for the Lessees actual use of the Leased Premises. The Lessee is responsible for ensuring that the agreed use is not subject to special public regulations and is obliged to obtain and maintain all permits required with regard to the installation and operation of the Leased Premises, including regulations relating to environmental and fire conditions, as well as the Danish Working Environment Authority. The Lessor must be notified without undue delay of official requirements and receive a copy of any necessary permits.
2.2 | The Lessees use may not cause inconvenience in the form of odour, noise, vibration or light or in any other way cause inconvenience to other lessees in the Property or others. The Lessor does, however, give the Lessee permission to perform the activities that are described in Appendix 2, with the consequences that such activities involve. The Lessee must ensure that his personnel and others who have access to the Leased Premises treat the Leased Premises and its equipment as well as the Property in general in a responsible way. |
2.3 | Changes may only be made to the Leased Premises with the Lessors written consent. The Lessee shall, in response to the Lessors reasonably justified instructions, implement installations and renovations when changes take place to meet requirements from a public authority regarding the contractual use of the Leased Premises. |
2.4 | If the Lessee has made changes to the Leased Premises, the Lessee is obliged upon termination of the lease arrangement to restore the Leased Premises, unless the Lessor has waived this requirement in writing. The Lessor may demand that the Lessee, before making any changes, deposit a reasonable amount as security for the obligation to restore. |
2.5 | The Lessee is liable for compensation for any damage including accidental damage caused to the Leased Premises or the Property in general as a consequence of the Lessees installations or renovations. |
2.6 | Signs, flags and other forms of publicity on and by the Property as well as the setting up of awnings, sun blinds, showcases and automatic machines, etc. are only permitted subject to the Lessors prior written notification and approval and must in such cases comply with the easements and official requirements in force at any time that apply to the Property. |
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All costs in connection with the above measures are paid by the Lessee, who is obliged to obtain and maintain all official approvals and to make sure that any conditions for approval are observed at all times.
When vacating the premises, the Lessee must at his own expense remove all traces of objects placed in the Property in accordance with the above, unless the Lessor has waived the requirement to do so in writing.
The Lessor may demand that signage, etc. on the Property complies with a signage plan drawn up by the Lessor, which may include inter alia communal direction signs. The costs of producing and continuously updating this signage plan as well as all measures relating to its implementation constitute a communal charge, which is included in the property accounts, cf. clause 8.
2.7 | The Lessee is not entitled to use the communal area and/or the outdoor area for the storage or placing of goods, packaging, etc. without the Lessors written consent. The Lessor may remove such objects without prejudice at the Lessees expense. |
2.8 | The Lessee undertakes to clear storage rooms that also serve as air raid shelters within the statutory time frame in force at any time. |
2.9 | Notwithstanding whether a part of the Propertys communal area is included in the gross area of the Leased Premises, the Lessor may to a reasonable extent make use of these communal areas, including for the hiring of advertising space, mobile phone aerials, etc. The Lessors right of use includes both internal and external communal areas. |
2.10 | The disposal of hazardous or polluting substances is not permitted in or by the Leased Premises and the Property. The Lessee is liable for compensation for this, and the Lessor may conduct an inspection when the premises are vacated in order to check that the Lessees obligation has been fulfilled. |
3. | Commencement/takeover |
3.1 | The Leased Premises in Building 1 are expected to be available to be taken over by the Lessee on 01.05.2000, referred to hereafter as Commencement Date I. The Leased Premises in Building 11 are expected to be available to be taken over by the Lessee on 15.08.2000, referred to hereafter as Commencement Date II. Commencement Date I and Commencement Date II are referred to hereafter as the Commencement Dates, and the latter of these two dates is referred to hereafter as the Commencement Date. |
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3.2 | Any less significant defects in the Leased Premises that do not prevent the Lessees use of them do not defer the Commencement Dates and the Commencement Date, and do not entitle the Lessee to a reduction in the rent. |
3.3 | If the Leased Premises cannot be taken into use on the Commencement Dates and this is due to a situation relating to the previous lessee (e.g. their failure to vacate the premises in time or to restore the premises) or an unexpected need to undertake repairs, the Lessor can defer the Commencement Dates by the time that this delay represents. The Lessor is not, however, entitled to defer the Commencement Dates by more than 13 months. The Lessee does, however, have access to the Leased Premises on the specified Commencement Dates. |
3.4 | If the Leased Premises cannot be taken in to use on the specified Commencement Dates and this is due to a situation that according to Section 24 of AB 92 gives the contractor the right to extend the deadline, the Lessor can defer the Commencement Dates (and thereby also the Commencement Date) without compensation as specified in Section 24 of AB 92. A copy of Section 24 of AB 92 is attached as Appendix 5. |
3.5 | No later than on the Commencement Dates, a transfer process takes place, and the Lessor draws up a moving-in report on the basis of this. No later than 14 days after receipt of the moving-in report, the Lessee must notify the Lessor of any objections to this. The Lessor is entitled and obliged to rectify any defects within a reasonable time. |
3.6 | The Lessee is obliged to take part free of charge in the 1-year and 5-year review between the Lessor and the contractor, and in this context the Lessee is obliged to provide information about any defects confirmed after the Commencement Dates. The Lessee is obliged without compensation to assist in the contractors and the Lessors rectification of any defects. Rectification of such faults and defects will, however, take place in close collaboration with the Lessor and in such a way that it does not disrupt the Lessees business activities. |
3.7 | Disputes about defects and/or delays are resolved by the assessor, cf. clause 16.2. If, as an element of such a dispute, an expert opinion is sought with regard to questions that may be or become the subject of a dispute between the Lessor and the contractor, the parties agree to use the same assessor. The Lessee is a party to the expert opinion and has a right to influence the choice of assessor and an obligation to take part in the process of obtaining an expert opinion, including possibly also in the costs. Before the Lessor approves the assessor, the Lessee must have approved this person with the Lessor. There is no contractual relationship between the Lessee and the contractor. |
4. | Notice/termination |
4.1 | The Lessee can serve notice to terminate the lease arrangement and vacate the premises no earlier than ten years after the Commencement Date. |
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4.2 | The Lessor can serve notice to terminate the lease arrangement and vacate the premises no earlier than 15 years after the Commencement Date. |
4.3 | Both the Lessee and the Lessor must give at least 12 months written notice to vacate the premises on 1 April of a given year. |
4.4 | The Lessee is entitled to extend the term of the lease agreement at one years notice by up to 2 x 5 years. When a request is made to extend the term of the agreement, the other provisions of the lease agreement are also carried forward in full. |
The Lessees notice may only be based on significant changes in the commercial market terms of the rent.
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5. | Subletting and surrender |
5.1 | The Lessee is entitled to sublet the Leased Premises either partly or in full. |
5.2 | The Lessee is not entitled to surrender the lease arrangement, but is granted the right after the Commencement Date to transfer the lease arrangement to the Lessees Danish, 100%-owned subsidiary, currently in the process of being established under the name of InterXion Danmark A/S. The transfer of the lease arrangement to the Lessees Danish subsidiary is, however, only valid for as long as and to the extent that the subsidiary fulfils the terms of the lease agreement in all respects. If this is not the case, the lease agreement reverts to the Lessee in the Lessees non-terminability period. The subsidiary cannot transfer the lease arrangement to another party. |
6. | Annual fee and deposit |
6.1 | The rent excluding VAT is: |
Building 1: |
||||||||||||||||
Basement approx. 544 m 2 |
x DKK | Total | DKK | *** | ||||||||||||
Ground floor approx. 5 400 m 2 |
x | | | *** | ||||||||||||
Share of communal areas approx. 16 m 2 |
x | | | *** | ||||||||||||
Building 11: |
||||||||||||||||
Basement approx. 507 m 2 |
x DKK | Total | DKK | *** | ||||||||||||
Ground floor approx. 580 m 2 |
x | | | *** | ||||||||||||
Share of communal areas approx. 16 m 2 |
x | | | *** | ||||||||||||
Total rent excl. VAT 7,063 m 2 |
Total | DKK | *** | |||||||||||||
The final rent and deposit are defined when the final measurement of the areas has taken place and will be regulated either upwards or downwards with retrospective force from the Commencement Dates, cf. clause 1.4.
6.2 | The rent falls due for payment quarterly in advance, and falls due for the first time as of the Commencement Dates, when rent is paid for the period from the Commencement Dates until the end of the quarter in question. The rent is paid otherwise quarterly in advance on 1 March, 1 June, 1 September and 1 December. |
6.3 | No later than one week after the Lessee has signed this agreement, the Lessee shall set up a bank guarantee corresponding to six months rent. The bank guarantee only comes into force two years after the parties signatures upon conclusion of this agreement. The bank guarantee constitutes security for any interim balances between the Lessee and the Lessor in connection with the lease arrangement, including security for the Lessees obligations in connection with vacating the premises. The guarantee shall be released wholly or partly when the rental arrangement has ceased and all requirements from the Lessor have been satisfied. (Draft bank guarantee attached.) |
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6.4 | In addition to the rent, the Lessee shall pay a proportion of the costs in accordance with the utilities accounts, cf. clause 7, and a proportion of the expenses in accordance with the property accounts, cf. clause 8. |
6.5 | All claims resulting from this lease agreement or the Danish Act on the Lease of Business Premises are pecuniary obligations. |
7. | Utilities accounts (heating and water) |
7.1 | The Lessor arranges for supplies of heating and hot/cold water. The Lessee is obliged to source all of this consumption of heating and hot/cold water in accordance with the Lessors instructions, and the Lessee pays for this in accordance with the guidelines described below. The Lessee may not establish any other heating supplies without the Lessors written consent. The Lessee is obliged the keep the Leased Premises free of frost. |
The utilities accounts are produced jointly for premises in the Property or for units that share their heating supplies with it. The Lessor may restrict or extend the units that share joint heating supplies with the Property and change the division between the units that participate in joint heating supplies.
Clause 7.2 and the attached Appendix 3 (Specification of charges in accordance with clauses 7 and 8) specify which estimated expenses are included in the utilities accounts. The specification does not include expense types that are not known when this agreement is concluded, and which the Lessor may therefore subsequently have included in the utilities accounts. Any new expenses must be directly associated with the operation of the Leased Premises or the communal areas and must reflect actual expenses borne by the Lessor.
7.2 | The utilities accounts include the following expenses: |
7.2.1 | All expenses for fuel, etc., all forms of payments to suppliers of district heating, gas and oil, and all expenses associated with the operation of the heating supply, including chimney sweeping, staff costs, expenses for inspection and supervision, and maintenance and provisions for renewals of heating supply systems, including spare parts and tools, as well as statutory inspection schemes. |
7.2.2 |
Lease of the boiler room, calculated at 126 m 2 x *** . This boiler room lease is regulated once a year according to the net price index. |
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7.2.3 | Expenses for security and service arrangements, technical support and administrative expenses, including expenses for producing heating accounts. |
7.2.4 | Water consumption, water drainage charges and sewerage charges for the Property, including communal consumption of water and water drainage, apart from those that are billed directly to the individual lessee by the supply company, cf. clause 9. |
7.3 | A final statement on utilities expenses is produced once a year for the period from 01.04.00 until 31.03. The Lessee will receive a statement on the first occasion for the accounts that run from 01.04.00 until 01.04.01. The Lessor may, at two weeks written notice, re-schedule the utilities accounting period, and the new period may cover a period of more or less than 12 months. |
7.4 | The utilities expenses are divided between the lessees on the basis of the distribution meters in the leased premises where they exist and also according to criteria drawn up by a heating engineer designated by the Lessor, including with due reference to area and shares of rooms and taps. |
7.5 | In order to cover the utilities expenses, the Lessor defines an on account amount, which is due for payment at the same time as the rent, cf. clause 6. Additional payments relating to the utilities accounts fall due for payment as requested by the Lessor. |
8. | Property accounts (taxes, charges, operating expenses and other costs) |
(8.1) In addition to the agreed rent and the expenses specified in clause 7, the Lessor is entitled to demand from the Lessee reimbursement for all taxes, charges, operating expenses and other costs of any kind relating to the Property and the associated lease activity. Unless otherwise specified, the Lessor is responsible for all measures relating to the property expenses against reimbursement for these, cf. below.
The expenses listed below are specified and estimated in attached Appendix 3 (Specification of charges in accordance with clauses 7 and 8). This specification does not include types of expenses that are not known when this agreement is concluded, and which the Lessor may therefore subsequently have included in the property accounts. Any new expenses must be directly associated with the operation of the Leased Premises or the communal areas and must reflect actual expenses borne by the Lessor.
8.1 | Property expenses include inter alia the following: |
8.1.1 | All taxes and charges, etc. including land tax, environmental charges, contributions to renovations, road contributions, insurance premiums relating to the property, contributions to or the acquisition of materiel for civil defence measures and the basic owners association subscription. |
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8.1.2 | The propertys consumption of communal electricity including communal electricity consumption for, for example, internal and external lighting, lifts, etc. |
8.1.3 | All external cleaning, maintenance and renewal of surfaces and open areas, etc. including maintenance of the cultivated and communal areas by the Property as well as snow clearance, gritting as required on roads, parking areas and yard areas, installation, cleaning, maintenance and renewal of all external lighting, direction signs and the cleaning of drains. |
8.1.4 | Internal cleaning, maintenance and renewal of communal areas, including communal staircases, lifts, communal corridors and installations shared by several lessees in the Property. |
8.1.5 | Cleaning, maintenance and renewal of the building, including installations and systems, etc., to the extent that these expenses are not ultimately to be borne by the Lessor in accordance with clause 12.1, or the situation is specifically attributable to an individual lessees maintenance obligation. |
8.1.6 | Expenses for subsequent changes to the Propertys communal fittings, communal installations, including relating to the electricity installation, communal water and heating supply systems to the extent that these changes can be attributed to amended or stricter official requirements, unless the parties are in agreement that the expense be treated as an improvement expense. |
8.1.7 | If an instance of damage or defective general maintenance or renewal cannot be attributed to an individual rented unit, the repair, maintenance or renewal is performed by the Lessor and the expense is divided among the lessees in accordance with this provision. |
8.2 | A final statement on property expenses is produced once a year for the period from 1 January until 31 December. The Lessor may, at two weeks written notice, re-schedule the accounting period, and the new period may cover a period of more or less than 12 months. |
8.3 | Property expenses are divided among the lessees in the Property according to the defined proportional share, cf. clause 1.3. Expenses that can be attributed solely to one or more of the individual leased units in the Property are, however, divided among these lessees in proportion to the gross areas involved. |
8.4 | In order to cover the property expenses, the Lessor defines an on account amount, which is due for payment at the same time as the rent, cf. clause 6. Additional payments relating to the property accounts fall due for payment as requested by the Lessor. |
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9. | Other expenses and expense types |
9.1 | In addition to the rent, cf. clause 6 and the expenses described in clauses 7 and 8, the Lessee shall, as far as possible, pay the following expenses directly to the supplier: |
9.1.1 | Electricity consumed in the Leased Premises. |
9.1.2 | Water consumed and the associated charges, including drainage, environmental charges, etc., to the extent that these are not included in the property accounts, cf. clause 8. |
9.1.3 | Removal of business waste. Waste containers must be located as instructed by the Lessor. |
9.2 | If the Lessor, despite the direct customer relationship between the Lessee and the supplier, is responsible towards the supplier for any of the aforementioned deliveries, the Lessor can demand a special deposit as security for the Lessees payments. |
10. | Agreed regulation of rent |
10.1 | The annual rent is regulated with no special notice every year as of 01.05.00, starting on 01.05.2001, by the percentage change in the net price index from April of the previous year until April before the regulation date. |
The annual regulation of rent can be calculated using the following formula:
annual rent (old) x new index = annual rent (new)
old index
where the annual rent (old) is understood to be the rent in force immediately before regulation, where new index is understood to be the net price index for April.
where the old index is understood to be the net price index for April of the previous year.
where the annual rent (new) is understood to be the calculated new annual rent, after the annual regulation, which will be in force from the regulation date, and
where the net price index is understood to be the price figure calculated and published by Statistics Denmark using January 1975 (=100) as a base.
10.2 | The annual rent increase shall be as a minimum 2.5% cumulatively of the rent in force immediately before the regulation process and shall be as a maximum 5% cumulatively of the rent in force immediately before the regulation process. |
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10.3 | If regulation according to the net price index cannot be completed as a consequence of a change or lapse of the current rules on the net price index, the parties agree to use another, equivalent form of regulation. |
11. | Regulation of rent to market rent |
11.1 | Either party may request that the rent be regulated to the market rent in accordance with a similar application of the rules in Section 13 of the Danish Act on the Lease of Business Premises. The four-year intervals mentioned in the provision are, however, changed to the effect that regulation can take place at five-year intervals. The rent may never, however, be reduced to an amount that is lower than the agreed starting rent in accordance with clause 6/the most recent regulation to market rent. |
11.2 | Notwithstanding clause 11.1, the parties have mutually waived the right to demand that the rent be regulated to the market rent for a period of 15 years from the Commencement Date. |
12. | Maintenance and renewals |
12.1 | Expenses for maintenance of the external envelope, i.e. the roof, façade and external side of gates, doors and windows (excl. panes), are ultimately borne by the Lessor, while other maintenance and renewal expenses are paid by the lessees via the property accounts, cf. clause 8. |
12.2 | All internal maintenance and renewal of the Leased Premises, i.e. the entire physical framework within the leased premises, is the responsibility of the Lessee to the extent that it is necessary to keep the Leased Premises in a good state of repair corresponding to the standard at which the Leased Premises were taken over on the Commencement Dates. |
In this context the Lessee is obliged to undertake painting, whitewashing and wallpapering. The Lessee is also obliged to maintain and, if necessary, renew floor coverings, locks, keys and panes, water and gas taps, electrical switches, toilet bowls, cisterns, wash basins, baths, white goods, ventilation systems and any other installations of any kind. The list of aforementioned elements that the Lessee must maintain is not exhaustive, but simply provides examples.
12.3 | The Lessor is entitled, but not obliged, to conduct an annual inspection of the Leased Premises and the Property in general with a view to assessing the state of maintenance, etc. |
12.4 | The Lessor is entitled to undertake works both inside and outside the Leased Premises in accordance with the rules in Chapter 5 of the Danish Act on the Lease of Business Premises. |
13. | Liability and risk |
13.1 | The Lessee is responsible for arranging the usual shop and/or business insurance covering fire, theft and operating losses before the Commencement Dates, i.e. before the Leased Premises are furnished with stock, etc. and equipment. Such insurance should as a minimum include stock and equipment, annual earnings and fixed glass and sanitary fittings. |
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The Lessor is, however, entitled to arrange a joint insurance policy for glass and sanitary fittings for the whole Property. The insurance premium in such an eventuality is included in the property accounts, cf. clause 8
13.2 | If, during the term of the lease arrangement, damage is caused to the Lessees property (e.g. to stock, etc.) as a consequence of faults, defects or omissions in the Leased Premises, the Lessor can only be held liable for this if the Lessor has been negligent. This condition only applies if such damage is not covered by an insurance policy arranged by the Lessor. |
14. | Vacation and return of the Leased Premises |
14.1 | At no later than 12.00 on the termination date, this time hereafter being referred to as the Termination Time and regardless of whether this is a public holiday or the day before a public holiday the Lessee shall return the Leased Premises in their state at the time. The Lessee is not obliged to restore the Leased Premises. |
14.2 | Before the Termination Time the Lessee unless otherwise agreed with the Lessor is entitled to remove all moveable effects and equipment, as well as technical installations that were paid for and installed in the Leased Premises by the Lessee. |
14.3 | No later than at the Termination Time, following an invitation from one of the parties, a joint inspection is conducted of the Leased Premises (moving-out inspection) to determine any defects that need to be rectified. Upon completion of the moving-out inspection the Lessee hands over all keys to the Leased Premises, and the Lessor then draws up a moving-out report. The Lessor can then demand that the value of confirmed defects be converted into a cash amount, which is paid in cash by the Lessee to the Lessor. Any dispute on the conversion of defects into cash amounts is resolved by the assessor, cf. clause 16.2. Instead of conversion into a cash amount, the Lessor can choose to demand that the defects be rectified at the Lessees expense and risk. After the moving-out inspection, the Lessee is subsequently prevented from undertaking his own rectification of defects in the Leased Premises. |
14.4 | Apart from hidden faults and defects in the Leased Premises, the Lessor cannot lodge claims under clauses 14.1 14.4 if more than 8 weeks have passed since the moving-out inspection. |
14.5 | The defects confirmed during the moving-out inspection that are not converted into cash amounts are rectified by the Lessor at the Lessees expense. If rectification has not been completed at the Termination Time, the Lessor can demand payment for charges in accordance with clauses 6, 7 and 8, as well as indemnification for expenses in accordance with clause 9 for the period that passes for restoration from the Termination Time and until the Leased Premises have been put into a contractually agreed condition. Repairs must be undertaken within a reasonable time. |
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14.6 | If the Lessees activity in or from the Leased Premises has any environmental impact, the Lessee must document, when requested by the Lessor, that this activity and the impact has not had any negative effect on the Property or the neighbours. Documentation can take the form of an authoritative declaration either from the relevant municipal authority or from a recognised engineering company. Any dispute about the environmental impact is resolved by the assessor, cf. clause 16.2. The costs of producing the documentation are borne by the Lessee. |
15. | VAT |
15.1 | The Lessor is voluntarily registered for VAT for both leasing the Leased Premises and for delivery of heating and hot water. |
15.2 | As a consequence of this, all services and charges that the Lessee must pay to the Lessor under this agreement will be subject to VAT, currently at 25%, in accordance with the currently prevailing rules in this respect. |
16. | Disputes |
16.1 | Any dispute that may arise in connection with this lease agreement must be brought before the real estate court of the first instance. |
16.2 | Disputes relating to defects and delays, cf. clause 3.10, on the conversion of defects when vacating the premises into cash, cf. clause 14.4 and on the environmental impact, cf. clause 14.7 must, however, be resolved by an independent expert assessor appointed jointly by the parties. In the absence of agreement, the assessor is appointed by the Danish Institute of Arbitration. The assessors decision is final. |
17. | Pre-emption right |
17.1 | If the Lessor sells or transfers the property right to the Leased Premises or the Property, subject to the options specified in clauses 1.9 and 1.10, the Lessee has the pre-emption right to the Property. The Lessor offers the Lessee the opportunity to buy the Property on sales conditions defined by the Lessor. The Lessee must respond to the Lessor within 15 working days. If the Lessee does not respond within 15 working days, the Lessor is free to sell to a third party. If the Lessee exercises his pre-emption right, the conditions of the sale or transfer must be essentially the same conditions that were defined by the Lessor. |
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18. | Registration and costs |
18.1 | The Lessee is entitled to have this agreement registered for the Property in respect of current and future mortgages and easements. The registration must respect the Propertys possible division into freehold properties, such that the current agreement releases the Property and is transferred to the relevant freehold property. |
18.2 | When the lease arrangement ceases, the Lessee is obliged to cancel the registered lease agreement. If this has not happened within 14 days of the end of the lease arrangement, the Lessor can cancel the registration at the Lessees expense, as the Lessees written notice to terminate or the enforcement agents notes on the basis of enforcement in a repossession case can form the basis of cancellation. |
18.3 | Each party bears its own costs in connection with the creation of this lease agreement, including fees to their own advisors, solicitors, etc. The Lessee pays all costs in connection with a possible registration and cancellation from the register of the lease agreement. |
18.4 | The Lessee confirms that he has read all appendices to this agreement, including the attached checklist from the Ministry of Housing and Urban Affairs, Appendix 4. |
Date: | Date: | |||
for the Lessee | for the Lessor |
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Exhibit 10.6
Confidential material has been omitted and filed separately with the Commission
43 LANDY - MEDIACOM II - INTERXION - 24/10/07
AMENDMENT TO LEASE AGREEMENT DATED 29 JUNE 2007
THE UNDERSIGNED:
SCI 43 rue du Landy, real estate investment company under French law (société civile immobilière) with capital of EUR 10,000, entered in the Trade and Companies Register (RCS) in PARIS under number 487 965 980 and having its registered office at 26, bd Malesherbes 75008 Paris,
Represented by its Manager, the Foncière Paris France company, which in turn is represented by Mr Patrick Béghin, Assistant Managing Director.
Hereinafter referred to as SCI or the Lessor
PARTY OF THE FIRST PART,
AND
The company with the designation Interxion France SàRL with capital of EUR 200,000, entered in RCS Bobigny under number 423 945 799, and having its registered office at 45, avenue Victor Hugo, Building 260, 93534 Cedex Aubervilliers,
Represented by Mr Fabrice Coquio, Manager
Hereafter referred to as Interxion or the Lessee
PARTY OF THE SECOND PART,
Whereas:
In accordance with the private agreement dated 29 June 2007 in Paris (the Lease), SCI 43 rue du Landy has leased Interxion, a warehouse building with office space and ancillary facilities located at 198, avenue du Président Wilson in Saint-Denis (Seine Saint-Denis).
This Lease was granted and accepted for a period of 12 years commencing on 1 December 2007, with Interxion having the option of withdrawing from the Lease by notifying SCI at least 30 days in advance, no later than 31 October 2007.
Interxion having asked SCI to extend the above period for his decision and SCI having granted this request, the Parties have agreed to make the following amendment.
The Parties have additionally agreed to use this amendment to formalize their arrangement concerning the payment by SCI of the costs of the injection work to be performed in the Leased Premises.
43 LANDY - MEDIACOM II - INTERXION - 24/10/07
Have hereby agreed to the following:
Section 1: Amendment of Clause 3 of Part I: Specific Terms of the Lease
The parties agree to nullify Clause 3 of Part 1 (Specific Terms of the Lease) and replace it by the following:
3. Commencement Date of the Lease
The lease is granted for a period of twelve years commencing on 1 December 2007 (the Commencement Date) and ending 30 November 2019.
During the period prior to the Commencement Date, the Lessor grants the Lessee the right to withdraw from the Lease at any time, providing it notifies the Lessor by registered mail with acknowledgement of receipt in such a manner that the date of receipt or first delivery of this letter is no later than 19 November 2007.
By mutual agreement, the Parties acknowledge that their relations between 1 June 2007 and the Commencement Date, including the Lessees option to cancel further commitment to the Lease, shall not be subject to the public statutory regulations concerning commercial leases but will be governed by the common-law rules applying to contracts.
During the period from 1 June 2007 to the Commencement Date, the Lessee will be liable for payment of an occupancy charge amounting to *** per month net of tax and additional charges. This amount is payable in advance, commencing on the Signing Date of this Contract.
During the same period, private charges, share of property taxes and share of the annual tax on offices, shops and storage facilities referred to in Clauses 8.1, 8.2 and 8.3 will be set at the flat rate of *** plus taxes per month.
Section 2: Lessors contribution to the cost of the injection work undertaken by the Lessee
In the event that, in connection with the work to be performed under Clause 9.1 of the Lease, the condition of the buildings basement makes it necessary for the Lessee to undertake injection work, the Lessor shall pay the costs of such work up to EUR 100,000 (one hundred thousand euros) including fees but excluding taxes. This contribution will be paid upon presentation of the Lessees invoice along with receipts for expenses.
All other terms, conditions and obligations of the Lease remain unchanged.
Drawn up in Paris on 26 October 2007 in two (2) original copies
Lessor | Lessee | |
INTERXION FRANCE | ||
Building 260 45, avenue Victor Hugo | ||
93535 Aubervilliers Cedex France | ||
RCS Bobigny 423 945 799 - APE 652 E | ||
Tel. +33 (0) 1 53 56 36 10 | ||
Fax +33 (0) 1 52 56 36 20 |
Exhibit 10.6
Confidential material has been omitted and filed separately with the Commission
43 LANDY - MEDIACOM II - INTERXION 27/06/07
LEASE AGREEMENT
THE UNDERSIGNED:
The SCI 43 Rue du Landy , civil real estate corporation with capital of EUR 10,000, registered with the RCS of PARIS under No. 487 965 980, whose registered office is at 26 Blvd. Malesherbes 75008 Paris, Represented by its Managing Director, the FONCIERE PARIS FRANCE Company, which is represented by Mr Bruno Kahan, Deputy CEO.
Hereinafter referred to as the LESSOR
ON THE ONE HAND
AND
The company referred to as INTERXION France SARL with capital of EUR 200,000, registered with the RCS of Bobigny under No. 423945799, whose registered office is at 45 Avenue Victor Hugo, Building 260, 93534 Aubervilliers Cedex,
Represented by Mr Fabrice COQUIO, Managing Director
Hereinafter referred to as the LESSEE
ON THE OTHER HAND
Have previously set forth the following:
STATEMENT
1) Definitions
In the present contract, the generic terms below have the following meanings:
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Lease: means the lease subject hereof |
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LESSOR: means the SCI 43 Rue du Landy Company |
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General Conditions: means the General Conditions of the Lease |
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Special Conditions: means the Special Conditions of the Lease |
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The Building or the Premises: means the property that is the subject of the Lease |
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LESSEE: means the Interxion Company |
2) Property of LESSOR
The LESSOR is the owner of the Building to be acquired under a deed received by Maitre Sylvie Burthe-Mique, member of the notary partnership referred to as Monassier and Associates 1 Rue de Monttessuy in Paris (75007) since 1 December 2006.
3) Investigations carried out by the LESSEE
The LESSEE acknowledges having been able to proceed, prior to this date, with all the investigations it deemed useful concerning the Building, in order to check in particular on its condition and to ensure the possibility of exercising the business it intends to operate there.
It states in this respect, having already checked with the DRE, the technical and financial feasibility of providing electric power cables for the delivery of 13 MW.
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This having been set forth, the Lease that is the subject hereof is agreed:
The LESSOR gives a Lease for a period of 12 full and consecutive years commencing from the Effective Date as specified in § 3 of the Special Conditions of this Lease, in the context of the commercial lease statutes, as defined in Articles L 145-1 and following of the Commercial Code, to the LESSEE, who so accepts, for the building whose description is hereafter established in the Special Conditions.
The Lease is granted and accepted under the Special Conditions and the General Conditions set forth below, which form an inseparable whole.
It is hereby specified that in case of contradiction between the General Conditions on the one hand and the Special Conditions on the other, the provisions of the Special Conditions shall prevail.
CHAPTER I
SPECIAL CONDITIONS OF LEASE
1 | Description of the Building |
The Building that is the subject of this contract is located in Saint-Denis (Seine Saint-Denis) 198, Avenue du President Wilson. It includes land in cadastre Section CJ No. 159 of 5,913 m² on which is erected a building for use as a warehouse with support offices and accompanying premises (APPENDIX 9: Plan).
As has been seen and agreed to by the LESSEE.
2 | Intended Purpose - Use of the Premises |
As noted above, the building is intended as a warehouse and support offices.
However, the LESSEE may use it for its business of providing services for the hosting, equipping and installing of computers and telecommunications, connectivity between wireless TELECOM carriers networks, technical support to telecommunications companies, including the transfer and registration of telecommunications capacity, as well as all services related to these activities, once it has obtained the permits and performed, at its expense and risk, all the work that may be necessary for the exercise of this business activity.
3 | Effective Date of the Lease |
The Lease is granted for a period of twelve years that begins on 1 December 2007 (Effective Date) and ends on 30 November 2019.
During the period prior to the Effective Date, the LESSOR grants to the LESSEE the right to withdraw from the Lease at any time subject to informing the LESSOR thirty days in advance by registered post with return receipt requested.
By mutual agreement, the parties agree that their relationship between 1 June 2007 and the Effective Date, and particularly the option for the LESSEE to waive further execution of the Lease, shall not be subject to the rules of public order of the commercial lease statutes but shall be governed by the common contract law.
During the period from 1 June 2007 to the Effective Date, the LESSEE shall be liable for a monthly occupancy fee of *** excluding taxes and charges, which shall be payable in advance as of the signing of this contract.
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During the same period, the private charges, the share of the property tax and the share of the annual tax on offices, commercial and storage premises referred to in Articles 8.1, 8.2 and 8.3 shall be fixed at the lump sum of *** excluding taxes per month.
4 | Tax Treatment |
In accordance with the provisions of Articles 260-2 nd of the General Tax Code and 193 and 195 of Appendix II of the General Tax Code, the LESSOR has opted for payment of VAT on rental income for the Building for which the occupancy fee is referred to above.
Accordingly, the rent, charges and utilities and generally all sums owed by the LESSEE to the LESSOR in pursuance hereof are understood to include value added tax. The same shall hold in respect of any replacement, additional or similar taxes that may be created.
5 | Rent |
5.1 - Base Rent
The present rental is granted and accepted in return for principal annual rent exclusive of taxes and charges of ***
Notwithstanding the foregoing paragraph and without prejudice to § 3 of these Special Conditions of the Lease, it is agreed that from 1 December 2007 to 31 December 2008, or to the date of completion of the LESSEEs work as referred to in Article 9 below if it is before 31 December 2008, the annual base rent shall be reduced to *** exclusive of taxes and prorated charges.
As necessary, it is recalled that these special provisions are not an obstacle to the application of the escalator clause provided for in Article 3.2 of the General Conditions hereinafter.
5.2 - Advance Rent
In consideration of the exemption granted in § 7 below by the LESSOR to the LESSEE to pay it a security deposit, the LESSEE shall pay to the LESSOR, upon signature hereof, in addition to the rent payable for the expiring term, a permanent advance in an amount equal to one quarters rent plus charges, plus VAT at the current rate, i.e. the sum of *** *** , so that, by express agreement between the parties, the LESSOR shall continuously hold, regardless of quarterly due dates, an amount equal to three months rent and charges inclusive of taxes.
For the period prior to the Effective Date, and then for the period from the Effective Date until the date of completion of the work, the amount of the permanent advance shall be calculated in proportion to the value of three months of rent and charges for the relevant periods.
The advance shall be indexed under the same conditions as the principal rent.
At the end of the Lease, possibly renewed, the advance paid by the LESSEE shall be refunded to him, after deducting all sums that remain due the LESSOR in any capacity whatsoever, and in the first place for the re-conditioning of the Premises.
In the event of early termination of the Lease as a result of non-performance of its terms or for any cause attributable to the LESSEE, said advance shall be retained by the LESSOR for initial damages, without prejudice to any other.
In case of withdrawal by the LESSEE from the Lease under the conditions stipulated in § 3 hereinabove, this amount shall be refunded by the LESSOR to the LESSEE within a period of 30 days from the notification of the withdrawal by the LESSEE.
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6 | Benchmark Index for the Updating of the Rent |
For the purposes of the escalation clause stipulated in Article 3.2 of the General Conditions, the index will be the last published index, namely that for the fourth quarter of 2006, for a value of 1406.
7 | Security Deposit |
Notwithstanding Article 3.7 of the General Conditions hereinafter, the LESSEE is relieved of paying a security deposit to the LESSOR.
8 | Amount of the First Quarterly Provision for Charges |
8.1 - Reimbursement of Individual Charges
The provision for reimbursement of individual charges is set at 5% excluding taxes on the rent excluding taxes, i.e.
*** excluding taxes per quarter.
8.2 - Reimbursement of Property Tax
The provision for reimbursement of the property tax is fixed at *** per quarter.
8.3 - Reimbursement of the Annual Property Tax on Premises used as Offices, Commercial Premises and Storage
The provision for reimbursement of this tax is fixed at *** per quarter.
9 | LESSEEs Work |
9.1 - Performing of Work by the LESSEE
The LESSEE has informed the LESSOR of its project to perform major work in the Building.
To obtain the LESSORs consent, the LESSEE shall communicate to the latter a technical dossier for the proposed work including drawings, descriptions and technical notes.
The LESSEE agrees to comply with any regulations relating to such work, and to seek and obtain any necessary administrative authorisation beforehand.
The LESSEE agrees, for the design and performance of its work, to comply with the specifications established by the developer of the BIA of Montjoie, upon which the Building depends, and approved by the Mayor of Saint-Denis dated February 1997 appended hereto (APPENDIX 2).
It shall submit to the LESSOR the application documents for the building permits that may be necessary, it being stipulated that the LESSOR reserves the right to file them in its own name. In this situation, the LESSEE, who so agrees, shall reimburse the LESSOR, upon first request, for the amount of any participation that may be collected on behalf of the LESSOR for such work.
The LESSEEs objective is to file the application for building permits, after obtaining the approval provided for in Articles L 510-1 et seq. of the Zoning Code, if necessary, no later than 31 December 2007; it shall communicate the notification of the investigation period to the LESSOR upon receipt, and shall notify it, as needed, and upon first request by the latter, of the progress of the investigation into this application.
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The work shall be performed at the cost, risk and peril of the LESSEE, by contractors who offer all guarantees of competence, under the supervision of a project manager approved by the LESSOR, whose fees shall be borne by the LESSEE.
The LESSEE shall bear alone all the damage caused directly or indirectly during the performance of this work or after the fact due to the fact of its existence, and completely guarantees the LESSOR if he is sought after in this regard.
As necessary, it is specified that the LESSORs knowledge of the description of the LESSEEs work shall in no way make it liable, since the work remains under the latters sole and full responsibility.
Before starting work, the LESSEE shall provide the LESSOR a certificate for the property insurance underwriting issued by the insurer, and a copy of the policy subscribed.
It shall further provide the LESSOR a copy of the administrative approvals as of when they are obtained.
When the work is completed, the LESSEE agrees to provide the LESSOR the final execution plans for the facilities, the Technical Inspectors end of mission report, a copy of the Declaration of Completion of Work, the certificate of compliance, the administrative permits to begin, the records of acceptance, and more generally any document evidencing proper completion of its work and all the technical data arising in connection with its operation, in particular for the air conditioning.
9.2 - Cost of the Work during the Lease
Notwithstanding the provisions of Articles 52 and following of the General Conditions of the Lease, the LESSEE shall perform all the work that may be necessary on the building during the Lease at its own expense, risk and peril, gradually as needed, and it shall all remain at its own expense, regardless of its cause, nature and scope, even if it is due to a hidden defect (maintenance, repair, replacement work), without exception and including, notwithstanding the provisions of Article 605, that which is covered by Article 606 of the Civil Code, repairs that affect the structure or soundness of the Building, work involved in bringing it into compliance, and that resulting from an injunction that may be made by an administrative authority, and even, notwithstanding Article 1755 of the Civil Code, in cases of force majeure and obsolescence.
It expressly waives invoking the provisions of Articles 1719 second, third and fourth paragraphs, 1720, 1721, and 1724 second and third paragraphs of the Civil Code for all work performed by it, including that under Article 606 of the Civil Code.
9.3 - Disposal of the Work at the End of the Lease
All embellishments or improvements made to the Building by the LESSEE during the course of the Lease shall remain the property of the LESSOR at the end of the Lease without any compensation by the latter in favour of the LESSEE.
The LESSOR releases the LESSEE from surrendering the premises in their original state at the end of the Lease, it being understood that the LESSEE shall proceed with the removal his equipment, installations and facilities specific to his business, including those that have become immovable by their intended purpose, and the building must consequently be put back into condition, if their installation has caused damage.
10 | Special Conditions related to Supplying Fluids for the Building and the Installation of a Fence |
The LESSEE declares itself fully informed by the following, and accordingly agrees to perform the necessary work.
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10.1 Since the supplying of fluids to the Building is partially provided by underground pipes that pass through other properties, the work necessary to ensure its independence for any supply of fluids must be performed no later than 31 December 2007 for any utility except heating, and by 31 May 2008 for the supply of heat, since these power supplies will no longer provided by the owner of these lines as of these dates.
10.2 Since the Building is not currently enclosed, a fence that complies with the requirements of the BIA of Montjoie is expected to be completed no later than 31 May 2008 on a temporary basis, and the final enclosure is to be completed by the date of completion of the LESSEEs work that is the subject of Article 9 hereinabove. In addition, it is shown that until the erection of fencing to the West by SODETAT and the neighbouring owner the COFIGIM Company, the LESSEE shall pass through the COFIGIM Companys security service in order to gain access into the Building.
11 | Statement of Natural and Technological Hazards |
Pursuant to Article L 125-5 of the Environmental Code, the LESSOR has prepared a statement of natural and technological hazards that is appended hereto.
CHAPTER II
GENERAL TERMS OF THE LEASE
The Lease is subject to the statutes for leases for commercial use as codified in Articles L145-1 et seq. of the Commercial Code.
1 - DEFINITION OF THE PREMISES
1.1 - Description of the Premises
The Premises are described in the Special Conditions.
The LESSEE declares having full knowledge of the premises from having seen and visited them. Any difference between the surface areas mentioned in the Special Conditions or shown in the appended plan and the Premises actual surface areas does not justify a rent reduction or increase, since the parties refer to the contents of the premises such as they exist.
The parties agree that the Premises are an indivisible whole for the entire term of the Lease, including any renewals, implied extensions and even in case of eventual sale.
1.2 - Intended Purpose - Usage
The LESSEE shall use the Premises in a personal capacity and for the exclusive use referred in the Special Conditions in accordance with the intended purpose of the building and in accordance with the provisions of Articles 1728 and 1729 of the Civil Code.
The LESSEE shall be responsible for any administrative permits and the payment of any amounts, taxes and/or fees incurred in connection with the business to be operated on the Premises and their use.
The LESSEE shall also be personally responsible for the Premises compliance with regard to the business activity being carried on there, such that the LESSOR shall never be concerned about this.
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2 - CONDITIONS RELATING TO THE TERM OF THE CONTRACT
2.1 - Term
This Lease is granted and accepted for a term of 12 full and consecutive years. The term starts on the Effective Date set forth previously in CHAPTER I § 3 - SPECIAL CONDITIONS OF THE LEASE.
The LESSEE expressly waives availing itself of the right to request the termination of the Lease before the end of the twelfth year, as the Lease has a fixed term of 12 years.
In case of renewal of the Lease, it is expressly agreed between the parties, as necessary, that it will be renewed for the same 12-year term, with an option for both parties to terminate it at the expiration of each tri-annual period.
If, despite the LESSEEs commitment to a set period of 12 years, it is obliged to give notice before the end of the twelfth year of the Lease, it shall be liable to the LESSOR for compensation for early termination corresponding to all the rent for the entire 12 years, charges and VAT included.
2.2 - Notice given by the LESSEE
The LESSEE may give notice at the end of fourth tri-annual period only, in accordance with the provisions of Article L 145-4 of the Commercial Code, under the Special Conditions.
The LESSEE shall serve this notice on the LESSOR by extrajudicial act, no later than six months before the expiry of the twelfth year of the Lease.
The Lease continues up until the effective date of the notice even if the keys have been returned to the LESSOR before that date.
3. - FINANCIAL CONDITIONS
3.1 - Rent
The Lease is granted and accepted in return for an annual principal rent, whose base value is specified in the Special Conditions. It changes under the conditions specified by law and according to the terms and conditions provided in Article 3.2 below.
3.2 - Rent Indexing
The rent automatically varies each year on the anniversary of the Effective Date of the Lease, without need for prior notification, in proportion to the variation in the quarterly index of construction costs published by the National Institute for Statistics and Economic Studies (INSEE) provided that such variation is an increase. The base index or benchmark index is referred to in the Special Conditions.
It is expressly agreed that the annual rent indexing can only be an increase so that the rent paid with respect to one year cannot in any case be less than that paid for the previous year.
At the first annual review, the ratio shall be figured between this benchmark index and the index for the same quarter for the following year.
Each year, the same ratio shall be figured between the benchmark index selected for the previous index and the index for the same quarter for the following year.
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If this index is not known on the anniversary date of the Lease, a provisional indexing shall be figured on the basis of the last known index.
In the event that, for any reason whatsoever, the index chosen for the above annual review of the rent should cease to be published, this review shall be performed by taking as a base either the replacement index or a new index chosen by contractual agreement.
Failing to agree on the choice of the new index to be adopted, the parties already agree to leave it up to the decision of an expert appointed by the Presiding Judge of the Tribunal de Grande Instance for the location of the Premises, and the expert assessment and the court costs are to be borne exclusively by the LESSEE.
This escalator clause is a critical and vital clause without which the Lease would not have been granted. Its non-application, even partial, may authorise the LESSOR, and only it, to request termination of the Lease without compensation.
3.3 - Charges
3.3.1 - Collective Charges
The rent payable is considered net of all charges and all taxes for the LESSOR.
Accordingly, the LESSEE shall reimburse the LESSOR, for charges of any kind related to the Premises, facilities and items of equipment that are installed there, and, where appropriate, the share allocated for the Premises for the common charges relating to the common areas, common services and items of equipment common to the building, if it is not rented in its entirety to the LESSEE.
The expenses to be reimbursed by the LESSEE to the LESSOR shall include, but are not limited to, (i) owners insurance, (ii) property taxes, (iii) the annual tax on offices, the tax on commercial and storage Premises, and any other tax or duty subsequently created, added or substituted, which may be legally at the LESSORS expense, (iv) the management fees for the building, (v) the trustee fees, etc.
If the building is subject to joint ownership status or included in any other legal entity, the LESSEE shall generally reimburse the LESSOR for all charges pursuant thereto.
3.3.2 - Reimbursement Terms
Reimbursement shall be made to the LESSOR in the form of a call for a quarterly provision at the same time as the rent, based on the cost estimates for the year.
Each year, an adjustment is made to reflect the actual costs for the prior year.
The allocation of costs among the various LESSEES is carried out according to the percentages specified in the internal regulations for the building, if such exist. By default, the allocation is performed in proportion to the leased space.
To take into account fluctuating charges, the LESSOR reserves the possibility of changing the amount of the provision called for.
The payment and reimbursement of all charges referred to in the Lease are payable as of the date when the LESSEE takes possession of the Premises and until the LESSEE fully releases the Premises.
The amount of the first quarterly provision is specified in the Special Conditions.
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The LESSOR also reserves the right at any time to call for a working capital fund for charges corresponding to one quarter of the annual budget estimate.
3.3.3 - Individual Charges - Meters
The LESSEE shall be responsible for the maintenance and monitoring of the Premises.
It shall subscribe to maintenance contracts related to the equipment and the leased Premises and contracts relating to the inspections made mandatory by a statutory or regulatory provision.
It shall contract for all water, gas, electricity, telephone, etc. It will be required to regularly pay premiums and pay directly for all individual consumption as indicated by its meters and readings, as well as all taxes incumbent upon it, without the possibility of holding the LESSOR liable.
3.4 - Taxes and Fees
The rent as defined in the Special Conditions is expressed excluding taxes.
The LESSOR having opted for a VAT liability, pursuant to Article 260-2° of the General Tax Code, the rent is increased by the VAT at the prevailing rate at each billing.
As all the charges billed to the LESSEE pursuant to the provisions of the Lease are treated as a rent supplement for tax purposes, they shall accordingly be increased by VAT at the current rate.
The LESSEE shall bear any increase or other tax that may be added or substituted for the VAT by the regulations.
The LESSEE shall also pay all the city, police or road fees that tenants are normally bound to pay, all in such a manner that the LESSOR cannot be concerned on this subject. It shall, in particular, pay personal and movable items contributions, leasehold taxes, the business tax and any other taxes payable by the LESSEE for which the LESSOR is responsible in any capacity whatsoever and show proof of such upon request at least eight days before departure at the end of the Lease.
3.5 - Payment Terms
The LESSEE undertakes to pay to the LESSOR the rent and incidentals in four equal terms in advance, on 1 January, 1 April, 1 July and 1 October of each year, and for the first time when the Lease enters into effect.
This first payment is calculated in proportion to the time between the Effective Date of the Lease and the end of the calendar quarter during which the termination takes effect, and each day corresponds to 1/360 th of the annual rent. All payments are made to the LESSORS domicile or any other place indicated by it.
The LESSEE agrees to this effect to sign an authorisation in favour of the LESSOR to debit a bank or postal account.
The late payment of three notices of rent due, whether consecutive or not, constitutes a serious and legitimate reason for refusal to renew the Lease at its maturity. The rent remains due up until the contractual due date of the Lease, even in cases where the keys are returned to the LESSOR before the agreed term.
3.6 - Criminal Clause
Any late payment of a single term of rent, charges, incidentals, or occupancy fee referred in Article L145-28 of the Commercial Code, at its exact due date, and more generally the non-payment of any sum payable under the Lease within the time required, makes the LESSEE legally liable, without prior notice, for payment of interest computed on the basis of the statutory rate plus three percentage points a year, plus VAT. Interest shall be due as of the due date, and any month that has begun is due in its entirety.
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In case of recidivism on the part of the LESSEE during a continuous two-year period and upon expiry of a period of 15 days from the due dates provided, all amounts due after calculating the above allowances shall be increased legally by a flat amount of 10% as a penalty, without any notification or formal notice, and VAT shall be payable on such penalties.
The application of the two preceding paragraphs cannot at any time be regarded as authorisation to delay payment, and shall not be an obstacle to taking the termination action referred to in Article 9 hereinafter.
3.7 - Security Deposit
3.7.1 - Amount
To ensure the execution of its obligations under the Lease, the LESSEE shall pay to the LESSOR a security deposit whose amount is specified in the Special Terms corresponding to one quarter of the annual rent excluding tax.
The security deposit shall be adjusted, automatically and without formality, upon each variation of the principal rent so that it always corresponds to one term of rent in advance.
This deposit shall not produce any interest.
3.7.2 - Methods of Implementation
The implementation of this guarantee can be realised throughout the term of the Lease, until full and final payment of all rents and incidentals and until the LESSEE performs all of its obligations.
It is reimbursed to the LESSEE after the release of the Premises, the preparation of the statement of condition of the premises and the production by the LESSEE of the receipts for contributions, taxes and other fees.
All money owed in any capacity whatsoever is deducted from the amount reimbursed, including in particular the balance of the charges for the period of occupancy and the amount of repair work to put the Premises in condition.
The LESSEE shall in no case compensate for such security deposit by rents or incidentals that may be due at his departure.
In the event of termination of the Lease as a result of non-performance of these Terms or for any cause attributable to the LESSEE, said security deposit remains acquired by the LESSOR as initial damages, without prejudice to any others.
3.8 - Furnishings
The LESSEE shall keep the rented premises constantly filled with equipment, furniture and goods in a quantity and of a value sufficient to satisfy and serve at all times as a guarantee to the LESSOR for the payment of rent and all the incidentals and obligations of this Lease.
3.9 - Occupancy Compensation
In the event that after judicial cessation or termination of the Lease, the premises are not be returned to the LESSOR free of any occupancy on the date agreed, the LESSEE or its assignees shall be liable for a monthly occupancy compensation equal to twice the current monthly rent.
Such compensation shall be due on the day following the end of the lease and until the day of the return of the Premises, and any month that has begun shall be due in its entirety.
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The charges also remain due up to the day when the premises are returned to the LESSOR, all without prejudice to any other damages and interest.
3.10 - Costs - Litigation
All costs, duties and fees hereof, including the costs of drafting any acts and those that may result or are the consequence thereof, are at the expense of the LESSEE, who so specifically undertakes.
All expenses incurred by the LESSOR in connection with actions validly taken against the LESSEE for the enforcement of the terms and conditions of the contract are and shall remain at the LESSEEs expense.
3.11 - Allocation of Amounts Due
In case of disputes, the payments made by the LESSEE shall be allocated by the LESSOR in the following order:
Recovery and procedural costs,
Damages,
Interest,
Rents paid in advance and readjustment of rents paid in advance,
Claims for rent or occupancy compensation: regarding this item, they will be allocated by the
LESSOR in priority to the amounts that have not been the subject of litigation,
Provisions for common charges.
4 - CONDITIONS RELATING TO THE ENJOYMENT OF THE PREMISES
4.1 - General Terms of Enjoyment
4.1.1 - Rules of Occupancy
The LESSEE shall refrain from anything, which by its action or that of its agents, might harm other of the buildings occupants exercise of their business activities, their tranquillity and good order.
It shall abstain from any activities that are harmful, uncomfortable or unsafe.
The LESSEE is obliged to submit to all measures of order and cleanliness of the building. It is particularly required to evacuate its wastes in an ongoing manner.
It is barred from depositing anything, even temporarily, in the halls and common areas of the building, stairwells, parking lots, access ways and gardens.
In case of violation of these clauses, the LESSOR may proceed with the required removal eight days after formal notice by registered post with return receipt that remains unsuccessful, or without prior notice in an emergency, at the expense of the LESSEE, who shall reimburse the cost upon simple presentation of an invoice.
The LESSEE undertakes to notify the LESSOR of the existence of any equipment subject to declaration under the classified facilities. It undertakes to make the declarations provided for in the regulations for any equipment subject to the latter.
The LESSEE shall comply with the regulations established by the LESSOR or by the municipal services for the removal of garbage.
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In general, it shall comply with the requirements, recommendations and instructions issued by the Labour Inspectorate, hygiene and safety commissions and, more generally, all administrative departments concerned, so that the LESSOR shall not in any case incur any liability. This shall hold especially if the rented property is dependent on an IGH building, a High-Rise Building, subject to specific regulations that the LESSEE undertakes to comply with in all respects.
It shall accurately and regularly pay the personal, occupancy or other taxes and contributions that are at the expense of LESSEEs, in such a manner that the LESSOR shall never be sought after on this subject.
41.2 - Right of Access and Visitation
The LESSEE shall allow access to the Premises to the LESSOR as well as to its representative, its architect and its contractors as often as necessary in order to ascertain their condition and perform the work on the common areas or equipment, under the sole condition that the LESSOR notify him forty-eight hours in advance, except in case of emergency.
When notice of leave has been issued, the LESSOR shall be free to place any signs, banners or writing that it deems necessary at the locations of its choice.
In the event that the Premises are put up for sale or lease, the LESSEE shall be required to allow the Premises to be visited between 9 am and 6 pm every working day.
If it does not comply with this rule, the LESSEE may be liable to the LESSOR for all damages related to the prejudice suffered by the latter.
4.1.3 - Security and Technical Management of the Buildin g
The LESSEE shall make it its personal business to ensure the guarding and monitoring of the Premises, as well as the maintenance of the Premises.
It shall ensure that the Premises are permanently provided with a working system for protection against fire, and particularly with a fire detection system.
The LESSEE undertakes, at its own expense, to carry out periodic inspections of the items of equipment, lifts, security systems (including those relating to the detection, warning and protection in case of fire) electrical installations, etc.
4.2 - Building Regulations
The LESSEE shall comply with the Special Provisions resulting from the buildings legal status, such as the joint ownership regulations, internal regulations or Special Specifications.
It shall comply with technical and administrative documents relating to the leased property.
The LESSEE shall be required to comply with any other document subsequently established and properly brought to its knowledge.
4.3 - Business Signage
The installation of any sign or signboard inside as well as outside the building shall be performed by the LESSEE after having obtained the necessary administrative permits and the LESSORs prior written approval.
The LESSEE shall make it its personal business to comply, as needed, with the Special Provisions relating to those signs and signage in general, the condominium regulations, the specifications for the building or area, and any administrative regulation in force governing the building as well as the business zone in which it is located.
The installation of such signs shall be at the LESSEEs cost and risk and peril. It shall ensure that they are securely maintained, are kept in perfect condition and shall be solely responsible for any injuries that their installation or existence could cause.
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4.4 - Disturbance
4.4.1 - Destruction of the Premises - Expropriation
In case of destruction of the Premises or expropriation for public utility, the Lease will be cancelled outright, without compensation at the LESSORs expense.
4.4.2 - Interruption of Services
The LESSEE cannot claim any reduction of rent or compensation in the event of even prolonged interruption or reduction of the common services, such as water, heating, electricity or telephone, due to acts by third parties, since the LESSOR is furthermore not required to warn the LESSEE of said interruptions or reductions.
The building services are provided by the LESSOR by any means it deems appropriate, and it may change these so as to optimise the buildings management.
5 - CONDITIONS RELATING TO THE MAINTENANCE OF THE PREMISES
5.1 - Statement of Condition of the Premises at Entry
The LESSEE declares accepting the Premises in their present state, without being able to require any repair or improvement, either upon entry into possession, or during the course of the Lease.
A statement of condition of the Premises shall be prepared in an adversarial manner by the parties when the LESSEE takes possession. In the event that for any reason, this statement of condition of the Premises should not be drawn up, particularly if the LESSEE, having been duly called, was not present, the Premises shall be considered to have been leased in perfect condition.
5.2 - Maintenance - Repairs
The LESSOR shall carry out at its expense, in an ongoing manner as may be needed, and shall keep at its expense any of the major repair work referred to in Article 606 of the Civil Code that may be necessary with respect to the Premises during this Lease.
For its part, the LESSEE shall carry out, gradually as needed, at its expense, risk and peril, and it shall retain at its expense, all the work other than that covered by Article 606 of the Civil Code (for repair, rehabilitation, reconstruction or replacement), which is or becomes necessary to the Premises and its facilities (such as, if they exist, those for heating, air conditioning, ventilation, technical equipment, access control, security systems, electricity, lighting, cabling, glazing, carpentry and joinery, plumbing, sanitary facilities, carpets, ceilings and false ceilings, walls, partitions, floors, etc) whatever the cause, nature and importance, and even though they may be due to obsolescence or a hidden defect, and must proceed at its own expense and as often as required, with any extermination treatments for rats and insects on the Premises.
In addition, in the event that major repairs referred to in Article 606 of the Civil Code would be necessary due to the non-performance by the LESSEE of its care and maintenance obligations mentioned above or deterioration resulting from its actions, the actions of its personnel or its visitors, or even concerning the work performed by the LESSEE, it shall bear their cost. It shall be responsible for the damage and losses that may affect the Premises, even though they may occur without its fault.
The LESSEE shall carry out at its expense, risk and peril, in an ongoing manner as may be needed, and it shall keep at its expense any work, facilities, installations and construction necessary to ensure compliance with current or future regulations, including concerning the protection of the environment, hygiene, health or safety, unless they are expressly referred to Article 606 of the Civil Code.
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The LESSEE shall be required to perform on the Premises throughout the term of the Lease and at its expense, the cleaning, maintenance work, and odd repairs and the redecoration or replacement of any fixture, painting, floor, wall coverings, ceilings, as the need arises and for any reason whatsoever, even for reasons of dilapidation or wear and tear, so that at any time the Premises are maintained in a good state of maintenance and repair.
It shall comply with any order from the LESSOR for this purpose, even during the course of the Lease.
The LESSEE shall perform any repairs that become necessary to the meters, pipes, faucets and locks.
The LESSEE shall take care that the Premises continually comply with the various regulations concerning the safety of the public and occupants, Labour Conditions, public health, personal health and environmental protection.
Any work that may be necessary under such regulations shall be at the LESSEEs expense, even if the reason that this work needs to be performed is not due to the LESSEEs activities on the Premises, but is due to the buildings actual situation.
In this respect, the LESSEE shall comply with all administrative orders or regulations, including those of the Safety Committees, the Labour Inspectorate, or the competent prefectural department.
In case of continued non-performance by the LESSEE 15 days after the sending of a notice by registered letter with acknowledgment of receipt, the LESSOR will execute the work referred to above, and its cost will be reimbursed by the LESSEE to the LESSOR upon first request.
At the expiration of the Lease, the LESSEE shall return the property in a good state of repair, maintenance and operation, unless the LESSOR requires that it be restored to its original condition.
5.3 - Work performed by the LESSEE
5.3.1 - Fixtures - Improvements
The LESSEE shall not perform any work on the Premises that can change the intended purpose of the building or harm its solidity. It may not have the floors bear any load greater than their resistance under penalty of being held liable for disturbances or accidents that would be the consequence.
The LESSEE may not make any change in distribution, any modification, or proceed with any demolition, drilling of walls or partitions on the Premises without the LESSORs prior express consent in writing.
5.3.2 - Work to bring into Compliance
The burden of any work that may become necessary in order to bring the Premises and the building they depend on into compliance with existing or future regulations shall be exclusively borne by the LESSEE.
The same shall hold during the Lease if such regulations are amended and, as a result, the leased building is no longer in compliance with regulatory standards.
The LESSEE shall ensure that the LESSOR can at no time be concerned or sought after on this subject.
5.4 - Work by the LESSOR
The LESSEE shall suffer the repairs, rebuilding, additional height and any work whatsoever, regardless of the difficulties they cause it, which may be performed in the building, or a nearby building, without being able to claim any rent reduction or termination of the Lease, regardless of the scope and duration of such even though the latter may exceed forty days as an exception to Article 1724 of the Civil Code.
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5.5 - Work outside the Building
In addition, the LESSEE shall exercise its recourse directly against the Administration, contractors or neighbouring owners for the work performed on the public roadways or in nearby buildings, if such work results in difficulties in the operation of its business activities, without at any time being able to bring an action against the LESSOR for these external events.
5.6 - Return of the Premises
Upon its departure, the LESSEE shall return the Premises in a good state of maintenance or, failing that, shall pay to the LESSOR the cost of the work necessary to bring them into condition for their re-lease, and the resulting dilapidation resulting from wear and tear remains at the LESSEEs expense.
To this end, the statement of condition of the Premises shall be prepared, in the presence of the duly convened LESSEE, no later than the day of expiry of the Lease or at the end of possession, after which the LESSEE shall deliver the keys to the LESSOR
If the LESSEE was absent on the days and times fixed for the statement of condition of the Premises, it shall be prepared by a bailiff, if necessary with the assistance of a locksmith at the LESSEEs exclusive expense. The statement of condition of the Premises shall include, if appropriate, a statement of repairs to be made, which shall be established by the LESSORs architect to whom the parties give irrevocable commission to this effect.
In the event that work should be shown to be needed, the LESSOR shall prepare an estimate to which the LESSEE shall give its consent within ten days of notification of their cost.
In the absence of response from the LESSEE, the amount to return the Premises to good condition will be deemed to be approved by the LESSEE and the LESSOR may have the work performed by contractors of its choice, and the cost of such work shall remain at the LESSEEs sole expense.
6 - INSURANCE
6.1 - LESSORs Insurance
The LESSOR warrants the financial consequences of the civil liability it may incur in its capacity as owner.
The LESSOR warrants, by itself or as part of the joint ownership if one is created, its properties and all the facilities and installations of a real estate nature.
In the event that the Premises are made up of joint ownership lots, wholly or in part, the LESSOR has the option to purchase any supplemental policy that it deems appropriate, in addition to the guarantees subscribed by the trustee, and the corresponding premiums remain at the LESSEEs expense.
If the LESSEEs business activity entails the payment of increased insurance premiums by the LESSOR or the neighbours or co-renters, the LESSEE shall repay the amount to the concerned parties.
The insurance premiums and additional premiums possibly paid by the LESSOR shall be reimbursed by the LESSEE under the terms stipulated above in Articles 3.3.1 and 3.3.2 of the General Conditions.
6.2 - LESSEEs Insurance
The LESSEE is bound to insure, as of the effective date of the Lease, with insurance companies known to be solvent, the financial consequences of the liability it may incur as a result of its business activities, particularly with regard to neighbours and third parties in general.
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The warranty shall include the risks of fire, explosions, storms and water damage related to its property, equipment, materials and goods, as well as the fixtures that it has created.
The LESSEE shall take out insurance against the loss of operations, broken windows, glass and equipment of any kind.
The LESSEE shall show proof to the LESSOR of the subscription to such insurance and the payment of the corresponding premiums, upon the signing of the Lease.
The insurance policies relating to these guarantees must be maintained throughout the term of the Lease, and the LESSEE shall pay the premiums and contributions and show proof of such to the LESSOR at any time, at the latters simple request.
6.3 - Reciprocal Waiver of Recourse
The LESSEE expressly waives, and shall have its insurer waive, any recourse against the LESSOR and its insurers because of the destruction or deterioration of all or part of the equipment, furnishings, and any values and goods whatsoever, due to deprivation or disturbance of enjoyment of the Premises and even in case of total or partial loss of business assets, including intangible elements.
Conversely, the LESSOR expressly waives, and shall have its insurer waive, any recourse they are entitled to exercise against the LESSEE and its insurers.
6.4 - Claims - Disturbances
The LESSEE shall keep the LESSOR or its agent promptly informed of any claims incurred on the Premises.
It must immediately notify the LESSOR of any repairs made necessary by any depredation or degradation even though no apparent damage has resulted from such, under penalty of being held liable for any direct or indirect deterioration resulting from its silence or its delay, especially with regard to the LESSORs insurers.
The LESSEE shall allow free access to the Premises to both the LESSOR as well as any expert assigned by the insurance companies. It cannot take any recourse against the LESSOR due to the conduct of these inspections.
It must, at its expense and without delay, move its furniture and remove any casings and decoration as well as any installations whose removal would be useful in searching for and repairing leaks of any kind, cracks, and, in general, for the execution of any work.
7 - LIABILITY AND REMEDIES
The LESSEE waives all liability claims against the LESSOR, and in particular:
7.1 - In case of theft or any other criminal act that the LESSEE could be a victim of on the Premises or in the buildings dependencies, since the LESSOR does not assume any performance obligation in matters of surveillance.
7.2 - In case of interruption of the services for water, gas, electricity, or other fluids, or in case of stoppage, even extended, of the operation of the lifts.
7.3 - In case of destruction caused to the Premises and objects therein particularly due to leaks, infiltration, humidity or other circumstances that would be due to any work, including that under Article 606, since the LESSEE must take out insurance against these risks without recourse against the LESSOR.
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7.4 - In response to actions that generate liability for other occupants of the building, their staff, suppliers or customers or any third party generally, since the LESSEE is to be personally responsible for its direct actions against the perpetrators of these disturbances, after failure of the amicable initiatives that the LESSOR shall, in such cases, undertake against the perpetrator of the disturbance, who is a co-tenant in the building.
8 - SUBLEASE - ASSIGNMENT
8.1 - Sublease
The LESSEE is forbidden to grant enjoyment of all or part of the Premises to anyone whomsoever, in any form whatsoever, even temporarily or for free or on a day-to-day basis, or under lease management. Any partial or total subleasing is strictly prohibited, under penalty of legal termination of the Lease.
In the case of a sub-lease that may exceptionally be authorised by the LESSOR, the LESSEE shall remain solely liable for paying the entirety of the rent with regard to the LESSOR and solely responsible for the charges and conditions of the Lease, since sublease is only fully valid in the context of the rights held by the LESSEE hereby.
The sublease, even authorised, shall be granted at the risks and peril of the LESSEE, which undertakes to make it its personal business to evict any subtenant.
It is recalled that the Premises are an indivisible whole and that therefore the subtenant has no direct rights with regard to the LESSOR, and in particular no right of tenure or renewal on the Premises.
No subleasing can be permitted if the LESSEE owes rent, charges or incidentals.
This article is not intended to prohibit the LESSEE from providing space for the benefit of its customers as part of its business activity.
8.2 - Assignment
The LESSEE may not assign its right to the Lease, in whole or in part, under penalty of termination, except to the purchaser of its business and subject in the latter case to the LESSORs prior approval of the assignee, who shall provide any guarantee of solvency.
No assignment can be carried out if the LESSEE owes rent, charges or incidentals.
The LESSOR is called to attend the deed of assignment, by registered letter with return receipt.
The LESSEE remains the joint and several guarantor, without being able to oppose the benefit of discussion or division, of the assignee and successive assignees, both for the payment of rent as well as for the execution of all terms and conditions of the Lease.
All those who successively become assignees of the Lease shall remain liable with regard to the LESSOR, joint and severally with each other and with the LESSEE, for the payment of rent and the execution of the Lease Terms, throughout the term thereof and notwithstanding that they are no longer on the property and have even assigned their rights.
In order to meet this guarantee in all cases of assignment, the LESSEEs successor, as well as any subsequent assignees, shall for the very validity of the assignment submit a bank guarantee to the LESSOR to guarantee payment of a sum corresponding to one years rent inclusive of all taxes, said rent to be updated on the date of the assignment.
An enforceable copy of the deed or a recorded original shall be provided to the LESSOR, without expense to it, since the LESSEE is bound to follow the rules of notification under Article 1690 of the Civil Code.
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8.3 - Transmittal
To the extent necessary, it is specified that in accordance with Article L 145-16 of the Commercial Code, this Lease shall be freely transferred as part of a TUP (Universal Wealth Transfer) transaction, merger, spin-off or split, without the need to respect the formalities of Article 1690 of the Civil Code.
9 - TERMINATION CLAUSE
For lack of payment, on its exact due date, of a single term of rent, charges or any incidentals, or occupancy compensation under Article L145-28 of the New Commercial Code, or more generally any amount payable by the LESSEE, one month after a payment order or formal notice by extrajudicial act containing the LESSORs statement of its intention to use the present clause, which remains without effect during this period, the Lease shall be terminated ipso facto, if it seems proper to the LESSOR, without the need to go to court.
The same clause shall apply in all its effects in the event of non-execution of one of the clauses of the Lease.
If the LESSEE refuses to evacuate the Premises, its expulsion shall result from a simple summary order injunction issued by the Presiding Judge of the Tribunal de Grande Instance for the location of the building, which is provisionally enforceable without bond pending appeal.
In this case, and regardless of the cause of the termination, the advance rent, as defined in 5.2 of the Special Conditions is forfeited to the LESSOR as initial damages as stated in Article 3.7.2 above without prejudice to any other, and the LESSEE shall be liable to the LESSOR for an occupancy fee under Article 3.9 of the General Conditions, irrespective of the rent accrued on the date of termination of the Lease.
10 - TOLERANCES
Any tolerances on the part of the LESSOR concerning the terms and conditions of the Lease, regardless of their frequency and duration, shall under no circumstances be regarded as amending or deleting these terms, or as generating any right whatsoever, since the LESSOR may at any time terminate such.
11 - SEVERABILITY CLAUSES
The parties expressly agree that the invalidity, illegality or the inability to obtain enforcement of a provision of the Lease shall not affect the validity of the Lease and the possibility of obtaining the execution of other provisions of the Lease, as the clause in question is only deemed unwritten.
12 - AMENDMENTS AFFECTING THE PERSON OF THE LESSEE
Any amendment to the LESSEEs bylaws resulting from a change in corporate form, a change of name, a transfer of the head office, changes in capital or any change of chairman or managing director, shall be notified to the LESSOR within a period of one month with an updated K-Bis and a certified copy of the updated bylaws in support.
13 - SUBSTITUTION OF LESSOR
During the term of the Lease and its possible renewals, if the LESSOR transfers ownership of the building that is the subject hereof, by any legal means, to a third party of its choice, whether a corporation or a natural person, the latter shall be subrogated to the LESSOR ipso facto, upon such transfer, for all the rights and obligations resulting from this Lease both actively and passively, without such substitution already accepted by the LESSEE entailing renewal of this Lease.
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The LESSEE already accepts that any security deposit or surety bond or guarantee in the hands of the LESSOR under this Lease is transferred to the purchaser and therefore renounces all claims against the current LESSOR, who is the seller under the deed with regard to the release of these securities.
14 - ELECTION OF DOMICILE
For execution hereof, choice of domicile for each is at its head office.
Done in Paris on 29/06/2007.
In duplicate originals
The LESSOR | The LESSEE | |||
/s/ F. COQUIO | ||||
F. COQUIO | ||||
MANAGING DIRECTOR | ||||
INTERXION FRANCE | ||||
Bldg. 260 - 45 Avenue Victor Hugo | ||||
93534 Auberviliiers Cedex - France | ||||
R.C.S. Bobigny 423 945 799 - APE 652 E | ||||
Tel. +33(0) 1 53 56 36 10 Fax 33(0) 1 53 56 36 20 |
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LIST OF APPENDICES
APPENDIX 1: | Location Map | |
APPENDIX 2: |
Specifications for sale and leasing of land within the ZAC of MONTJOIE |
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APPENDIX 2: |
Statement of Natural and Technological Hazards |
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APPENDIX 4: |
Authorisation for automatic deduction + RIB |
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DEPARTMENT OF PLEINE SAINT-DENIS
COMMUNE OF SAINT-DENIS
ZAC OF MONTJOIE
DIVISION MAP
Parcel CJ I 24
Date : 24 October 2006 Scale : 1/600 |
Map 1 | |
Index1 | ||
Bobigny Agency |
FILE
16623 |
[Map of ZAC of Montjoie]
[Rectangular Stamp | Stamp Duty Paid to the State Authorisation of 1973] |
Appended to the record of a deed recorded by the
undersigned Notary on 15/6/99 |
CITY OF SAINT DENIS
Appended by the undersigned Notary to the record of a deed recorded by him on 11 January 2000 |
SODEDAT 93
8 to 22 Rue du Chemin Vert
BP 95
93003 BOBIGNY CEDEX
Tel. 01.43.93.70.00
SAINT DENIS ZAC of Montjoie
Specifications for Sale of Land
(February 1997)
SODEDAT 93 | ||||
8 to 22 Rue du Chemin Vert | Rectangular Stamp - ARC PROMOTION II | |||
BP 95 | ||||
93003 BOBIGNY CEDEX | ||||
The Chairman | ||||
/s/ Jean-Jacques Karman | ||||
Jean-Jacques KARMAN |
ZAC [Mixed Development Zone] of Montjoie - SAINT DENIS
Specifications for Sale of Land
PART I - FOREWORD
Article 1 - Statement
1-1 | On 23 March 1988, THE CITY awarded to LA SODEDAT 93 a development concession in order to perform the studies, acquisitions and development activities within a perimeter included within the islet of Montjoie on the PLAINE SAINE DENIS. |
By deliberation dated 26 May 1988, the SAINT DENIS City Council created the ZAC of Montjoie and decided to entrust the development to LA SODEDAT 93 under Development Concession Agreement of 23 March 1988. Pursuant to the latter, Addendum No. 1 of 23 June 1988 defines the specific tasks unique to the ZAC procedure adopted by THE CITY.
By deliberation dated 24 November 1988, the SAINT DENIS City Council decided to extend the perimeter of the ZAC.
An Addendum No. 2 was signed on 24 November 1988 to extend the mission of LA SODEDAT 93 to the new perimeter.
By Addendum No. 3 of 8 April 1993, in agreement between both parties, Article 15 of the Concession Agreement of 23 March 1988 was amended. The mission of LA SODEDAT 93 was extended for five years until 23 March 1998.
By deliberation dated 26 November 1992, THE CITY decided to change the perimeter and the PAZ (Zoning Plan) for the ZAC of Montjoie.
By deliberation dated 6 June 1996, THE CITY approved the change to the PAZ, the Perimeter of the ZAC of Montjoie, and the public facilities schedule for the ZAC and decided that the layout and equipment for the area remained assigned to LA SODEDAT 93.
1-2 | The purpose of these specifications is: |
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To define the general policy provisions that determine the requirements imposed on builders and users of the land, to satisfy respecting the public interest; they in particular specify the purpose of the transfer, the general conditions under which the transfer is granted and under which it is terminated in case of non-performance of the obligations imposed by this document; |
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To define the rights and obligations of the SEM and the builder during the period of the development work in the area and construction of buildings. |
1-3 | At the expiration of the development grant referred to in the foregoing Statement, or in case of withdrawal or termination of the concession, the licensor will by right replace the SEM in all rights and obligations arising for it from these specifications, without the builder having the right to object. |
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1-4 | The requirements of these specifications will be fully incorporated by the efforts of the notary or the most diligent party into any deed conveying ownership or rental of the land or buildings, whether it involves a first sale or rental or successive sales or rentals. |
1-5 | As a simplification measure and for the clarity of the text: |
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Firstly, we designate under the term builder all who are subject to these Specifications, whether they are an owner, purchaser, transferee, recipient of contributions, co-sharer, builder, lessee, licensee for use, etc. |
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Secondly, we designate under the general term deed of transfer any act transferring ownership of a building site or building located within the perimeter that these Specifications apply to, whether it involves a sale, contribution, sharing, a gift, etc, and by rental or lease any act conferring temporary enjoyment of one of such properties, whether it is a lease for construction, property lease, emphyteutic lease, etc. |
1-6 | Furthermore, it is recalled that, in accordance with specifications for concession, the purchase or lease price for the building site is set by the SEM in agreement with the licensor. This price will be included in the conveyance or lease. |
This having been set forth, the SEM will divide the land of the ZAC of Montjoie under the conditions provided below.
Article 2 - Division of the Land
The land indicated above will be divided between:
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Land intended for buildings for the accommodation of business activities, housing and equipment in order to be rented out or sold to the private or public builders designated hereinafter as the Assignee; |
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Land for incorporation as public roads and public open spaces and to be transferred to THE TOWN and after completion of the roads and utility networks; |
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Open space whether planted or not outside of the right-of-way of the buildings and roads but intended to belong to the builder. |
This division will not be subject to the formalities of subdivision under the provisions of Article R 315-2 of the Urban Planning Code.
Article 3 - Zoning Plan
The builder and the Company undertake to respect the provisions of the PAZ in all its documents (regulations, easements, plans, etc) and all the amendments that have been made to it by the Administration.
It is further recalled that the provisions of the PAZ do not have an exclusive character, since the builder and the Company are required to comply with all regulations, or in general all obligations arising under the Civil Code, the Labour Code, and the various laws pertaining to Safety, Hygiene, Health, Handicap Accessibility or any other provisions governing the construction and operation of buildings.
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Article 4 - Performance Deadlines
The Builder undertakes to:
1) | Begin without delay the study of all of the buildings authorised by the PAZ on the land that is sold or leased to it and to communicate to the Company its final construction project, at least one month before the filing of the building permit application and to present at the same time for the SEMs approval a phased construction schedule by annual portions. |
2) | File its building permit application within a period of three months from the date of the conveyance, it being stipulated that unless otherwise provided in such deed, it is the date of signing of the SSP deed (private contract) that is taken into consideration in this regard. |
3) | Undertake the construction work within a period of four months from the issuance of the building permit. |
4) | Have completed the construction within a period of 18 months from the issuing of building permits. The execution of this obligation will be deemed satisfied by the presentation of a statement of completion issued by the Builders architect subject to verification by the SEMs architect. |
Different periods can be stipulated in the deed of sale or lease. The SEM can even grant exemptions in exceptional and justified cases.
Article 5 - Possible Extension of the Deadlines
The deadlines shall be extended, if their non-observance is due to an event of force majeure, for a period equal to that during which the Builder was unable to carry out its obligations. The Builder has the burden of showing proof of force majeure and of the duration of the impediment.
Financing difficulties are not considered to be an event of force majeure.
For the purposes of this article, delays not attributable to the Builder in granting loans under the laws relating to public housing or those relating to special construction loans and subsidies shall be regarded as cases of force majeure.
But, in this case, the Builder will not be exempt from payment of late interest on the part of the purchase price payable at term that he has not settled on the set due dates.
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Article 6 - Sanctions with regard to the Builder
In case of non-compliance with the obligations incumbent upon the Builder per these Specifications, the deed of sale or the lease or their appendices, the SEM can, depending on the nature of the offence committed, and at its choice, obtain damages and cancel the sale, if needed cumulatively, under the following conditions:
1) Damages and Interest (individual cases)
If the Builder does not comply with the deadlines provided in Article 4, the SEM will formally notify it that it must meet its obligations within a period of ten days as concerns the deadlines under Chapters 1, 2 and 3 or within a period of three months with respect to the one in Chapter 4.
If beyond this deadline the Builder has not followed up on the requirements of the formal notice, the SEM can cancel the sale under the terms specified below unless it prefers to receive compensation in an amount fixed at 1/1000 of the sale price excluding taxes per day of lateness with a maximum of 10/100 (10%).
When the amount of compensation due for the delay reaches 10%, the SEM can pronounce the cancellation of the contract under the terms provided hereinafter.
2) Cancellation of the Sale
The conveyance may be cancelled automatically by a decision of the SEM notified by a bailiffs writ, in case of non-compliance with one of the deadlines set in Article 4 above.
The transfer may also be automatically cancelled in the same form by a decision of the Chairman or the General Management of the SEM, notified by registered letter with return receipt, in case of non-payment of any fraction of the price at its due date, and this, one month after a notice to pay that has no effect, and more generally in case of non-performance of any of the obligations of these Specifications, of the deed of conveyance, or their appendices.
The Builder shall in return be entitled to cancellation compensation that will be calculated as follows:
a) | If the cancellation comes before the commencement of any work, the compensation shall be equal to the purchase price or, where appropriate, to the part of the price actually paid, less the amount of damage suffered by the SEM, which shall be deemed to be no less than 10% of the purchase price excluding taxes. This price, in the event of indexing, shall be deemed equal to the sum of the payments already made on the date of the cancellation, plus an amount equal to the balance, after applying to this balance the final INSEE index of construction costs that is known 15 days before date of cancellation. |
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b) | Unless otherwise agreed to with the SEM, the work can only be undertaken by the Builder once the deed of conveyance has been signed and after payment of all sums owed by the Builder under the conveyance. If the cancellation comes after the commencement of work, the above compensation is increased by an amount equal to the amount of value added to the land by the properly completed work, without that this sum may exceed the value of materials and the price of labour used. Where appropriate, the compensation shall be reduced by the depreciation due to the work performed. |
The appreciation or depreciation will be fixed by contradictory expert appraisal, the SEMs expert being the administration of Estates, and the Builders expert, if it does not provide for his appointment, may be appointed ex officio by the Presiding Judge of the Tribunal de Grande Instance on the application of the SEM
In case of disagreement between the experts, a third arbitrator shall be appointed by the Presiding Judge of the Tribunal de Grande Instance for the location of the building at the request of the most diligent of the experts or the parties.
In the event of construction by tranches or for the construction of separate buildings, the cancellation of the sale can only bear, at the SEMs discretion, on the parts of the land not used within the fixed deadline.
In the event of cancellation of the conveyance, all costs shall be borne by the Builder. The liens and mortgages that encumber the building and are within the defaulting transferees purview will be carried over to the cancellation compensation.
Article 7 - Nullity
Deeds of sale, sharing, lease or usage concession, etc, which are granted by the licensor or its assignees by a misreading of the prohibitions, restrictions or obligations stipulated in Part 1 of these Specifications shall be null and void and without effect.
This nullity can be cited during a five-year period as of the conveyance by the SEM or by default by the Prefect, without prejudice, as necessary, to civil damages.
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PART II
CHAPTER 1 - LAND INTENDED TO BE INCORPORATED IN THE ROADWAYS OR PUBLIC SPACES
Article 8 - Obligation of the SEM
The SEM shall perform, in agreement with the licensor and the supervisory authority, in accordance with the PAZ, the construction documents and their possible amendments, all the works on the roads, the development of the open spaces and utilities on the land intended to be incorporated into the domain of the communities, to be distributed to the assignee organisations, or to a labour union.
The limits of the services due under this heading by the SEM are defined in the General Services Specifications (Appendix 1)
Subject to other deadlines being set in the deed of assignment or in its appendices, the SEM undertakes:
|
To execute all utility work at its expense within the deadlines necessary to ensure the supplying of the buildings as they are commissioned, under the express reservation that the provisions of the PAZ are adhered to; |
|
To execute the final roadway within a period of one year after the date when all the buildings provided for in the PAZ shall be completed and occupied. However, when the areas development will be a phased construction schedule by tranches, the one-year deadline will apply to the perimeter concerned for the tranche considered. |
Article 9 - Roadway, Squares and Open Spaces
9-1 | Use: |
Pending their delivery to the community, or to a union association, the SEM can deny to the public, including the builders, any transiting and parking on all or part of the roadways and squares that it has built.
As of their opening to the public, the policing will be provided by the Mayor according to the law.
9-2 | Maintenance: |
As of their completion, the roadways, squares and public open spaces intended to be reverted to the Municipality will be subject to the City departments taking delivery.
As of that date, maintenance will be at the Municipalitys expense.
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CHAPTER 2 - LAND TRANSFERRED OR RENTED
Article 10 - Architecture and Urban Planning
10-1 | PAZ |
The Builder and the SEM undertake to respect the provisions of the PAZ in all its documents (regulations, easements, plans, etc) and all the amendments that may be made to it by the administration.
It is recalled on this point that the PAZ is a regulatory document and extracts from this PAZ (Appendix 2) in these Specifications are for information purposes only. They are not contractual documents.
In no case can the SEMs liability be incurred because of the provisions of the PAZ or the amendments that the administration may make to it, regardless of their date.
10-2 | Architectural Provisions |
The
buildings must comply with the programming specifications and architectural guidelines appended to the PAZ and comply with both the layout and the design of the commercial buildings to be constructed or rehabilitated as shown in the appendix to the
Article 11 - Demarcation, Fences
11-1 | The SEM shall proceed, if it has not already done so prior to the notarised deed, with the demarcation of the land. The fees for demarcation shall be borne by the Builder who may choose a licensed surveyor to draw up the record of this operation in an adversarial manner. |
Any purchaser of a parcel contiguous to lots not yet sold by the SEM cannot, under any circumstances, claim from the latter half the cost of establishing the fencing.
However, any purchaser of a parcel that has an already existing fence is required to reimburse the intermediate owner who has borne the costs of establishing the fence for half of the expense incurred, under the conditions of ordinary law in matters of joint ownership.
11-2 | As concerns the land allocated to accommodate apartment buildings, in principle, only the buildings sites and a ladder are around, whose boundaries shall be defined in the deed or lease, will be granted or leased to the builder. This deed, however, may make different provisions. |
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Article 12 - Services to the Land Ceded or Leased
The limit of the services due from the SEM and the definition of the purchasers obligations regarding the various utility networks serving the land ceded or leased are specified in a Limits of General Services Specifications that shall be appended to the deed of sale, a model of which is shown in Appendix 1 to these Specifications.
The work at the SEMs expense shall be realised by it under the concession agreement signed with the Municipality, in accordance with the requirements of the PAZ and within the deadlines set in Article 9 above.
Article 13 - Sanctions with respect to the SEM
In case of the SEMs non-performance of the work incumbent upon it within deadlines provided, unless there are special provisions in the deed of sale, the Builder shall be entitled, after formal notice that remains without effect for one month, to claim from the company compensation for the direct, material and certain damage that may have been caused to it because of the SEMs failure.
Article 14 - Connections and sewer
Until the delivery of the work to the City or the assignee companies, the Builder shall, at its expense, and according to the work schedule and in accordance with the plans attached to the building permit, connect to the lines for water, gas, electricity, sewage, etc established by the SEM, and in accordance with approved preliminary general plans.
It is entitled to open trenches to carry out these connections.
These as well as the corresponding interior facilities must comply with the laws and regulations that apply to them, which the Builder is deemed have knowledge of.
It will take personal responsibility for all contracts and subscriptions to be contracted with the utilities.
After delivery of the work, it shall be subject to the regulations applicable to each of the networks.
The Builder shall take charge of the refurbishment of the floors, and ensure that the coating is the same after the execution of the work, as well as ensure the eventual payment of taxes and fees for the sewer connection that are liable to be claimed from it by the City or public utility.
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Community or cable antenna (in case it was decided or considered to install such). |
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Telephone floor splitter in the case of telephone pre-wiring. For industrial business activities: |
a) | Discharge of Industrial Wastewater |
The discharge of industrial wastewater will be realised in accordance with the regulatory provisions, which the Builder is deemed to have knowledge of, and those determined in the General Limits of Services Specifications.
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b) | Connections to Main Sewers |
In each building, the separation must be secured between storm water (runoff from roofs, courtyards, drainage, etc.) used water and industrial waste water, which, depending on their nature, must be subjected to the pre-treatment provided for in the laws or the technical regulation, before their evacuation into the common system.
The Builder shall submit to the SEM the plans for these pretreatment systems before beginning any work. The company shall approve or propose to the buyer any necessary changes. Any possible expenditure due to the modification of the public treatment facilities shall be borne by the purchaser,
The amendments must be proposed within a period of 45 days from the sending of the plans. After this deadline, the companys silence is deemed approval.
c) | Connection to the Storm Water Drains |
The storm water discharge will be realized in accordance with the regulatory provisions applicable in this sector, which the builder is deemed to have knowledge of, and those determined in the General Limits of Services Specifications.
d) | Connection to Electricity Grids |
The purchaser will defray the costs of connection to the MV or LV cables installed by the company, including charges for the supply and installation of junction boxes, loop connecting cables, and, if necessary, the construction, installation and maintenance of the delivery station to be built along the roadways and frontage roads.
The purchaser shall defray the costs related to boundary markers and in particular the contributions to establish service and the connection cables.
A subscriber station may possibly be combined with a public distribution or supply station for public lighting or with another subscribers station.
In case of overhead supply, the purchaser shall defray the costs of aerial-underground connection.
e) | Connection to the Gas Network |
The purchaser shall defray the costs of connecting to the medium pressure gas pipeline network installed by the company, including costs of construction, installation and maintenance of the regulator and delivery station.
f) | When the EDF transformer stations gas regulator stations will be provided on their plot, and even if such equipment and would serve several owners, the purchasers shall make freely available to the interested public utilities the necessary land or ad hoc premises to satisfy the technical constraints that the Company shall notify to them. |
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Article 14a - Electricity
14a-1 | The common electric line will be established under the norms and regulations in force, so as to ensure the proper functioning of the facilities at each location that satisfy the conditions defined by PROMOTELEC. |
They shall be subject to acceptance by CONSUEL.
14a-2 | When public transformer and electricity distribution stations will be provided on their site or in their buildings, the Builders shall make available to the public electrical power service distributor, the land or premises required. The location or characteristics of these should be established in agreement with this utility. |
This availability, which shall be provided within the framework of the regulations, shall be subject to special agreements between the service provider and the Builder.
The Builder undertakes, in addition, to grant to the public utility operator all the rights necessary for the equipping and operating of these substations, including the right to establish and maintain, upstream and downstream of these structures all the lines connecting to the network, and to provide free access at any time to its staff and that of its contractors, to the lines and premises in question and permanent clearance for the passage of equipment.
14a-3 | The purchasers commitments defined above have been required by the SEM for its own benefit as well as being a third party stipulation to the benefit of the public utility. Accordingly, this utility can avail itself of this in order to directly require the buyer, if necessary through the courts, to fulfil his commitments, unless he prefers the allocation of damages. |
Article 14b - Gas
14b-1 | The interior gas distribution facilities will be realised according to good engineering practice, in accordance with the regulatory requirements and, moreover, those of the DTU (Unified Technical Documents) in force on the date of filing of the application for a building permit. |
14b-2 | In a timely manner, and at the latest before execution of the work, the buyer shall submit to the public gas utility for approval the proposed facilities that it intends to create. |
The purchaser agrees to make freely available to the service provider, the grounds, land, and ad hoc premises necessary for the power and gas distribution facilities, the installation of pipelines, and the establishment of regulator and metering stations, etc. The purchaser further agrees to grant to the public utility operator all the rights necessary to fulfil its obligations as a public service concession, i.e. the possibility to:
|
Have access at any time for its staff and that of its contractors to the pipelines and premises concerned, |
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Have permanent clearances for the passage of equipment. |
14b-3 | The purchasers commitments defined above have been required by the SEM both for its benefit and as a third-party stipulation for G.D.F.s benefit. Accordingly, this institution can avail itself of it directly in order to compel the purchaser, if necessary by the courts, to fulfil its commitments, unless it prefers the allocation of damages. |
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Article 14c - Cable Distribution or Community Antenna
If the SEM builds a cable network or community antenna network within the ZACs perimeter, any builder on land located within the perimeter shall be required to connect its buildings that are mainly for residential or business use to such network.
The SEM shall inform the Builder in the deed of assignment if the building site is located within the perimeter served or not.
To the extent that it would not be handed over to a community or an assignee, the cable television distribution network or the community antenna network shall be delivered as soon as possible and at latest at the end of the development concession to the general syndicate, or, if necessary, to a specific syndicate that the Builder will automatically be a part of.
The cost of connecting to this network shall be borne by the Builder, who will, in addition, pay a share of the costs of the networks maintenance, as part of the syndicate, or, as needed, it is specified on this subject that the allocation of these expenditures must be done proportionally to the number of m 2 of constructed overall surface area clear.
Article 15 - Preparation of Projects, Coordination of Work
Study of projects to use the building rights granted.
As the ZAC is developed, the company shall prepare the documents defining the details of the land use for the building sites ceded or leased. To this end, it shall prepare site plan sketches and drafts at the preliminary stage outlining the options for the architectural and organizational portion as well as the specific technical constraints to proceeding. Several hypotheses may be offered, whether drawn or not from the PAZ file while obviously respecting all the provisions of this plan.
The company shall provide the builder with a folder at the building permits stage containing the summary comparative estimates for the corresponding infrastructure, and the precise graphic definition of the physical limits of the services, in accordance with Appendix 1 of these Specifications, called the General Limits of Services Specifications.
The Builder shall prepare its projects in close consultation with the company on the basis of the building permits record provided by it and will submit the final draft after having applied for any possible modifications it wishes to carry out for prior consent.
The company shall ensure, without committing its liability as such, that the architectural easements have been observed at the time of any possible amendments to the PSA and that the external appearance of the buildings it proposes to build shall not be detrimental to the use of the neighbouring buildings, whether sold or not yet sold.
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The SEM should be provided a complete copy of the application for building permits within the deadline provided in Article 4 above, in order for the SEM to ensure that the proposed work is compatible with the work at its expense, that it permits normal and safe traffic circulation, good service and easily ensures public safety (lighting).
The SEM shall verify that the projects architecture is consistent with the general environment and the vocation of the transaction, and may make its approval contingent on any necessary modifications in this regard.
The connection to the roadways and networks may be refused if the work is not compatible or if the regulations were not observed.
The review of the file by the company does not incur the latters liability, since the purchaser remains solely responsible for its studies and its choices, as well as for the fulfilment of its obligations
In any case, the company cannot be required to make changes to the work that is incumbent upon it or change the plans.
Article 16 - Performance of the Work by the Builders Contractors
The Builders contractors shall be responsible for repairs of damage caused by them to road works, and the various utility networks and development in general created by the SEM. The Builder shall impose its obligations and burdens on the contractors participating in the construction of these buildings and the works by inserting the necessary clauses in the contracts.
In the event of the contractors failure to pay within three months the sums claimed from them by the SEM, the latter can take recourse against the purchaser, who shall be held jointly liable for the damage caused by its contractors.
In the event that the perpetrator of the damage cannot be determined, the amount of compensation will be apportioned among all the builders with works in progress at the site when the damage was found, and this in proportion to the number of m² of gross floor space in the schedules allocated to each builder, as they result from the building permit.
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PART III
RULES AND GENERAL INTEREST EASEMENTS
Article 17 - Maintenance of Open Spaces
The maintenance of public open spaces is at the Municipalitys expense.
The maintenance of private open spaces in the builders programme is at the latters expense. The delimitation and the final status of these areas will be defined in the act of surrender.
Article 18 - Use of the Open Spaces/Easements
18-1 | The unbuilt portions of the land, except those ceded for the construction of public facilities and unless, on the other hand, the portions called private areas specifically designated in the deed of conveyance, are assigned for use as parks and passageways and are grouped into a set in which each part will be used for all the other lands indiscriminately. |
Builders or their assignees shall be entitled to use as a park and passageway all unbuilt portions of all the land concerned.
The lanes for walking and relaxing, the flower beds, lawns and ponds or attractive decorations to be created will be made available to the owners, joint owners or occupants of all the buildings on such land.
18-3 | The Builder shall be bound to endure without compensation all easements necessitated by the passage over its land and eventually, in the buildings, public pipes for water, gas, electricity, post office, public lighting, heating, sewers, etc, such as they will be created by the SEM, the City, and the assignees or on their behalf. |
Article 19 - General Content
Nothing can be established on the facades of the buildings or on the land which could harm the cleanliness, good appearance, or tranquillity and security of the residents. In particular, no work can be performed on the buildings or on the lands that would change their appearance or function, as such have been specified in the building permit.
No external radio television antenna will be allowed when the buildings are connected to a cable network or a community antenna. The apartment buildings not connected must be equipped with communal antennas, with a maximum of one antenna per stairwell, as individual antennas are expressly prohibited.
Owners or tenants are prohibited from renting for advertising or display or from themselves using for this purpose all or part of the land or structures other than those assigned for commercial use. The company, however, shall grant exceptions for public sign projects or more generally signage to the extent that these would comply with the specifications concerning the signage for the area that is to be created for this purpose.
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Article 20 - Insurance
Each Builder shall have to insure the buildings erected on its building site for their actual value with a company known to be solvent. The policy shall contain a provision insuring against claims from neighbours.
This article does not apply to administrative bodies that normally act as their own insurer.
Article 21 - Litigation, Subrogation
The provisions contained in these Specifications for the transfer of land shall be binding on the company and the builder, as well as on the various other Builders.
The Company subrogates, as appropriate, each Builder in all of its rights or shares, so that each Builder can require from the others the
Article 22 - Insertion
The requirements of these Specifications shall be fully incorporated by the purchaser in the deed of sale and during the successive assignments by reproducing the full text.
Seen and accepted by
The City of SAINT DENIS | The Mixed Economy Corporation for the | |
Development of the Territory of Seine Saint | ||
Denis (SODEDAT 93) | ||
The Deputy Mayor | The Chairman, | |
Round Stamp French Republic | ||
Saint-Denis Town Hall | ||
Liberty Equality Fraternity | ||
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APPENDIX No. 1
Name of the business activities prohibited
within the operating perimeter of the ZAC
15
1 Minimum number of jobs assigned to surface areas for business and offices:
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Business activity: 50 m² used for 1 job |
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Office: 20 m² used for 1 job |
2 Prohibited business activities
CODE |
Definition |
|
37 | Recycling | |
51 | Food wholesaler | |
51 | Non-food wholesaler i.e. 5804 | |
51 | Business wholesaler | |
52 | General food supermarket retailer | |
52 | Speciality or local food retailer | |
52 | Non-food speciality retailer | |
52 | Non-food speciality retailer | |
61 | Truck transportation |
SODEDAT 93 8-22, rue du Chemin Vert BP 95 93003 BOBIGNY CEDEX The Chairman,
Jean-Jacques KARMAN |
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Address of the Property | ||||||||||||
43 Rue du Landy | ||||||||||||
93200 Saint-Denis |
NATURAL AND TECHNOLOGICAL
HAZARDS
REGULATORY INFORMATION FOLDER
FOR BUYERS AND RENTERS
Date of creation | ||
(Document valid for 6 months): |
Dimexbat | |
28 June 2007 |
Building Experts |
17
SUMMARY
STATEMENT OF NATURAL AND TECHNOLOGICAL HAZARDS |
||||
Statement of Condition of Natural and Technological Hazards |
3 | |||
Location of the Building with regard to the zoning of the risks defined in the regulatory documents |
3 | |||
INFORMATION RELATIVE TO COMPENSATION RELATED TO NATURAL DISASTERS |
||||
Decisions on natural catastrophes since 1982 |
9 | |||
Information document on compensated natural disaster damages |
10 | |||
Glossary |
11 |
STATEMENT OF NATURAL
AND
TECHNOLOGICAL HAZARDS
2
STATEMENT OF NATURAL AND TECHNOLOGICAL HAZARDS
in application of Articles L 125-5 and R 125-26 of the Environmental Code
1. This statement of hazards is prepared on the basis of information made available by prefectural order
No. 2006-0391 from 13/02/06 updated on
Location of the real estate property (built or not built)
2. Address Municipality ZIP code
43 Rue du Landy - 93200 SAINT-DENIS
3. Location of the building with regard to one or several plans for the prevention of foreseeable natural hazards (PPRn)
The building is located in a municipality provided with a PPRn recommended |
yes x | no ¨ | ||||||
The building is located in a municipality provided with a PPRn applied in anticipation |
yes ¨ | no x | ||||||
The building is located in a municipality provided with a PPRn approved |
yes x | no ¨ | ||||||
The natural hazards taken into consideration are: |
Flood |
x |
Flood plain | ¨ | Rising water table | ¨ | |||||||||
Avalanche |
¨ |
Mudslide | x | Drought | ¨ | |||||||||
Earthquake |
¨ |
Tornado | ¨ | Volcano | ¨ | |||||||||
Wildfire |
¨ |
other | ¨ |
4. Location of the building with regard to a technological hazards prevention plan (PPPt)
The building is located within the perimeter of a PPRt approved |
yes | ¨ | no | x | ||||
The building is located within the perimeter of a PPRt recommended |
yes | ¨ | no | x | ||||
The technological hazards taken into consideration are: |
Heat effect ¨ High pressure effect ¨ Toxic effect ¨
5. Location of the building with regard to regulatory zoning for the consideration of seismicity.
In application of Decree 91-461 of 14 May 1991 relative to the prevention of seismic hazards, amended by Decree No. 2000-892 of 13 September 2000.
The building is located within a seismic municipality zone la ¨ zone lb ¨ zone ll ¨ zone lll ¨ zone 0 x
Documents attached
6. Location
Excerpts from reference documents or files for locating the building with regard to the hazards considered
|
Excerpt at 1/40,000 th of the map of hazard perimeter R. 111-3 deemed approved PPR |
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Map of project risks of PPR Flood of the Seine (1/5,000 th ) |
|
Map of risks related to shrinkage/expansion of clay soil (1/100,000 th ) |
|
Mapping of study area (former quarries, dissolving of the gypsum) |
Seller/Lessor Buyer/Lessee
7. Owner Lessor Last/First name Mr DUMORTIER, Jean-Paul
Cross out the unused mention
8. Buyer Lessee Last/First name
Cross out the unused mention
9. Date | on 28/06/2007 |
At
This statement of natural and technological hazards is based on the information available to the Prefect for the Department. In case of non-compliance, the buyer or the renter can pursue contract cancellation or petition the judge to lower the price.
(IV of Article 125-5 of the Environmental Code)
LOCATION OF THE BUILDING WITH REGARD TO THE HAZARDS DEFINED IN THE REGULATORY DOCUMENTS
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Saint-Denis
Draft Plan for the Prevention of Flood Hazards
from the Seine overflowing its Banks
[Map of Saint-Denis]
Sources: Risks DOE 93 / GEO 2000 | [Dark] VERY HIGH RISK (H > 2m) | |
(Study performed in 2000) | [Medium] HIGH RISK (1m < H < 2m) | |
PHEC DREWSNS | OTHER RISKS (H < 1) | |
BO Topo Pays Cleb GN 2092 | __ __ Municipal boundary | |
_____ Level | ||
. Index point (Normal NGF) | ||
Kilometre point |
4 |
Saint-Denis
Hazard Perimeter R. 111-3 related
(Deemed approved PPR)
_____
| | Area of Dissolution
__ |_ Municipal boundary
|
[Map of Saint-Denis]
Sources: Risks GDE 931 IGC
5 |
Saint-Denis
Draft Plan for the Prevention of Hazards related to
the Shrinkage-Expansion of Clay Soils
[Dark] High risk
[White] Average risk
[Grey] Low risk
[Map of Seine-Saint-Denis]
Sources: Risks DOE 93 BRGM 2002
BD Topo Pays CO IGN 2002
6 |
Saint-Denis
Zoning studied as Part of the Drafting of the Plan
for the Prevention of the Hazards of Mudslides
[Map of Saint-Denis]
Sources: | DDE 93 / DEP | |
BD Topo Pays CO GN 2902 |
7 |
INFORMATION RELATIVE TO
COMPENSATION FOR DAMAGE
RELATED TO NATURAL
DISASTERS
8
FINDINGS OF NATURAL DISASTERS OBTAINED BY THE MUNICIPALITY SINCE 1982
Flood |
11/04/1983 | 23/04/1983 | 16/05/1983 | 18/05/1983 | ||||||||||||
Flood |
24/06/1983 | 26/06/1983 | 03/08/1983 | 05/08/1983 | ||||||||||||
Flood |
06/07/1987 | 06/07/1987 | 27/09/1987 | 09/10/1987 | ||||||||||||
Flood |
24/08/1987 | 26/08/1987 | 03/11/1987 | 11/11/1987 | ||||||||||||
Flood |
31/05/1992 | 01/06/1992 | 16/10/1992 | 17/10/1992 | ||||||||||||
Flood |
19/07/1994 | 19/07/1994 | 28/10/1994 | 20/11/1994 | ||||||||||||
Flood |
23/08/1995 | 23/08/1995 | 02/02/1996 | 14/02/1996 | ||||||||||||
Flood |
30/05/1999 | 30/05/1999 | 21/07/1999 | 24/08/1999 | ||||||||||||
Mudslide |
25/12/1999 | 29/12/1999 | 29/12/1999 | 30/12/1999 | ||||||||||||
Flood |
25/12/1999 | 29/12/1999 | 29/12/1999 | 30/12/1999 | ||||||||||||
Flood |
07/07/2001 | 07/07/2001 | 06/08/2001 | 11/08/2001 | ||||||||||||
Flood |
02/07/2003 | 02/07/2003 | 03/12/2003 | 20/12/2003 |
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INFORMATION DOCUMENT ON COMPENSATED NATURAL DISASTER DAMAGE
The property has never been damaged and compensated under the natural disaster system
I, the undersigned ________________________________________________________________________________________
declare that the real estate property located at the following address: ________________________________________________
_________________________ on the municipal land of _______________________________________________________
has never been the subject of a statement of damages or compensation under the natural disaster system established by the Law of 13 July 1982.
Last and first name of the lessor or seller:
Done on:
Signature:
The property has never been damaged and compensated under the natural disaster system
I, the undersigned __________________________________________________________________________________________
declare that the real estate property located at the following address: __________________________________________________
_________________________________ on the municipal land of ____________________________________________________
has never been the subject of a statement of damages or compensation under the natural disaster system as established by the Law of 13 July 1982.
List of natural disasters rulings resulting in compensation:
No. of the Official Journal |
Date of Appearance In the Journal |
Type of Natural Disaster recognised |
Characteristics of the disaster on the Real Estate Property |
Last and first name of the lessor or seller:
Done on:
Signature:
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GLOSSARY
The Plan for Prevention of Natural Hazards [PPRn]
Regulatory mapping of the natural hazards present on the territory of a municipality.
As of the knowledge of phenomena such as floods, avalanches, earthquakes, forest fires, etc, it is established by the government departments, after consultation and in partnership with the communities, to determine the areas at risk and define the measures for urban planning, construction and management that should be respected in order to limit damage.
It is first prescribed, then subjected to public inquiry and finally approved. It is then imposed on the local urban development plan (PLU). In certain situations, in order to avoid any dangerous locations, it can be applied in advance.
Old procedures: submersible surface plan [PSS], map of areas susceptible to forest fires [PZSIF], perimeter of Article R111-3 of the Urban Code and Plan for Exposure to Risk [PER] deemed natural disaster prevention plan.
The Plan for Prevention of Technological Hazards [PPRt]
Regulatory mapping of technological hazards present on the territory of a municipality.
It is established by the government departments in consultation with local residents, operators and communities for the industrial sites most at risk. The threat study bears on the thermal, toxic or pressure effects.
As with the PPRn, this procedure, created by decree in September 2005, provides that it be first prescribed, then subjected to public inquiry and finally approved. It is then imposed on the local urban development plan.
Seismic Zoning
It is established from a historical knowledge of the earthquakes and the geological knowledge of the territory. A regulatory zoning with four levels, 1a, 1b, 2 and 3 has been in force since 1991 accompanied by seismic rules for new construction.
Findings of natural or technological disasters
Any building that is the subject of a home insurance policy has been insured in the event of a natural disaster since 1982 by means of a mandatory surcharge. The technological disaster quanta have therefore been covered since 2003.
This device provides a guarantee of compensation for the quick restoration of the damaged premises. It is triggered by the governments acknowledgement of the exceptional nature of the phenomenon.
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Municipal Information File on the Major Hazards (DICRIM)
Background document prepared by the Mayor that identifies the safeguards that respond to the risk to the municipalitys territory, including those measures that it has taken under its police powers.
It contains local, Departmental and national data necessary to inform citizens of the right to information. Prepared from the available information transmitted by the governments representative in the Department, the Prefect, it contains four major types of information:
|
Knowledge of the natural and technological hazards in the municipality, |
|
The measures taken by the municipality, with examples of implementation, |
|
The safeguard measures to be complied with in case of danger or warning, |
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The plan to post these warnings: the Mayor establishes the regulatory posting plan in the municipality, on the premises and grounds mentioned in the Decree, according to the Order of 27 May 2003 relative to the posting of the safety warnings to be brought to the publics knowledge. The plan is shown in the DICRIM. The owners or operators of the premises and grounds to which the information relates should themselves ensure its posting. |
Synthesised Municipal File (DCS)
The Synthesised Municipal File is the declination at the local level of the Departmental file of major hazards. It shows, for each hazard identified, its definition, its scope and its consequences on the lives of the citizens of the municipality, and the simple and immediate measures for individual protection as well as a detailed map (scale 1/25,000) showing the areas concerned.
Dimexbat
Building Experts
Rue Bel Air Montée du Calvaire
13430 EYGUIERES
Website: www.dimexbat.com Email: contact@dimexbat.com
12
Exhibit 10.7
Confidential material has been omitted and filed separately with the Commission
28/04/2006
COMMERCIAL LEASE
LESSOR: SCI 43 rue du Landy
LESSEE: INTERXION
BUILDING: The MEDIACOM 43 Rue du Landy, Saint Denis
THE UNDERSIGNED:
1.) The company called SCI 43 rue du Landy, a real estate corporation, with capital of EUR 10,000, registered with the RCS of PARIS under No. 487 965 980, SIRET 487 965 980 00013, APE Code 702C, with main office at 26 Blvd. Malesherbes 75008 Paris, represented by its Managing Director of the Paris lle de France Realty Company, itself represented by Mr Patrick Béghin. himself represented by Mr Bruce KAHAN.
Hereinafter known as the LESSOR
2.) The company called INTERXION
Represented by Mr Fabrice COQUIO, CEO,
Hereinafter called the LESSEE
Have previously set forth the following:
STATEMENT
1°) Definitions
In this contract, the generic terms below shall have the following meanings:
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Lease: means the lease that is the subject of this contract |
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LESSOR: means the 43 Rue du Landy SCI Company |
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General Conditions: means the general conditions of the Lease |
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Special Conditions: means the special conditions of the Lease |
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Premises: means the Premises that are the subject of the Lease |
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LESSEE: means the Interxion Company |
2°) Property of the LESSOR
The LESSOR is the owner of the Premises by having acquired them pursuant to the terms of a deed received by Maitre Sylvie Burthe-Mique, notary employee of the company called Monassier and Associates 1 Rue de Monttessuy in Paris (75007), on 11 January 2006.
3°) Investigations carried out by the LESSEE
The LESSEE acknowledges having been able to carry out, prior to today, all the investigations that it considers useful concerning the Premises, in order, in particular, to verify their status and to ensure the possibility of exercising there the business activity that it intends to operate.
This having been set forth, the Lease is signed that is the subject of this contract:
COMMERCIAL LEASE
The LESSOR gives a Lease for a term of 12 full and consecutive years within the framework of the commercial lease statutes defined in Articles L 145-1 and following of the Commercial Code, to the LESSEE, who accepts the Premises, whose description is established in the Special Conditions.
The Lease is granted and accepted under the Special Conditions and the General Conditions set forth hereinafter, which form an inseparable whole.
It is specified herein that in case of contradiction between the General Conditions, on the one hand, and the Special Conditions, on the other hand, the provisions of the Special Conditions shall prevail.
CHAPTER I
SPECIAL CONDITIONS OF THE LEASE
1 Description of the Premises
A real estate complex in its entirety, located 43 Rue du Landy, in an industrial development called the Du Landy Industrial Development,
Shown in the cadastre section CJ No. 154, at a place called 43 Rue du Landy, for a surface area of 4,781 m2
Said real estate complex includes:
Building for use as warehouses, workshops and offices with an Overall Surface Clear (OSC) of 3,808 m² (of which 889 m² of OSC as offices and 2,909 m² of OSC as warehouses) and a useable surface area of 3,687 m² (of which 793 m² as offices on the ground floor raised 2 stories, 2,776 m² of warehouse space and a mezzanine of 118 m²).
The strength of the flooring in the warehouse portion is 2 T/m2.
The strength of the flooring in the office portion is 250 kg/m2.
exterior parking,
green spaces.
As it was seen and approved by the LESSEE.
2 Intended Purpose Use of the Premises
The Premises are intended to be used for business activities and warehousing and as back offices.
The LESSEE shall only use them for his business of providing hosting, equipment and installation of computer and telecommunication services, connectivity between TELECOM carrier networks, technical support to telecommunication companies, to ensure the transfer and registration of telecommunications capacity, and all services related to these activities.
The LESSEE agrees to perform on the Premises the repair work to the structure and the finishing work for a minimum amount of EUR *** *** . The schedule of work and the contractor estimates must be accepted beforehand by the LESSOR. Half of this work shall be performed before 31 December 2006 and the remainder before 30 June 2007.
The LESSEE shall provide to the LESSOR all records evidencing the performance of this work (invoices, reports of acceptance, withdrawal of reservations), and deliver the works free of charge to the LESSOR, so that it shall integrate them into its fixed asset accounting:
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for an amount of EUR *** Excl. Tax between now and 31/12/2006; |
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and for an additional amount of EUR *** Excl. Tax between now and 30/06/2007. |
3 Effective Date of the Lease
The Lease shall take effect on 2 April 2006.
4 Tax System
Pursuant to the provisions of Articles 260-2 of the General Tax Code and 193 and 195 of Appendix II of the General Tax Code, the LESSOR declares that it opts for payment of VAT on the rent.
It declares that it shall make it its own business to make the declarations with the tax authorities.
5 Rent
5.1 Base Rent
The present rental is granted and accepted at an annual rent exclusive of taxes and charges of *** euros ( ), rental charges extra, billed at the actual cost and subject to a reserve as set in § 8 hereinafter, at least equal to 5% of the rent, plus property tax, plus miscellaneous taxes, and VAT at the current rate.
As necessary, it is recalled that these special provisions will not preclude application of the indexing clause in Article 3.2 of the General Conditions hereinafter.
5.2 Advance on the Rent
In return for the exemption granted in § 7 hereinafter by the LESSOR to the LESSEE, from paying him a security deposit, the LESSEE shall pay to the LESSOR at the signing hereof, a permanent advance in an amount equal to one quarters rent plus charges, plus VAT at the current rate, i.e. the amount of EUR *** ). ***
This advance shall be indexed under the same conditions as the principal rent. It shall be charged against the last rent due under the Lease, which may possibly be renewed.
In the event of early termination of the Lease as a result of non-performance of its terms or for any cause attributable to the LESSEE, said advance shall be retained by the LESSOR for initial damages, without prejudice to any other.
5.3 Rent Exemption
In return for the Lessee undertaking the renovation work on the structure and the finishing work in accordance with the 3 rd paragraph of § 2 above, the LESSOR grants to the LESSEE a rent exemption (but not for the charges or the taxes) in an amount equal to nine months rent excluding VAT. This exemption shall be spread over the first two years of the Lease, at a rate of 4 1 / 2 months the first year, i.e. the amount of *** euros Excl. Tax *** ) covering the period from 2 April 2006 to 15 August 2006 and 4 1 / 2 months the second year, i.e. the amount of *** euros Excl. Tax ( *** ), for the period from 1 January 2007 to 14 May 2007.
6 Reference Index for Updating of the Rent
For application of the indexing clause stipulated in Article 3.2 of the General Conditions, the index shall be the last index published on 31 October 2005, or that for the 3 rd Quarter 2005, for a value of 1278.
7 Security Deposit
As an exception to Article 3.7 of the General Conditions hereinafter, the LESSEE is exempted from paying a security deposit to the LESSOR.
8 Amount of the 1st Quarterly Provision for Charges
8.1 Reimbursement of the Private Charges
The provision for reimbursement of private charges is set at *** euros ( *** ) excluding taxes per quarter.
8.2 Reimbursement of the Property Tax
The provision for reimbursement of the property tax is set at *** euros Excl. Tax ( *** ) per quarter.
8.3 Reimbursement of the Annual Tax on Premises used as Offices, Commercial and Storage Premises
The provision for reimbursement of this tax is set at euros Excl. Tax ( *** ) per quarter.
8.4 Work at the LESSEES Expense
As an exception to Article 5.2 of the General Conditions, the LESSEE has informed the LESSOR of his project to perform major work in the building.
It will perform it at its own expense and risk, and as and when needed, and it shall bear the cost of all the work, including that referred to in Article 606 of the Civil Code, which may be necessary to the Premises during this Lease for all the changes that it shall make to the cover and the closure of the building as well as to its foundations, whatever the cause, nature and the importance, and even when they are due to a hidden defect, and it must proceed at its own expense and as often as necessary with all treatments for rat and insect extermination on the Premises.
It expressly renounces any claim under the provisions of Articles 1719 2 nd , 3 rd and 4 th paragraphs, 1720, 1721, and 1724 2 nd and 3 rd paragraphs of the Civil Code for all the work performed by it including that under Article 606 of the Civil Code.
To obtain the LESSORS consent, the LESSEE shall communicate to the latter a technical dossier for the proposed works including drawings, descriptions and technical notes.
The LESSEE agrees to comply with any regulations relating to such work, and to seek and obtain any necessary administrative authorizations beforehand.
The work will be performed by the LESSEE at its own risk, under the oversight of an architect or engineering and design firm approved by the LESSOR, whose fees shall be borne by the LESSEE.
Before starting work, the LESSEE shall provide to the LESSOR a copy of the Construction Liability Insurance purchased.
All embellishments or improvements made by the LESSEE during the Lease, including fixed, movable and detachable partitions and including the improvements that may be required by legislative or regulatory provisions, remain the property of the LESSOR without any compensation being due by the latter at the end of the Lease to the benefit of the LESSEE.
The LESSOR releases the LESSEE at the end of the Lease from returning the premises, in whole or in part, to their original condition as concerns the distribution, composition and materials or exterior facings.
When the work is completed, the LESSEE agrees to furnish to the LESSOR the final construction plans for the facilities, copies of the certificates of compliance, the administrative occupancypermits, the acceptance reports, any possible D&O insurance subscribed and any document showing the proper completion of its work, including the report from the engineering oversight firm, and all the technical data arising in connection with their operation particularly in matters of air conditioning.
8.5 Work at the LESSORS Expense
The LESSOR shall
perform
at its expense the cost of the
possible
injections necessary for the performance of the work by the LESSEE,
according to the conclusions
of the Design and Engineering Firm appended to this contract.
[Handwritten up to a limit of 100,000 euros.] Moreover, the LESSOR authorises this day the LESSEE to carry out a coring of the roof at its expense and on condition of
returning the roof to waterproof status.
8.6 Optional Work
The LESSOR authorises the LESSEE, inasmuch as needed, to create at its expense and risk
an interior floor space with a maximum surface area of 1000 m².
To do this, it shall previously confirm the exact surface area for the floor space to be created to the LESSOR for confirmation and also to obtain all administrative authorisations that may be necessary.
The creation of this additional surface area shall lead to the payment of additional annual rent excl. tax, excl. charges, of *** per m ² created, at the June 2006 value.
This additional rent shall be due as of when the necessary authorizations are obtained for it to be built.
In case of exceeding this limit, the Lessor and the Lessee shall each bear the cost of 50% of the overrun up to a limit of *** euros for the Lessor.
CHAPTER II
GENERAL CONDITIONS OF THE LEASE
The Lease is subject to the statutes governing commercial leases, in accordance with Articles L145-1 and following of the Commercial Code.
1 DEFINITION OF THE PREMISES
1.1 Description of the Premises
The Premises are described in the Special Conditions.
The LESSEE declares having complete knowledge of the premises from having seen and visited them. Any difference between the surface areas mentioned in the Special Conditions or resulting from the appended plan and the actual surface areas of the Premises shall not justify any reduction or increase in the rent, since the parties make reference to the contents of the premises such as they exist.
The parties agree that the Premises form an indivisible whole for the entire term of the Lease, and its renewals, tacit renewals and even in case of any assignment.
1.2 Intended Purpose Usage
The LESSEE shall use the Premises for its personal use and exclusively for the use referenced in the Special Conditions in accordance with the intended purpose of the Building and in compliance with Articles 1728 and 1729 of the Civil Code.
The LESSEE shall make it its business to obtain all the administrative authorisations and the payment of all sums, taxes and/or fees related to the business activities to be performed on the Premises and to their use.
The LESSEE shall also be personally responsible for the Premises compliance with regards to the activities carried out therein so that they shall be exercised in such a manner that the LESSOR shall never have any concern on this subject.
2 CONDITIONS RELATING TO THE TERM OF THE CONTRACT
2.1 Term
The present Lease is granted and accepted for a term of twelve full and consecutive years that begins on the effective date stated hereinabove in CHAPTER I § 3 - SPECIAL CONDITIONS OF THE LEASE.
The LESSEE expressly waives availing itself of the right to request the termination of the Lease before the end of the twelfth year, since the Lease term is a firm twelve year period, in return for the owners participation in the work carried out by the LESSEE.
In case of renewal of the Lease, it is expressly agreed between the parties, as necessary, that it shall be renewed for the same 12 year period, with the option for each of the parties to put an end to it at the expiration of each three year period.
The LESSEE shall, for this purpose, notify the LESSOR by extrajudicial act no later than six months before the expiration of each three year period.
2.2 Notice given by the LESSEE
The LESSEE may give notice to the end of the fourth three-year period, in accordance with the provisions of Article L 145-4 of the Commercial Code, only under the Special Conditions.
The LESSEE shall give notice to the LESSOR by extrajudicial act no later than six months before the expiration of the twelfth year of the Lease.
The Lease shall continue until the effective date of the notice even in cases where the keys have been returned to the LESSOR prior to that date.
3. FINANCIAL CONDITIONS
3.1 Rent
The Lease is granted and accepted at an annual principal rent whose base value is specified in the Special Conditions. It shall change under the conditions laid down by the law and following the procedures laid down in Article 3.2 below
3.2 Indexation of the Rent
The rent varies each year automatically at the anniversary date of effectiveness of the Lease, without any need for advance notification, in proportion to the variation of the cost of construction in the quarterly index published by the National Institute of Statistics and Economic Studies (INSEE), provided such a variation is an increase. The base index or benchmark index is referenced in the Special Conditions.
It is expressly agreed that the annual rent indexing can only occur as an increase so that the rent paid for one year shall never in any event be less than what was paid for the previous year.
At the first annual review, the ratio shall be calculated between this benchmark index and the index for the same quarter of the following year.
Each year, the same ratio shall be reached between the benchmark index for the previous indexing and the index for the same quarter of the following year.
If this index is not known on the date of the anniversary of the Lease, a provisional indexing will be carried out on the basis of the last known index.
In the event that, for any reason whatsoever, the above mentioned index chosen for the annual rent adjustment should cease to be published, this adjustment would be made by taking as the base, either the replacement index or a new contractually chosen index.
Failing to reach agreement on the selection of a new index to be adopted, the parties heretofore submit to the decision of an expert appointed by the Presiding Judge of the Higher Court with jurisdiction for the location of the Premises, and the cost of the expert fees and court costs shall be borne exclusively by the LESSEE.
This indexation clause is a vital and decisive condition without which the Lease would not have been granted. Its non-application, even partial, shall authorise the LESSOR, and him alone, to demand the termination of the Lease without compensation.
3.3 Charges
3.3.1 Collective Charges
The rent payable is considered net of all charges and taxes for the LESSOR.
Accordingly, the LESSEE shall reimburse the LESSOR for charges of any nature pertaining to the Premises, facilities and items of equipment that are installed therein, and, if necessary, the share allocated for the Premises relating to the common charges, common services and common items of equipment for the Building, if it is not rented to the LESSEE in its entirety, as well as the charges resulting of the integration of the Premises into the Du Landy Industrial Development.
The charges to be reimbursed by the LESSEE to the LESSOR include, but are not limited to, (i) owners insurance, (ii) property taxes, (iii) the annual tax on offices, the tax on Commercial and Storage Premises, and any other tax or fee subsequently created, added or substituted, which is legally at the expense of the LESSOR, (iv) the management fees for the building, (v) the trustee fees, etc.
If the building is subject to joint ownership status or integrated into any other legal entity, the LESSEE shall in general repay to the LESSOR all the charges which may result therefrom.
3.3.2 Terms and Conditions of Reimbursement
Reimbursement of the LESSOR shall take place in the form of a call for a quarterly reserve at the same time as the rent, on the basis of the reserves for expenses for the year.
Each year, an adjustment is made to take into account the actual expenses for the previous fiscal year.
The allocation of costs between the various LESSEEs is carried out according to the percentages specified in the internal regulations for the building, if such exists, for lack of such the allocation is carried out in proportion to the leased surface areas.
To take into account the changes in the charges, the LESSOR reserves the possibility to modify the amount of the reserve called for.
The payment and the reimbursement of all the charges referred to in the Lease are payable as of the date when the LESSEE takes possession of the Premises until the full release of the Premises by the LESSEE.
The amount of the first quarterly reserve is specified in the Special Conditions.
The LESSOR also reserves the right to call at any time for working capital reserve for charges corresponding to one quarter of the projected annual budget.
3.3.3 Individual Charges Meters
The LESSEE shall be responsible for the maintenance and the monitoring of the Premises.
It shall subscribe to maintenance contracts related to the Leased Premises and equipment, and to contracts in connection with the inspections made mandatory by a statutory or regulatory provision.
It shall contract all subscriptions for water, gas, electricity, telephone, etc. It shall be bound to regularly pay the premiums and to pay directly for all individual consumption as indicated by its meters and statements, as well as all taxes it is responsible for, without the LESSOR being able to be held liable.
3.4 Taxes and Fees
The rent as defined in the Special Conditions is expressed net of taxes.
Since the LESSOR has opted to be subject to VAT under Article 260-2 of the General Tax Code, the rent shall be increased by VAT at the rate in effect at each billing.
All charges billed to the LESSEE in accordance with the provisions of the Lease are fiscally similar to a rent supplement, and they shall accordingly be increased by VAT at the rate in effect.
The LESSEE shall bear any increase or other tax that may be added or substituted in place to the VAT by the regulations.
The LESSEE shall also satisfy all the charges for the city, the police or roads that are usually required of tenants, in such a manner that the LESSOR shall not be concerned on this subject. It shall, in particular, pay the personal and property contributions, leasehold taxes, business tax and any other taxes that are the LESSEEs responsibility, which the LESSOR is responsible for in any capacity and show proof of their payment upon any request and at least eight days before departure at the end of Lease.
3.5 Terms of Payment
The LESSEE undertakes to pay the rent and its incidentals to the LESSOR in four equal terms in advance, on 1 January, 1 April, 1 July and 1 October of each year, and for the first time on the effective date of the Lease.
The first payment is calculated proportionally to the time between the effective date of the Lease and the end of the calendar quarter in which it takes effect: each day corresponding to 1/360 th of the annual rent. All payments shall be made at the LESSORs domicile or any other place indicated by him.
The LESSEE agrees to this effect to sign, to the benefit of LESSOR, an authorisation to debit a bank or post office account.
The late payment of three notices of rent due, whether consecutive or not, constitutes a serious and legitimate reason for refusal to renew the Lease at its term. The rent remains due until the contractual term of the Lease, even in the event that the keys are returned to the LESSOR before the agreed upon term.
3.6 Penalty Clause
Any delay in payment at its exact due date, of a single term of rent, charges or incidentals, and occupancy compensation referred to in Article L. 145-28 of the Commercial Code, and more generally the non-payment of any other amount due under the Lease within the deadline required, makes the LESSEE legally liable, without prior formal notice, for the payment of interest computed on the basis of the statutory rate plus three points per year, VAT in addition. The interest shall be due at the due date, and any month that has begun shall be due in its entirety.
In case of relapse by the LESSEE during a continuous period of two years and upon expiration of a fifteen day deadline from the due date, all amounts due, after calculating the above compensation shall be legally increased by a flat fee of 10% as a penalty without any notification or formal notice taking place, and the VAT shall be payable on such penalties.
The application of the two preceding paragraphs may not at any time be regarded as valid authorisation for deferral of payment, nor shall it be an obstacle to the implementation of the resolutive clause referred to in Article 9 below.
3.7 Security Deposit
3.7.1 Amount
To ensure due performance of its obligations under the Lease, the LESSEE shall pay to the LESSOR a security deposit in the amount specified in the Special Conditions that corresponds to one quarter of the annual rent Excl. Tax.
The security deposit shall be readjusted automatically and without any formalities, to each variation of the main rent so that it always corresponds to one term of rent in advance.
This deposit shall not produce any interest.
3.7.2 Terms and Conditions of Implementation
This guarantee can be implemented during the entire term of the Lease, until full and final payment of all rent and incidentals, and until the performance by the LESSEE of all of its obligations.
It is reimbursed to the LESSEE after release of the Premises, preparation of the statement of condition of the premises and the LESSEES production of receipts for its contributions, taxes and other fees.
All of the amounts due for any reason whatsoever shall be deducted from the amount reimbursed, and in particular the balance of the amount of the charges that correspond to the period of occupancy, as well as the amount for the work to restore the Premises.
The LESSEE cannot in any event use this security deposit as compensation for rent or incidentals that may be due at its departure.
In case of termination of the Lease pursuant to the non-execution of its Conditions or for any cause attributable to the LESSEE, said security deposit remains the property of the LESSOR as damages, without prejudice to any others.
3.8 Furnishings
The LESSEE must keep the rented premises constantly furnished with equipment, furniture, movable property and merchandise of sufficient quantity and value to act and serve at any time as a guarantee to the LESSOR of payment of the rent and all the incidentals and obligations of the present Lease.
3.9 Occupancy Compensation
In the event that after court-ordered or other expiration or termination of the Lease the premises are not returned to the LESSOR, free of any occupancy on the agreed upon day, the LESSEE or its assigns shall owe a monthly occupancy compensation equal to double the current monthly rent.
This compensation shall be due as of the day following the end of the rental and until the day of the return of the Premises, and any month that has begun shall be due in full.
The charges also remain due until the day when the premises are returned to the LESSOR, without any prejudice to any other damages and interest.
3.10 Costs Disputes
All cost, duties and fees for the present contract, including the costs of drafting the deed, as well as those that may follow or be a consequence of it, are at the LESSEES expense, who so specifically undertakes.
All costs and expenditures incurred by the LESSOR at the time of the actions validly initiated against the LESSEE to obtain execution of the clauses and Conditions of the contract are and remain at the LESSEES expense.
3.11 Allocation of the Amounts Due
In case of a dispute, the allocation of the payments made by the LESSEE shall be carried out by the LESSOR in the following order:
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Cost of recovery and proceedings, |
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Damages, |
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Interest, |
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Rent paid in advance and readjustment of rent paid in advance, |
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Rent claims or occupancy compensation: concerning this items allocation, it shall be carried out in priority by the LESSOR from amounts that have not been subject to dispute, |
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Reserves for common charges. |
4 CONDITIONS RELATING TO POSSESSION OF THE PREMISES
4.1 General Conditions for Possession
4.1.1 Rules of Occupancy
The LESSEE shall abstain from anything that could harm, by its act or by that of its employees, the exercise of business activities by other occupants of the building, of their tranquillity and of good order.
It shall abstain from any dangerous, inconvenient or unhealthy activities.
The LESSEE is bound to be subject to all measures of orderliness and cleanliness for the building. It is in particular bound to progressively remove its wastes from the site on which the Premises depend.
It is forbidden from depositing anything whatsoever, even temporarily, in the halls and common portions of the building, stairwells, parking lots, access ways and gardens.
In case of a violation of these clauses, the LESSOR can proceed with the required removal, eight days after formal notice by registered letter with acknowledgement of receipt that remains ineffective, or without prior notice in case of emergency, at the LESSEES expense, and the latter shall reimburse the cost, upon simple presentation of an invoice.
The LESSEE undertakes to inform the LESSOR of the existence of any equipment subject to declaration as a classified installation. It undertakes to make all declarations provided for in the regulations for any equipment subject to the latter.
The LESSEE shall comply with the regulations for the removal of trash, as established by the LESSOR or by the municipal departments.
In general, it shall comply with the prescriptions, recommendations and injunctions issued by labour inspection, the health and safety commissions, and in general by any other administrative services concerned, so that the LESSOR does not in any event incur any liability whatsoever. This shall hold in particular when the property given for rental is dependent upon a high rise building [lGH] that is subject to a specific regulation that the LESSEE undertakes to comply with in all regards.
It shall exactly and regularly pay the personal, property or other taxes and contributions that are LESSEEs responsibility, so that the LESSOR shall never be sought on this subject.
4.1.2 Right of Access and Visit
The LESSEE shall allow access to the Premises to the LESSOR as well as to his representative, his architect and his contractors as often as is necessary to note the status and perform the work on the common portions or equipment, on condition for the LESSOR to so advise forty eight hours in advance, except in case of emergency.
When notice has been given, the LESSOR shall be free to put up any signs or notices that it considers necessary at the places of its choice.
In the event that the Premises are put up for sale or rent, the LESSEE shall be bound to allow the Premises to be visited from 9 a.m. to 6 p.m. on any business day.
If it does not comply with this rule, the LESSEE could be liable to the LESSOR for any damages related to the prejudice suffered by the latter.
4.1.3 Security and Technical Administration of the Building
The LESSEE shall make the security and surveillance of the Premises its personal business, as well as the maintenance of these Premises.
It shall ensure that the Premises are permanently provided with a functioning fire protection system, and in particular a fire detection system.
The LESSEE undertakes to carry out, at its expense, the periodic testing of the items of equipment, elevators, security systems (including those relating to detection, warning and protection in case of fire), the electrical installations, etc.
4.2 Building Regulations
The LESSEE shall comply with the Special Conditions resulting from the legal status of the building, such as the co-ownership regulations, internal regulations or Special Specifications.
It shall comply with the technical and administrative documents relative to the rented property.
The LESSEE shall be bound to comply with any other document prepared later and properly brought to its attention.
4.3 Descriptive Sign
The installation of any sign or descriptive panel in the interior or outside of the Building shall be carried out by the LESSEE after obtaining the necessary administrative permits, and the prior written agreement of the LESSOR.
The LESSEE shall make it a personal matter to comply, as needed, with the Special Conditions relating to such signs and descriptive signboards in general, the co-ownership regulations, the specifications for the building or area, or any administrative regulations in force governing the building as well as the area of business activity in which it is located.
The installation of such signs is carried out at the LESSEEs expense and risk. It shall see to it that they hold firm, and that they are maintained in perfect condition and it shall be solely responsible for accidents caused by their installation or existence.
4.4 Disturbances to Use
4.4.1 Destruction of the Premises - Expropriation
In case of destruction of the Premises or expropriation in the public interest, the Lease shall be purely and simply terminated without compensation at the LESSORs expense.
4.4.2 Interruption of Services
The LESSEE cannot claim any decrease in rent or compensation in case of interruption or reduction, even prolonged, of the common services due to acts by third parties, such as water, heating, electricity or telephone, and the LESSOR shall also not be bound to warn the LESSEE of such interruptions or reductions.
The services for the building are ensured by any means that the LESSOR judges appropriate, it can modify them so as to optimize the buildings management.
5 CONDITIONS RELATING TO THE MAINTENANCE OF THE PREMISES
5.1 Conditions of Premises upon Entry
The LESSEE declares accepting the premises in their present condition, without requiring any repair or improvement, either when it comes into possession, or during the course of the Lease, since the LESSOR is contributing towards the costs of rehabilitation as specified in Chapter I of the Special Conditions of the Lease Art. 5.3, Art. 8.4 and 8.5.
A statement of condition of the premises shall be prepared by the parties when the LESSEE comes into possession, on an adversarial basis. In the event that for some reason this statement of condition of the premises is not drawn up, and in particular if the Lessee fails to appear after being duly convened, the Premises shall be regarded as having been leased in perfect condition.
5.2 Maintenance Repairs
The LESSOR shall perform the major repair work referred to in Article 606 of the Civil Code that may be necessary on the Premises during the term of this Lease at its expense, as it may be needed, and shall keep it at its expense.
For its part, the LESSEE shall perform at its expense, risk and peril, as it becomes necessary and shall keep at its expense all the work other than that referred to in Article 606 of the Civil Code (for repair, rehabilitation, reconstruction or replacement) that is or becomes necessary to the Premises and its facilities (such as, if they exist, that for the heating, cooling, ventilation, technical equipment, access control, security systems, electricity, lighting, cabling, glazing, carpentry and joinery, plumbing, sanitation, carpets, ceilings and false ceilings, walls, partitions, floors...) regardless of the cause, nature and importance, and even when they are due to obsolescence or hidden defect, and must proceed at its own expense and as often as necessary, with any treatment for rat and insect extermination on the Premises.
In addition, in the event that the major repairs referred to in Article 606 of the Civil Code should be necessary because of the LESSEES non-execution of its care and maintenance obligations mentioned above or damages resulting from its acts or those of its staff or its visitors, or even concerning the work performed by the LESSEE, their cost shall be borne by the latter. It shall be responsible for damages and losses that may occur on the Premises, even when they take place without fault on its part.
The LESSEE shall perform at its expense, risk and peril, as it becomes necessary and it shall keep at its expense, any work, facilities, installations and construction to be in compliance with present or future regulations including in the field of environmental protection, hygiene, health or safety, unless they are expressly referred to in Article 606 of the Civil Code.
The LESSEE shall be required to perform at its expense on the Premises throughout the term of the Lease, the cleaning, maintenance work, minor repairs, and the repair or replacement of any facility, painting, floors, wall coverings, ceilings, as soon as they become necessary for any reason whatsoever or even simply because of dilapidation or wear, so that the Premises shall at all times be in good state of maintenance and repair.
It shall defer to any order from the LESSOR to that effect, even during the term of the Lease.
The LESSEE shall make all repairs that become necessary to the meters, pipes, valves and locks.
The LESSEE shall ensure that the Premises continually fulfil the various regulations concerning the safety of the public and occupants, Labour Conditions, sanitation, peoples health and environmental protection.
Any work that may be necessary under such regulations shall be at the LESSEES expense, even if the need for such work is not the result of the business activity exercised by the LESSEE on the Premises, but is due rather to the buildings actual situation.
In this respect, the LESSEE shall comply with all orders or administrative regulations, particularly those of the Security Committees, Labour Inspection or the prefectural departments with jurisdiction.
In case of failure by the LESSEE to do so 15 days after formal notice sent by registered letter with acknowledgment of receipt remains unsuccessful, the LESSOR may have the work referred to above be carried out, and its cost shall be reimbursed by the LESSEE to the LESSOR upon first request.
At the expiration of the Lease, the LESSEE shall return the property in good state of repair, maintenance and operation, unless the LESSOR does not require restoration to original condition.
5.3 Work carried out by the LESSEE
5.3.1 Installations Improvements
The LESSEE may not perform any work on the Premises that can change the intended purpose of the Building or harm its solidity. It cannot have the floors bear any load greater than their resistance under penalty of being liable for injuries or accidents that would be the consequence thereof.
The LESSEE may not make any change in distribution, any modification, or proceed with any demolition, piercing of the walls or partitions on the Premises, without the LESSORS prior explicit written consent.
5.3.2 Work to bring into Compliance
The burden of any work that may become necessary to bring the Premises and the building on which they depend into compliance with existing or future regulations is exclusively borne by the LESSEE.
The same shall hold during the term of the Lease, if these regulations should come to be changed, thus causing the rented building to be out of compliance with regulatory standards.
The LESSEE shall make it so that the LESSOR cannot at any time be concerned or sought after on this subject.
5.4 LESSORS Work
The LESSEE shall bear any discomfort that may be caused to it by repairs, rebuilding, adding height and any work whatsoever that may be performed in the Building, without being able to claim any rent reduction or termination of the Lease, regardless of the extent of such work and even if the latters duration should exceed forty days, as an exception to Article 1724 of the Civil Code.
5.5 Work Outside the Building
In addition, the LESSEE shall exercise its recourse directly against the Authorities, the contractors or neighbouring owners, for any work that may be performed on the streets or in nearby buildings, if such work results in a disturbance to the operation of its business activities, without at any time bringing an action against the LESSOR for these external events.
5.6 Return of the Premises
Upon its departure, the LESSEE shall return the Premises in good state of maintenance, or failing that, shall pay to the LESSOR the cost of the work necessary to bring it into condition, and the dilapidation due to wear and tear shall remain at the LESSEEs expense.
To this end, a statement of condition of the premises shall be prepared no later than the expiration date of the Lease or at the end of possession, in the LESSEEs presence after its being duly summoned, whereupon the LESSEE shall return the keys to the LESSOR.
If the LESSEE is absent on the days and times set for the statement of condition of the premises, it shall be prepared by a bailiff, if necessary with the assistance of a locksmith at the LESSEEs exclusive expense. The statement of condition of the premises shall include, where appropriate, the record of repairs performed, which shall be prepared by the LESSORs architect, whom the parties irrevocably commission for this purpose.
In the event that work is found necessary, the LESSOR shall have an estimate prepared to which the LESSEE shall agree within ten days of notification of its cost.
In the absence of response from him, the amount of the renovation shall be deemed to be approved by the LESSEE, and the LESSOR may have the work performed by contractors of its choice, and its cost shall remain solely at the LESSEEs expense.
6 INSURANCE
6.1 LESSORs Insurance
The LESSOR guarantees the financial consequences of the civil liability that it may incur in its capacity as owner.
The LESSOR guarantees, by itself or in the context of the joint ownership if one is created, its properties and all the facilities and installations of a real estate nature.
In the event that the Premises shall consist of joint ownership lots, in whole or in part, the LESSOR has the option to purchase, in addition to the guarantees signed by trustee, any supplementary policy its deems appropriate, and the corresponding premiums are the LESSEEs responsibility.
If the business activities carried out by the LESSEE should involve the payment of additional insurance premiums by the LESSOR or the neighbours or co-lessees, the LESSEE shall reimburse the amount to the concerned parties.
The insurance premiums and additional premiums possibly paid by the LESSOR shall be reimbursed by the LESSEE under the Conditions stipulated hereinabove in Articles 3.3.1 and 3.3.2 of the General Conditions.
6.2 LESSEEs Insurance
As of the effective date of the Lease, the LESSEE is required to guarantee through insurances companies known to be solvent, the financial consequences of the liability it may incur as a result of its activities, particularly in respect to neighbours and third parties in general.
The guarantee shall in particular include the risks of fire, explosions, storms and water damage related to its property, equipment, materials and goods, as well as to the fixtures that it has created.
The LESSEE shall take out insurance against operational losses, broken glass, windows and materials of any kind.
The LESSEE must provide proof to the LESSOR of the subscription of such insurance and pay the corresponding premiums at the signing of the Lease.
The insurance policies relative to these guarantees shall be maintained throughout the term of the Lease. The LESSEE shall pay their premiums and fees and show proof of such at any time to the LESSOR upon simple request by the latter.
6.3 Reciprocal Waiver of Legal Recourse
The LESSEE expressly waives, and shall have its insurer waive, any legal recourse against the LESSOR and its insurers because of the deterioration or destruction of all or part of any materials, furniture, goods and valuables of any kind because of the loss or disturbance of use of the Premises, even in case of total or partial loss of business assets, including intangible elements.
The LESSOR in return expressly waives, and shall have its insurer waive, any legal recourse that they may be entitled to exercise against the LESSEE and its insurers.
6.4 Claims Disturbances
The LESSEE shall keep the LESSOR or its representative promptly informed of any claims that occur on the Premises.
It must immediately inform the LESSOR of any repairs that are necessary because of any debasement or deterioration even though there may not have been any visible damage, under penalty of being liable for any direct or indirect worsening resulting from its silence or its delay, especially vis-à-vis the LESSORs insurers.
The LESSEE shall allow free access to the Premises to the LESSOR as well as to any expert assigned by the insurance companies. It cannot exercise any recourse against the LESSOR due to the conduct of these examinations.
It shall, at its expense and without delay, move the furniture and deposit all linings and decorations as well as any installations whose removal would be useful for in searching for and repairing leaks of any kind, cracks, and in general for the performance of any work.
7 LIABILITY AND RECOURSE
The LESSEE waives any legal action for liability against the LESSOR:
7.1 - In case of theft or other punishable act that the LESSEE could be a victim of on the Premises or the appurtenances of the building, since the LESSOR in particular does not ensure any obligation of surveillance.
7.2 - In case of interruption of services for water, gas, electricity or other fluids, or in case of a stoppage, even extended, of the operation of the elevators.
7.3 - In case of damages caused to the Premises and to the objects therein particularly due to leakage, infiltration, humidity or other circumstances that may be due to any work including that under Article 606 performed by it, since the LESSEE is to insure itself against these risks without recourse against the LESSOR.
7.4 - In response to actions that generate liability for other occupants of the Building, their staff, suppliers or customers or any third party in general, since the LESSEE is to make it its own business to take any direct actions against the perpetrators of the disruptions, after failure of amicable approaches that the LESSOR shall, in such an event, undertake against the perpetrator of the disturbance, a co-lessee in the building.
8 SUB-LEASING ASSIGNMENT
8.1 Sub-Leasing
The LESSEE is forbidden to grant possession of any portion of the Premises to anyone whomsoever, in any form whatsoever, even temporarily or free of charge or on a precarious basis. Any total or partial sublease is strictly prohibited under penalty of legal termination of the Lease.
In case of a sublease that may exceptionally be authorized by the LESSOR, the LESSEE shall remain solely liable for paying the entire rent in respect to the LESSOR and solely liable for the charges and Lease Conditions, since the sublease is only fully valid in the context of the rights held by the LESSEE hereunder.
The sublease, even authorized, shall be granted at the risk and danger of the LESSEE, who agrees to make it its personal business to evict any sub-lessee.
It is recalled that the Premises are an indivisible whole and that therefore the sub-lessee has no direct rights in respect to the LESSOR, and in particular no right to remain on the premises or for renewal.
No subleasing can be permitted if the LESSEE owes rent, charges or incidentals.
This article is not intended to prohibit the provision of space by the LESSEE for the benefit of its customers as part of its business.
8.2 Assignment
The LESSEE may not assign its right to the Lease, in whole or in part, under penalty of termination, except to the buyer of its business, and subject in the latter case to the prior approval of the assignee by the LESSOR, who shall submit all guarantees of solvency.
No assignment can be carried out if the LESSEE owes rent, charges or incidentals.
The LESSOR is summoned to the transfer of the deed, by registered mail with return receipt.
The LESSEE remains the joint and several guarantor, without being able to oppose the benefits of discussion or of division by the assignee and successive assignees, of both the lease payments as well as the due performance of all terms and Conditions of the Lease.
All those who become successive assignees of the Lease remain joint and severally bound among themselves and with the LESSEE with regards to the LESSOR, for the payment of the rent and the due performance of the Conditions of the Lease during its entire term and even when they are no longer on the premises and have even assigned their rights.
To meet this guarantee, in all cases of transfer, the LESSEEs successor, as well as all successive assignees, in order for the assignment to be valid, shall submit to the LESSOR a bank guarantee, which guarantees the payment of a sum corresponding to one years rent inclusive of all taxes, said rent having been updated on the date of the assignment.
An enforceable copy of the deed of transfer or a registered original is delivered to the LESSOR without cost to him, since the LESSEE is required to follow the rules of notification of Article 1690 of the Civil Code.
8.3 Transmittal
To the extent necessary, it is specified that in accordance with Article L 145-16 of the Commercial Code, this Lease shall be freely transferred as part of a TUP (Universal Transfer of Asset Base) transaction for merger, asset contribution-divestment or divestment, without any need to comply with the formalities of Article 1690 of the Civil Code.
9 RESOLUTORY CLAUSE
In default of payment, at its exact due date, of a single term of rent, charge or any incidental, or occupancy compensation under Article L. 145-28 of the New Commercial Code, or more generally any amount due by the LESSEE, one month after a payment order or formal notice by extrajudicial means, containing a statement by the LESSOR of its intention to use the present clause, remains without effect during this period, the Lease shall be automatically terminated, if the LESSOR sees fit, without having to petition the court.
The same clause shall be fully applicable in case of non-performance of a single one of the clauses of the Lease.
If the LESSEE refuses to evacuate the premises, his eviction shall result from a simple order rendered in chambers by the Presiding Judge of the Higher Court for the location of the building, which is provisionally enforceable and without a security deposit, appeal notwithstanding.
In this case, and whatever the cause of the termination, the rent advance defined in 5.2 of the Special Conditions is forfeited to the LESSOR as first damages, as it is stated in Article 3.7.2 hereinabove, without prejudice to any other, and the LESSEE shall owe to the LESSOR occupancy compensation under Article 3.9 of the General Conditions, irrespective of the rent accrued on the date of termination of the Lease.
10 TOLERATION
Any toleration by the LESSOR concerning the terms and Conditions of the Lease, regardless of their frequency and duration, shall under no circumstances be regarded as providing a modification or deletion to these Conditions, nor as generating any right whatsoever, since the LESSOR may terminate it at any time.
11 AUTONOMY OF CLAUSES
The Parties expressly agree that the invalidity, illegality or impossibility of obtaining enforcement of a clause of the Lease shall not affect the validity of the Lease and the possibility to obtain due performance of the other provisions of the Lease, since the clause in question is only deemed unwritten.
12 MODIFICATIONS AFFECTING THE LESSEES LEGAL FORM
Any change to the LESSEEs bylaws that results in a change in corporate form, a change in name, a transfer of the registered office, a change in the share capital or any change in chairmanship or managing director, shall be notified to the LESSOR within a one month deadline, supported by an updated K-Bis excerpt and a certified copy of the updated bylaws.
13 SUBSTITUTION OF THE LESSOR
During the term of the Lease and its possible renewals, if the LESSOR transfers ownership of the building that is the subject of this contract by any legal means to a third party of its choice, whether it be a physical or legal entity, the latter shall be automatically subrogated to the LESSOR, upon such transfer, for all the rights and obligations resulting from this Lease both passively as well as actively, without that this substitution that has already been accepted by the LESSEE leads to any renewal of this Lease.
The LESSEE already accepts that any security deposit or surety bond or guarantee in the hands of LESSOR under this Lease shall be transferred to the buyer, thereby waiving any claim against the current LESSOR, who is the seller of the deed that includes the release of these guarantees.
14 ELECTION OF DOMICILE
For the execution of this contract, domicile is elected, namely for:
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the LESSOR at its registered office, |
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the LESSEE at its registered office. |
15 RECORDING
If the recording of the present contract is required, the resulting costs shall be at the expense of the LESSEE, who so undertakes.
Done in Paris, |
Rectangular stamp Interxion France SARL | |
On 28-04-2006 |
Bldg. 260 45 Avenue Victor Hugo | |
In two originals |
93534 AUBERVILLIERS cedex | |
Tel. 01 53 56 36 10 Fax: 01 53 50 35 20 Siret 423 945 789 00025 |
VAT FR 84 425 945 799] F. COQUIO MANAGING DIRECTOR |
||
The LESSOR |
The LESSEE |
|
Appendix: ground survey plan and report |
Appendix: ground survey plan and report |
Exhibit 10.8
Confidential material has been omitted and filed separately with the Commission
AGREEMENT FOR COMMERCIAL PREMISES
between
GiP Gewerbe im Park GmbH
Hildebrandt Straße 24
40 215 Dusseldorf
- as lessor -
and
InterXion Holding B.V.
Gyroscoopweg 60
1042 AC Amsterdam
Netherlands
- as lessee -
the following agreement is concluded, into which the owner is entitled to enter in accordance with § 6 below:
§ 1
Premises let/Purpose of lease
(1) | The premises let are in Frankfurt Industrial Park, Hanauer Landstrasse 302, Block D4 |
(1.1) | with | 142.41 | m2 | Office space | ||||
(1.2) | with | | m2 | Service space | ||||
(1.3) | with | 727.54 | m2 | Hall space | ||||
(1.4) | with | 2 | Piece | Parking spaces outside | ||||
(1.5) | with | | Piece | Parking spaces in underground parking garage |
for use as office and hall spaces and parking spaces.
In the context of this use the lessee may use the premises let exclusively for sales which do not exclude preliminary tax deduction. Any change in the purpose of tenancy requires the previous written consent of the lessor (see §1, paragraph 1 of the AVB).
(2) The position and design of the premises let are indicated in the drawings and descriptions of the lessor which are attached as ANNEX VOLUME 1 and signed by the contractual parties (layout plan, basic drawings and construction specification), which form part of this tenancy agreement. The office, hall and social areas attached to the premises let and the car parking spaces are etched in red in the above plans documents.
(3) The premises let are handed over to the lessee and accepted by it as soon it has been completed apart from unimportant defects which do not substantially restrict its use and this has been announced in advance to the lessee. With the transfer of the premises let to the lessee, a joint transfer record will be drawn up in which any defects or residual works must be included which the lessor must then carry out immediately.
(4) The lessee is only entitled to use the premises let exclusively for sales which do not exclude preliminary tax deduction (§9 paragraph 2 of the Sales Tax Act). The lessee is therefore not entitled to use the premises let for sales which exclude preliminary tax deduction.
(5) With respect to the provision in the previous paragraph (4), the lessee undertakes to submit to the lessor in each case by 5 February of the subsequent year a declaration that the lessee has used the premises let exclusively for sales which do not exclude preliminary tax deduction (§9 paragraph 2 of the Sales Tax Act). If and to the extent that the lessor must provide further evidence in this context to the tax authorities, the lessee is required to supply the lessor with the appropriate evidence or - provided that it is sufficient to discharge the obligations of the lessor - submit it directly to the tax authorities.
§2
Lease period
(1) The lease period commences with the transfer of the premises let to the lessee, provisionally on 1 February 1999. The lease agreement is concluded for a period of 5 years, counting from the first of the month following the transfer on a fixed basis.
(2) The lessor grants the lessee the right to be exercised at the latest one year before the expiry of the above agreed lease period through written declaration to demand the extension of the lease period by 5 years.
(3) The lease will be extended for an indefinite time is it is not cancelled in writing at the latest 9 months before the expiry of the above agreed fixed lease period. If the lease agreement has been extended for an indefinite time, it may be cancelled in writing with a period of notice of 9 months to the end of the quarter. §568 of the civil code is excluded.
§3
Monthly rent
The provisional monthly rent payable monthly in advance with effect from the start of the lease period is:
(1.1) |
For 142.41 m2 office areas | at | *** | |||
(1.2) |
For 142.41 m2 service areas | at | *** | |||
(1.3) |
For 727.54 m2 hall areas | at | *** | |||
(1.4) |
For 2 hours Parking spaces outside | at | *** | |||
(1.5) |
For - hours Parking spaces in parking lots/ Underground car park | at | *** |
(2) |
The monthly preliminary prepayment, also to be paid a month in advance with effect from the beginning of the lease is | *** | ||
(2.1) |
for office space: *** | *** | ||
(2.2) |
for service areas: *** | *** | ||
(2.3) |
of hall space: *** | *** | ||
(2.4) |
for pre-heating for office areas | *** | ||
*** | ||||
(3) |
In addition to the applicable value added tax (currently 16%) | *** | ||
(4) |
Thus, the provisional monthly ancillary charges, to be paid monthly in advance, including VAT amount to | *** |
(5) The definitive monthly rent payable with effect from the start of the lease period plus the advance payment of ancillary charges will be determined after the measurement of the premises let by the lessor on the basis of the above square metre measurements.
§4
Rent guarantee
(1) The lessee is required, within 3 weeks after concluding the agreement, but at the latest within one month before the start of the conversion work specific to the lessee on the premises let and - if such works are not envisaged - at the latest one month before the start of the lease, to provide an unlimited guarantee of a German bank in the amount of 3 times the level agreed in §3 paragraph (4), i.e. at the level of *** *** which secures the payment obligations of the lessee under this lease and under which the guarantee guarantor waives the objections of offsetting, dispute and prior claim as well as the right to deposit the guarantee amount.
(2) If the lessee is in arrears with the provision of the rent guarantee, the lessor is entitled to cancel the lease agreement after the expiry of a further deadline of one week without notice.
(3) If thereafter there is a change in the monthly rent agreed in §3 paragraph (4) as well as the advance payment of ancillary charges by more than 10%, the contractual parties are entitled to demand an appropriate adjustment of the guarantee.
(4) The lessor pledge right is subject to the statutory provisions.
§5
Change of lease/Value guarantee
(1) The rent agreed in §3 paragraphs (1) and (5) will be changed after the expiry of 24 months (from the first of the month following the transfer) in line with the change which has occurred up to that time of the price index for general household costs of all private households in the Federal Republic of Germany published by the Statistical Office (base year 1999 = 100) as against the level in the month of the transfer of the premises let (based month), for the first
time with effect from the start of the 25th lease month, i.e. the start of the third lease year. This means that the rent for each subsequent third lease year changes in each case in line with the evolution of the index between the level of the index determined on the last change of rent and the level of the index in the last month of the lease which has just ended, in each case with effect from the start the first month of the new lease. The changes are made automatically, so that the rent adjusted to the change of the index is owed without special request in each case from the start of the new lease.
(2) The contractual parties are aware that this value guarantee clause requires for validity the approval of the State Central Bank. If the value guarantee clause is not approved by the State Central Bank, the contractual parties undertake to make an arrangement which is as close as possible to the provisions agreed in this agreement and is capable of being approved.
(3) The above provisions on the adjustment of the rent also apply to any staggered rents, initial rents and investment rents. If the initial amount of a staggered or initial rent changes, then on the basis of the above provisions a rent adjustment which has already occurred should also be applied to the staggered increase of the staggered or initial rents.
§6
Entry of the owner into the agreement
(1) For the period from the start of the lease to the entry of the owner into the lease agreement, all lessor obligations under this agreement must be met exclusively by GiP Gewerbe im Park GmbH, which until then holds all rights and claims under this lease agreement.
(2) With effect from the submission of an appropriate written declaration of the owner to the lessee, the owner of the premises let will replace GiP Gewerbe im Park GmbH in this agreement as the lessor with all rights and obligations, but without liability for the period before its entry into the agreement. The lessee declares its agreement with its entry into the agreement, which may be implemented by a unilateral written declaration of the owner, and hereby undertakes to conclude with the owner as soon as possible an appropriate contractual supplement to the documentation of the change on the part of the lessor.
§7
General contractual provisions and other provisions
(1) The following attached documents form part of this lease agreement:
ANNEX 2 - General contractual conditions (AVB), ANNEX 3 - Building regulations; ANNEX 4 - Additional agreement and ANNEX BUNDLE 1. Retrospective changes and supplements of this lease agreement and its annexes must be made in writing.
(2) The lessor and/or the owner in close cooperation with the competent authorities are carrying out reorganisation measures on the property which have essentially been completed. These measures are in the general interest of the public and all users and are intended to secure the high standards of a future-oriented industrial park not least from the ecological perspective. Together with a relevant measures in the immediate environment, they contribute to creating a location which is in every respect suitable for commercial use.
(3) In the event of a disposal of the premises let, the owner will require the purchase to enter into all the rights and obligations under this lease agreement. On this basis, the lessee with its signature of this agreement waives its rights under §571 paragraph 2 of the of the civil code (liability of the lessor selling the premises let for the further compliance with the lease agreement by a purchaser of the premises let).
(4) The place of performance and legal venue for all disputes arising out of the contractual relationship and its creation and validity is the place of the headquarters of the relevant lessor.
Düsseldorf, 05.02.1999 Amsterdam, 29.01.1999
For the lessor:
GiP Gewerbe im Park GmbH
For the lessee:
InterXion Holding
Attached annexes:
Annex bundle 1
Annex 2-4
Annex 2 to the lease between GiP Gewerbe im Park GmbH and InterXion Holding
General Contractual Conditions (AVB)
PREAMBLE
The subject of the lease agreement is the use of spaces in an industrial park (overall facility), which is intended to ensure an independent form of use through high-quality architecture and park-type design and the exclusion of disruptive factors. The contractual parties are aware that the implementation of this form of use in harmony with the applicable efforts of the other tenants and owners of the industrial park requires mutual consideration as well as joint efforts. In this spirit, the contractual parties will exchange their wishes and experiences and jointly endeavour to achieve optimisation of this form of use.
§1
Use and responsibility
(1) The premises let are let exclusively for the indicated purpose of use. The lessor does not grant competition protection. The lessor also does not accept any guarantee that the premises let are suitable for the pursuit of the commercial purposes envisaged by the lessee. The lessee is not entitled to assign the rights and duties acquired under the lease agreement or to transfer the premises let in whole or in part to third parties by subletting or otherwise. Refusal of consent of the lessor to subletting or other transfer of use does not establish a right of cancellation for the lessee.
To achieve the purpose of the lease under §1 paragraph 1 of the lease agreement, the lessee must by 05 February of each calendar year indicate by a written declaration whether in the calendar year which has just ended it has used the premises let exclusively for uses which do not exclude primary tax deduction under §9 paragraph 2 of the Sales Tax Act. So far as required by the competent authorities, this declaration must if appropriate also be explicitly explained by a member of the tax advisory professions. The lessee must impose corresponding obligations on any subsequent lessor if, by exception, the lessor has issued consent to subletting.
(2) The further arrangement of the premises let for the purpose of rent and the procurement and discharge of any official approvals required for this purpose are the responsibility of the lessee at its expense. Official instructions to be issued in future and conditions imposed with regard to the use of the premises let must also be discharged by the lessee at its own expense, even if they are imposed on the lessor. The refusal or withdrawal of the required official permits for the use of the premises let only grant the lessee a right of cancellation or guarantee if the agreed use of the premises let is prohibited for reasons which are based exclusively on the quality or location of the premises let. This also applies to other official requirements and conditions which are based exclusively on the quality or location of the premises let. These rights of translational guarantee of the lessee are, however, excluded if the lessee can remove the reasons for the official intervention by measures which are reasonable for it to take.
(3) Restrictions of the use of the premises let through external circumstances such as traffic changes, excavations, roadblocks, noise, smell and dust hazards etc do not establish guarantee claims of the lessee unless as a result the contractual use of the premises let is substantially restricted and the lessor has culpably failed to take measures which may reasonably be expected of it against such restrictions. Short-term restrictions of the above-mentioned kind do not establish a guarantee entitlement of the lessee.
(4) The lessor also gives no guarantee that the utility companies will not change or suspend their services (electricity, gas, water, heating, fuel etc) in nature, quality, pressure or voltage. The lessor is also not liable to the lessee for the costs which it incurs through conversion from city to natural gas or changes of the type of electricity and voltage or of water pressure.
(5) Compensation claims of the lessee including such claims from pre-contractual obligations and unlawful action are excluded unless they are based on intentional or gross negligence of the lessor or its agents, negligent infringement of a major contractual obligation by the lessor or its agents or the absence of a guaranteed characteristic of the premises let. If the lessor is liable to the lessee under the provisions of this lease agreement for construction defects in the premises let, the lessee may only claim compensation if the damage has arisen through gross neglect of the premises let and, despite prompt notification and demand by the lessee, the lessor has failed to remove these defects within a reasonable time.
(6) Prior to the installation of technical facilities which, because of the effects deriving from them (e.g. vibrations, sound, smells, oscillations, damage, radiation, dust, gases and electrical faults) are likely to create problems for third parties, the lessee must investigate the relevant provisions (including those of professional associations) and standards and, after submitting this information, obtain the written consent of the lessor. There is only entitlement to the issue of this consent, however, if harm to any third party and a danger to the property or building plan be excluded with confidence. If, however, such measures do not produce harm to third parties or disadvantages for the property or building, the lessor can revoke the permission granted and demand the removal of the items. This also applies in the event of the installation of heavy equipment, machinery, safes etc in the premises let. The permitted strain levels of the floors must be complied with in all cases.
(7) If and to the extent that the lessee handles in the premises let materials which are likely to damage health or the environment (e.g. materials which are toxic, harmful to health, flammable, capable of ignition, likely to produce explosions, irritant, ascorbic, carcinogenic or hydrophobic), the lessee is required to take all relevant safety measures for the handling of such dangerous substances and substances without restriction at its own expense and to indemnify the lessor from all risks in this connection. This also applies if a substance originally regarded as unproblematic is subsequently found to be a problematic substance. The lessor is entitled to demand from the lessee the conclusion and maintenance of obligatory insurance coverage for the handling of all these materials. In the event of a breach of these provisions, the lessor, after a further warning, which may be at short notice, is also entitled to cancel the lease agreement with immediate effect.
(8) The lessee is liable to the lessor for all damage which is caused by the breach of the above duty of care by the lessee, in particular also by inappropriate handling of the facilities and materials mentioned in paragraphs (6) and (7) and by its failure to take the maintenance measures incumbent on it under §6 paragraph (2)-(6) of the AVB. The lessee is also liable for damages which are caused culpably by its employees, agents or assigns, subtenants, visitors, suppliers clients or manual workers instructed by it etc. The lessee is required to demonstrate that a fault of these persons has not been present.
(9) In any event, the lessee must also consider the use concept industry in the park as appropriate and behave in such a way that joint tenants are no more restricted than is unavoidable and any action which damages the external appearance of the facility as a whole is avoided and/or prohibited so far as legally possible. Outside the premises let, therefore, no objects may be stored. Exceptions require written consent of the lessor. However, the lessee is liable for all damage arising in this connection. Additional waste containers of the lessee require a visual protection to be agreed with the lessor, the costs of which will be met by the lessee. These containers must always be kept closed.
(10) The insurance of the site, building and commercial unit - irrespective of the obligation to assign costs of the lessee - is the responsibility of the lessor. The insurance of the items introduced by the lessee, goods and adjustments and advertising and operating facilities, on the other hand, is the responsibility of the lessee. The lessee is required to conclude an operational liability policy and demonstrate the existence of the insurance cover with an amount of cover of DM 2,000,000.00 (two million) for personal injuries, 300,000.00 (three hundred thousand) for material damage and DM 100,000.00 (one hundred thousand) for asset damage, in each case for each claim event, at the request of the lessor. In the case of special risks, higher cover amounts and the cover of the obligatory liability for water damage, including the facility and effect risk, must be demonstrated.
(11) In the event of complete destruction or destruction of the overwhelming majority of the premises let by an event not attributable to the lessor (e.g. fire, storm etc), the lessor is not required to restore the premises let. It may declare the lease to be terminated with effect from the time of the complete or partial destruction of the premises let irrespective of whether the premises let will or will not be restored at some later time. Claims of the lessee in such cases do not arise. The above provision also applies if the predominant part of the building in which the premises let are located is destroyed.
§2
Transfer of the premises let
(1) The entitlement of the lessee to the transfer of the premises let only arises with the contribution of the agreed rent guarantee. In the event of a delay attributable to the lessor in the transfer, the lessee is only entitled to cancel or withdraw if the time envisaged or the period for the start of the lease is exceeded by more than 3 months. Compensation claims under §1 paragraph (5) of the AVB are excluded.
(2) The lessee must carefully check the condition of the premises let at the time of transfer. If the transfer record does not contain specific defects/residual works still to be resolved, then with the signature of the transfer record the lessee accepts the condition of the premises let to that extent as being in line with the agreement, except for concealed defects. The lessor is therefore not liable for defects which could have been detected on transfer but have not been the subject of a complaint by the lessee and are not included in the transfer record.
(3) The precise lettable area to be determined after the confirmation of the premises let by measurement is calculated from the net surface area under DIN 277 (issue of June 1987, clause 2.3) but without allowing for interim walls and supports which are disregarded. Any jointly used common parts will be allocated proportionally. The measurement of lease services, the result of which is taken as the basis for the calculation of the rent with effect from the start of the lease, takes place after the leased premises that have been completed. After the expiry of one year from the notification of the result of the measurement, neither the lessor nor the lessee can demand a recalculation of the rent with reference to measurement errors.
(4) The lessee is aware that the facility as a whole and the part of it belonging to the lessor (overall facility) is still under construction. Obstacles during the construction period will be kept as low as possible by the lessor. Any reduction rights and compensation claims on this basis will be subject to paragraphs (3) and (5) of §1 of the AVB as appropriate. The lessee does not have a right of cancellation as a result.
§3
Payment of the rent - cancellation
(1) The rent, including the advance payment of ancillary charges plus any applicable VAT, is payable monthly in advance on the first of each month free of charge to the lessor. The obligation to pay the agreed rent arises at the start of the lease, irrespective of any incomplete internal distribution or other works which the lessee itself carries out for the premises let or causes to be carried out. The punctuality of the payment is determined not by the dispatch but by the credit of the rent to the lessor.
(2) In the event of arrears of payment of the lessee, the lessor is entitled to charge arrears interest at the level of 3% (three per cent) per annum above the discount rate of the German Federal Bank. Further compensation claims of the lessor, the exercise of the right of cancellation under paragraph (5.1) and claims under §303 of the commercial code are not affected by this.
(3) The ancillary costs payable in addition to the rent and other consumption costs as well as VAT form part of the rent.
(4) The lessee may only offset against a rent liability if the claim which is being offset is undisputed or has been upheld by a court of law. The lessee may only exercise a right of retention with regard to the rent if each claim is based on the lease relationship. The offsetting and assertion of rights of retention by the lessee are only possible with regard to such rent claims of the lessor as have matured more than one month after the receipt of a written notice from the lessee. This restriction does not apply if the lessee must reasonably assume that the rent due later will no longer be sufficient to cover its claims.
(5) The lessor can cancel the lease agreement by written declaration without notice, if
1. | The lessee is in arrears with the payment of an amount of at least one monthly rent instalment for longer than one month |
2. | The lessee carries out noncontractual use of the premises let or unauthorised transfer to third parties despite a warning or in event of other material contractual obligations despite a warning fails to comply within a reasonable deadline or |
3. | The lessee has submitted an application for the instigation of of bankruptcy or settlement proceedings on its estate, has issued an affidavit under §807 of the civil procedural code, had instigated nonjudicial proceedings for debt adjustment or has suspended its payments or |
4. | A third-party has submitted a not obviously unjustified application for the instigation of bankruptcy or settlement proceedings on the assets of the lessee or |
5. | Settlement or bankruptcy proceedings have been started as to the assets of the lessee or the instigation of them has been declined for lack of estate or other grounds are attributable to the lessee or |
6. | Some other material reason is present. |
§4
Consumption costs
(1) As a rule, a separate heating facility is provided for each lease unit. The lessee is responsible for the normal operation, regular maintenance and ongoing upkeep (see also §6 paragraph (3) of the AVB) of a separate heating facility. It is recommended that this be operated in line with the technical provisions of a default reporting device. The consumption of the relevant separate heating facility is measured through a separate meter. The consumption measurement settlement - if possible - will be made directly by the lessee to the utility company.
(2) If, by reason of the local situation of the premises let, a heating facility is used by several lessees, this settlement will be made by the manager/lessor. In this case, an appropriate heating cost advance payment must be made to the manager/lessor. §5 paragraphs (3) to (6) of the AVB apply appropriately.
(3) For operating costs to be met by the lessee in any event - if and to the extent that these costs arise in the building - in particular the cost of fuel and its delivery, the cost of operating electricity, the costs of service, maintenance, supervision and care of the heating, fuel and gas through facilities, the regular testing of its operational readiness and operational security including the appointment of a specialist, the cleaning of the facilities and the operational premises, the costs of measurements according to the Federal Emission Protection Law, the costs of further letting or other types of transfer of use require an issue on the consumption record and the costs of use of an issue of the consumption record as well as its calibration including the course of the calculation and distribution. Local district heating includes the heating costs in particular the overall costs of the supply of heat and the costs of the operation of the appropriate building facilities as well as the costs indicated above.
§5
Ancillary charges
(1) Ancillary charges under the lease agreement comprise the following taxes, contributions, fees and costs, if and to the extent that they are incurred by the lessor through the ownership/inheritance rights to the property and/or through the contractually agreed use of the property, building or commercial unit (the latter includes ancillary buildings, parks facilities, devices and installations) or arise in the building, including in particular for
1. | The total ongoing official charges of the property, building and commercial unit, land tax, rubbish removal, chimney sweeping, channels, water provision and drainage (including for rainwater/surface water); |
2. | Cleaning including snow and ice removal/gritting and the maintenance and lighting of streets and paths within the overall facility, care and cleaning or external facilities such as green and garden and water areas, staircases, park areas, approach roads etc including the devices required for them and materials and the replacement and supplementation of the vegetation; |
3. | Cleaning of the property, building and commercial unit including the common parts and areas, the external glass and facade areas and the prevention of infestation including modernisation of the devices and materials required for this purpose; |
4. | Operation and lighting of the common parts and areas and the joint facilities, operation, maintenance and upkeep of the other joint technical facilities and devices including meters and their calibration; |
5. | Insurance of the property, building and commercial unit against fire, storm and water damage, glass insurance for the joint glass surfaces, liability insurance for the property, building and commercial unit (if necessary including oil tanks etc) and loss of rent insurance of the lessor for a period of 2 years; |
6. | Curator, technician and any other surveillance; |
7. | Maintenance of buildings used by several tenants jointly as office areas with a lump sum fee indexed according to §5 of the lease agreement of *** per month for office space: |
8. | The costs of building administration with a lump sum of 5% (five per cent) of the applicable contractually owed net rent; |
9. | All other operating costs which can be imposed under annex 3 to §27 paragraph (1) of the Charging Regulation II in the version applying when the costs arise. |
(2) The extent of the cleaning, maintenance and similar works and any surveillance of the industrial park and the extent of the insurance cover will be determined by the lessor in the light of the interests of the lessee and the other tenants in the facility as a whole. The benchmark for transfer and the settlement period will be determined by the lessor in the light of the interests of the lessee and the other tenants in the building as a whole and may be changed by it under the same conditions. If a specific transfer procedure is not statutorily prescribed or if the lessor carries out a settlement by use or for individual items in this agreement there is a different arrangement, in the event of doubt a distribution according to the ratio of the services of the premises let to the total lettable area of the building of the lessor as a whole should take place. The costs of cleaning including removal of snow and ice/gritting and the maintenance and lighting of streets and paths within the facility as a
whole and the common green areas will be determined on the basis of the applicable charge of the lessor with these costs and immediately imposed on the lessee also in proportion to the surface of the premises let to the overall lettable surface of the facility of the lessor as a whole.
(3) Through the monthly advance payments, the lessor will make settlement once a year. In respect of the flat amounts, however, the level of the costs will not be demonstrated. Any difference on the basis of the charging in favour of the lessor/lessee must be settled by the lessee/lessor within one month after the receipt of the settlement. In the event of the withdrawal of the lessee during the settlement period, distribution will take place at the next settlement in the event of doubt in the relationship of the lease period to the settlement period. A delay in the settlement, however, cannot establish for the lessee any rights up to the expiry of the statutory limitation period.
(4) If it becomes apparent that the monthly advance payments are not sufficient to cover the above listed costs, the lessor may offset the advance costs even during an ongoing settlement period. appropriately If the settlement of the lessor indicates a reduction of the ongoing costs, the advance payments for the subsequent settlement period of this adjustment must be adapted appropriately.
(5) The lessor is entitled at any time to demand from the lessee - if technically possible - the direct settlement of individual ancillary charges with the relevant utility.
(6) If on the basis of the use of the premises let by the lessee or conversion works introduced by him there are increased building or compulsory liability premiums, or increased contributions etc are payable, they will be charged to the lessee.
§6
Upkeep
(1) The lessor will arrange for the upkeep of roof and wall (external upkeep) and the upkeep of the common facilities and common parts and any central technical facilities outside the property let. If the lessee is required to pay costs for this under §5, it will bear these costs in the context of the ancillary charge provision made there. In other respects, they will be charged to the lessor. In addition, the lessor at the expense of the lessee will conclude maintenance agreements for the central technical facilities (especially heating) within the premises let.
(2) The upkeep and maintenance within the premises let including the necessary repairs will be the responsibility of the lessee at its expense. This applies in particular to the heating facilities transferred to the lessee, sanitary facilities, electrical systems, armatures, blinds, rolling blinds, any lift facilities and other technical facilities and devices as well as windows and doors, both internal and external. If one of these items has to be replaced as a result of normal use, the lessee will replace it at its expense, if an amount indexed under §5 of the lease agreement of DM 1000.00 (one thousand) for each individual case is not exceeded. If this amount is exceeded, the lessee will contribute to the higher costs with the above-mentioned amount in each individual case. Broken window panes must in all cases be replaced by the lessee.
(3) The lessee will demonstrate in writing to the lessor the conclusion of the maintenance agreements for the heating systems and the rolling blinds with the start of the lease. The lessor reserves the right to conclude the maintenance agreements itself at the expense of the lessee.
(4) The lessee is required to treat the premises let and the common facilities with appropriate attention and care. Cosmetic repairs must be carried out by the lessee at regular intervals at his own expense. Carpet floors and similar dilapidated floor coverings must be renovated by the lessee within a reasonable period corresponding to their condition. The cleaning of the premises let and the windows internally and externally including the frames, with any necessary care (including any care for timber, plastic and materials), is also the responsibility of the lessee.
(5) Damage to the property or building must be notified to the lessor/manager or its agents, as soon as it is noted by the lessee. For further damage caused by delayed notification the liability rests with the lessee. With a risk of delay, the lessee itself must take the necessary measures.
(6) The lessee of the ground floor must in exceptional cases - if these tasks are not carried out by the curator - maintain the staircase adjoining the premises let and the access to the premises let at all times clean and safe for movement. Snow and other obstacles (e.g. fallen leaves in autumn) must be removed by the lessee from the premises let. The lessee gives an undertaking to the competent authorities for road cleaning in line with the applicable regulatory provisions.
§7
Structural changes by the lessor
(1) The lessor may carry out improvements and structural changes which are necessary to maintain the premises let or other parts of the industrial park or to prevent imminent risk or for the removal of damage, even without the consent of the lessee. This also applies to works and structural measures which are not necessary but appear to be desirable, in particular for the modernisation and/or better exploitation or development (including expansion) of the building and/or the site. These include conversion works arising in connection with the reletting of individual parts or the design of the building as a whole.
(2) If the lessee is required to tolerate the works, it may only reduce the rent or exercise a right of retention if these are works which prevent the use of the premises let for the agreed purpose in whole or in part or substantially restrict it. Compensation claims of the lessee are excluded under §1 paragraph (5) of the AVB. However, the lessee must so far as possible allow for the commercial interests of the lessee. §540 1b paragraph (2) of the of the civil code is excluded.
§8
Structural changes by the lessee
(1) Without the written consent of the lessor, the lessee may not change the premises let and the technical facilities, and in particular not introduce any floor coverings, extension and conversion works, installations etc. In these cases, suitable plans must be submitted to the lessor. It may make consent dependent on the demonstration of adequate insurance cover and - even after consent has been issued - demand the removal of the facilities if there is a reasonable ground to do so. There is no entitlement to the issue of consent.
(2) The procurement and maintenance of the official permits required for the above measures is the responsibility of the lessee, which must also meet all costs connected with the implementation of these measures. If technical facilities are subject to an acceptance and/or regular review (e.g. by the TÜV), the exceptions and testing must be ordered by the lessee at its own expense and their implementation as well as results must be demonstrated to the lessor. The lessee will also indemnify the lessor in this respect from all charges and cost claims of third parties.
(3) The lessee gives a guarantee in respect of the above-mentioned measures of compliance with all public law provisions. The costs of operation and maintenance of facilities will be met exclusively by the lessee. Damages of all kinds which are attributable to construction changes and additions caused by the lessee and their use must be compensated by the lessee.
(4) Prior to the termination of the lease, the lessee must restore the original structural condition (in the case of extensions before readiness for entry). The lessor is, however, entitled to take over the premises let in the condition applying at the time of the departure of the lessee without payment or compensation to the lessee. The obligation of the lessee under §6 to carry out cosmetic repairs is not affected by this.
(5) Roof and external antennas may be installed only after approval by the lessor.
(6) The above provisions apply appropriately if the lessee takes over the facilities mentioned in paragraph (1) to (5) from a previous tenant.
§9
Advertising and other notices
(1) Facade and roof areas of the building including those of the premises let and wall surfaces on the building outside the premises that are not included in the letting. These surfaces and the window areas may only be used for the introduction of marquees, plates, advertisements, titles of all kinds or similar with the previous written consent of the lessor. The approval, to which there is no entitlement, may be made dependent on the payment of an additional rent.
(2) The lessor reserves the right to make available at appropriate places a table or tables at which the lessee can place their name or company name in a form and size to be determined by the lessor at its reasonable discretion. The lessee is also permitted to put its name/company name in a form and size to be approved by the lessor on a surface to be indicated by the lessor on the external door or wall of the premises let. Behind the window panes of the windows, facilities which must be provided with titles, plates, advertisements or similar may only be installed if the lessor has given consent in advance.
(3) Prior to the termination of the lease, the lessee must remove any titles, descriptions, advertisements etc which have been introduced and restore the original condition at its expense.
(4) The above provisions apply appropriately if the lessee takes over facilities of the kind described there which have been created by a previous tenant.
§10
Termination of the lease
(1) After cancellation, agreed suspension and an appropriate time before the other termination of the lease, the lessee must permit the introduction of letting plates or similar notices at suitable places of the premises let, especially in the windows.
(2) In good time prior to the termination of the lease, a joint record will be drawn up in which the damages caused by use, cosmetic repairs arising and conversion and extension works to be removed by the lessee or other facilities must be included. The lessee must immediately before the termination of the lease make good the damage arising through the use and carry out appropriate cosmetic repairs. Carpet floors and similar dilapidated floor covering must be cleaned and renovated in an appropriate manner, if they are in an unsuitable condition for reletting. Instead of implementing the above-mentioned measures, the lessor may, however, at the latest 3 weeks before the termination of the lease, require that the lessee pays the necessary amount to the lessor for the making good of the damage and/or the implementation of the applicable cosmetic repairs or renovation of carpet floors etc. The level of this amount will be confirmed on the application of the contractual party by an expert to be appointed by the locally competent craft chamber for the premises let as the arbitrator. The costs of the expert will be shared half and half between the lessor of the lessee.
If the works to be carried out by the lessee under the above provisions on the premises let are not carried out by the termination of the lease, the rent plus ancillary charges must continue to be paid up to the end of the month in which these works are terminated. Further claims of the lessor are not affected.
In the event of early departure of the lessee, the lessor will also be entitled to carry out other maintenance and conversion works in the premises let, without the lessee as a result having an entitlement to a credit of rent etc.
Any objects left behind by the lessee may be stored by the lessor at the expense of the lessee, if these objects are not removed despite a request. After the maintenance deadline of 3 months, such objects may be disposed of by a publicly appointed auctioneer by private treaty irrespective of whether the lessor still has claims against the lessee. Obviously valueless objects and commercial documents not collected despite a written request within the above-mentioned deadline may be destroyed. If and to the extent that the lessee, within one year after the termination of the lease, is not asserting any claims through the courts, all claims of the lessee to the objects left and the proceeds of disposal arising in their place will lapse.
§11
Other agreements
Legal venue
In the event of a disposal of the building, the lessor is entitled to request the lessee, attaching a list of the lease documents, to give a completeness declaration. The lessee is in that case required, within 2 weeks, to notify in writing whether the list of the lessor is complete. If the lessee gives such a completeness declaration or if within 2 weeks it does not draw attention to incompletenesses or inaccuracies, the lessee may not later cite such agreements as are not mentioned in the list of the lessor.
The lessor or its agents may, to exercise the statutory pledge right, to assess the structural condition of the premises let and their functional capacity and the safety of technical facilities in the premises let, for the further letting of the premises let, for their disposal or in other similar cases, have access to the premises let with the parties, experts or witnesses during ordinary business hours. If there is no risk from delay, such a visit should be notified in good time in advance.
It a party to the agreement consists of several persons (e.g. a civil code consortium), they will have joint liability to the lessor.
The building regulations form part of the lease agreement. The lessor may change these building regulations at its reasonable discretion, if and to the extent that such a change is reasonably appropriate in the interests of all the lessees and can be accepted by the individual lessee.
The legal venue for all disputes arising out of this lease or its creation or validity, including any bill and cheque processes, is the head office of the relevant lessor.
If one or more provisions of this lease agreement for any reason are or become invalid, this will not affect the validity of the lease agreement in other respects. The contractual parties are required, in such a case, to conclude an agreement which is as close as possible to the commercial purpose of the invalid provisions and can validly be agreed.
Building regulations
The joint use of a commercial property by lessee of various corporate forms, sectors and types of use, requires not only good neighbourly relations but also mutual respect and consideration for these building regulations.
1. Noise and smell
These must be avoided in the interest of all lessee. Accordingly, all devices, machinery etc, whose operation causes noise, must be given sufficient damping that no transfer of the noise to other premises let can take place. Mechanical music devices and instruments may only be operated as loudly as the human voice. Smell-causing machines, devices etc may only be installed if they contain a flue under the roof and the prior consent has been obtained of the lessor, which is happy to act as an adviser.
2. Staircases and corridors
According to the fire prevention provisions, the staircase and all other joint corridors available for use, cellar passages etc must be determined for the safety of all lessees as escape routes in the event of a file. The surfaces may not in any circumstances be used for the storage - even provisional - of furniture, packaging, goods and similar.
3. Vehicles
The parking of vehicles on the property outside the intended spaces is not permitted.
4. Passenger lifts
These are intended primarily for personal use. Any lessee who wishes to move furniture or other heavy objects to its premises let may for this purpose use the passenger lift under the supervision of the curator, if agreement has previously been reached on the date and time and the lift cabins have been arranged for protection against damage. The transport of persons, however, will always take priority.
5. Removal of waste and rubbish
Sufficient rubbish containers are made available for this. Lessees which require additional rubbish bins because of their commercial operation (e.g. restaurants) must order them from the lessor. The removal cost this additional rubbish bins will be met by the lessee.
Any rubbish removal system present in the building may not be used for blocked waste (cardboard or other packaging, bottles etc).
For the removal of paper, packaging etc, the curator has arranged a joint collection point which all lessees must use. WC facilities may not in any circumstances be used for the disposal of rubbish and waste. If as a result of this, blockages of the drainage pipes are caused, the costs for their removal will be charged to all lessees of the property with the ancillary charge settlement.
6. Closure of building doors
The doors available to several users will be closed by the curator between 19.00 and 7.00 and on Sundays and holidays. Any lifts present may be deactivated during this period and the lighting of the staircase may be restricted. The lessee accepts the obligation during this period to keep the house building door entrance also closed. Lessees who have agreed with their employees on flexible rosters will arrange the locking of the building doors directly with the curator. The lessor reserves the right to contain the property and to establish any main entrance which may require to be locked.
7. Other
The lessee will ensure that the holding regulations are observed by its employees, subtenants, visitors, suppliers etc and the manual workers instructed by it.
8. Keeping animals
Keeping animals requires the consent of the lessor.
LEASE CONSTRUCTION SPECIFICATION
Hall, office and service spaces
General
The industrial park is divided into several building units which are in turn subdivided into individual sections of different sizes.
In particular, the units consist of halls and the associated office premises on two or more floors. The access to the offices is arranged in such a way that there are no restrictions of truck traffic to the hall.
Loading and unloading take place through service ramps. They are reduced by approximate 1.20 meters as against the floor of the hall. This produces for each unit at least one gate with a service ramp and an input and output gate at the level of the hall. The gates are designed as sectional or rolling gates. The height is approximately 3.00 meters. By special request of the user, transfer bridges, lifting devices and weather protection facilities can also be installed.
Overall structure
The buildings are produced from concrete parts.
In the hall area, there are ferroconcrete columns from concrete supports for the roof construction.
The distance between supports derives from the systemic planning, and the light height between the columns is approximately 6.00 meters. The supporting structure in the office consists of supports with bases and imposed finished plates, and the strain is 500 kg/square metre. All supporting parts in the office and in the halls are designed for fire class F 90. In the output areas for possible offices on the upper floors, consoles as floor covers and if necessary additional foundations are provided.
Fire and/or hall separators are produced according to the static calculation and official requirements. Apertures for the introduction of gates are provided. Other walls and openings not required are closed in the brickwork with joint closures.
Hall floors
The hall floor body is produced as a concrete floor in the vacuum procedure, and the surface has a tear resistant corrosion device. The possibility of carrying forklift trucks of 2500 kp permitted total weight and/or a service strain of 5000 kg/square metre must be ensured.
External walls
The facades involve alterations according to the architectural plan. Hall facades in the hot galvanisation procedure layered with paint are interrupted through concrete fields, which are also treated appropriately.
For the office areas, alternating with sandwich facades with fine-grained surfaces, in partial areas there is klinker integration, as well as glass and plastic covering for the appropriate subconstruction.
Roof structure
The roofs consist of: coverage with free trapeze ceilings, introduction as a heated roof structure according to the roof cover guidelines, damping according to the heat protection regulations.
In the area of the hall surfaces light couples are provided for illumination and as smoked removal armatures. The number and size is based on the official conditions and amounts to approximately 2% of the surface area.
Electricity supply
The electricity supply is in line with the guidelines of the VDE and comprises the cabling, switches and plugs including the bridging channels required in the window areas in offices. Every 2.5 meters of bridging channel there is one double plug and one telephone plug.
As a rule, each individual lettable hall, office and service area will have separate subdistributors and meters. The connection service made available for each lease section is maximum 40 KVA.
The initial provision with lighting is included in the lease price:
Office: 500 Lux workplace specific for length lighting for NL lamps, light sources from plate steel, white paint
Hall: 200 Lux light bands, distance 7.5 meters
Service: 500 Lux (workplace specific) light bands.
In the office entrances, there are door speaker, bell and door opening facilities.
For the post and or lease installation of remote speakers and/or telex systems, cable routes are provided.
Heating provision*)
The heating provision of the halls is directly through glass cover heaters. For the office and service unit hot water central heating is provided. The heating takes place through centrally arranged gas heat monitors or atmospheric gas boilers.
The heating requirement is based on DIN 4701/83. In the office and service areas, profiled the flat radiators are provided. The settlement of heating costs is conducted separately through the heat cost distribution.
Sanitary
On all floors, in each case a ladies and gentlemens WC with vestibule are provided. In a separate room there is an office kitchen.
The facility objects are in white, WC facilities and suspended WC with rinse boxes, in the gentlemens toilets there are urinals, and in the vestibule basins with a large wall mirror.
Entrances, foyers and staircases
Each block receives its own large-scale entrance and staircase facility.
The floor coverings are individually designed and correspond to clinker, large-scale trials, marble or carpet floors.
Exception:
Heating supplies through a local heating network of a utility company.
The heating supply takes place through pump water heating through the local heating supply network of the relevant supplier. The heating of the halls takes place through ventilator heaters supplied by warm water in the roof area.
Office and social premises
The development of the offices takes place according to the now standard 9 normal high standard. The walls are covered in rough fibres and plaster.
The external separating walls of the bathrooms and the walls of the office and ancillary rooms are produced from gypsum board standard works without additional noise protection. Office separating walls are appropriately integrated to the wishes of the lessee and included in the rent.
WC separators as system walls (made in plastic)
The windows are provided as plastic windows with insulation glazing and external sun protection (except on the north side).
The roof covering is based on the planning details, as mineral fibre plates and/or in the bathrooms or panel covers. The room height of approximately 2.00 meters.
The floor covering is a carpet floor which can sustain rolling chairs, and in the subsidiary areas PVC. The wall and floor covering in the toilets is white tiles or coloured tiles up to the height of the room.
Service areas
Windows throughout the service area are designed as for the offices.
Heating is as for the offices.
The window bank channels are as for the offices.
Floors, as necessary (plastic floor, layering or plaster)
External facilities
The external facilities are of broad design in the overall profile of the industrial park and have a landscape garden character. Diversification of green areas occurs through bushes and trees.
In the traffic area, composite stone plaster for heavy load traffic is provided. This also applies to the access courts. Passageways are given a covering of concrete slabs with a layer of sharp edged pebbles.
The lighting of the general zones takes place through mast lights.
The headings of the plates must take place by agreement with the lessor for each user.
The right to make technical changes which are required for official or structural reasons is reserved.
July 1998
Annex 4 to the lease agreement between GiP Gewerbe im Park GmbH and InterXion Holding
Additional agreement:
The lessee is permitted, at its own expense, in particular through specialist companies, to make additions within the hall. These consist in particular of:
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steel frames with gypsum board divisions and trapeze covers |
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double floors h = 40 cm |
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installation of air conditioning split units plus condensers on the roof |
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gas-fired extinguishing facilities |
A supply of electricity up to maximum 0.5 KVA can be ensured. For additional services above the standard (40 KVA) costs of DM 280.00 per KVA will be charged.
These costs must be met by the lessee.
The planned insertions must be submitted to the lessor as the basic outline plan; the lessor will carry out reconciliation with the construction authorities and the park authorities. Any necessary approval for change of use will be applied for by the lessor. The cost of this and any resulting conditions will be met by the lessee.
The planned 2 unit emergency electricity diesel will be hired by agreement with the lessor in the hall. The costs arising for ventilation and evacuation and gas flues will be met by the lessee.
For necessary connections of telephone cables to the premises let, the lessee will be permitted, at its own expense, in predetermined areas (culverts) to retrospectively impose cable or conduit systems. The predetermined culverts are shown in plan no in the annex to the lease agreement.
The costs arising to the changeable expansion of the lightning protection system and the costs for the switching of an internal smoke warning or extinction system to the existing file reporting system (further switching to the fire service) will be met by the lessee.
§5 paragraph 1, final sentence of the lease agreement is altered as follows:
The changes will take place at the request of the lessor, so that the rent adjusted to the change of the index will be owed in each case at the start of the new lease.
§1, paragraph 1 of the general contractual conditions (AVB) is supplemented as follows:
A subdivision among companies of similar use and approved credit worthiness is in principle approved.
§8 paragraph, sentence 2 of the general contractual conditions (AVB) is deleted without replacement.
Confidential material has been omitted and filed separately with the Commission
SUPPLEMENT
No. 15
to Lease Agreement dated 29 January/5 February 1999
together with Supplement No. 1 dated 21 May 1999
and Supplement No. 2 dated 14/28 May 1999
and Supplement No. 3 dated 1/18 October 1999
and Entry Declaration dated 23 November 1999
and Supplement No. 4 dated 11 September 2000
and Supplement No. 5 dated 11 January/11 September 2000
and Supplement No. 6 (undated)
and Supplement No. 7 dated 27 October/11 December 2000
and Supplement No. 8 dated 20/24 March 2003
and Supplement No. 9 dated 16/18 October 2006
and Supplement No. 10 dated 29 March/3 April 2007
and Supplement No. 11 dated 21 December 2007
and Supplement No. 12 dated 11 June/16 June 2008
and Supplement No. 13 dated 29 May/16 June 2009
and Supplement No. 14 dated 28 July 2009
between
Interxion Deutschland GmbH
Hanauer Landstraße 298, 60314 Frankfurt
Tax Identification number 045 236381 19
represented by its Managing Director Mr Peter Knapp
hereinafter referred to as Lessee
and
Union Investment Real Estate GmbH
formerly Union Investment Real Estate AG
Caffamacherreihe 8, 20355 Hamburg
Tax Identification Number 27/144/00080
represented by: Mr Philip La Pierre, Mr Claas Zincke
hereinafter referred to as Lessor
Agreement number: 0100/1187.V0000010
(Please give this agreement number in all correspondence and in the case of payment.)
Property: Frankfurt, Hanauer Landstraße 296326
(Version as of 11 November 2009)
11 November 2009
Union Investment Real Estate GmbH Caffamacherreihe 8, 20355 Hamburg Postfach 30 11 99, 20304 Hamburg
Telefon: 040 34919-0 Telefax: 040 34919-4191 E-Mail: service@union-investment.de Internet: www.union-investment.de Sitz der Gesellschaft: Hamburg Registergericht: Amtsgericht Hamburg HRB 110793
Geschäftsführung: Dr. Reinhard Kutscher (Vorsitzender), Dr. Frank Billand, Ingo Hartlief, Dr. Karl-Joseph Hermanns-Engel Aufsichtsratsvorsitzender: Dr. Wolfgang Mansfeld
Page 1 of 5
Recitals
On 29 January/5 February 1999, Lessee and Union Investment Real Estate GmbH (prior to the change of name Union Investment Real Estate AG and prior to that Deutsche Immobilien Fonds Aktiengesellschaft (DIFA)) concluded a Lease Agreement, together with Supplements Nos. 1 to 14 for office, service, and storage areas, as well as car parking spaces, within property 1187 at the Frankfurt Business Park at Hanauer Landstraße.
Lessee wishes to extend the Lease Agreement and Supplements Nos. 1 to 14 from 1 January 2014 to 31 December 2019 by five (5) years (Fixed Lease Term).
In addition to the above-mentioned office, service, and storage areas, Lessee was permitted to lease other storage areas in building component G 2, Weismüllerstraße 25, with an area of 529.49 m 2 , from 1 January 2010 to 31 December 2019 (Fixed Lease Term).
Lessee also intends constructing a fenced area with three gates around its leased property between Hanauer Landstraße and Weismüllerstraße, as shown in APPENDICES 2 to 4.
Referring to the Lease Agreement, Parties now therefore agree as follows:
§ 1
Leased Premises
From 1 January 2010 to 31 December 2019, Lessee will lease additional leased areas within the property, as shown (with the exception of shared communal areas) on the plan attached as
APPENDIX 1.
1. |
Storage areas in building component G 2, Weismüllerstraße 25, ground floor, approx. 529.49 m 2 , including shared communal areas. |
The additional leased areas will be made available in their current condition, of which Lessee is aware. A joint report will be drawn up upon delivery of the premises. In so far as the delivery report shows that the leased areas do not have any defects and/or work still to be done, Lessee will acknowledge the condition of the leased premises as being as agreed by signing the delivery report. Hidden defects are an exception to this.
§ 2
Lease Term
(1) | Lessee extends the Lease Agreement from 29 January/5 February 1999 together with Supplements Nos. 1 to 14 from 1 January 2015 by a further five (5) years until 31 December 2019 (Fixed Lease Term). |
(2) | Lessee is granted the right to extend the Fixed Lease Term for a period of five (5) years by means of a unilateral declaration (Optional Lease Term) subject to the then applicable provisions of this Lease Agreement (Option Right). Lessee must exercise said Option Right by no later than twelve (12) months prior to the end of the Fixed Lease Term by giving Lessor written notice to that effect. The above option arrangement will not apply if Lessee has largely sublet the leased property at the point when the option is exercised. |
11 November 2009 |
Page 2 of 5
§ 3
Rent
(1) | With effect from 1 January 2010, the rent for all the leased areas taken together will be made up as follows: |
1. | 4,314.32 | m | 2 | Office space including shared communal areas at | = | *** | ||||||||||
EUR12.75/m 2 | ||||||||||||||||
2. | 9,087.55 | m | 2 | Storage area at EUR 5.61/m 2 | = | *** | ||||||||||
3. | 138.67 | m | 2 | Office space in building component D6 including shared | = | *** | ||||||||||
communal areas at EUR 12,75/m 2 | ||||||||||||||||
4. | 337.50 | m | 2 | Service area in building component D 6 at EUR 7.50/m 2 | = | *** | ||||||||||
5. | 529.49 | m | 2 | Storage areas in building component G 2 including | = | *** | ||||||||||
shared communal areas at EUR 5,61/m 2 | ||||||||||||||||
6. | 1 | item | Parking spaces at EUR 1,414.76 | = | *** | |||||||||||
7. | 31 | item | Outdoor parking spaces at EUR 50.53 per space | = | *** | |||||||||||
8. | 30 | item | Parking spaces in car park at EUR 50.53 per space | = | *** | |||||||||||
9. | Net rent | = | *** | |||||||||||||
10. | 4,452.99 | m | 2 | Advance payment for ancillary costs and heating costs for | = | *** | ||||||||||
office space at EUR 2.60/m 2 | ||||||||||||||||
11. | 9,954.54 | Advance payment for storage and service areas at EUR1.50/m 2 | = | *** | ||||||||||||
12. | Subtotal | = | ||||||||||||||
13. | Plus statutory value added tax (currently 19%) | = | *** | |||||||||||||
14. | Total monthly rent | = | *** | |||||||||||||
(2) | Fore the first month in the first year of the lease, Lessee is exempt from the requirement to pay the net rent for office, service, and storage areas pursuant to Clause 3(1) to (5). Lessee will, however, owe the ancillary costs and heating costs and the costs for the parking spaces, plus statutory value added tax, for the rent-free periods. |
§ 4
Enclosed Area for Interxion Deutschland GmbH Data Centre
(1) | Lessee will construct a fenced area with three gates as shown in APPENDICES 2 to 4. Construction for this project is expected to commence in January 2010. The project is subject to the following requirements: |
1. | Planning and construction of the fenced area will take place pursuant to construction permit AZ B-2008-1615-3 (27 November 2008) together with the requirements and supplementary provisions that it contains. |
2. | The condition for construction to commence is a completed investigation for munitions within the planned route of cable ducts and a release by the munitions disposal service. |
3. | The indications, products, manufacturers, dimensions, technical data, etc. given in the construction specification are meant as general information; deviations and adaptations to the local situation are possible in well-founded cases. |
4. | Given the complicated interface problem, optimum co-operation is indispensible between the Parties to the agreement (INTERXION and UNION INVESTMENT REAL ESTATE GmbH and K.O.P). |
11 November 2009 |
Page 3 of 5
5. | After the present Supplement to the Lease Agreement has been concluded, the Parties INTERXION and UNION INVESTMENT REAL ESTATE GmbH, represented by K.O.P. GmbH, will agree on and draw up a construction schedule (with deadlines). The construction schedule will be worked out by K.O.P. GmbH and followed in the course of the Project. |
6. | Planning, site supervision, and construction of the fenced area will be carried out by K.O.P. GmbH, Leipzig. |
7. | Maintenance, upkeep, servicing, and care of the fenced area will be the responsibility of INTERXION. |
(2) | Lessor must be provided with the as-built documents for the fenced area in digital form immediately after completion. |
(3) | Lessee and Lessor agree that the completed fenced area will remain until the end of the agreed Fixed Lease Term on 31 December 2019. In the event of an optional extension of the Lease Agreement by Lessee, Lessee and Lessor already agree that the fenced area will also remain for any Optional Lease Terms. |
(4) | Lessee undertakes that at the end of the lease the leased property and the associated fenced area will be returned/reconverted to the original condition. The costs for this will be borne by Lessee. |
(5) | In connection with the construction of the fenced area, Lessee is exempt for a period of two (2) months from the requirement to pay the net rent for office, service, and storage areas leased pursuant to Clause 3(1) to (5) of this Supplement No. 15. Lessee will, however, owe the ancillary costs and heating costs and the costs for the parking spaces, plus statutory value added tax, for this rent-free period. Lessee will receive the exemption from payment of the net rent immediately after the fenced area is completed (acceptance report). |
(6) | Lessee will return parking spaces 48 and 49 as shown in Appendix 5 to Lessor with effect from 31 December 2009; with effect from 1 January 2010, Lessee will receive parking spaces 25 and 26 as shown in Appendix 5. |
§ 5
Indemnification Clause and Parking Space Tenants
(1) | If other tenants/users of the property Gewerbe im Park Hanauer Landstraße justifiably claim to have experienced nuisance due to Lessees construction projects referred to in Clause 4 or are unable to continue to use their leased property after completion of the construction projects in the original manner (for example because the areas that they lease are shaded) and if they consequently retain or reduce the rent, Interxion Deutschland GmbH undertakes that it will indemnify Lessor in respect of such financial loss or will compensate Lessor for such financial loss. |
(2) | If parking space tenants of the property Gewerbe im Park Hanauer Landstraße are affected by Lessees construction projects because their outdoor parking spaces or parking spaces in the car park on the site are located within the enclosed area, Interxion Deutschland GmbH will already, at its own risk, ensure trouble-free access to said parking spaces (by issuing an access card, for example a magnetic strip card), including after the enclosed area has been completed. |
§ 6
Other Provisions
All other provisions of the Lease Agreement of 29 January/5 February 1999, together with Supplements 1 to 14, that are not amended by the present Supplement No. 15 will remain unaffected.
Parties are aware of the statutory requirement of written form. Parties undertake vis-à-vis one another that they will at all times undertake all actions and provide all declarations that are necessary to comply with the requirement of written form, in particular in connection with the conclusion of the present Supplement No. 15 and any other supplements, and that they will until then not terminate the Lease Agreement prematurely by invoking failure to comply with the requirement of written form.
11 November 2009 |
Page 4 of 5
Should one or more provisions of this Supplement be or become null or void for any reason, the validity of the rest of the Supplement will not be affected. In such case, Parties will agree on a valid arrangement whose commercial effect is as close as possible to that of said invalid provision or provisions.
The following APPENDICES 1 to 5 form part of this Lease Agreement.
APPENDIX 1 |
Site plan for enclosed area for Interxion Data Centre | |
APPENDIX 2 |
Construction specification | |
APPENDIX 3 |
Cost calculation | |
APPENDIX 4 |
Enclosure | |
APPENDIX 5 |
Parking spaces plan outdoor parking spaces |
Hamburg, ________________________________________________________________
Union Investment Real Estate GmbH | Interxion Deutschland GmbH |
(pp V. Philip La Pierre pp V. Claas Zincke) | (Peter Knapp) |
Names repeated in block capitals
La Pierre / Zincke
|
Knapp |
Lessee Interxion Deutschland GmbH will continue to be bound by its offer - issued by signing the above Supplement - to conclude this Supplement by 31 December 2009. The acceptance period will be deemed to have been observed if the Supplement (declaration of acceptance), countersigned by Lessor, is posted within that period. The date of the postmark will be deemed to constitute proof.
_________, _________ |
(Peter Knapp) |
11 November 2009 |
Page 5 of 5
Exhibit 10.9
Confidential material has been omitted and filed separately with the Commission
INTERXION FRANCE
BAT. 501
Memorandum of Understanding
MEMORANDUM OF UNDERSTANDING REGARDING THE EARLY TERMINATION OF THE
LEASE ON 24 FEBRUARY 2000 AND THE CONCLUSION OF A NEW COMMERCIAL LEASE
BETWEEN THE UNDERSIGNED
ICADE, a public limited company with a capital of EUR 74,995,434.29, with its head office at 35 Rue de la Gare, F-75019 Paris, France, listed in the Commercial Register of the Paris Chamber of Commerce and Industry under number B 582 074 944,
Represented by Mr Antoine Fayet, member of the Executive Committee of the Division in Charge of Commercial Property, duly authorised in this matter,
hereinafter referred to as the Lessor;
and
Interxion France, a private limited company with a capital of EUR 200,000, with its head office at 45 avenue Victor Hugo, F-93300 Aubervilliers, France, listed in the Commercial Register of the Chamber of Commerce and Industry in Bobigny, France, under number B 423 945 799,
Represented by Mr Fabrice Coquïo, Managing Director, electing domicile at the abovementioned head office,
hereinafter referred to as the Lessee,
WHEREAS
By private agreement signed in La Plaine Saint Denis (Seine Saint-Denis) on 24 February 2000, the company EMGP, referred to from that date as ICADE SA, leased to the company Interxion Carrier Hotel, referred to from that date as Interxion France, premises located in the Northern section, along with an undeveloped plot of land located on the east side of Building 237, referred to since the abovementioned date as Building 501, located on its Pilier Sud site in Aubervilliers (Seine Saint-Denis), 20 bis rue des Gardinoux and 13/15 rue du Pilier, for a consecutive period of 12 (twelve) years commencing on the 1 st of August 2000 and amended by means of the additional clauses 1, 2 and 3; hereinafter referred to as the Lease.
Under the terms of the Lease, the Lessee shall be authorised to request the Lessor, until 31 December 2008, that the Lease be terminated prematurely and that a new lease be entered into between the parties for a period of twelve (12) years, relating to all the above-mentioned properties under the current financial terms, i.e. EUR 150 per square metre per year, excluding taxes, charges and indexation, plus a fixed charge of 16% of the basic rent not including taxes and charges, as part of the maintenance fees to be paid.
The Lessee, having decided to use the above-mentioned authorisation, has made contact with the Lessor.
In the meantime, in an e-mail dated 18 November 2008, the Lessee disputed, on the one hand, pursuant to the third amendment to the Lease:
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the payment of a guarantee deposit in lieu of a payment equivalent to three months rent payable in advance plus maintenance fees, property tax and French VAT. |
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The indexation date of the rent, |
and, on the other hand, the surface area of the Leased Premises.
In an e-mail dated 28 November 2008, the Lessor accepted the Lessees requests, and the parties subsequently agreed to resolve the dispute describe above as follows:
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with regard to the objection to the deposit guarantee, the Lessor agreed to fix an amount of *** |
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with regard to indexation, to accept that the rent payable under the Lease would henceforth be indexed on the date of the anniversary of the Lease, i.e. 10 August 2008, hereinafter referred to as the First Anniversary Date, and that the rent pursuant to the third amendment to the Lease would be indexed on the date of the anniversary of the abovementioned amendment becoming effective, i.e. 2 June 2009, hereinafter referred to as the Second Anniversary Date; in order to facilitate invoice management, the two parties expressly agreed that the indexation date for this Memorandum of Understanding would be the 1st of July 2009, |
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with regard to the dispute relating to the surface area, the two parties expressly agreed that the surface area of the Leased Premises comprises 4,323 square metres (3,747 sq. m. + 576 sq. m.), while the plots of land located on the east and north sides of the Leased Premises totalled 1,015 sq. m. (987 sq. m. + 28 sq. m). |
It is under these conditions that the parties have agreed this Memorandum of Understanding.
This preamble forms an integral part of this Lease.
ACCORDINGLY, THE PARTIES AGREE AS FOLLOWS
SECTION 1 - TERMINATION
ARTICLE 1
The parties amicably agree to terminate the Lease prematurely effective 31 December 2008.
ARTICLE 2
The parties agree that the amount paid by the Lessee to the Lessor in respect of rents, payable in advance under the Lease totals *** including all taxes ( *** will be retained by the Lessor and will serve as
compensation proportionally to the rents referred to in Article 7 of the Special Conditions of SECTION II LEASE below.
ARTICLE 3
By entering into the new Lease pursuant to SECTION II below, relating to the above-mentioned Leased Premises, the parties agree that the notification of any of the Lessees creditors that might benefit from registration or security for the business, as provided for in Section L 143-2 of the French Commercial Code, will not be necessary.
SECTION II - LEASE
SECTION 1 - GENERAL TERMS AND CONDITIONS
CHAPTER I - DESCRIPTION
ARTICLE 1 PROPERTY
The Lessor hereby leases to the Lessee, which in return accepts, in accordance with Chapter V, Du bail commercial (Commercial Lease) of Section IV of Book 16 (f) of the French Commercial Code and the non-codified articles of Decree number 53-960 dated 30 September 1953, to the extent that these texts are applicable, and under the conditions described in this Lease, the Premises described below.
ARTICLE 2 DESCRIPTION
The premises to which this Lease applies are described in Section II Special Conditions below (hereinafter referred to as the Leased Premises); this description is comprehensive in order to ensure that the Lessee cannot claim any entitlement to the Premises or any appurtenances other than those expressly designated.
The Lessee confirms that it is fully familiar with the Leased Premises, including their fittings, having inspected them for the purposes of this Lease, without it being necessary to provide a more detailed description, and it acknowledges, notwithstanding the provisions of Article 1720 of the French Civil Code, that it has approved the Premises in their present condition.
The parties expressly agree that the Leased Premises form a unique and indivisible whole.
ARTICLE 3 TERM OF THE LEASE
This Lease is agreed and accepted for a period of twelve full, consecutive years that will commence on the date specified below in Section II Special Conditions.
However, the Lessee shall be entitled to terminate the lease upon the expiry of each three-year period by means of an extrajudicial document, subject to six months notice.
The Lessor shall have the same authorisation if it intends to invoke the provisions of articles L 145-18, L 145-21, L 145-23-1 and L 145-24 of the French Commercial Code for the purpose of constructing, reconstructing or raising the existing building, to adapt the additional residential section to this new use or to carry out work as part of a property renovation project or in order to demolish the building as part of an urban reconstruction project.
In the event that the Lease is renewed, the parties expressly agree that, to the extent necessary, if it is renewed for the same period of 12 years, both parties shall be authorised to terminate the Lease upon the expiry of each three-year period, under the conditions specified in paragraphs 2 and 3 of this article.
ARTICLE 4 INVENTORY OF FIXTURES DELIVERY OF THE KEYS TO THE LEASED PREMISES
The Lessee shall take possession of the Leased Premises in their present condition, without the need to demand the Lessor to perform any repair work of any kind, remodelling, reconditioning, consolidation, decontamination or fitting that is necessary or may become necessary in the future, including for the performance of its activities, irrespective of the cause, nature and importance, even if such repairs, etc. are related to decay, Notwithstanding the provisions of Article 1720 of the French Civil Code.
An inventory of the fittings will be established by the parties when the Lessee takes possession of the Leased Premises. If, for one reason or another, no inventory of fittings has been prepared, and in particular if the Lessee is in default after due notice of default, the Leased Premises will be deemed to have been leased in perfect condition.
On the date on which the Lease becomes effective, the Lessor will provide the keys to the Leased Premises to the Lessee in order to allow the latter to take possession of the Premises, on condition, however, that the Lessee has provided the guarantee referred to in Article 18 of this Section; a payment equivalent to the first payment of the rent; an authorisation of automatic payment and the corresponding direct debit mandate form ( Règlement par Prélèvement automatique/RIB ) in order to arrange the following payments, as well as proof of insurance (POI) in accordance with the provisions of this Lease.
In the event of default on the part of the Lessee, the delivery of the keys will be postponed until these payments have been made and documents have been provided, without, however, resulting in postponement of the effective date of the Lease, which shall remain that specified in Section II Special Conditions, unless the Lessor prefers to implement the avoidance clause provided for in Article 19 of this Section, without prejudice to the compensation and interest payable by the Lessee.
ARTICLE 5 DESIGNATION
The Lessee will use the Leased Premises peacefully and in accordance with articles 1728 and 1729 of the French Civil Code, for the exclusive use for which they are designated, as specified in Section II Special Conditions below.
It is expressly understood that, in the event that the activities performed by the Lessee are subject to administrative approval and/or require authorisation from the authorities, particularly with regard to the regulations applicable to public venues and/or to industrial and commercial sites subject to specific regulations and environmental protection measures (ICPE) and/or the performance of work, this shall be the responsibility of the Lessee, without the latter being able to seek recovery from the Lessor and such that the latter is free from all concerns and responsibility regarding this matter. The above-mentioned work will be subject to Article 7.2 below.
If the Lessee intends to use the Leased Premises for the purpose of changing its use, within the meaning of the provisions under French city planning laws and regulations, it shall immediately repay the Lessor the associated fees and surcharges imposed on the latter in respect of this conversion.
This repayment will not affect the Lessors demand that the Lessee immediately cease the activities whose purpose is to convert the Leased Premises into a different type of property, within the meaning described above.
CHAPTER II - RULES AND CONDITIONS
This Lease is entered into under the ordinary and lawful rules and conditions that may apply, particularly those stated below, which the Lessee undertakes to fully and faithfully execute.
ARTICLE 6 GENERAL TERMS AND CONDITIONS OF POSSESSION
6.1 The Lessor will pay its charges and assume responsibility for any risks and dangers as required and will be responsible for the payment of substantial repair work, as provided for in Article 606 of the French Civil Code, that may be necessary in the leased premises during the term of the Lease.
The Lessee, for its part, shall be responsible for paying its charges and assume responsibility for any risks and dangers, if and where necessary, and shall likewise be responsible for carrying out any work other than that provided for in Article 606 of the French Civil Code (i.e. repair work, reconditioning, change of use or replacement) that is or will be necessary in the leased premises and their appurtenances (such as, if applicable, work related to heating, air-conditioning, ventilation, technical equipment, access control, security systems, electric power, lighting, cables, windows, woodwork and doors, plumbing, lavatories, carpets, ceilings and suspended ceilings, walls, partitions, floors, etc.) irrespective of the cause, nature or significance, even if they are due to decay or a hidden defect, and shall pay these charges and, as often as necessary, ensure the extermination of vermin and insects on the Leased Premises.
Furthermore, in the event that any substantial repair work as referred to in Article 606 of the French Civil Code which, as a rule, is payable by the Lessor were to become necessary as a result of failure by the Lessee to comply with its obligations to maintain the premises, as specified above, or as a result of damage caused by the Lessee, its staff or its visitors or otherwise relate to work carried out by the Lessee, as referred to in Article 7.2 below, the Lessee shall bear the costs. The Lessee shall be liable for any damage or loss caused on or to the Leased Premises, even if it is not directly to blame for such damage or loss.
The Lessee shall pay its charges and assume responsibility for any costs, risks and dangers if and where necessary and shall bear the costs of any and all work carried out, as well as for any adjustments, fittings and constructions, in compliance with current or future regulations, particularly those applicable to public venues and/or industrial and commercial sites subject to specific regulations and environmental protection measures ( installations classées pour la protection de I environnement/ ICPE ) or relating to hygiene, health or safety, also if they arise from Article 606 of the French Civil Code.
The Lessee shall provide access to the Leased Premises, the service contracts and maintenance contracts (levels 1 to 5 of the FD X 60-000 standard) for any fittings with which the Leased Premises are or will be equipped, and shall have them inspected, in accordance with the terms and with the frequency prescribed in the relevant regulations by an entity approved by the Assemblée Plénière des Sociétés dAssurances Dommages ( association for damage insurance companies, known by the acronym APSAD ). The Lessee shall account to the Lessor in order to obtain approval for the insured services, and shall liaise with the Lessor as the work is being carried out, informing the Lessor of any interventions, reports and details related to the repair work immediately upon request.
In exceptional circumstances, the Lessor will perform, at the Lessees expense, any maintenance work (levels 1 to 5 of the FD X 60-000 standard) on the fire alarm systems with which the Leased Premises are equipped.
The Lessee accepts that, in the event that it fails to perform the services, inspections and work for which it is responsible, the Lessor will arrange to have them performed on its behalf, one month after the Lessee has failed to comply with a notice of default, except in the event of an emergency, by a company of its choosing, at the sole expense of the Lessee, which shall then be required to repay the total cost to the Lessor, including VAT, including all charges, management fees and compensation, without prejudice to the application of the avoidance clause referred to below.
6.2 The Lessee shall comply with all measures for which it is responsible in its capacity as the manager of the establishment, particularly with regard to security.
6.3 In the event that the leased premises are served by equipment shared with other tenants (e.g. boiler, lift, service lift, etc.), the Lessee, will not be entitled to any reduction of the rent or compensation for malfunction or interruption of the service of the system, irrespective of the duration and the cause of such malfunction or interruption.
6.4 The Lessee shall comply with all regulations, prescriptions and uses of the site on which the Leased Premises are located, including road signs, and any orders prescribed by the Lessor or its agents, particularly by way of circulars, relating in particular to traffic, parking, access, security, the cleanliness of the site and the buildings, the temporary occupation of the surroundings of the buildings or the supervision of the work carried out on the site or inside the buildings.
6.5 The Lessee shall be entitled to join the intercompany restaurant if so desired.
If the Lessee decides to join the intercompany restaurant scheme, it is reminded that this is a social scheme governed by the Employment Code which is subject to tax benefits, particularly the taxation of the price paid by the employees at a reduced VAT rate of 5.5% instead of 19.6% provided that specific conditions are complied with (pursuant to Article 85 to Annex III of the CGI).
To this end, (an) Intercompany Restaurant(s) will be established on the Parc de Portes de Paris site on which the Leased Premises are located.
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A group of companies that will be using the facilities and the owner of the Leased Premises, |
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An agreement under which the owner agrees to provide restaurant services to the group, with the latter paying a fee and through repayment of charges, duties and taxes. |
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A group catering contract between the group and the catering provider. |
Consequently, the Lessor will specify, to the extent necessary, that the group must pay rent in compensation for the premises provided for the operation of an RIE.
This rent shall subsequently be divided among the various participating companies based on an allocation formula which shall be that of the respective number of people joining.
6.6 The Lessee shall select its waste if necessary and place it outside the enclosure of the site on which the Leased Premises are located. In order to do so, it undertakes to sign a contract that is adapted to the volume of its waste in view of its removal and to account for this to the Lessor should the latter so demand. However, the Lessor reserves the right to establish collection points on its site; if such collection points are in place, the Lessor shall deposit its waste at these points.
In the event that any waste is detected in the immediate vicinity of the Leased Premises, the Lessor will remove them at the Lessees expense, with the latter being required to repay the costs upon presentation of the invoice. These costs will be shared if there is more than one location involved, with the costs to be paid on a pro rata basis depending on surface area.
6.7 Under no circumstances shall the Lessee be authorised to occupy any premises or common areas other than the premises leased. In particular, it shall not be permitted to place any displays, trays or other objects of any kind and shall not dispose of any materials or goods outside the Leased Premises. The Lessee shall not be permitted to install any awnings, verandas or external blinds of any kind whatsoever. Similarly, it shall not be permitted to apply to the outside of the Leased Property any signs or advertising billboards.
If the Lessor becomes aware of a violation of this clause, it shall be entitled, eight days after a notice of default by registered letter with confirmation of receipt has proved unsuccessful, or without advance notice in the event of an emergency, to carry out the required removal at the Lessees expense, with the letter being required to repay the costs upon presentation of an invoice.
6.8 The Lessee undertakes not to exceed the limits for the ground load specified below in Section II Special Conditions.
6.9 The Lessee shall ensure that the Leased Premises are equipped with furniture, equipment and goods in a quantity and at a value sufficient to pay the rent and comply with the conditions; it shall ensure that the Leased Premises are operated on a continuous basis.
6.10 In addition, the Lessee shall ensure the surveillance and security of the Leased Premises and its goods, furniture, equipment and materials. The Lessor shall not be liable to the Lessee for any difficulty that may arise as a result of the occupation of the Leased Premises by third parties, other tenants or occupants or depositors, particularly in the event of theft or other criminal offences, either by force or otherwise.
The Lessee shall be personally responsible for any insurance related to this issue, with the insurance excluding any direct or indirect recourse against the Lessor and its insurance companies.
6.11 The Lessor shall be authorised to disclose the Lessees business name for communication purposes and to show the exterior of the Leased Premises without the Lessee being entitled to oppose this or claim any kind of compensation whatsoever.
6.12 The Lessor shall be authorised to lease or use for its own purposes, in order to conduct the activities specified below in Section II Special Conditions and without the Lessee being entitled to any compensation in this regard, any areas located in the same building or other buildings owned by the Lessor, either adjacent to or in the immediate vicinity of the Leased Premises.
ARTICLE 7 WORKS INSTALLATIONS AND FITTINGS
7.1 The Lessor shall be authorised, if necessary, Notwithstanding Article 1723 of the French Civil Code, to carry out any work, whether it be renovation of the areas in the building, access, construction, fittings, etc. on the site as well as in the common areas in the building in which the Leased Premises are located, without the Lessee being entitled to compensation or a reduction in rent and irrespective of the cause, nature, significance and duration of the work.
In addition, the Lessee shall facilitate any work performed by the Lessor in the Leased Premises without demanding any compensation or a reduction in rent, irrespective of the nature, significance and duration of the work, even if the period required for such work exceeds forty (40) days, notwithstanding Article 1724 of the French Civil Code.
However, in the event of work being carried out inside the Leased Property, the parties will consult one another prior to the commencement of the work, except in the event of a clear emergency, to implement solutions designed to reduce, to the extent possible, any disturbance they may cause the Lessee.
The Lessee shall dispose of any casing or decoration and shall generally follow all the instructions provided by the Lessor to facilitate the work to be carried out.
Furthermore, the Lessee shall permit any work that may be executed in the public areas or in the adjacent buildings of which the Leased Premises form part, irrespective of the inconvenience this may cause for the performance of its activities or in entering the Leased Property, without being able to seek recourse from the administrative authorities, the contractor or the neighbouring owners, exonerating the Lessor at all times.
7.2 The Lessee shall not be authorised to carry out on the Premises any construction work or installation work, nor any type of fittings, and shall not be permitted to change them, or their installations, in any manner whatsoever without the Lessors express prior written consent, with the Lessor having sole discretion in this decision.
For any requests for authorisation to carry out work, the Lessee shall communicate the following to the Lessor:
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The plans and detailed technical specifications of the proposed work. |
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The preliminary technical report issued by an approved technical inspection service, if necessary. |
By way of exception, it is already authorised to carry out in the Leased Premises the installation and modification of the mobile partition, on condition of prior submission to the Lessor of a description summary of the work to be carried out and the related floor plans, along with the preliminary report issued by a technical inspection agency if necessary, and, furthermore, to bear the costs of any work performed to the interior of the Leased Premises, such as adjustment of the air-conditioning system, ventilation system or the cost of fire protection necessarily carried out by the Lessor at the expense of the Lessee in the manner specified below.
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In the case of any work to be carried out by the Lessee, either subject to authorisation from or the recommendation of, the Lessor, the Lessee shall: |
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assume responsibility for any certificates and/or authorisations from the authorities that may be necessary, and to present these to the Lessor prior to the commencement of the work. |
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have the work performed by companies in possession of all the required certificates, under the supervision, if necessary, of a project manager approved by the Lessor, as well as a security coordinator. |
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comply with the instructions provided by the Lessor, with the latter not assuming responsibility in any manner whatsoever and the work being carried out under the sole and full responsibility of the Lessee, which shall always be entitled to make reservations provided that these are substantiated by technical or security reasons. |
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bear the sole costs for any direct or consequential damage caused during the performance of the work or following its completion, and to guarantee to the Lessor, if it is investigated in connection with such damage, that the authorisation or recommendation of the Lessor and the approval of the project manager may not in any event result in the Lessors liability either between the parties or with regard to third parties. |
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settle in advance with the Leased Company the provisional costs payable by same for carrying out work on the fire alarm system made necessary by the Lessee prior to their commencement, with the costs being set off if necessary based on the actual costs upon completion of the work. |
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prove that it has taken out adequate insurance by presenting a certificate issued by its insurance company, if necessary accompanied by a specific guarantee concerning the existing conditions, and to pay the Lessor any additional premiums related to increased risk. |
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provide the Lessor, upon completion of the work, with the following: |
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Maps of the premises and an updated verification by a person skilled in the art, |
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The final report issued by the technical inspection agency if necessary. |
The Lessee shall, as part of its contribution to the costs incurred by the Lessor for the inspection and the instruction for authorisation requests, pay the Lessor, immediately upon request, an amount of EUR 1,500 excluding tax in the event that the planned work makes it necessary to obtain authorisation from the authorities, and EUR 500 excluding tax for any other work. These amounts shall be effective from 1 January 2003 and shall be reviewed on the 1st of January of each calendar year, however only in the event of an increase from the previous review, based on the INSEE index for construction costs; the basic index used is that for the second quarter of 2002, i.e. 1 163, and the review index against which it will be compared on the 1st of January shall be that of the same calendar quarter of the calendar year preceding the review.
The Lessee shall carry out, as necessary, any repair work, reconditioning, reconstruction, consolidation and replacement, including any major repair work referred to in Article 606 of the French Civil Code, that may be required during the construction, installation and fitting carried out, such that they will be in perfect condition at all times.
The Lessee shall repay the Lessor for any contributions and taxes relating to construction, installation and fitting executed by the Lessor in the Leased Premises, in the event that they are collected for tax purposes in the name of the Lessor.
Any changes in relation to the work carried out by the Lessee, including the cancellation of all or part of such work, shall require the express prior consent of the Lessor.
Upon expiry of this Lease, due to expiry of the term agreed or due to termination for any reason whatsoever, any construction and installation work, any fitting and generally any work carried out to improve the premises by the Lessee as well as, if necessary, any work imposed by the statutory provisions or regulations, shall become the property of the Lessor, without any compensation being payable and the rent already being fixed, unless the Lessor prefers to demand that all or part of the Leased Premises be transferred in its original state at the expense of the Lessee, even for the work that has been expressly authorised.
ARTICLE 8 SITE INSPECTIONS
The Lessor shall be authorised to enter the Leased Premises in order to inspect their condition and to verify that the clauses, rules and conditions under this Lease are being complied with, as well as to perform its management duties in its capacity as the owner of the property, such as for the performance of its work or the marketing/advertising of the Leased Premises.
The Lessor shall notify the Lessee prior to exercising its right to inspect the premises at least 48 hours in advance, except in the event of a clear emergency.
If, during such inspections, the agents or representatives of the Lessor note that the Lessee has failed to comply with its obligations under the Lease, the Lessee will be informed of this by registered letter with confirmation of receipt, specifying what measures it must take and the period within which it must do so.
In the event that the Lessee delays implementing the measures prescribed in the manner above, the Lessor will, at its discretion, one month after the Lessee has failed to comply with a notice of default, except in the event of an emergency, arrange for the work to be performed on behalf of the Lessee by a company of its choosing. The costs of such work shall be borne fully by the Lessee, which shall be required, in such an event, to reimburse the costs to the Lessor, including VAT, management fees and charges, upon presentation of an invoice, without prejudice to the application of the avoidance clause below.
ARTICLE 9 INSURANCE AND RECOURSE
The Lessee shall be responsible for purchasing insurance against fire and any explosions, as well as against water damage, floods and the clogging of sewers and pipes, and to do so from insurance companies that have proved to be solvent and, for a sufficient amount, for insuring the installations, constructions and fittings carried out by the Lessee in the Leased Premises, the equipment and goods inside the Leased Premises, as well as the financial consequences of the civil liability in tort it may assume in particular with regard to its neighbours and any third parties.
The Lessee shall maintain these insurance policies for the entire term of this Lease and shall adjust them as necessary and pay the premiums and fees when they are due.
In the event of a disaster, the Lessee shall not seek recovery, either directly or indirectly, from the Lessor, its employees and its insurance companies, and shall ensure that such a waiver is likewise included in the insurance policies of its own insurance company.
Upon the demand of the Lessor or any of its agents, the Lessee shall provide evidence of compliance with its obligations with regard to insurance by providing up-to-date Proof of Insurance (POI).
The Lessor, for its part, shall guarantee the financial consequences of the civil liability it may incur in its capacity as owner, and will insure the immovable property section of the Leased Premises, including the immovable fittings and installations with which they are equipped, from
the effective date of this Lease, against risk related to fire, explosion and water damage through an insurance company that has proved to be solvent, and will maintain this insurance for the entire term of the Lease.
Vice versa, it will likewise renounce any recourse to exercising rights against the Lessee. its employees and its insurance companies in this regard, and will ensure that a waiver is included in the insurance policies by its own insurance companies.
In return, the Lessee undertakes to repay the Lessor each year its portion of the premium and the additional premium arising from the policy taken out by the Lessor.
Furthermore, if necessary, the Lessee shall reimburse the Lessor for any additional insurance premiums resulting from its occupation of the Leased Property.
ARTICLE 10 SUBLETTING. TRANSFER OF THE LEASE
10.1 Without the express written consent of the Lessor, the Lessee shall not be permitted to make any part of the Leased Premises available in any form whatsoever, either by subletting it or through lease management, nor shall it be entitled to transfer its rights under this Lease, including by means of capital contribution.
10.2 However, it shall be authorised to transfer all its rights under this Lease to the party acquiring its business, under the following conditions:
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The Lessee must have fulfilled payment of its rents, charges and additional fees. |
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The potential transferee shall present evidence of its solvency. This evidence shall be assessed on the basis of the quotation issued by the French Central Bank, where, if the activity quote is F, G, H, J, N or X or if the credit quote is higher than 5, the potential transferee will not be deemed solvent, and the transfer may consequently not be effected. In order to allow the Lessor to verify that the potential transferee meets this requirement, the Lessee shall provide it with the quotation issued by the French Central Bank prior to signing the deed of transfer. |
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The Lessee shall notify the Lessor by registered letter or by means of an extrajudicial document of the main conditions of its transfer project at least 15 working days in advance, and shall specifically provide: |
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A list, along with adequate evidence, of the tangible and intangible assets of the business that forms the object of the transfer project, allowing it to assess the facts of the transfer of the Lessees business. |
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The date on which the transferee would take possession, |
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Turnover and the financial results for the three financial years preceding the transfer, |
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The price of the transfer, including its distribution between the tangible and intangible assets. |
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Under the same conditions specified by the Lessee in the application of b) above, the Lessor will have a right of first refusal to acquire the Lessees business itself or, alternatively, by exercising this right of first refusal for any company of its choosing. |
The Lessor shall be entitled to a period of fifteen (15) days, commencing on the date of receipt of the notification from the Lessee in the application of b) above before announcing its intention.
In the event that the Leasing Company fails to respond within a period of fifteen days or if the Lessor has expressly waived the right of first refusal, the Lessee shall be entitled to transfer its business, with the reservation referred to under a).
It must be noted that the conditions described above will remain in full force and effect in the event that the transfer of the Lessees business includes the right to this Lease, as part of liquidation proceedings on behalf of the Lessee. In such an event, the Lessee and, if necessary, its receiver or liquidator, shall verify the solvency of the potential transferees in accordance with the criteria defined above, and, in any event, shall summon the Lessor within a reasonable period to appear before the competent district court designated to render a judgment on the transfer project.
If the above provision is not complied with, the Lessor will deem the transfer to be non-enforceable, and the Lessor shall retain the right to investigate the personal liability of the Lessee and/or its receiver or legal liquidator.
10.3 In the event of a transfer, the transferor shall remain jointly and severally liable for its transferee and, if necessary, for all subsequent transferees, in relation to the payment of the rent fixed below, any compensation for occupation due if applicable, any charges and additional charges and the corresponding value-added tax (VAT), as well as for the full performance of the clauses, rules and conditions of this Lease, for the remaining term of the Lease on the date of the transfer and, if this term is less than three years, for a minimum of three years following the date of the transfer.
In addition, and subject to an overriding condition, the transferee shall, jointly with the transferee, be liable for all its overdue rents preceding the transfer, and the Lessor shall be entitled to institute proceedings against the transferor or transferee for the payment of overdue rents, charges and additional charges.
10.4 Any transfer project that is subject to inspection by the Lessor, as indicated above, will require a payment, in respect of management fees, of a fixed participation fee of EUR 1,000 excluding tax, which the Lessee shall be required to pay the Lessor upon the presentation of an invoice. This amount shall be effective from 1 January 2003 and will be reviewed on the 1 st of January of each calendar year, however only in the event of an increase from the previous review, based on the INSEE index for construction costs.
The basic index shall be that for the 2nd quarter of 2002, i.e. 1,163, and the review index to which it will be compared on the 1st of January will be that for the same quarter of the year preceding the review.
10.5 Any transfer shall be verified by means of a deed of transfer for which the Lessor will be requested to grant its approval, by notification sent at least twelve (12) days in advance. The above-mentioned deed of transfer shall specify that the transferor and the transferee will be jointly and severally liable for the rent, compensation for occupation, charges, additional charges and taxes as provided for in Article 10.3 above.
The transfer, as well as any financial contribution, shall be specified to the Lessor under the terms of Article 1690 of the French Civil Code, without any charges being payable by the Lessor; this specification shall include, as an annex, a copy of the deed of transfer.
ARTICLE 11 TRANSFER OF THE PREMISES
The Lessee shall transfer the Leased Premises in such a condition that they do not cause any nuisance or present any danger or inconvenience to the neighbouring tenants, to health, security, public health or the protection of nature and the environment.
Prior to vacating the premises, the Lessee, prior to any removal, even partial, of the movable property, equipment and materials, shall have paid all the rent instalments and additional charges by presenting proof of payment of the contributions owed, both for the years passed and for the current year.
The Lessee shall transfer the Leased Premises no later than the expiry date of this Lease and in good condition in accordance with the provisions above, particularly articles 6.1 and 7.3 of this Section.
In this respect, it is agreed that the Lessor and the Lessee shall, in the presence of both parties:
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perform a preliminary inspection of the Leased Premises approximately three (3) months prior to the expiry of the Lease (with the period being reduced in the event of an emergency); during this inspection, the Lessor shall be authorised to perform any type of check, test, survey, analysis and appraisal (particularly of the floors and groundwater levels) in order to verify that the Lessee has been complying with the obligation specified in the first paragraph of this Article; the Lessor will subsequently inform the Lessee of the work it will be carrying out prior to the transfer. |
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A final inventory of fixtures will be carried out on the date the keys are returned. |
In the event that this final inventory of fixtures requires work to be carried out at the Lessees expense in the performance of this Lease, the Lessee shall be required to pay or reimburse the costs of the related work upon the presentation of a cost estimate and, for the estimated period that this work is carried out, shall pay compensation equivalent to the contractual rent, plus charges and additional fees, without prejudice to any damages and interest.
The dates of the preliminary inspection and of the final inventory of fixtures shall be fixed by agreement between the parties. If they fail to reach agreement on a date, the preliminary inspection will be carried out by the Lessor alone and the final inventory of fixtures shall be prepared on the expiry date of the Lease. In the event that the Lessee is not present for the final inventory of fixtures, such an inventory shall be performed in the presence of a bailiff, who may be assisted by a locksmith in order to facilitate entry to the Leased Premises. The corresponding costs shall be borne entirely by the Lessee.
Notwithstanding the return of the keys, the Lease will remain in effect until the expiration date provided for in this Lease, with the remaining rent remaining due until that time.
No later than three months prior to the date of the transfer of the Leased Premises or on the expiry date of the Lease if the former precedes the latter, the Lessor will present the final settlement, based on a fixed estimate for invoices to be received, and will repay the Lessee the security deposit pursuant to Article 18 below, deducting any amounts that may be due in the performance of this Lease.
CHAPTER III - FINANCIAL OBLIGATIONS
ARTICLE 12 RENT
This Lease is agreed and accepted on the condition of the annual rent the amount of which is specified in SECTION II - SPECIAL CONDITIONS below, which will change in accordance with the terms provided for in Article 13 below.
In the event that the lease is renewed, the parties shall convene, at the initiative of either party, in order to determine in consultation the amount of the new rent based on the market letting value, without, in any event, this amount being lower than that of the previous rent applicable during that period.
In the event that this market letting value is based on square metres, it will apply to the surface area of the Leased Premises defined under this Lease by the interior surface area of the aforementioned Leased Premises (private area), calculated from wall to wall parametric to one metre of floor, plus, in the event that the leased premises are located in a building with shared areas, the share of those shared areas on a pro rata basis to the private surface areas of the Leased Premises in relation to the total surface area of the private areas of the building. The shared surface areas, which are likewise calculated from wall to wall, parametrically, at 1 m from the floor if possible, include all the areas used jointly by the tenants or by groups, such as the technical areas, the landings and the reception hall.
The market letting value is established exclusively by comparing the rents discussed between the parties with a lease for premises comparable to the Leased Premises, based on location, construction quality, functionality, access to various services and to technical equipment and machinery, and is not fixed by the court.
In the event that the parties fail to reach agreement in the subsequent months, their dispute will be settled by recourse to arbitration under the conditions stated below.
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By mutual agreement, the Lessor and the Lessee shall designate, within a period of 15 days, an arbiter included in the Estimates ( Estimations ) section of the list of experts approved by the French Supreme Court of Judicature. In the event that the parties fail to reach agreement regarding the identity of a single arbiter, each of the parties shall designate, within 15 days after establishing that there is a dispute, an arbiter likewise included on the aforementioned list; these two arbiters will, within 15 days after submission of the second arbiter, designate a third arbiter without the intervention of the parties. In the event that either of the parties has failed to designate an arbiter within the required period, the other party shall arrange to have one designated by the president of the Superior Court in the city where the Leased Premises are located. |
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If the parties approve his choice, the sole arbiter, or, the committee of three arbiters designated in accordance with the terms below, shall suspend the new rent in accordance with the rules cited in the third and second paragraphs of this article, and submit his or its report within a period of 90 days following the date of his/its nomination. The parties shall be irrevocably bound by this report and the report shall not be open to appeal. |
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The arbitration fees shall be borne by the parties, with each party paying half. |
It is agreed that, in the event that the above arbitration clause is not legally valid, the new rent shall be fixed, in the event that the parties fail to reach agreement, in accordance with the standard rules of procedure, based on the market letting value, without this amount, in any event, being less than the amount of the previous rent applicable during the aforementioned period, and in accordance with the provisions of the 2nd and 3rd paragraphs of this article.
ARTICLE 13 INDEXATION CLAUSE
The rent shall automatically be adjusted each year on the date this Lease was signed or on the date it becomes effective if it was signed prior to that date, however only in the event of an increase in proportion to the fluctuations in the quarterly index for construction costs published by INSEE.
The comparative index shall be the last known index for the calendar quarter specified in SECTION II SPECIAL CONDITIONS prior to the indexation and the basic index for the same quarter of the previous year.
In the event that the index is modified or replaced, the new index will replace the old index by operation of law under the terms and in accordance with the related coefficients published by INSEE. Failing the above, the replacement index will be determined by an expert designated by the President of the Superior Court in the city where the Leased Premises are located following a request by either party, with the charges and fees imposed by the expert being shared by the Lessor and the Lessee, each party paying half.
In the event that the index maintained or that which has replaced it is not yet known at the appropriate time, the rent will be deducted and paid provisionally based on the rent arising from the last implementation of this indexation clause.
It is expressly stipulated that this indexation clause constitutes a vital and overriding condition of this Lease without which it cannot be concluded.
ARTICLE 14 CONTRIBUTIONS, DUTIES AND TAXES
Commencing exactly on the effective date of this Lease, the Lessee shall pay the contributions and taxes payable by same and shall provide proof of payment to the Lessor immediately upon request and, in particular, upon termination of the Lease, prior to moving its property.
The Lessee shall repay to the Lessor any current and future duties, contributions, taxes and fees of any kind to which the Leased Premises are or may become subject, property tax and annual tax payable by companies, commercial premises and warehouses, with the rent being clear of duties and taxes.
If necessary, it is reminded that this concerns a repayment, which shall be effected by the Lessee based on the amounts contributed by the Lessor and particularly with regard to the situation of the Leased Premises on a site containing multiple buildings.
In the event that the costs are divided among the various tenants, this will occur on a pro rata basis based on the leased surfaces.
In this regard, the Lessee shall pay the Lessor, at the same time as the rent, a quarterly fee the amount of which is established below in SECTION II SPECIAL CONDITIONS. In the event that the lease began during the course of the calendar quarter, it shall be payable on a pro rata basis on the first day the premises are let.
Settlement with each of the final repayments due will occur at least once per year when the tax/administrative fees will be known, with the above-mentioned provision changing accordingly depending on this.
In the event that the letting value of the leased areas and/or the constructions, installations and fittings carried out on site by the Lessee or its representatives are maintained in the tax base of the Lessor in respect of business tax, the Lessee shall immediately reimburse the Lessor the portion corresponding to the business tax levied on behalf of the latter. The same applies to any contributions and additional and/or substitute taxes.
ARTICLE 15 CHARGES
The Lessee shall repay the Lessor its share of any and all services, charges and additional fees, both current and in the future, irrespective of their nature and significance, relating to the common sections or shared equipment on the site and the site on which the Leased Premises are located, as well as to the Leased Premises, with the Lessor receiving the rent clear of all fees and charges.
15.1 Private charges
These charges include services related to liquids and energy (e.g. electric power, gas, water, fuel, including heating fuel, air-conditioning, etc. of the private sections) utilised by the Lessee in the leased premises.
In the event that the installation allows the Lessee to take out open policies for these services directly, it will pay this to the relevant organisations promptly, in such a manner that there will never be any reason for the Lessor to investigate or be concerned about this issue.
Should the opposite occur, then the Lessee shall reimburse the Lessor for these charges, in accordance with the index relevés aux compteurs, its share as calculated on a pro rata basis for the occupied surfaces that are being supplied.
In this regard, the Lessee shall pay the Lessor, at the same time as the rent, a quarterly fee the amount of which is established below in SECTION II SPECIAL CONDITIONS. In the event that the lease commences during the course of the quarter, it shall be payable on a pro rata basis on the first day the premises are let.
Since settlement with the final amount will occur at least once per year, the above provision will vary depending on the final amount due.
15.2 Maintenance fees
These fees include all expenses relating to the common areas and common equipment on the site or a section of the site as well as to the building if this is used by other tenants, on which the Leased Premises are located, including maintenance and cleaning of the shared sections, roads and green spaces, the consumption of energy and fluid for the shared spaces and equipment, the maintenance work performed on the shared equipment (levels 1 to 5 of the FD X60-000
standard), security and the general description of the site, the management fees based on a fixed amount equivalent to 3.5% excluding taxes and private and common charges, along with duties, taxes and contributions excluding taxes, as referred to in Article 14 above.
In this regard, the Lessee shall pay the Lessor, in addition to the rent established above, at the same time, a fixed amount equivalent to 18% (eighteen per cent) excluding taxes of the amount of the aforementioned rent, not including taxes.
ARTICLE 16 VALUE ADDED TAX (VAT)
Since the building is subject to value-added tax (VAT), the rent, charges and services and generally any amount payable to the Lessor in the performance of this lease will be subject to VAT. This also applies to substitute, additional or related tax that may arise.
ARTICLE 17 TERMS OF PAYMENT
17.1 Deduction
The rent, the provisions for reimbursement of the charges, duties, taxes, additional charges and the associated value-added tax (VAT), shall be payable in advance on a quarterly basis on the first day of the calendar quarter, and the charges, duties, taxes, etc. will be settled at least once pear year, by direct debit from the Lessees bank account.
If the tenancy commences during the course of the calendar quarter, these amounts shall be payable from the effective date of the Lease on a pro rata basis until the end of the quarter. If the tenancy ends during the course of the quarter, the amounts shall be payable from the first day of that quarter on a pro rata basis until the end of the leasing period.
Consequently, the quarterly rent invoices, provisions for the repayment of charges, duties and taxes, additional fees and the associated value-added tax (VAT) shall be deducted at the beginning of the first month of the relevant quarter, while the interim invoices such as settlement of charges, duties and taxes will be deducted with the quarterly deduction of the payment following that of the issuance of the interim invoices.
To this end, the Lessee shall provide the Lessor on that day with a direct debate mandate on its bank account. The above-mentioned direct debit mandate form, along with a bank statement of the Lessee, is appended to this Lease (Annex 4).
17.2 Objections
In the event that the Lessee objects to the amount, either in whole or in part, of the invoiced amounts, it shall notify the Lessor in writing, stating the reasons for its objections, no later than eight days following receipt of the first notice of default sent by the Lessor by registered letter with confirmation of receipt, in any manner it chooses that allows for verification of reception (e.g. telefax, registered letter, extrajudicial document, etc.) It is expressly understood that, if the Lessee fails to comply with the above, it shall not be able to submit any objection of any kind and the amounts invoiced shall be definitely due and payable.
The Lessor will therefore require that the Lessee provide it with a full explanation and/or written evidence as regards the invoiced amounts to which it objects.
In the event that the parties fail to reach an amicable agreement regarding this objection, the Lessee shall request the competent court no later than two months following the receipt of the first notice of default sent by the Lessor by registered letter with confirmation of receipt as specified above, at the risk of foreclosure. Consequently, if, during this period, the Lessee fails to take action, it will be deemed to have withdrawn its objection, and the corresponding amounts will be deducted from its account.
17.3 Imputation of the regulations
Notwithstanding articles 1253 et. seq. of the French Civil Code, the imputation of the regulations implemented by the will be made in the following order:
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Settlement or reconstitution of the guarantees referred to in Article 18 below, |
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Late-payment interest referred to in Article 17.4 below, |
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Collection costs and procedural costs referred to in Article 19 below, |
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Labour costs charged to the Lessee as advanced by the Lessor, in the application of articles 6.1, 7.2, 8 and 11 below, |
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Any other amounts, with the oldest invoices being payable first. |
17.4 Late-payment interest
In the event that payment remains outstanding, the Lessee shall immediately remedy the situation through payment by cheque, made payable to the Lessors head office for the amount outstanding or, in the event of a substantiated objection, subject to the conditions specified below, of the amount that is not being disputed.
In the event that the full amount payable by the Lessee in the performance of this Lease has not been received by the due date, the Lessee will incur, by operation of law and without notice of default, statutory interest at a rate of 5 points, to be calculated from the due date, without prejudice to the application of the avoidance clause stipulated in Article 19 below.
ARTICLE 18 GUARANTEE
In order to ensure that all the Lessees obligations of any nature arising from this Lease are complied with, the Lessee undertakes to provide the Lessor with a guarantee. At the Lessees choice, this guarantee may be provided in any of the forms specified in SECTION II SPECIAL CONDITIONS:
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A cash payment of an amount equivalent to three months rent excluding tax, plus maintenance fees excluding taxes, |
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The provision of an autonomous bank guarantee immediately upon the Lessors request, issued by a first-rate financial institution, in accordance with the model included in the annex, representing six months rent plus maintenance fees and value-added tax (VAT). |
This guarantee shall be provided by the Lessee to the Lessor on the date of signing this Lease. In the event that the Lessee has chosen to provide a bank guarantee, it shall provide this guarantee within one month of the date this Lease is signed; pending the provision of the guarantee, the Lessee shall transfer to the Lessor an amount equivalent to three months rent plus maintenance fees excluding taxes, which the Lessor will repay the Lessee upon receipt of the bank guarantee in accordance with the model included in the annex.
The amount of the guarantee referred to above is defined in accordance with the quotation issued by the French National Bank (Banque de France) in relation to the Lessee, for an activity rating of A, B, C, D or E and a credit rating less than or equal to 5.
Consequently, in the event that for the signing of this Lease the Lessee has not been rated by the French National Bank or if it has an activity quote of F, G, H, J, N or X or a credit quote higher than 5, it shall be required to provide an additional guarantee (i.e. in addition to that described above), representing three months rent plus maintenance fees and excluding taxes.
In order to allow the Lessor to verify that this requirement is being complied with, the Lessee shall be required to provide it with an original copy of the quote issued by the French National Bank, no later than the month following the month of the signing of this Lease.
Furthermore, the Lessee shall provide, during the term of the Lease, a guarantee in addition to the one described above, representing three months rent excluding taxes and plus maintenance fees not including taxes, to the Lessors satisfaction in the event of an incident or late payment in the six months following a first notice of default by registered letter with proof of confirmation or by means of an extrajudicial document.
The amount of this guarantee may, at the discretion of the Lessor, be paid in whole or in part at any time during the term of this Lease or upon its expiry together with all other amounts payable by the Lessee to the Lessor of any kind whatsoever. Particularly in the event of liquidation proceedings, compensation will be payable by operation of law with retroactive effect on the first day of the proceedings, taking priority along with the claims arising prior to that date.
Furthermore, once this amount has been provided by way of security, it will be allocated to the Lessor above all other claims, if preferred.
In the event of compensation during the term of this Lease, the Lessee shall immediately repay the amount paid, in order that the guarantee remain in place, without discontinuity during the entire term of the Lease, for an amount likewise equivalent to the amount fixed above.
This amount shall be increased at the same time and in the same proportion as the rent each time the latter is modified, with the difference being payable when the first modified term becomes effective.
The Lessor will retain this guarantee for the entire term of the Lease and will return it to the Lessee at the end of the tenancy, after the Lessee has cleared the premises and returned the keys and after all amounts payable to the Lessor of any kind whatsoever have been deducted, along with any amounts for which the Lessee may be held liable in accordance with the imputation to be determined by the Lessor.
No interest shall be payable.
In the event that the Lease is terminated due to non-fulfilment of these conditions for any reason whatsoever arising from the Lessee other than where the latter provides notification prior to a date and under the conditions provided for in this Lease, and irrespective of the term of the lease remaining at that time, without prejudice to any rents falling due or to fall due, the Lessor will retain the guarantee in respect of damages, without prejudice to the rents falling due or to fall due and without prejudice to the work charged to the Lessee.
CHAPITRE IV - OTHER CLAUSES
ARTICLE 19 AVOIDANCE CLAUSE
In the event that the Lessee fails to meet the contractual due date for a single rent instalment or of any charges or additional charges, including the associated value added tax (VAT), as in the case of non-fulfilment by the Lessee for any reason whatsoever and any charges and conditions under this Lease that are in full force and effect, regardless of the prejudice that may arise for the Lessor, this Lease shall be terminated by operation of law at the discretion of the Lessor, without needing to file any legal claim, one month after a demand for payment has not been complied with or the Lessee fails to take action following a warning letter, and the eviction of the Lessee can be effected through a temporary injunction issued by the President of the Superior Court in Paris, which the parties have expressly designated as the competent court. The court will ascertain solely the implementation of the avoidance clause, with the aforementioned temporary injection being executor irrespective of appeal.
The beneficiary of the avoidance clause referred to in the payment orders or warning letters delivered by the Lessor may only be invoked by the latter.
Any expenses incurred by the Lessor in ensuring that the Lessee complies with its obligations, such as cost of deeds and bailiffs fees relating to payment orders, demand letters, reports on infringements committed by the Lessee, garnishment, etc. shall be reimbursed in full by the Lessee to the Lessor upon presentation of invoices, as included in the annex, for expenses incurred in this respect.
Furthermore, in the event of any legal act initiated by the Lessor against the Lessee in order to ensure that this Lease is complied with, the Lessee shall be required to contribute to the procedural costs for the equivalent of 10% of the amount due, subject to a minimum of EUR 1,000 excluding taxes; this minimum amount shall become effective on the 1 st of January 2003 and shall be reviewed on the 1 st of January of each calendar year, however only in the event of an increase from the prevision review, based on the INSEE index for construction costs. The basic index used will be that for the 2nd quarter of 2002, i.e. 1,163, and the review index against which it will be compared on the 1 st of January will be that for the same calendar quarter of the year preceding the review.
The Lessees subsequent offer to pay in arrears or to comply with the conditions of the Lease will not prejudice the application of this Lease.
In that event, the amount paid as a guarantee, as provided for above, shall remain with the Lessor by means of initial compensation, without prejudice to any other damages and interest due.
ARTICLE 20 INFORMATION PROVIDED TO THE LESSOR
The Lessee undertakes:
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to provide evidence to the Lessor that it has obtained all the administrative statements and authorisations from the authorities to perform its activities in the Leased Premises, particularly with regard to the regulations governing public venues and/or industrial and commercial sites subject to specific regulations and environmental protection measures and to forward the Lessor copies of these statements and/or authorisations, |
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to inform the Lessor of any changes in its articles of association (i.e. amendment, a change in the companys designation, business name, head office, etc.), along with any substantial changes in the companys capital during the month that it occurs, |
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to provide a copy of its balance sheet immediately upon request, |
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to communicate, in the manner provided for in Article 1690 of the French Civil Code, information regarding any merger the Lessee enters into. |
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to inform the Lessor of any proceedings initiated against it, amicable preventive settlement procedures, financial recovery or liquidation within fifteen (15) days of the commencement of such an event, |
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upon the expiry of this Lease, to provide documentary evidence to the Lessor that it has complied with all administrative formalities, particularly those required for the regulations applicable to industrial and commercial sites subject to specific regulations and environmental protection measures (ICPE), related to the termination of the activities performed by the Lessee in the leased premises. |
ARTICLE 21 AMENDMENTS ALLOWANCES INDIVISIBILITY
Any amendments to this Lease shall result only in a written document in the form of a bilateral deed or an exchange of letters.
Such amendments may not, in any event, be effected without the consent of either party even when related to details regarding frequency and duration, the Lessor and the Lessee shall remain entitled at all times to demand the strict application of the clauses and stipulations that are not the subject of an express or written amendment.
All the Lessees legal successors and all individuals liable for payment and required to comply with the performance of this Lease are jointly and severally liable for compliance with the obligations arising from this Lease.
ARTICLE 22 CHOICE OF DOMICILE AND COMPETENT COURT
For the performance of this Lease, the Lessor elects domicile at its head office as specified above; the Lessee elects domicile at the leased location.
For any legal proceedings related to the interpretation, performance and termination of this Lease, the parties have designated the Superior Court in Paris to be the competent court, including in the event of multiple respondents and/or the introduction of third parties into the proceedings.
SECTION II - SPECIAL CONDITIONS
The special conditions of this Lease are designed to specify the general conditions in the event that it becomes necessary to add to, amend or replace any of these conditions. The conditions shall be strictly interpreted. In the event of a conflict between the Special Conditions and those of the General Terms and conditions, the Special Conditions shall prevail.
1.- DESCRIPTION
At its sites at Pilier Sud a Aubervilliers, 20 bis rue des Gardinoux and 13/15 rue du Pilier, premises located on the north side of Building 501, with a total surface area of 4,323 square metres, as well as plots of land situated on the east side and the north side of the aforementioned building, with a total surface area of 1,015 square metres; the Leased Premises are displayed on the map appended to this document (Annex 1).
2.- REFERENCE DATES
2.1 Effective date
This Lease shall take effect on the 1 st of January 2009.
2.2 Term
Upon the Lessees express request, and by way of application of the provisions of Act no. 85-1408 of 30 December 1985 included in Article L 154-4 of the French Commercial Code, the Lessee expressly relinquishes its right to give notice of termination upon the expiry of the first three-year periods, i.e. prior to the end of the 12th year.
Consequently, in the event that this Lease is terminated prior to the expiry of its twelfth year, for any reason whatsoever, the Lessee shall immediately pay the Lessor an amount equal to the total amount in rents and charges accumulated plus value added tax (VAT) at the rate in force during the remaining period of the Lease until the expiry of the twelve years.
The Lessor shall remain authorised to give notice of termination to the Lessee upon the expiry of each three-year period, doing so by means of an extrajudicial document, at least six months before it intends to invoke the provisions of articles L 145-18, L 145-21, L 145-23-1 and L 145-24 of the French Commercial Code in order to construct, reconstruct or raise the existing building, to adapt the use of the additional residential section to this use or to perform work prescribed or authorised as part of a property restoration project or, in the case of the demolition of the building, as part of an urban renovation project.
3. USE
The premises that form the object of this Lease are designated primarily for use as a warehouse and as a support office.
Under the Lease, the Lessee shall be authorised to use the premises for its activity of providing services related to telecommunications equipment and installation, facilitating connections between telecommunications network operators and providing technical support to telecommunications companies, as well as any services related to these activities and, in this context, Notwithstanding Article 10.1 of Section I General Conditions above, to make the aforementioned premises available to its clients.
The Lessee certifies that it has obtained all the administrative authorisations necessary for the performance of its specific activity and, in particular, that it has received the declaration pursuant to industrial and commercial sites subject to specific regulations and environmental protection measures, as described in Annex 7 (prior to being communicated by Interxion)
The maximum load for leased areas is 1,000 kilograms per square metre, based on an equally divided load. The Lessee undertakes not to exceed this maximum.
4. TAX REGIME
VAT
5. BASIC ANNUAL RENT
These premises are agreed and accepted based on an annual rent of *** excluding taxes and *** charges, which amount breaks down as follows: 5.1 *** for the
premises,
5.2 and ***
The rent due in this respect is not subject to the maintenance fees referred to in Article 15.2 of SECTION I GENERAL CONDITIONS above and Article 6.2 below, and is also not included in the calculation base for the calculation of property tax, as referred to in Article 14 of SECTION I GENERAL CONDITIONS above and Article 6.3 below.
6. REPAYMENT OF CHARGES, DUTIES AND TAXES
6.1 Repayment of private charges
Notwithstanding Article 15.1 of SECTION I GENERAL CONDITIONS above, the Lessee shall not be required to repay private charges.
6.2 Repayment of maintenance fees
Notwithstanding Article 15.2 of SECTION I GENERAL CONDITIONS above, for the maintenance fees a fixed amount will be invoiced equivalent to 16% (sixteen per cent) excluding taxes per quarter; this applies solely to the rent excluding tax referred to in Article 5.1 above.
6.3 Repayment of property tax
The provision for the repayment of property tax is fixed at EUR 23,445 (twenty three thousand four hundred forty five euros) excluding tax per quarter, relating exclusively to the rent excluding tax referred to in Article 5.1 above.
6.4 Payment of the annual tax for offices, commercial premises and warehouses
Notwithstanding Article 14 of SECTION I GENERAL CONDITIONS above, the payment of the annual tax for offices, commercial premises and warehouses will be effected once, prior to the 1 st of March of each year for the current year, and on 1 March 2009 for the first time pursuant to this Lease.
7. GUARANTEE
7.1 Notwithstanding the provisions of Article 18 of SECTION 1 GENERAL CONDITIONS above, it must be noted that the Lessee has been discharged of the requirement to provide the above-mentioned guarantee for the purpose of this Lease, on condition that all amounts payable to the Lessor are paid promptly. In the event of default of payment or late payment of the above-mentioned amounts, the Lessor shall be authorised to demand that the Lessee provide the above-mentioned guarantee under the conditions specified in Article 18 above.
By consequence of the above, the Lessee shall pay, under the Lease, as advance payment, an amount equivalent to three months rent plus maintenance fees, property tax and VAT in order that, by express agreement between the parties, the Lessor shall at all times retain an amount equivalent to three months rent plus maintenance fees, property tax and VAT.
Currently, this amount should total *** including all taxes *** ; however, the Lessee retains only *** an amount of including all taxes Consequently, the Lessee shall then be required to settle the difference, i.e. the amount of *** including all taxes *** upon receipt of the invoice.
8. REFERENCE INDEX
Notwithstanding the stipulations of the indexation clause stipulated in Article 13 of SECTION I GENERAL CONDITIONS above, the INSEE index used shall be that for the third quarter of 2008; the indexation date fixed by mutual agreement between the parties will be the 1 st of July 2009.
9. DEVIATING CONDITIONS
9.1 Notwithstanding Article 4 of SECTION 1 GENERAL CONDITIONS above, the parties have agreed to establish an inventory of fittings no later than fifteen days following the effective date of this document. In addition, it is hereby stated, to the extent necessary, that the Lessee is already in possession of the keys.
9.2 Notwithstanding Article 17.1 of SECTION 1 GENERAL CONDITIONS above, the parties agree that the settlement of the rent, the provisions for repayment of charges, duties and taxes, additional charges and the associated value-added tax (VAT) will be effected in advance on a monthly basis, and that the settlement of charges, duties, taxes and others will be deducted at least once per year by direct debit from the Lessees account.
In the event that the tenancy commences during the course of the month these amounts shall be payable on the effective date of the Lease in proportion to time for the current month. In the event that the tenancy is termination during the course of the month, the amounts shall be payable on the first day of that month in proportion to time, to be calculated from the first day of the aforementioned month for the remaining period of the tenancy.
Consequently, the monthly rent invoices, provisions for the repayment of charges, duties and taxes, additional fees and the associated value-added tax (VAT) shall be deducted at the beginning of each month, while the interim invoices for the settlement of charges, duties, taxes, etc. shall be deducted with the quarterly deduction of the payment following that of the issuance of the interim invoices.
Under the Lease, the Lessor is already authorised to automatically deduct payments from the Lessees account, as well as to effect direct deposit, with the Lessee being exempted of the latter if a guarantee is provided in accordance with the aforementioned Article 17.1 above.
10. WORK PAYABLE BY THE LESSEE
The Lessee is currently reorganising the computer rooms and technical areas of the Licensed Premises.
The Lessee undertakes to provide to the Lessor, no later than fifteen days following the signing of this Lease, the following documents for preliminary approval of the technical services of the Lessor:
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The drawings for the façades and enclosures and a technical specification of the work to be performed, |
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Any documents it may require to facilitate understanding of the nature of the work and the terms of its execution. |
This work shall be performed within the shortest possible time, the provisional completion date being 31 January 2009.
The Lessee undertakes to carry out the work in compliance with Article 7.2 of SECTION 1 GENERAL CONDITIONS above.
The Lessee shall comply with all of the Lessors demands and orders.
Immediately upon the Lessors request, the Lessee shall obtain, and provide evidence of, the administrative authorisations required to perform the work.
Upon completion of the work, the Lessee shall summon the Lessor to conduct an on-site inspection in order to establish that the work has been completed. During this inspection, the Lessee shall provide the Lessor with copies of the following documents:
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The final expert report issued by the technical inspection agency, |
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The files containing specifications of the work, |
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Any documents the Lessor may require in order to ascertain the proper performance of the work, and in particular, if necessary, any proof to remove any reservations. |
Drawn up in Paris,
in duplicate, on 23/12/2008
LIST OF ANNEXES
Annex 1: | Map of the premises | |
Annex 2: | Internal rules, if applicable | |
Annex 3: | Model of verified bank guarantee ( garantie autonome ) | |
Annex 4: | Direct debit mandate + authorisation form | |
Annex 5: | Assessment of natural risks | |
Annex 6: | Brief description of the work carried out by the Lessee | |
Annex 7: | Description of the classified buildings owned by the Lessee |
Exhibit 10.10
Confidential material has been omitted and filed separately with the Commission
Lease of
Cessnalaan 1-33
Schiphol-Rijk
Between
Interxion Nederland B.V.
and
VastNed Industrial B.V.
LEASE OF OFFICE PREMISES
and other commercial premises as defined by Book 7 Article 230a of the Dutch Civil Code
Model drawn up by the Dutch Raad voor Onroerende Zaken (ROZ) on 30 June 2003. Reference to this model and the use thereof is only permitted if the text that is inserted, added or varied is clearly recognisable as such. Any additions and variations should preferably be included under the heading special conditions. The ROZ expressly excludes any liability for any adverse consequences of the text of this model.
Between
VastNed Industrial B.V., with registered office at Max Euweplein 1, 3062 Rotterdam, registered in the trade register under number 24265096, VAT registration number NL 007002083B0 1 , validly represented herein by Mr J. Pars, MRE MRICS
hereinafter referred to as the Lessor
and
Interxion Nederland B.V., with registered office at Cessnalaan 1-33, 1119 NJ Schiphol-Rijk, registered in the trade register for Amsterdam under number 34116837, validly represented herein by Mr M.L.H. van den Assem
hereinafter referred to as the Lessee
The parties are agreed as follows:
The Object; Use
1.1 |
The Lessor leases to the Lessee, who leases from the Lessor, approx. 4,474m 2 of commercial premises and approx. 2,258m 2 of office premises (building A: approx 733m 2 ; building B: approx. 540m 2 ; and building C: approx. 985m 2 ) - in accordance with the NEN 2580 certificate of floor area - and 77 parking spaces located on land forming part of the Object, hereinafter referred to as the Object, situate at and known as Cessnalaan 1-33, Schiphol-Rijk, registered with the land registry as Municipality of Haarlemmermeer, Section AK, Number 1382, more particularly described in the plan and inspection report both initialled by the parties, attached to, and forming part of, this lease, which indicate the installations and other facilities that form part of, or are excluded from, the Object and which also describe the condition of the Object, together with any photographs likewise initialled by the parties. |
1.2 | The Object may only be used by, or with the consent of, the Lessee as office premises and other commercial premises for the installation and management of data centre facilities, together with parking spaces. |
1.3 | The Lessee may not use the Object for any purpose other than that described in section 1.2 above without the prior written consent of the Lessor. |
1.4 | The maximum permissible floor load capacity within the Object is as follows: |
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approx. 400 kg per m 2 for the ground floor office premises |
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approx. 250 kg per m 2 for office premises on other floors |
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approx. 2,500 kg per m 2 for the commercial premises. |
Conditions
2.1. | The general conditions for the leasing of office premises and other business premises as defined by Book 7 Article 230a of the Dutch Civil Code, filed with the registry of the District Court of The Hague on 11 July 2003 and registered under number 72/2003, hereinafter referred to as the General Conditions, form part of this Lease. The parties are aware of the content of these General Conditions and have each received a copy thereof. |
2.2. | The General Conditions referred to in 2.1 are applicable except in so far as the conditions in this lease expressly deviate from them or if their application to the Object is not possible. |
Duration, extension and termination
3.1. | This lease is entered into for the period of 10 years and 3 months, commencing on 1 October 2005 and consequently ending on 31 December 2015. |
3.2. | Following the expiry of the period referred to in 3.1, this lease will be extended for two contiguous periods of 5 years, that is up to and including 31 December 2020 and 31 December 2025, respectively. |
3.3 | Termination of this lease will take place at the end of a lease term subject to a notice period of at least 12 months. Only the Lessee has the option to terminate the lease as at 31 December 2015. Both parties have the option to terminate the lease as at 31 December 2020 and 31 December 2025. |
Rent, turnover tax, rent adjustment, obligation to pay, payment term
4.1 | The initial rent of the Object is *** |
4.2 | The parties agreed that the Lessor will charge Lessee VAT on the rent. |
If it is agreed upon that VAT will not be charged on the rent, the Lessee shall pay in addition to the rent a separate compensation to the Lessor, such that the Lessor or its successor(s) in title will be entirely compensated for loss resulting from the fact that VAT on the Lessors investments and costs operation of the Leased Space will not or no longer be deductible.
The provisions of article 19.1 up to and including article 19.9 of the General Conditions does not apply in such a situation.
4.3 | If it has been agreed that VAT will be charged on the rent then the lessor and the Lessee will exercise the option - pursuant to Notice 45, decree of 24 March 1999 number VB99/571 - not to submit a joined request opting for a taxed lease. By signing this lease, the Lessee explicitly declares - including for the benefit of the Lessors successor(s) in title - that the Lessee will at all times use the Object for purposes which are entirely or practically entirely subject to the right of deduction of VAT under article 15 of the Dutch Turnover Tax Act 1968. |
4.4 | The Lessees financial year runs from 1 January up to and including 31 December. |
4.5 | The rent will be adjusted annually on 1 October, for the first time on 1 October 2006 in accordance with article 9.1 up to and including article 9.4 of the General Conditions. |
4.6 | The sum payable by the Lessee for additional supplies and services to be provided by the Lessor will be determined in accordance with article 16 of the General Conditions. A system of advance payments with settlement at a later date will be applied to this payment, as stipulated in the General Conditions. |
4.7.1 | The Lessees payment obligation consists of: |
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the rent; |
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the separate payment in the event that no lease subject to VAT has been agreed, or the VAT due on the rent if the parties have agreed upon a taxed lease; |
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the advance payment for additional supplies and services to be provided by the Lessor and the VAT thereon. |
4.7.2 | If the lease may no longer be a taxed lease - where the parties had agreed upon a taxed lease - the Lessee is no longer obliged to pay VAT on the rent. |
In such case the amounts of compensation referred to in article 19.3.a of the General Conditions apply and will replace the VAT and the compensation as referred to in article 19.3.1 shall be agreed at such time between the parties. |
4.8 | For each term of payment of 3 calendar months, the following amounts apply on commencement of the lease: |
the rent |
* * * | |||||||
the VAT due on the rent |
* * * | |||||||
the advance payment for additional supplies and services provided by or on behalf of the Lessor and the VAT due thereon |
* * * | |||||||
Total amount |
* * * | |||||||
* * * |
4.9 | With a view to the date of commencement of this lease, the first term of payment relates to the period from 1 October 2005 up to and including 31 December 2005 and the amount payable for this period is *** This amount is inclusive of VAT, including VAT on the rent, but only if the Lessee owes VAT on the rent. |
4.10 | The periodic payments to be made by the Lessee to the Lessor under this lease will be due in one sum paid in euro in advance as referred to in 4.8 and must have been paid in full on or before the first day of the period to which the payments apply. |
4.11 | Unless specified otherwise, all amounts stated in this lease, and the General Conditions forming a part hereof, are exclusive of VAT. |
Supplies and services
5. | The parties agree that the following additional supplies and services will be provided by or on behalf of Lessor: |
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gas or oil supply including standing charge |
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electricity supply in the Object (office premises), including standing charge for the installations and lighting of the communal spaces |
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water supply including standing charge |
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maintenance and periodic checking of the heating and cooling installations |
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maintenance and periodic checking of technical installation |
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maintenance and periodic checking of lift installations |
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maintenance and periodic checking of fire detection installation |
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maintenance and periodic checking of sanitation facilities |
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roofs and guttering |
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cleaning of outside of windows |
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maintenance of landscaping and gardens |
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maintenance and periodic checking of telephone and various installations |
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insurance premium for exterior glazing |
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administration costs of 5% payable on the crossed supplies and services above. |
Bank guarantee
6. | The amount of the bank guarantee specified in article 12.1 of the General Conditions is hereby agreed by the parties in the sum of ( ). |
Upon receipt of the new bank guarantee by the Lessor, the current (old) bank guarantee shall be returned immediately to the Lessee. The Lessor and the Lessee are agreed that if the Lessee complies in good time with its payment obligations during the first two years of the lease, then the bank guarantee will be reduced from to as from 1 October 2007. |
Property management
7.1 | Until Lessor announces otherwise, the management of the property will be carried out by the Lessor. |
7.2 | Unless agreed in writing otherwise, the Lessee will consult the manager on the contents of and all matters relating to this lease. |
Special conditions
8.1 | Delivery |
The Lessee shall accept the commercial premises and the office premises in buildings A and B in their current condition as sufficiently known to both parties. The Lessee shall also accept the office premises in building C in their current condition as sufficiently known to both parties, with the proviso that the following work shall be carried out in the Object by and at the expense of the Lessor:
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the replacement of defective lighting (including emergency exit lighting) |
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the cleaning of ventilation grills and ceiling plates (close to the suspended ceiling frames) on all floors |
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painting of banister rails |
This work shall be carried out before 30 November 2005 by the Lessor.
8.2 | Vacation of Object at end of lease |
At the start of the lease an inspection report shall be drawn up in respect of the Object and signed by both parties. The Lessee is permitted to vacate the Object at the end of the lease term in the same condition as described at the commencement of the lease, including the current package of fixtures and fittings (partition walls, floor coverings and cabling on condition that the condition - having regard to normal wear and tear - is good.
8.3 | Rent-free period |
The Lessee is not liable to the Lessor for rent for the period 1 October 2005 to 31 July 2007 (22 months) in the sum of *** plus VAT in respect of building C (approx. 985 m 2 ) together with 12 parking spaces. The service costs for building C are owed as from 1 October 2005.
8.4 | Transfer of keys / access to the Object |
The Lessee shall be given access to the office premises of building C as of 1 October 2005 on condition that the Lessee has signed the original leases and paid the first instalment of rent.
8.5 | Subletting |
The Lessee is entitled to sublet all or any part of the Object, or to allow it to be used by companies of which Interxion is a majority shareholder without the consent of the Lessor. The Lessee is entitled to sub-let all or any part of the Object, or to allow it to be used by any third party subject to the prior written consent of the Lessor. The Lessor may not withhold such consent without reasonable grounds. The Lessee is also permitted, without requiring the consent of the Lessor, to offer additional telecommunications services and facilities. The Lessor has already given its consent to the subletting to Apcare B. V. of the second floor of the building C office premises and to the subletting to Actis Business Partners B. V. of the ground floor and third floor of the building C office premises.
8.6 | Right of substitution |
The Lessee is entitled during the term of the lease to be substituted by an associated company of which Interxion is a majority shareholder, subject to the prior written consent of the Lessor which shall not refuse such consent without reasonable grounds.
8.7 | Changes made to the Object |
The Lessee has the option, at its own expense and risk, to make changes to the Object, subject to the prior written consent of the Lessor which shall not refuse such consent without reasonable grounds. Once the Lessor has been given details about the changes to the Object, it must respond to such proposals within five working days thereafter.
8.8 | Rent review |
Without prejudice to a rent adjustment based on the above, either party is entitled to request an adjustment of the rent to the market value. Such adjustment may take effect for the first time on 1 October 2015 and subsequently after a period of at least five years after the most recent adjustment of rent to the market value.
Should a party wish to use such power it is to notify the other party thereof by registered letter with notice of receipt, ultimately twelve months prior to the date on which the adjusted rent is to take effect.
Should the parties not reach an agreement on the adjustment of the rent to the market value within two months of receipt of such notification the rent is to be determined by three experts.
Of these three experts one is to be appointed by each of the parties within fourteen days of one party receiving a request to do so from the other party. An expert is to make known within eight days of the date of the appointment whether or not he is to accept the appointment.
The third expert is to be appointed by these two experts within eight days of them both having accepted the appointment. In the absence of agreement between the experts about the rent to be fixed, the judgement of the third expert will be decisive.
Should one of the parties remain in default regarding the appointment of an expert or should the experts appointed by the parties fail to come to an agreement regarding the appointment of the third expert, the expert or experts is/are to be appointed at the request of either party by the chairman of the Netherlands Chamber of Commerce for the area in which the Object is situated. Each party is to bear the costs of the expert appointed by it.
The costs of the third expert are to be shared equally between the two parties. The experts are to issue their report within six weeks after their appointment.
8.9 | Oil tank |
The Lessor has already given consent to the Lessee with regard to the oil tank currently placed above ground by the Lessee. At the end of the lease term everything must be returned to its original state. The Lessee is itself responsible for obtaining the necessary permits or consents from the government and Schiphol Area Development Corporation.
8.10 | Electricity |
The parties are agreed that any extension of, or changes to, the energy supplies in the Object are at the risk and expense of the Lessee.
8.11 | Cabling |
The Lessee is entitled to lay cables underground in the immediate vicinity of the Object for the benefit of fibre optic cables leading to and from the Object, subject to the prior written consent of the Lessor, which consent the Lessor shall not withhold without reasonable grounds. The Lessee is itself responsible for obtaining the necessary permits or consents from the government and Schiphol Area Development Corporation.
8.12 | Current lease |
The Lessor and Lessee are agreed that by signing this lease the current lease between them dated 17 November 1999 for the lease of approx. 1,276 m 2 of office premises, approx. 4,464 m 2 of commercial premises and 65 parking places shall be terminated as of 30 September 2005.
8.13 | Suspensive conditions |
This lease is entered into subject to the suspensive condition that the Lessor and Actis Business Partners B. V. have reached an unconditional agreement in writing regarding an early termination of the lease of the building C and 12 parking spaces as at 30 September 2005.
This lease is entered into subject to the further suspensive condition that the Lessor and Actis Business Partners B. V. have reached an unconditional agreement in writing regarding a sublease of the ground and first floors of building C as at 1 October 2005.
This lease is entered into subject to the final suspensive condition that the Lessor and Apcare B.V. have reached an unconditional agreement in writing regarding a sublease of the second floor of building C as at 1 December 2005.
Drawn up and signed in triplicate on 4 November 2005.
VastNed B. V. | Interxion Nederland B. V. | |||
Mr R.M.E.M. | M.L.H. van den Assem |
Appendices
|
plans of the Object |
|
certificate of floor area |
|
inspection report |
|
the General Conditions |
Separate signature(s) of the Lessee(s) confirming receipt of a copy each of the The general conditions for the leasing of office premises and other business premises as defined by Book 7 Article 230a of the Dutch Civil Code, as referred to in section 2.1.
(signature of Lessee)
Interxion Nederland B.V.
M.L.H. van den Assem
CERTIFICATE OF FLOOR AREAS PURSUANT TO NEN 2580 -1997
Project: no. | AK991558 | Certificate number: | 00347a | Measurement no.: | According to NEN 2580 May 1997 | |||||||||||||||||||||||||||||||||||||||||||||||
Address: | Cessnalaan 1 | Certificate date: | 29-08-05 | Measurement unit: | m2 | |||||||||||||||||||||||||||||||||||||||||||||||
District: | Haarlemmermeer | Plans: | Inbo Architektenburo | |||||||||||||||||||||||||||||||||||||||||||||||||
Type: | Office premises/Commercial premises | |||||||||||||||||||||||||||||||||||||||||||||||||||
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | |||||||||||||||||||||||||||||||||||||||||
BVO | NON-LETTABLE | LETTABLE | wo | |||||||||||||||||||||||||||||||||||||||||||||||||
Floor level |
Open
spaces / stairwells |
Entire floor
area |
Parking-space |
Building
installation space |
Vertical
traffic |
Immoveable
constructions |
Spaces less
than 1.5 m |
Horizontal
traffic |
Usable
space |
Sanitation
space |
Storage
space |
Non-usable
space |
Lettable
floor area |
|||||||||||||||||||||||||||||||||||||||
01 |
4144.10 | 5248.06 | 21.84 | 74.64 | 121.49 | 104.44 | 882.41 | 34.80 | 8.44 | 11.78 | 5041.87 | |||||||||||||||||||||||||||||||||||||||||
23 |
1148.42 | 23.94 | 67.64 | 111.05 | 71.12 | 842.69 | 20.88 | 11.10 | 9.26 | 955.05 | ||||||||||||||||||||||||||||||||||||||||||
590.30 | 22.98 | 32.40 | 59.66 | 41.28 | 408.24 | 19.68 | 6.06 | 12.98 | 488.24 | |||||||||||||||||||||||||||||||||||||||||||
295.15 | 8.22 | 16.20 | 30.07 | 20.64 | 204.12 | 9.84 | 6.49 | 247.15 | ||||||||||||||||||||||||||||||||||||||||||||
TOTAL |
4144.10 | 7281.93 | 76.98 | 190.88 | 322.27 | 237.48 | 6337.46 | 85.20 | 31.66 | 40.51 | 6732.31 | |||||||||||||||||||||||||||||||||||||||||
CERTIFICATE OF FLOOR AREAS PURSUANT TO NEN 2580-1997
Project: no. | AK991558 | Certificate number: | 00347a | Measurement no.: | According to NEN 2580 May 1997 | |||||||||||||||||||||||||||||||||||||||||||||||
Address: | Cessnalaan 1 | Certificate date: | 29-08-05 | Measurement unit: | m2 | |||||||||||||||||||||||||||||||||||||||||||||||
District: | Haarlemmermeer | Plans: | Inbo Architektenburo | |||||||||||||||||||||||||||||||||||||||||||||||||
Type: | Office premises/Commercial premises | |||||||||||||||||||||||||||||||||||||||||||||||||||
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | |||||||||||||||||||||||||||||||||||||||||
BVO | NON-LETTABLE | LETTABLE | wo | |||||||||||||||||||||||||||||||||||||||||||||||||
Floor level |
Open spaces/ |
Entire floor
area |
||||||||||||||||||||||||||||||||||||||||||||||||||
0 |
5248.06 | 21.84 | 74.64 | 121.49 | 104.44 | 4882.41 | 34.80 | 8.44 | 11.78 | 5041.87 | ||||||||||||||||||||||||||||||||||||||||||
com. sp. to 0 |
5248.06 | 21.84 | 74.64 | 121.49 | 104.44 | 4882.41 | 34.80 | 8.44 | 11.78 | 5041.87 | ||||||||||||||||||||||||||||||||||||||||||
1 |
4144.10 | 1148.42 | 23.94 | 67.64 | 111.05 | 71.12 | 842.69 | 20.88 | 11.10 | 9.26 | 955.05 | |||||||||||||||||||||||||||||||||||||||||
com. sp to 1 |
4144.10 | 1148.42 | 23.94 | 67.64 | 111.05 | 71.12 | 842.69 | 20.88 | 11.10 | 9.26 | 955.05 | |||||||||||||||||||||||||||||||||||||||||
2 |
590.30 | 22.98 | 32.40 | 59.66 | 41.28 | 408.24 | 19.68 | 6.06 | 12.98 | 488.24 | ||||||||||||||||||||||||||||||||||||||||||
com. sp to 2 |
590.30 | 22.98 | 32.40 | 59.66 | 41.28 | 408.24 | 19.68 | 6.06 | 12.98 | 488.24 | ||||||||||||||||||||||||||||||||||||||||||
3 |
295.15 | 8.22 | 16.20 | 30.07 | 20.64 | 204.12 | 9.84 | 6.06 | 6.49 | 247.15 | ||||||||||||||||||||||||||||||||||||||||||
com. sp. to 3 |
295.15 | 8.22 | 16.20 | 30.07 | 20.64 | 204.12 | 9.84 | 6.06 | 6.49 | 247.15 | ||||||||||||||||||||||||||||||||||||||||||
total |
4144.10 | 7281.93 | 76.98 | 190.88 | 322.27 | 237.48 | 6337.46 | 85.20 | 31.66 | 40.51 | 6732.31 | |||||||||||||||||||||||||||||||||||||||||
com. space |
||||||||||||||||||||||||||||||||||||||||||||||||||||
TOTAL |
4144.10 | 7281.93 | 76.38 | 190.88 | 322.27 | 237.48 | 6337.46 | 85.20 | 31.66 | 40.51 | 6732.31 |
CERTIFICATE OF FLOOR AREAS PURSUANT TO NEN 2580-1997
SPECIFICATION OF COMMON SPACES
Project: no. | AK991558 | Certificate number | 00347a | Measurement no.: | According to NEN 2580 May 1997 | |||||
Address: | Cessnalaan 1 | Certificate date: | 29-08-05 | Measurement unit: | m2 | |||||
District: | Haarlemmermeer | Plans: | Inbo Architektenburo | |||||||
Type: | Office premises/Commercial premises |
Common space on ground floor WO total |
0.006732.31 | |||||||
Floor level |
wo according to NEN 2580 | WO incl. supplement for common space. | ||||||
01 |
5041.87 | 5041.87 | ||||||
23 |
955.05 | 955.05 | ||||||
488.24 | 488.24 | |||||||
247.15 | 247.15 | |||||||
TOTAL |
6732.31 | 6732.31 | ||||||
Parking space (m2) |
CERTIFICATE OF FLOOR AREAS PURSUANT TO NEN 2580 -1997
SPECIFICATION OF FUNCTION OF SPACE ON BASIS OF NEN 2580
Project: no. | AK991558 | Certificate number: | 00347a | Measurement no.: | According to NEN 2580 May 1997 | |||||||||||||||||||||||||||||||||||||||||||||||||
Address: | Cessnalaan 1 | Certificate date: | 29-08-05 | Measurement unit: | m2 | |||||||||||||||||||||||||||||||||||||||||||||||||
District: | Haarlemmermeer | Plans: | Inbo Architektenburo | |||||||||||||||||||||||||||||||||||||||||||||||||||
Type: | Office premises/Commercial premises | |||||||||||||||||||||||||||||||||||||||||||||||||||||
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | |||||||||||||||||||||||||||||||||||||||||||
LESSEE | BVO | NON-LETTABLE | LETTABLE | -VVO | ||||||||||||||||||||||||||||||||||||||||||||||||||
Floor level |
Unit number of Lessee |
Entire
floor area |
Parking
space |
Building
installation space |
Vertical
traffic |
Immoveable
constructions Spaces less than 1.5 m |
Horizontal
traffic |
Useable
space |
Sanitation
space |
Storage
space |
Non-
usable space |
addition
for common space |
lettable
floor area |
|||||||||||||||||||||||||||||||||||||||||
0 |
general Unit A | 5.248 | 21.84 | 74.64 | 121.49 | 26.08 | 204.12 | 8.54 | 2.82 | 4.63 | 0.00 | 246.19 | ||||||||||||||||||||||||||||||||||||||||||
Unit B Unit C | 57.72 | 12.28 | 2.80 | 2.52 | 75.32 | |||||||||||||||||||||||||||||||||||||||||||||||||
Commercial | 20.64 | 204.12 | 13.98 | 2.82 | 4.63 | 246.19 | ||||||||||||||||||||||||||||||||||||||||||||||||
premises | 4474.17 | 4474.17 | ||||||||||||||||||||||||||||||||||||||||||||||||||||
TOTAL |
5248.06 | 21.84 | 74.64 | 12149 | 104.44 | 4882.41 | 34.80 | 8.44 | 11.78 | 0.00 | 5041.87 | |||||||||||||||||||||||||||||||||||||||||||
1 |
general Unit | 1.148 | 23.94 | 67.64 | 111.05 | 20.64 | 204.12 | 10.44 | 11.10 | 0.00 | 239.83 | |||||||||||||||||||||||||||||||||||||||||||
A Unit B | 29.84 | 434.45 | 0.00 | 4.63 | 464.29 | |||||||||||||||||||||||||||||||||||||||||||||||||
Unit C | 20.64 | 204.12 | 10.44 | 4.63 | 250.93 | |||||||||||||||||||||||||||||||||||||||||||||||||
TOTAL |
1148.42 | 23.94 | 67.64 | 111.05 | 71.12 | 842.69 | 20.68 | 11.10 | 9.26 | 955.05 | ||||||||||||||||||||||||||||||||||||||||||||
2 |
general Unit | 590 | 22.98 | 32.40 | 59.66 | 20.64 | 204.12 | 9.84 | 6.06 | 6.49 | 0.00 | 247.15 | ||||||||||||||||||||||||||||||||||||||||||
A Unit C | 241.09 | |||||||||||||||||||||||||||||||||||||||||||||||||||||
TOTAL |
590.30 | 22.98 | 3240 | 59.66 | 41.28 | 408.24 | 19.68 | 6.06 | 12.98 | 488.24 | ||||||||||||||||||||||||||||||||||||||||||||
3 |
general Unit C | 295 | 8.22 | 16.20 | 30.07 | 20.64 | 204.12 | 9.84 | 6.06 | 6.49 | 0.00 | 247.15 | ||||||||||||||||||||||||||||||||||||||||||
TOTAL |
295.15 | 8.22 | 16.20 | 30.07 | 20.64 | 204.1 | 9.84 | 6.06 | 6.49 | 247.15 | ||||||||||||||||||||||||||||||||||||||||||||
CERTIFICATE OF FLOOR AREAS PURSUANT TO NEN 2580-1997 DIVISION OF SPACE
ACCORDING TO FUNCTION ON BASIS OF NEN 2580
Project: no. | AK991558 | Certificate number: | 00347a | Measurement no.: | According to NEN 2580 May 1997 | |||||||||||||||||||||||
Address: | Cessnalaan 1 | Certificate date: | 29-08-05 | Measurement unit: | m2 | |||||||||||||||||||||||
District: | Haarlemmermeer | Plans: | Inbo Architektenburo | |||||||||||||||||||||||||
Type: | Office premises/Commercial premises |
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | |||||||||||||||||||||||||||||||||||||||||||||
LESSEE | BVO | NON-LETTABLE | LETTABLE | Vvo | ||||||||||||||||||||||||||||||||||||||||||||||||||||
Floor level |
Unit number of |
Entire
floor area |
Parking
space |
Building
installation space |
Vertical
traffic |
Immoveable
constructions |
Spaces
less than 1.5m |
Horizontal
traffic |
Usable
space |
sanitation
space |
Storage
space |
Non-
usable space |
addition
for common |
Lettable floor
area |
||||||||||||||||||||||||||||||||||||||||||
0 |
Total on floor level | 5248.06 | 21.84 | 74.64 | 121.49 | 104.44 | 4882.41 | 34.80 | 8.44 | 11.78 | 0.00 | 5041.87 | ||||||||||||||||||||||||||||||||||||||||||||
1 |
Total on floor level | 1148.42 | 23.94 | 67.64 | 111.05 | 71.12 | 842.69 | 20.88 | 11.10 | 9.26 | 955.05 | |||||||||||||||||||||||||||||||||||||||||||||
2 |
Total on floor level | 590.30 | 22.98 | 32.40 | 59.66 | 41.28 | 408.24 | 19.68 | 6.06 | 12.98 | 488.24 | |||||||||||||||||||||||||||||||||||||||||||||
3 |
Total on floor level | 295.15 | 8.22 | 16.20 | 30.07 | 20.64 | 204.12 | 9.84 | 6.06 | 6.49 | 247.15 | |||||||||||||||||||||||||||||||||||||||||||||
TOTAL |
7281.93 | 76.98 | 190.88 | 322.27 | 0.00 | 237.48 | 6337.46 | 85.20 | 31.66 | 40.51 | 0.00 | 6732.31 | ||||||||||||||||||||||||||||||||||||||||||||
GENERAL CONDITIONS FOR THE LEASE OF OFFICE PREMISES
and other commercial premises as defined by Book 7 Article 230a of the Dutch Civil Code
Model drawn up by the Dutch Raad voor Onroerende Zaken (ROZ) in July 2003 and filed on 11 July 2003 with the Court of The Hague under registration number 03-54. The ROZ expressly excludes any liability for any adverse consequences of the text of this model.
Extent of the Object
1. The Object is deemed to include the installations and facilities located therein, insofar as they have not been excluded by the inspection report initialled by both parties and attached as a schedule to this lease.
Condition
2. The Object has been/ will be delivered to, and accepted by, the Lessee at the start of the lease in its then current condition. This condition will be described in an inspection report to be drawn up by or on behalf of the Lessee and the Lessor attached as a schedule to, and forming part of, this lease. If no inspection report is drawn up at the start of the lease, then the Object is deemed to have been delivered and accepted in such condition as the Lessee is reasonably entitled to expect of premises that are the subject of this lease.
Defects
3 . The Object is deemed to suffer from a defect if, having regard to the condition, characteristics or other matter not attributable to the Lessee, the Lessee is unable to have such enjoyment of the Object as it is reasonably entitled to expect at the start of the lease.
Inspection as to suitability
4 . The Lessee must thoroughly inspect the Object before the start of the lease to discover if the Object is suitable, or can be made suitable by the Lessee, for the use for which it must be used by the Lessee. The Lessor has not investigated the suitability of the Object and is only responsible for notifying the Lessee of any defects known to the Lessor that the Lessor knows will hamper such suitability. The Lessor is not liable for the consequences of any defects of which it did not know, nor ought to have known.
Expertise
5 . If either the Lessee or the Lessor is insufficiently expert, then it must engage an expert to assist / represent it in the drawing up of the inspection report and the inspection described in Article 4, above.
Use
6.1 The Lessee may only use the Object - throughout the entire lease - actually, entirely, in a proper manner and itself only, in accordance with the use specified in the lease. The Lessee shall comply with any existing restricted rights, qualitative obligations, and any existing or future regulations imposed by government or public utilities (including rules as to the activities of the Lessee with regard to the use the Object and any installations and facilities within the Object). The Lessee shall ensure the Object is sufficiently furnished and equipped at all times. In this lease, the term public utility shall include similar companies involved in the supply, transport and measurement of the use of energy, water, etc.
6.2 The Lessee shall act in accordance with the law and local regulations, as well as common standards regarding the lease of real estate, and directives from the government, public utilities and insurance companies. For work relating to safety, fire prevention and lift engineering, the Lessee may only engage companies approved in advance by the Lessor and recognised by the National Centre for Prevention (NCP)
and the Liftinstituut. If with regard to the supplies and services to be provided by or on behalf of the Lessor it has been agreed that the work described above shall be carried out on the instructions of the Lessor, then the Lessee may not itself give instructions for such work or perform it itself. The Lessee shall at all times comply with the instructions for use issued by these companies. The Lessee shall also comply with the oral or written instructions issued by or on behalf of the Lessor with regard to the proper use of the Object, and the indoor and outdoor spaces, installations and facilities of the building or complex of which the Object forms a part. Included here are instructions regarding the maintenance, appearance, noise levels, good order, fire safety, parking conduct, and the proper functioning of the installations and the building or complex of which the Object forms a part.
6.3 The Lessee must not cause any nuisance or disturbance through the use of the building or complex of which the Object form a part. The Lessee shall also ensure that no third party present in the Object with its permission causes any such nuisance or disturbance.
6.4 The Lessee has the right and obligation to use the common facilities and services available at any time to benefit the proper functioning of the building or complex of which the Object forms a part.
6.5 For the purposes of placing (light) advertising, signage or aerials, or for other purposes, the Lessor has the right on behalf of itself, of lessees or of any third party to access roofs, outside walls, spaces not accessible to the public or to the Lessee, fixtures and fittings within the building or complex, as well as the gardens and grounds of such building or complex. If the Lessor wishes to rely on such right, it shall notify the Lessee in advance and in exercising such right the Lessor shall have regard to the interests of the Lessee.
6.6 The Lessor may refuse the Lessee access to the Object if at the time the Lessee wishes to take up occupation of the Object it has not yet complied with its obligations under the lease. This has no consequence for the commencement date of the lease and for the Lessees obligations under the lease.
Governmental and other regulations and permits
6.7 .1 The Lessee is responsible for obtaining for itself the necessary permits or waivers, including consents for use with regard to the performance of the business or profession, for which the Object is to be used or is intended. The costs hereof are payable by the Lessee. Any refusal or withdrawal hereof shall not entitle the Lessee to terminate the lease or to take any, or further, action against the Lessor.
6.7.2 At the start of the lease the Lessee must itself investigate whether the Object is suitable for the purpose for which the Lessee must use the Object. If any regulations from the government or from any authorised body require at the start of the lease or any time thereafter any changes or provisions in, on or to the Object with regard to the current or future use of the Object desired by the Lessee, the Lessee must make such changes or provisions at its own expense, subject to the prior consent of the Lessor.
6.7.3 If any changes or provisions in, on or to the Object are necessary in connection either with the business run therein, or with its current or future use, then notwithstanding the terms of Articles 6.8.1 to 6.8.3 and 6.11.1 to 6.11.7, inclusive, the Lessee is liable for ensuring that the work is carried out in accordance with rules governing such work imposed at any time by the government or any other authorised body. The Lessee is responsible for ensuring that the requirements of, or set out in, any permits are met at all times. The Lessor therefore does not indemnify the Lessee against any requirements of the government or other authorised body to carry out further investigation or to take measures.
Environment
6.8.1 If at the start of the lease an environmental investigation concerning the Object has been initiated, and during the lease term or immediately following termination of the lease a similar investigation reveals higher concentrations of any substance in, under or around the Object than those detected by the first investigation, then the Lessee must pay compensation for any loss arising from the contamination and is liable to the Lessor for costs connected with such contamination and the taking of remedial steps. The Lessee indemnifies the Lessor against any third-party claim, including claims by governmental bodies.
6.8.2 The provisions of Article 6.8.1 above do not apply if the Lessee can demonstrate that the contamination was not caused by any act or omission on the part of the Lessee, its workforce or persons or objects under the supervision of the Lessee, or by any situation for which the Lessee can be held attributable.
6.8.3 The Lessor does not indemnify the Lessee against any orders from the government or other authorised bodies to investigate further or to take measures.
Waste materials/chemical waste
6.9 The Lessee shall fully comply with any rules, regulations or instructions from the government or other authorised bodies regarding the separation of types of waste. If such obligation is not fully complied with, the Lessee is liable for the financial, criminal-law and other possible consequences of such breach.
Apartment rights
6.10.1 If the building or complex of which the Object forms a part is divided into apartment rights, the Lessee shall comply with the rules regarding use of the Object as set out in the deed of creation of apartment and regulations. The same applies if the building or complex is, or becomes, owned by a cooperative.
6.10.2 Insofar as it is within its power, the Lessor shall not assist in drawing up any rules that are in conflict with the terms of this lease.
6.10.3 The Lessor shall ensure that the Lessee is in possession of the rules referred to in Article 6.10.1 regarding use of the Object.
Prohibitions and prescriptions of order
6.11.1 The Lessee is not permitted:
a. to bring any environmentally-dangerous items onto, within or in the immediate vicinity of the Object, including noxious, fire hazardous or combustible substances, unless these are part of normal exercise of its business or profession;
b. to load the floors of the Object and the building or complex of which the Object forms a part with a weight greater than is structurally permissible or specified in the lease;
c. to use the Object in such a way that the causes soil or other environmental contamination, threatens damage to the Object or harms the appearance of the Object, including the use of means of transport that could cause damage to floors and walls;
d. to make changes to, or add facilities within, on or to the Object that conflict with government or public utility regulations or with conditions under which the owner of the Object acquired its ownership, or with other restrictive rights, or that can cause nuisance to other lessees or neighbouring occupants or which hamper enjoyment of their use;
6.11.2.1 The Lessee shall always give the Lessor ample written notice of any change or addition that the Lessee wishes to make within, to or on the Object, such as name signs, advertising, boards, notices, publications, fittings, carpentry work, displays, packaging, goods, machinery, lighting, sun blinds, roll-down shutters, aerials and appurtenances, flag poles, the obscuring of windows, etc.
6.11.2.2 The words changes and additions include the making of holes in floors, inside and outside walls.
6.11.2.3 The Lessee requires the prior written consent of the Lessor to change all or any part of the layout or configuration of the Object, unless such change or addition can be removed or returned to the original state at the end of the lease without substantial cost.
6.11.2.4 Unless the parties have agreed otherwise in writing, the Lessor does not give its consent to any changes or additions that the Lessee wishes to make, if these cannot be returned to the original state at the end of the lease without causing damage to the Object and without incurring substantial costs, or is such changes or additions are not necessary for the effective use of the Object, or if the benefit from the use is not increased, or if there are compelling objections on the part of the Lessor against such changes or additions.
6.11.2.5 The Lessor is entitled to attach stipulations to any consent for any changes or additions desired by the Lessee with regard, for example, to implementation, positioning, measurements and choice of materials. The Lessee must also comply with any rules covering such changes or additions as issued by the authorised bodies.
6.11.2.6 Changes and additions made by the Lessee, whether or not with the consent of the Lessor, do not form part of the Object.
6.11.2.7 Insofar as the parties have not agreed otherwise in writing, any changes or additions made by or on behalf of the Lessee must be restored to the original state at the end of the lease by the Lessee.
6.11.2.8 The Lessee waives any rights and claims based on unjust enrichment regarding any changes or additions made by or on behalf of the Lessee that are not restored to the original state at the end of the lease, unless the parties have agreed otherwise in writing.
6.11.2.9 The Lessee is not permitted to access, or enable any other party to access, the service and installation rooms, (flat) roofs, drain pipes and places not intended for general use within the Object or the building or complex of which the Object forms a part, or to park vehicles in places other than the places intended for such purpose, without the prior written consent of the Lessor.
6.11.3 With regard to the times within which, and way in which, vehicles may be loaded and unloaded, the Lessee shall conform to the regulations of the government and other authorised bodies, as well as to the oral and written instructions of the Lessor.
6.11.4 The Lessor has no liability whatsoever with regard to the changes, additions, etc. referred to in Article 6.11.2.1 and 6.11.2.2.
6.11.5 The Lessee shall keep fire safety equipment, escape routes and emergency doors within the Object free and accessible at all times.
6.11.6 If the Object includes any lift, moving walkway, escalator, automatic door mechanism, or similar facility, or if the Object is accessible by any of the said, or similar, facilities, use of these facilities is entirely at the risk of the user. All instructions given at any time by or on behalf of the Lessor, the relevant installation company or the government must be complied with in full. The Lessor may - insofar as this is necessary - declare any such facility out of use and in such a case the Lessee shall have no right to compensation or to any reduction in rent.
6.11.7 If items brought into the Object by the Lessee (including advertising or other signs) need to be temporarily removed for the purposes of maintenance or repair work to the Object or the building or complex to which the Object forms a part, then the costs of removal, of any storage, and of replacement shall be at the risk and expense of the Lessee, irrespective of whether the Lessor gave consent for the relevant items to be brought into the Object.
Requests / Consent
6.12.1 If after signing this lease either the Lessor or the Lessee require any alteration or addition to any provision of this lease, the relevant party shall submit a written request to the other party for such addition or alteration.
6.12.2 If and insofar as any provision of this lease requires the consent of the Lessor or the Lessee, such consent must be in writing.
6.12.3 Any consent given by either the Lessor or the Lessee is in respect of one request only and does not apply to other or subsequent cases. The Lessor and the Lessee are entitled to attach conditions to their consent.
Penalty clause
7. If the Lessee, after proper service of notice of default by the Lessor, remains in breach of the terms of the lease and these General Conditions, it will be liable to pay the Lessor, insofar as no specific penalty has been agreed, an immediately payable penalty of
250 per day for each day in which it remains in breach, without prejudice to the right of the Lessor to claim full compensation insofar as the loss exceeds the amount of the penalty.
Sub-letting
8.1 The Lessee may not sublet to a third party, or allow the use by a third party of, any part of the Object, or transfer any part of the lease rights to any third party, or include such lease rights within a partnership or legal entity.
8.2 If the Lessee acts in breach of the above provision, it shall be liable to pay an immediately payable penalty to the Lessor for each calendar day that the breach continues equal to twice the amount of the then current daily rent, without prejudice to the right of the Lessor to claim either performance or termination of the lease, together with compensation.
Rent review
9.1 Any agreed change to the rent as referred to in Article 4.5 of the lease is base don the change to the monthly price index according to the consumer price index (CPI) for all households (2000 =100), published by Statistics Netherlands. The new rent is calculated using the formula: new rent = current rent as at date of change, multiplied by the price index for the calendar month that precedes by four calendar month the calendar month in which the rent is changed, and divided by the price index for the calendar month that precedes by sixteen calendar months the calendar month in which the rent is changed.
9.2 The rent shall not be changed if indexation of the rent leads to a lower rent than the most recent rent. In such a case, the most recent rent will remain payable until, as a result of a successive indexation, the price index of the calendar month that precedes by four calendar months the calendar month in which the rent review occurs, is higher than the price index for the calendar month that precedes by four months before the calendar month in which the most recent rent review occurred. In such a case the rent review is based on the price index for the calendar months referred to in the previous sentence.
9.3 The validity of a new index-linked rent does not require a separate prior notice to the Lessee of the fact that indexation will be / has been carried out.
9.4 If Statistics Netherlands ceases to publish such price index or changes the basis of calculation of such index, a new price index will be used instead that is as far as possible adapted to, or comparable to, this price index. In the event of disagreement, either party may apply to the Director of Statistics Netherlands for a decision that is binding upon both parties. Any costs involved in this process shall be paid by the parties in equal shares.
End of lease or end of use
10.1.1 Unless agreed otherwise in writing, the Lessee shall return the Object to the Lessor at the end of the less or end of use of the Object, in the same condition as it was at the start of the lease, as described in the inspection report, having regard to normal wear and tear.
10.1.2 If no inspection report was drawn up at the start of the lease then the Object shall be returned by the Lessee at the end of the lease or the end of use of the Object in such condition as the Lessor is reasonably entitled to expect of well-maintained premises that are the subject of this lease, and without any defects, unless agreed otherwise in writing, and having regard to normal wear and tear.
10.1.3 In discussing the condition of the Object at the start of the lease, the Lessee is deemed to have received the Object in good condition and without defects.
10.1.4 The Object shall furthermore be returned completely cleared, free of occupation and any rights of use, properly cleaned, and all keys, key cards, etc. shall be handed to the Lessor. The Lessee must remove at its own cost all items it has brought into or put on the Object, or that it has taken over from the previous Lessee or user. The Lessor has no duty to pay for any items not removed by the Lessee, and such items may be removed by the Lessor at the expense of the Lessee. The provisions of Article 6.11.2.6 and 6.11.2.7 apply in this regard.
10.2 If the Lessee has not ceased to use the Object in time, the Lessor is entitled to gain access to the Object at the expense of the Lessee and gain possession thereof and in such a case the Lessee shall have no right to compensation.
10.3 All items to which the Lessee has apparently waived its rights by leaving them behind after actually vacating the Object may be removed by the Lessor at its own discretion and without any liability, at the expense of the Lessee. The Lessor is entitled to choose either to immediately destroy such items at the expense of the Lessee, or to assume ownership of these items, or to sell them and retain the sale proceeds, unless the Lessor has knowledge of the succeeding lessee having acquired ownership thereof - in which case the Lessee and the succeeding lessee must together draw up a list of all items that will be or have been taken over by the new lessee. As soon as such list of items, initialled by the Lessee and the succeeding lessee, has been drawn up, a copy must be sent to the Lessor.
10.4 Unless agreed otherwise in writing between the Lessee and the Lessor, the Lessee is under no circumstances entitled to leave behind items in the Object after termination of the lease in anticipation of an answer as to whether the succeeding lessee may wish to acquire these items. If the Lessee is in breach of this term, the Lessor is entitled to choose either to immediately destroy such items at the expense of the Lessee, or to assume ownership of these items, or to sell them and retain the sale proceeds.
10.5 In good time before the end of the lease or use, the Object must be jointly inspected by the parties and a report drawn up of this inspection, setting out their findings as to the condition of the Object. This report shall also specify what work needs to be carried out - and the way it is to be carried out - at the expense of the Lessee, in respect of necessary repairs identified at the inspection and any arrears of maintenance attributable to the Lessee. The inspection of the Object and the drawing up and signing of the inspection report shall be made by the parties or their authorised representatives. The parties may not seek retrospectively to rely on any lack of authority of such representatives.
10.6 If the Lessee, having been given the proper opportunity to do so, fails to cooperate within a reasonable time with inspection, or the detailing of findings and agreements in the inspection report, then the Lessor is entitled to carry out the inspection without the presence of the Lessee and to draw up a report binding on both parties. The Lessor shall hand the Lessee a copy of this report without delay.
10.7 The Lessee must ensure that the work it is required to carry out under the inspection report is completed within the period specified in the report or such other period agreed between the parties, to the satisfaction of the Lessor. If, having been served with notice of default, the Lessee remains in breach of full compliance of the obligations arising from the report, then the Lessor is entitled to arrange for the work to be carried out itself and to recover such costs from the Lessee.
10.8 During the time involved in the repairs, commencing from the date of termination of the lease, the Lessee is liable to pay a sum to the Lessor calculated according to the then current rent plus payment for additional supplies and services, notwithstanding the right of the Lessor to claim compensation for further loss and costs.
Loss and liability
11.1 The Lessee shall take appropriate measures in good time to prevent or limit any damage to the Object arising, for example, from short circuiting, fire, leaks, storm, frost or any other weather condition, or the escape out of, or into, the Object of gases or liquids. The Lessee must notify the Lessor immediately if such damage or an incident as described in Article 11.6 occurs or is threatened.
11.2 If the Lessee has the opportunity to take such action, the above provisions apply to the entire building or complex of which the Object forms a part.
11.3 The Lessee is liable to the Lessor for all damage and loss to the Object unless the Lessee disputes that neither it, it, its employees and persons for whom it is liable, nor persons whom it has permitted to enter the Object are to blame, or that it has not acted negligently in such regard, notwithstanding the provisions of Article 13.1, 13.4 and 13.5 regarding the obligations of the Lessee as to maintenance, repair and renewal.
11.4 The Lessee indemnifies the Lessor against any fine imposed on the Lessor as a result of any act or omission on the part of the Lessee.
11.5 The Lessor is not liable for the consequences of any defects that it did not know of, and could not be expected to have known of, at the start of the lease.
11.6 The Lessor is not liable for personal injury or damage to goods on the part of the Lessee and the Lessee has no right to any reduction of rent, or to set-off or suspension of any payment obligation, or to terminate the lease in the event that enjoyment of the Object is lessened as a result of any defects, including any latent or patent defects to the Object or the building or complex of which the Object forms a part, weather conditions, the inaccessibility of the Object, the lack of occupancy elsewhere, any halt in the supply of gas, water, electricity, heating, ventilation or air conditioning, defects to installations and equipment, the escape into and out of the Object of gases or liquids, fire, explosion or defective supplies and services. The Lessor is also not liable for personal injury or damage to goods on the part of any third party present within the Object and the Lessee indemnifies the Lessor for any third-party claim in this regard.
11.7 The Lessee is liable for loss resulting from any changes or additions to the Object made by, or on behalf of, the Lessee. The Lessee indemnifies the Lessor for any third-party claim resulting from loss caused by any changes and additions made by the Lessee.
11.8 The Lessor is not liable for any economic loss of the Lessee, for loss resulting from the activities of other lessees, for impairment of the use of the Object caused by any third party or for defects caused by the Lessees breach of its duty of maintenance.
11.9 The provisions set out in Article 11.6 and 11.8 regarding economic loss do not apply to loss caused as a result of deliberate act or gross negligence on the part of the Lessor regarding the condition of the Object or of the building or complex of which the Object forms a part, nor if the loss is due to any defect to the Object that the Lessor knew of, or ought to have known of, at the start of the lease, except with regard to any defect that the Lessee did know about, or could have known about, as a result of its investigation as described in Article 4, in which case the parties shall deem such defect to be one that does not give any rise to any action by either party against the other.
Bank guarantee
12.1 As security for proper compliance with its obligations under the lease, on signing the lease the Lessee shall provide the Lessor with a bank guarantee complying with the model guarantee provided by the Lessor for the sum specified in the lease based on the payment obligations of the Lessee to the Lessor. This bank guarantee shall also cover any extension of the lease including amendments thereto, and must remain valid for at least six months after the actual vacation of the Object and termination of the lease. Such bank guarantee shall also be for the benefit of any successor(s) in title of the Lessor.
12.2 The Lessee has no entitlement to settlement of any amount by means of the bank guarantee.
12.3 In the event that a claim is made under the bank guarantee, the Lessee shall provide the Lessor on demand with a new bank guarantee for the full amount, in accordance with the provisions of Article 12.1 and 12.4 above.
12.4 Pursuant to any increase in the rent, or in the cost of supplies and services (or advance payment for the same) or the VAT payable thereon, the Lessee must supply the Lessor on demand with a new bank guarantee to cover a sum adjusted in line with the new payment obligation.
12.5 Before commencing any new lease term pursuant to an extension of the lease, the Lessee shall supply the Lessor on demand with a new bank guarantee to cover a sum adjusted in line with the new payment obligation.
12.6 If the Lessee is in breach of any obligation described in this article, it shall be liable to the Lessor for an immediately payable penalty of 250 for each calendar day that the Lessee remains in breach after the Lessee has been served with notice of default by registered post.
Maintenance, repair and renewals, inspections and tests
13.1 The Lessor is liable for the cost of the maintenance, repair and renewal work relating to the Object described in Article 13.3 below. The Lessee is liable for the cost of all other maintenance, repair and renewal work, including the cost of inspections and tests, relating to the Object. If the Object forms part of a building or complex, these costs include the cost of the aforesaid work relating to the said building or complex, such as work to commonly-used installations, spaces and other common facilities.
13.2 Unless agreed otherwise by the parties, the word described in Article 13.3 and 13.4 below shall be carried out by, or on the instructions of, the party with financial responsibility for the work. The parties must carry out any such work in good time.
13.3 The Lessor is liable for the cost of:
a. maintenance, repair and renewal of any part of the structure of the Object , such as foundations, uprights, beams, solid floors, (flat) roofs, solid walls, outside walls;
b. maintenance, repair and renewal of staircases, stairwells, waste pipes, guttering, outside windows. Notwithstanding the above, in the case of waste pipes, the provisions of Article 13.4 item k shall apply;
c. replacement of parts and renewal of the installations belonging to the Object;
d. external paintwork.
The word described under parts a to d above is payable by the Lessor, unless such work qualifies as minor repair work, including limited and daily maintenance as described by law, or work to items brought into or on the Object other than by or on the instructions of the Lessor.
13.4 As clarification of, or in exception or addition to, the provisions of Article 13.1, the following work is payable by the Lessee:
a. external maintenance if and insofar as such work qualifies as minor repair work, including limited and daily maintenance as described by law, and interior maintenance not being maintenance as described in Article 13.3, subject to the provisions set out below;
b. the maintenance, repair and renewal of metal fittings, glazing and glass doors, windows and mirrors;
c. the maintenance and repair of roller blinds, venetian blinds, awnings and other sun blinds;
d. the maintenance, repair and renewal of switches, sockets, bell systems, lamps, lighting (including fittings) batteries, floor coverings, furnishings, interior paintwork, sinks, pantry facilities and sanitation;
e. the maintenance, repair and renewal of gas, water and electricity pipes and taps, fire, break-in and theft prevention systems and related matters;
f. the maintenance, repair and renewal of boundary fences, etc., gardens and land including paving;
g. the periodic and corrective maintenance, periodic testing, and the remote control of technical installations belonging to the Object, including the replacement of small parts. This work may only be performed by companies approved by the Lessor;
h. such period and incidental tests and inspections regarding the soundness, correct functioning and safety of technical and other installations belonging to the Object and appurtenant space as are required by the government or otherwise considered to be reasonably necessary; these tests and inspections shall be carried out on the instructions of the Lessor; the allocation of the costs thereof is governed insofar as possible by the provisions of Article 16.3 to 16.8, inclusive;
i. the maintenance, repair and renewal of items introduced to the Object at any time by or on behalf of the Lessee, whether or not by virtue of a provisional provided to the Lessee by the Lessor;
j. the responsibility for keeping the Object clean on the inside and outside, including the cleaning of windows, roller blinds, venetian blinds, awnings and other sun blinds, window frames and outside walls of the Object, as well as for removing any graffiti placed on the Object;
k. the responsibility for emptying grease collection units, the cleaning and unblocking of drains, drain pipes and all waste pipes/sewer pipes leading to the common main waste pipes of the Object, the sweeping of chimneys and the cleaning of ventilation ducts.
13.5 The cost of maintenance, repair and renewal of changes or additions to the Object made by or on behalf of the Lessee is the responsibility of the Lessee.
13.6 If after receiving formal warning the Lessee still fails to carry out the maintenance, repair and renewal for which it is responsible - or if in the opinion of the Lessor such work has been carried out in a poor or inexpert way - then the Lessor is entitled to carry out such maintenance, repair and renewal work as it considers necessary at the expense and risk of the Lessee. If the work for which the Lessee is responsible cannot be delayed, then the Lessor is entitled to carry this out immediately at the expense of the Lessee.
13.7 The Lessor shall consult in advance with the Lessee regarding maintenance, repair and renewal work to be carried out by the Lessor to determine how far the interests of the Lessee can be taken into account in the performance of such work. If, at the request of the Lessee, such work is carried out outside normal working hours, the extra costs thereby incurred are payable by the Lessee.
13.8 The Lessee is responsible for the proper, skilled use of the technical installations within the Object, as well as for the maintenance to such installations carried out by, or on the instructions of, the Lessee. The fact of the maintenance being carried out by a company approved by the Lessor does not relieve the Lessee of its liability in this regard.
13.9 The Lessee shall notify the Lessor in writing without delay with regard to any defects to the Object. The Lessee shall specify in such notice to the Lessor a reasonable period of at least six weeks - except in an urgent situation - in which to start to undertake rectification of any defect for which the Lessor is responsible.
13.10 If the Lessee and the Lessor have agreed that the maintenance, repair or renewal work within or to the Object or the building or complex of which the Object forms a part as referred to in Article 13.1, 13.4 and 13.5 for which the Lessee is responsible shall be carried out on the instructions of the Lessor rather than the of Lessee, then the costs involved shall be passed on to the Lessee by the Lessor. In a number of cases the Lessor shall enter into maintenance contracts in this regard.
Changes made by or on behalf of the Lessor
14.1 The Lessor is entitled to carry out work on, or undertake an investigation of, the Object or the building or complex in which the Object forms a part, or an appurtenant building, for the purposes of maintenance, repair and renewal. This shall include the installation of additional facilities and alterations or other work necessary in connection with environmental or other requirements or measures imposed by the government, public utilities or other authorised bodies.
14.2 If the Lessor wishes to renovate the Object it shall submit a proposal for renovation work to the Lessee. Such a proposal is deemed to be reasonable if it has the approval of at least 51% of the lessees of the Object affected by the renovation work and such lessees together constitute at least 70% of the lettable floor area including un-let space within the building or complex of which the Object forms a part and that is affected by the renovation work. In calculating such percentages, the Lessor is notionally regarded as the lessee of the un - let lettable floor area.
14.3 The term renovation includes (partial) demolition, replacement new building work, or additions or changes to the Object or the building or complex of which the Object forms a part.
14.4 The provisions of Book 7 Article 220 (1), (2) and (3) of the Dutch Civil Code do not apply. Renovation and maintenance work to the Object or to the building or complex of which the Object forms a part shall not constitute any defects on which the Lessee can rely. The Lessee shall permit such renovation and maintenance work to the Object or to the building or complex of which the Object forms a part and enable the Lessor to carry out such work, without any right to a reduction in rent, a reduction in any other payment obligation, partial or complete termination of the lease or compensation.
14.5 The Lessor is entitled to change the form and layout of such parts of the Object to which the Lessee does not have exclusive right of use, such as common spaces, lifts, staircases, escalators, stairwells, corridors access ways and other fixed appurtenances and to relocate or dispense with such parts of the Object.
Access to Object by the Lessor
15.1 If the Lessor wishes to have a valuation of the Object or wishes to carry out work on or to the Object, the Lessee must grant access to the Lessor or such other party that requests access for such purpose, to enable the work considered necessary to be carried out.
15.2 For the purposes of section 1 of this Article, the Lessor and all persons appointed by the Lessor are entitled to gain access to the Object following consultation with the Lessee on work days between 07.00 and 17.30. In emergencies, the Lessor is entitled to gain access to the Object without prior consultation and outside the specified hours.
15.3 In the case of an intended lease, sale or auction of the Object and for a period of one year before the end of the lease, the Lessee must, without payment, allow the object to be viewed on at least two working days per week subject to prior notice by the Lessor or its agent. The Lessee shall permit the usual for sale and for rent signs or boards to be placed on or alongside the Object.
Charges for supplies and services
16.1 In addition to the rent, the Lessee is responsible for the cost of the supply, transport, measurement and consumption of water and energy for the benefit of the Object, including the cost of entering into the relevant contracts and rental of meters, as well as any other costs and penalties charged by public utilities. The Lessee is itself responsible for signing contracts for supply with the relevant bodies, unless the Object has no separate connections or the Lessor takes care of this as part of the agreed supplies and services.
16.2 If no additional supplies and services have been agreed between the parties, the Lessee shall obtain these at its own expense and risk, and to the satisfaction of the Lessor. In such a case the Lessee shall itself enter into service contracts relating to the installations belonging to the Object, subject to the prior approval of the Lessor.
16.3 If the parties have agreed that the additional supplies and services are to be provided by or on behalf of the Lessor, the Lessor shall calculate the amount payable by the Lessee on the basis of the costs involved with the supplies and services and the administrative work also involved. Insofar as the Object forms part of building or complex and the supplies and services also relate to other parts thereof, the Lessor shall calculate such proportion of the costs for the supplies and services as it is reasonable to charge the Lessee. The Lessor may disregard here the fact that the Lessee does not use one or more of these supplies and services. If any part of the building or complex is not occupied then in calculating the Lessees share of the costs, the Lessor shall ensure that such share is not higher than the sum chargeable if the entire building or complex were occupied.
16.4 The Lessor shall supply the Lessee each year with a breakdown of the costs for the supplies and services, including the method of calculation thereof and, where relevant, the Lessees share of such costs.
16.5 At the end of the lease a breakdown of costs will be supplied for the period not covered by the previous breakdown no later than 14 months following the date on which the previous breakdown was supplied. Neither the Lessee nor the Lessor may make any claim to settlement in the interim.
16.6 If according to the breakdown for a particular period, having regard to the advance payments made, the Lessee has paid to little or too much, then within one month following supply of this breakdown the appropriate additional payment or refund must be made. No dispute regarding the accuracy of a breakdown can justify suspension of this payment obligation.
16.7 The Lessor is entitled to change or dispense with any supply or service according to type and extent, after consultation with the Lessee.
16.8 The Lessor is entitled at any time to revise the amount of the advance payment for supplies and services payable by the Lessee in line with the costs the Lessor anticipates payable, including in the situation set out in Article 16.7.
16.9 Where supplies of gas, electricity, heating, or (hot) water are supplies and services provided by the Lessor, then the Lessor may, after consultation with the Lessee, change the method of calculation of the use thereof and of the Lessees share in the costs of such use.
16.10 Where supplies of gas, electricity, heating, or (hot) water are metered and as a result of the failure of such meters to work properly at all there is a dispute as to the Lessees share in the costs of use, then such share shall be calculated by a company consulted by the Lessor that is specialised in the measurement and calculation of the consumption of gas, electricity, heating, or (hot) water. The same applies in the case of damage or destruction of, or fraudulent use of such meters, without prejudice to all other rights of the Lessor against the Lessee in such a situation, such as the right to have the meters repaired or renewed, and compensation for loss.
16.11 Except in the case of a deliberate act or gross negligence, the Lessor is not liable for any loss resulting from the non-functioning or ineffective supply of the supplies and services referred to above, nor shall the Lessee in such cases be able to claim a reduction of rent or set-off against any payment obligation.
Costs, breach
17.1 In all cases in which the Lessor serves a formal demand, notice of default or summons upon the Lessee, or in the case of proceedings against the Lessee to enforce compliance with the lease or compel vacation of the Object, the Lessee is liable to pay the Lessor all costs thereby incurred, both court costs and extrajudicial costs - with the exception of court costs payable by the Lessor pursuant to a final judicial order. The costs incurred shall be determined in advance between the parties at a sum not less than the standard fees charged by court bailiffs.
17.2 | The Lessee is in automatic breach if any time limit is exceeded. |
Payments
18.1 The payment of rent and all other liabilities under this lease must be made by deposit into, or bank transfer to, a bank account specified by the Lessor by no later than the due date, paid in the currency officially used in the Netherlands, and paid in full without any suspension, discount, deduction or set-off with any claim alleged by the Lessee against the Lessor. This does not affect the authority of the Lessee to rectify any defects itself and to set off the reasonable cost of such work against the rent if the Lessor has failed to provide such help itself. The Lessor is free to make any changes to the place or method of payment, subject to written notice to the Lessee. The Lessor is entitled to decide which outstanding claim under the lease shall be reduced by the payment received from the Lessee, unless in making payment the Lessee specifically indicates otherwise. In the latter case, the provisions of Book 6 Article 50 of the Dutch Civil Code do not apply.
18.2 Whenever any sum payable by the Lessee under the lease is not paid by the due date, the Lessee is automatically and immediately liable to pay the Lessor a penalty of 2% of the sum due per calendar month, whereby any part month shall be counted as a full month, and whereby the minimum penalty shall be 300 per month.
Taxes, duties and premiums
Turnover tax (VAT)
19.1 If it has been agreed that the rent is subject to turnover tax, the Lessee and the Lessor expressly acknowledge that their calculation of the rent assumed that the Lessee shall continuously use - or ensure the use of- such minimum percentage of the size of the Object as specified at any time by law for activities that give rise to the right to deduct turnover tax, such that the option for a lease subject to turnover tax is available.
19.2 The Lessee and the Lessor exercise the option pursuant to Mededeling 45, government decree of 24 March 1999, no. VB 99/571, to waive the filing of a joint request for a lease subject to turnover tax and to accept instead a declaration to be completed and signed by the Lessee, which declaration shall form an integral part of this lease.
19.3 . a If the Lessee (or any party with the Lessees consent) does not use or ceases to use the Object for activities that give rise to the right to deduct turnover tax and thereby the exception to the exemption from deduction of turnover tax on the rent is ended, then the Lessee is no longer liable to the Lessor or its successor(s) in title for turnover tax on the rent but, as from the date on which such ending comes into force, the Lessee is then liable to pay the Lessor or its successor(s) in title such separate sum in addition to the rent, instead of turnover tax, as fully compensates for:
I | The turnover tax on operating costs for the Object or investments therein that, as a result of the ending of the option, is not/no longer deductible by the Lessor or its successor(s) in title. |
II | The turnover tax that, as a result of the ending of the option, the Lessor or its successor(s) in title must pay to the tax authorities pursuant to a recalculation as described in Article 15 (4) of the Dutch Turnover Tax Act 1968, or a review as described in Articles 11,12 and 13 of the Implementation Decree on Turnover Tax 1968. |
III | All other loss incurred by the Lessor or its successor(s) in title as a result of the end of the option. |
19.3.b The financial loss suffered by the Lessor or its successor(s) in title as a result of the end of the option shall be paid by the Lessee to the Lessor or its successor(s) in title at the same time as payment of the instalments of rent and, apart from the loss described in Article 19.3.a I, above, will be equally divided across the remaining term of the lease, payable where possible by means of an annuity. However, such loss becomes immediately payable in full by the Lessee if the lease is terminated before the end of its term for whatever reason.
19.4 The provision set out in Article 19.3.a II, above, does not apply if, in entering into this lease, the review period for the deduction of tax payable in respect of the Object has expired.
19.5 If a situation as described in Article 19.3.a, above, arises, then the Lessor or its successor(s) in title shall notify the Lessee regarding the amounts that the Lessor or its successor(s) in title are required to pay to the tax authorities as well as outline the other loss as referred to in Article 19.3.a sub III, above. The Lessor or its successors in title shall cooperate with any request by the Lessee to have the information supplied by the Lessor or its successor(s) in title checked by an independent chartered accountant. The costs hereof are payable by the Lessee.
19.6 If in any financial year the requirement that the Object be used for the purposes as set out in Article 19.1 has not been satisfied, the Lessee shall notify the Lessor or its successor(s) in title accordingly within four weeks of the end of the relevant financial year by means of a statement signed by the Lessee. Within the same period the Lessee must send a copy of this statement to the VAT Inspectors.
19.7 If the Lessee does not comply with the duty either to supply the information referred to in Article 19.6 or to make use of the Object as referred to in Article, or if it is subsequently established that the Lessee acted on incorrect assumptions whereby it is subsequently established that the Lessor or its successor(s) in title have incorrectly been charged turnover tax on the rent, then the Lessee is in breach and the Lessor or its successor in title is thereby entitled to recover its financial loss from the Lessee. This loss is the full amount of the turnover tax payable by the Lessor or its successor(s) in title to the tax authorities, plus interest, and any increases, further costs and compensation. The provisions of this section provide for compensation in the event that the option is terminated with retroactive effect, in addition to the provision set out in 19.3.a. The additional loss suffered by the Lessor or its legal successor(s) in title due to this retroactive effect is immediately payable in full by the Lessee. The Lessor or its successor(s) in title shall cooperate with any request by the Lessee to have the information regarding extra loss supplied by the Lessor or its successor(s) in title checked by an independent chartered accountant. The costs hereof are payable by the Lessee.
19.8 The provisions of Article 19.3.a, 19.3.b, 19.5 and 19.7 also apply if the Lessor or its successor(s) in title are not faced with loss due to termination of the option available to the parties until the lease is terminated, whether or not before the end of its term, in which case such loss is immediately payable in full to the Lessor or its successor(s) in title.
19.9 Notwithstanding the other provisions of this lease, the Lessee shall in any event use, or ensure the use of, the Object, applying the option right, before the end of the financial year following the financial year in which the Lessee entered into the lease of the Object.
Other taxes, duties, levies, premiums etc.
20.2.1 The following are payable by the Lessee, even if the Lessor is the party assessed:
a. property tax on the actual use of the Object and actual common use of service spaces, common spaces and so-called communal spaces;
b. environment taxes including the surface water contamination charge and the contribution to waste water purification, and other contributions payable under environmental protection law measures;
c. betterment levy or similar taxes and duties, whether the entirety or a proportionate part thereof, if and insofar as the Lessee benefits from the thing on which the assessment or duty is levied;
d. waste water tax;
e. other current or future taxes, including taxes in respect of the public area such as flag tax, advertising tax, tax on property overhanging public rights of way (precariorechten), and other duties and levies:
concerning the actual use of the Object;
concerning property owned by the Lessee;
that would not have been charged in full or in part if the Object had not been leased to the Lessee for use by the Lessee.
20.2.2 If the taxes, duties and other liabilities of the Lessee are to be collected by the Lessor, then they must be paid to the Lessor as soon as requested.
20.2.3 If with regard to the nature or exercise of the business or profession of the Lessee a higher than normal premium for fire insurance covering the building or contents is charged to the Lessor or other lessees of the building or complex of which the Object forms a part in respect of the Object of the building or complex of which the Object forms a part, then the Lessee shall pay to the Lessor or the other lessees the sum that exceeds the normal premium.
The Lessor and other lessees are free to choose the insurance company, to calculate the Insurance value and to assess the reasonableness of any insurance premium. The term normal premium means the premium that the Lessor or the Lessee could obtain
from a reputable insurer for the insurance of the Object , or for the contents, against fire risk, at the time immediately before the lease is entered into, without regard to the nature of the business or profession to be carried out by the Lessee within the Object together with - for the term of the lease - any revision of such premium that is not the result of any change to the nature and extent of the insured risk.
Joint and several liability
21.1 If the Lessee is actually comprised of more than one natural person or legal entity, then each natural person or legal entity is jointly and severally liable for the entire liability of the lessees to the Lessor under the terms of the lease. Any deferment of payment or discharge - or offer to grant the same - given by the Lessor to one of the lessees shall be only for the benefit of that lessee.
21.2 The obligations under the lease, including those that pass to the beneficiaries and successors in title of the Lessee, are joint and several liabilities.
Object unavailable on time
22.1 If the Object is not available on the agreed start date of the lease due to the Object not having been made ready in time, the previous occupant not having vacated the Object in time or the Lessor not having obtained on time the necessary government permits, then up to such time as the Object is available to the Lessee, the Lessee is not liable to pay rent or additional payments for supplies and services, and its other obligations and agreed time periods will be correspondingly delayed. The rent indexation date shall remain unchanged.
22.2 The Lessor is not liable for loss suffered by the Lessee as a result of the delay unless the delay is caused by a deliberate act or gross negligence on the part of the Lessee.
22.3 The Lessee cannot seek to terminate the lease unless late delivery is caused by a deliberate act or gross negligence on the part of the Lessor and the delay is such that it is unreasonable to expect the Lessee to accept the lease in its current form.
Personal Data Protection Act
23 . If the Lessee is a natural person, by signing the lease it gives permission to the Lessor and to the management company to include / process the personal data of the Lessee within a database.
Address for service
24.1 As from the commencement date of the lease, all communications from the Lessor to the Lessee in connection with the performance of the lease shall be sent to the address of the Object.
24.2 The Lessee undertakes that, in the event it ceases to actually carry out its business in the Object, it will immediately notify the Lessor in writing of this fact and supply a new address for service.
24.3 In the event that the Lessee vacates the Object without supplying a new address for service to the Lessor, the Lessees address for service will continue to be the address of the Object.
Complaints
25 . The Lessee shall submit any complaints or requests in writing. In urgent cases, they may be made orally and the Lessee shall then confirm such complaint or request as soon as possible in writing.
Management company
26. If the Lessor has appointed / appoints a management company, then the Lessee shall communicate with this management company on all matters relating to the lease.
Final provision
27. If any part of the lease or these General Conditions is void or voidable, then this shall not affect the validity of the remaining parts of the lease and these General Conditions.
The void or voidable part shall then be replaced, having regard to the provisions of Book 3 Article 42 of the Dutch Civil Code, with such terms as the parties would have agreed if they had known about such original terms being void or voidable.
Exhibit 10.11
Confidential material has been omitted and filed separately with the Commission
Lease
between
VA No. 1 (Point of View Logistics) B.V.
and
Interxion Nederland B.V.
regarding
Point of View Logistics
Tupolevlaan 101-119
in SCHIPHOL-RIJK
LEASE FOR OFFICE SPACE and other business premises within the meaning of Article 7:230a of the Dutch Civil Code
Model adopted by the Real Estate Council (ROZ) on 30 July 2003. Reference to and use of this model are only permitted if the completed, added or deviating text is clearly recognisable as such. Additions and deviations should preferably be included under the heading special provisions. Any liability for adverse effects of the use the text of the model is excluded by the ROZ.
The undersigned:
VA No 1 (Point of view Logistics) B.V., with registered office at Locatellikade 1 in 1076 AZ Amsterdam, in this matter duly represented by Mr S.M. Foxley and Mr T. van Rijn,
hereinafter referred to as the Lessor,
and
Interxion Nederland B.V. , with registered office at Cessnalaan 1 in 1119 NJ Schiphol-Rijk, listed in the commercial register under number 34116837, VAT number NL80 82 24 621 B01, in this matter duly represented by Mr M.L.H. van den Assem,
hereinafter referred to as the Lessee,
have agreed:
The leased property, designated use
1.1 |
The Lessor leases to the Lessee and the Lessee leases from the Lessor a building, hereinafter referred to as the leased property, consisting of approx. |
6,764.8 m2 of business premises and approx. 716.8 m2 of office space, everything in accordance with the NEN 2580 measurements certificate for lettable floor area, as well as 28 parking spaces located on site in front of the loading doors behind the barriers and 5 parking spaces at the front of the building, known locally as Point of View Logistics, Tupolevlaan 101-119 in SCHIPHOL-RIJK, recorded in the land register as Municipality of Haarlemmermeer, section AK, numbers 1438 and 1439. The leased property is further specified in the drawing initialled by the parties and attached to and forming part of this agreement and in the delivery report initialled by the parties, in which the systems and other facilities that do belong and the systems and other facilities that do not belong to the leased property are specified and which also includes a description of the state of the leased property, where appropriate supplemented with photos initialled by the parties. |
1.2 | The leased property shall only be used by or on behalf of the Lessee for the development, construction and operation of a data centre and the provision of related services, or as office space and parking facility. The Lessee is responsible for the permits required for the aforementioned use of the present location. |
1.3 | Without the prior written consent from the Lessor, the Lessee shall not use the leased property for other purposes than those set out in Article 1.2. |
1.4 | The maximum permissible load on the floors of the leased property is: |
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business premises, approx. 2,500 kg/m2; |
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office space, approx. 300 kg/m2. |
Conditions
2.1 | The GENERAL PROVISIONS REGARDING THE LEASE OF OFFICE SPACE and other business premises within the meaning of Article 7:230a DCC, filed with the registry of the District Court in The Hague on 11 July 2003 and listed there under number 72/2003, hereinafter referred to as the general provisions, form part of this agreement. The content of these general provisions is known to the parties. The Lessee and the Lessor have received a copy of the general provisions. |
2.2 | The general provisions referred to in Article 2.1 apply except where this agreement expressly stipulates otherwise or application in respect of the leased property is impossible. |
2.3 | In the event of conflict between the agreement and the general provisions, the provisions of the agreement will prevail. |
Term, renewal and termination
3.1 | This agreement is entered into for a period of 10 years, starting on 1 August 2007 and running up to and including 31 July 2017. |
3.2 | After expiry of the period referred to in Article 3.1, this agreement will be continued for 2 consecutive periods of 5 years, therefore up to and including 31 July 2022 and 31 July 2027. Only the Lessee may terminate the lease on 31 July 2017. After that date, either party may terminate the lease with effect from the end of each period of 5 years. |
3.3 | Termination of this agreement must be effected by giving notice with effect from the end of a lease period, subject to a notice period of at least 12 months. |
3.4 | Notice of termination must be given by bailiffs notification or by registered letter. |
Rent, turnover tax, rent adjustment, payment obligation, payment period
4.1 | The initial annual rent for the leased property is * * * * * * |
4.2 | The parties agree that the Lessor will charge turnover tax on the rent. |
If the parties have agreed rent not subject to turnover tax, the Lessee will owe the Lessor a separate fee, in addition to the rent, as compensation for the loss the Lessor or its legal successor(s) suffers or will suffer due to the fact that the turnover tax on the Lessors investments and operating costs is not (no longer) deductible. The provisions of Articles 19.1 up to and including 19.9 of the general provisions do not apply in that case.
4.3 | If the parties have agreed rent subject to turnover tax, the Lessee and the Lessor will make use of the possibility under Announcement 45, decree of 24 March 1999, no. VB 99/571, to refrain from filing a joint option request for rent subject to turnover tax. By signing the lease, the Lessee declares also for the benefit of the legal successor(s) of the Lessor, that it will use the leased property permanently, or have it used permanently, for purposes entitling to full or almost full deduction of turnover tax pursuant to Article 15 of the Turnover Tax Act 1968. |
4.4 | The financial year of the Lessee runs from 1 January up to and including 31 December. |
4.5 | The rent will be adjusted on 1 August of each year, for the first time on 1 August 2008, in accordance with Articles 9.1 up to and including 9.4 of the general provisions, provided that in Article 9.1 of the general provisions, the consumer price index (CPI) series all households (2000=100) shall be replaced by the consumer price index (CPI) series all households (2006=100). |
4.6 | The fee payable by the Lessee for the additional supplies and services to be provided by or on behalf of the Lessor will be determined in accordance with Article 16 of the general provisions. The aforementioned fee is subject to a system of advance payments with subsequent settlement, as set out in the aforementioned article. |
4.7.1 | The Lessees payment obligation consists of: |
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the rent; |
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the turnover tax payable on the rent, if the parties have agreed rent subject to turnover tax; |
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the advance on the fee for the additional supplies and services to be provided by or on behalf of the Lessor, plus the turnover tax payable thereon. |
4.7.2 | The Lessee will no longer owe turnover tax on the rent if the leased property may no longer be leased subject to turnover tax, while the parties have actually agreed such rent. In that event, the fees referred to in Article 19.3.a of the general provisions will replace the turnover tax and the fee referred to in Article 19.3.a under I will then be determined in consultation between the parties. |
4.8 | With effect from the start of the lease, the following amounts will be payable per payment period of 3 calendar month(s): |
|
the rent * * * |
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the turnover tax payable on the rent * * * |
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the advance on the fee for the additional supplies and services to be provided by or on behalf of the Lessor, plus the turnover tax payable thereon * * * *** |
|
Total * * *
4.9 | Given the start date of the lease and taking into account the rent-free period, the first payment of the Lessee will pertain to the period from 1 August 2007 up to and including 30 September 2007, and the amount payable for this period will be *** This amount is inclusive of turnover tax. The Lessee must pay this amount on or before 1 August 2007. |
4.10 | The periodic payments to be made by the Lessee to the Lessor under this lease, as set out in Article 4.8, must be paid as a lump sum in euros and in advance, and must have been paid in full on or before the first day of the period to which the payments pertain. |
4.11 | Unless it is stated otherwise, all amounts in this lease and the general provisions that form part of it are exclusive of turnover tax. |
Supplies and services
5. | The parties agree that the following additional supplies and services will be provided by or on behalf of the Lessor (not exhaustive): |
a. | Periodic checks, electricity supply, maintenance, etc., with regard to: |
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the lift system; |
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the window-cleaning system; |
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general electric systems; |
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fire detection systems/fire detection/fire brigade charges/fire-fighting equipment for so long and to the extent that this is not arranged for by the Lessee in the context of the development of the business premises as a data centre; |
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central heating system; |
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air conditioning system; |
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sprinkler system; |
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barriers; |
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overhead doors and dock levellers; |
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lightning conductor; |
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maintenance of the site; |
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annual roof inspection; |
|
security of common areas in the leased property; |
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minor repairs; |
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individual consumption of gas, water and electricity; |
b. | lighting and heating in the common areas; |
c. | the insurance of all windowpanes belonging to the building of the leased property (including the windowpanes in the common areas) that serve to admit day light; |
d. | cleaning of the common areas, including the stairwells, the corridors, the lobbies and the lifts; |
e. | exterior cleaning of the windows in the leased property; |
f. | exterior and interior cleaning of the windows in the common areas; |
g. | the services of the manager or other staff providing services for the building of which the leased property forms part, including salaries and social insurance costs, telephone expenses, etc.; |
h. | a 5% administration fee on the above supplies and services. |
Bank guarantee
6. | The parties hereby set the amount of the bank guarantee referred to in Article 12.1 of the general provisions at * * * * * * |
Manager
7.1 | Until the Lessor notifies otherwise, Cushman & Wakefield, Strawinskylaan 3125, PO Box 75456, 1070 AL Amsterdam, T: 020 - 80 02 129, F: 020 -80 02 110, will act as manager. |
7.2 | Unless the parties have agreed otherwise in writing, the Lessee shall consult with the manager on the content and all other matters relating to this lease. |
Special provisions
8.1 | Delivery on start of the lease: |
The business premises will be delivered in their current state, everything as sufficiently known to both parties, inter alia, empty (without scaffolding) and swept clean. The office space will be delivered in its current state, everything as sufficiently known to both parties, inter alia, including carpet, partitions and data cabling, but without the furniture and equipment. The Lessee will have the opportunity to discuss the possible take-over of the furniture and equipment with the current lessee.
The Lessor declares that the erosion of the pillars/columns in the business premises is due to normal use and that the aforementioned erosion has not affected the structure of the leased property. If it should appear in the future that the structure of the leased property has actually been affected by the aforementioned erosion, the Lessor will have this repaired at its own expense. The Lessor will then have the repair work carried out in such a manner that the business operations of the Lessee and/or the provision of services by the Lessee are not impeded in any way. Before 1 August 2007, the Lessor will have the damaged ceiling panels above the dock leveller at the front of the building replaced by new, similar panels, at its own expense.
8.2 | Rent-free period: |
The Lessor will grant the Lessee a rent-free period equivalent to 11 months rent, starting on 1 August 2007. During this rent-free period, all terms and conditions under the lease will apply, with the exception of the rent payment obligation. The service fees will be payable from 1 August 2007.
8.3 | Delivery on termination of the lease: |
At the start of the lease, a delivery report will be drawn up, which shall be signed by both parties. On termination of the lease period, the Lessee will be obliged to deliver the leased property in the state described in the aforementioned delivery report (including the current partitions, carpet, data cabling, etc.).
8.4 | Adjustments and alterations: |
A) | The Lessor is aware of the Lessees intention to install a data centre in the business premises according to a so-called box within a boxprinciple, which is a self-supporting construction that will not affect the physical structure of the business premises. The Lessee has already provided the Lessor with a memorandum describing the intended alterations with regard to the business premises. The Lessee has also provided the Lessor with a list of activities defining the most important furnishing work, as well as a sample furnishing plan. Both the memorandum, which also describes the alterations to the physical structure of the leased property and contains a brief description of the intended furnishing plan, and the list of activities, are attached as appendices. |
The Lessor is aware of the fact that the final furnishing plan will deviate from the sample furnishing plan, as the final furnishing plan will be based on a detailed plan that must still be worked out.
Subject to what is noted under Articles 8.4.C and 8.4.D, the Lessor consents in advance both to the alterations described in the memorandum and to the execution of the work described in the list of activities.
In addition to the adjustments described in the memorandum, the Lessee will have the right to make all other building-related adjustments that are necessary for the construction and operation of a data centre, after obtaining the written consent from the Lessor, which the latter will not unreasonably refuse or delay.
B) | Fencing |
The Lessee has the right to place a fence at the front and at the back of the leased property, to the waterline, as shown in the appendix, to separate the leased property. The aforementioned fencing shall be of similar quality as the existing fencing at the current building of the Lessee at Cessnalaan 1-33 in Schiphol-Rijk. The other lessees access to the space not used by the Lessee and to the parking places shall not be impeded. The final location of the fencing will be determined in consultation with the Lessor. The Lessee is aware of the fact that the placing of the fencing may reduce the number of parking spaces leased by it.
C) | Cooling units |
The Lessee has the right to place so-called cooling units next to the leased property in front of the dock levellers. If the municipality does not consent to their placement in this location, the Lessee will have the right to place the aforementioned cooling units on platforms still to be installed on the roof of the leased property. A construction report regarding the installation of these platforms is attached as an appendix. The final placement and realisation of the platforms shall be discussed with the Lessor and is subject to the written consent from the Lessor, which it will not unreasonably refuse or delay.
D) | Generators |
The Lessee has the right to place isolated generators according to the manufacturing standards (intended as backup for the electric systems in the event that the regular power supply fails; not intended to produce electricity if the regular power supply is sufficient) in front of the dock levellers on both sides of the leased property, under the roof. The generators will probably have to be shielded by the placing of a wall. If that is the case, it will be necessary to make alterations to the structure of the building, the costs of which will be borne by the Lessee. The generators shall be soundproofed. The method of placing and realisation shall be discussed with the Lessor and is subject to the written consent from the Lessor, which it will not unreasonably refuse or delay.
E) | Cabling |
The Lessee has the right to lay cables in the ground in the immediate vicinity of the leased property and to open up the paving and the landscaping on the Lessors parcel for that purpose. The Lessee undertakes to restore the paving and the landscaping to their original state.
F) | Security system |
The Lessee has the right to install a comprehensive security system, including, but not limited to, so-called proximity cards, CCTV, biometrics readers, etc., provided that it will respect the privacy of the other lessees.
The above adjustments and alterations (A up to and including F) are all at the risk and expense of the Lessee. The Lessee is responsible for all necessary permits. The adjustments and alterations must meet the requirements set by the authorities of the Municipality of Haarlemmermeer and the S.A.D. C. (the Schiphol Area Development Company).
The Lessee is responsible for repairing, replacing and insuring the adjustments and alterations.
In the event that the current insurance premium of the present leased property is increased and such an increase is demonstrably due to the alterations made by the Lessee, the additional insurance premium shall be borne by the Lessee.
8.5 | Sublease: |
After obtaining the written consent from the Lessor, which consent will not be unreasonably refused or delayed, the Lessee will have the right to sublease all or part of the leased property to affiliated companies or third parties, or give all or part of the leased property in use to such companies or parties.
8.6 | Licence/service agreement: |
The Lessee has the right to offer its clients services, such as the use, through a service agreement, of parts of the furnished data centre, the provision of various related services, and the use, through a separate service agreement, of office space (provided that the Lessee shall not permit sales activities or other retail-related activities in the office space). The Lessee does not need the Lessors consent for carrying out the aforementioned core activities in the leased property.
8.7 | Substitution: |
After obtaining the written consent from the Lessor, the Lessee will have the right to substitute affiliated companies in which the Lessee has a controlling interest in its place with regard to this lease. The Lessor shall not refuse or delay its consent unreasonably and such consent shall not be made conditional on payments other than those directly related to the lease. The solvency of the affiliated company shall be similar to that of the Lessee.
8.8 | Right of first refusal: |
The Lessee will have a permanent right of first refusal in respect of office space that is or becomes available on the 1st floor above the business premises (approx. 709.2 m2) and a part of the 1st floor in the office area (approx. 560 m2) (hereinafter together referred to as the space) of the present building, after receiving notification by registered letter from the Lessor. The Lessor shall notify the Lessee as soon as it has reached agreement with a third party (subject to this right of first refusal) with regard to the space.
The Lessee shall be given the opportunity to lease the aforementioned office space on the same terms and conditions as agreed with the third party. The Lessee shall inform the Lessor in writing, within 10 (ten) working days of receipt of the aforementioned proposal, of whether it is interested in leasing the space. If the Lessee fails to respond within 10 (ten) working days, the Lessor will be free to lease the space to the third party.
8.9 | Hiring specialists: |
The Lessees is free to engage reputed firms, without requiring the Lessors consent, for all necessary work regarding security and fire prevention in the leased property in connection with the business operations of the Lessee, insofar as such work does not affect the structure of the building or the properties leased by other lessees. The Lessee shall immediately inform the Lessor.
8.10 | Alterations or additions to the leased property: |
Contrary to the provisions of Article 6.11 of the general provisions referred to in Article 2.1 of this agreement, the Lessee may make all alterations and additions with regard to fixtures and fittings, not with regard to the structure of the building, if and insofar as this is done in accordance with the provisions of this agreement.
8.11 | Access to the leased property: |
The Lessee will have access to the leased property to carry out the required furnishing work immediately after the Lessee has signed the lease and furnished the bank guarantee.
8.12 | Fire brigade requirements: |
The Lessor declares that the leased property in its current state will meet the fire brigade requirements. Furthermore, the Lessor will install a sprinkler system in the toilet block at its expense. The Lessor has already ordered work on the sprinkler system, including certification of the system, but this will not have been completed on the delivery date. The work will in any case have been completed before 1 November 2007. The Lessee shall not make adjustments or alterations in the building that conflict with the fire brigade requirements.
8.13 | Maintenance and renovation: |
If the Lessor wishes to carry out maintenance and/or renovation work, it shall do so in consultation with the Lessee, unless it concerns an emergency. The consultations are also aimed at making agreements about the planning and execution of the work. The work will be done in such a manner that it interferes as little as possible with the business operations of the Lessee and/or the Lessees services to its clients.
8.14 | Additional adjustments: |
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In the event that the Lessee must install cooling units on the roof, the Lessee will become responsible for maintenance of the roof. The Lessor will remain responsible for replacement and repair of the roof, insofar as necessary due to ageing, lightning, storm, etc. |
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In the event that the Lessee must shield the generators, the Lessee will become responsible for maintenance of that specific part of the facade, including doors and roller shutters. |
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In the event that the Lessee makes an adjustment to the sprinkler system or other fire-resisting means, the Lessee will from then on become responsible for maintenance of the sprinkler system and the other fire-resisting means in the business premises. |
Thus drawn up and signed in threefold in
place: Amsterdam date: 14 May 2007 |
place: date: | |
VA No. 1 (Point of view Logistics) B. V. | Interxion Netherlands B. V. | |
Mr S.M. Foxley | M.L.H. van den Assem | |
Mr T. van Rijn |
Appendices
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general provisions |
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drawing of the leased business premises |
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report of delivery |
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bank guarantee |
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memorandum |
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list of activities drawing of the fencing to be erected |
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drawing with regard to the right of first refusal |
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construction report regarding the platforms |
Separate signature(s) of the Lessee(s) for receipt of a copy of the GENERAL PROVISIONS REGARDING THE LEASE OF OFFICE SPACE and other business premises within the meaning of Article 7:230a DCC, as set out in Article 2.1.
M.L.H. van den Assem
(AMS96928 Point of View Logistics, Tupolevlaan 101109)
GENERAL PROVISIONS REGARDING THE LEASE OF OFFICE SPACE and other business premises within the meaning of Article 7:230a of the Dutch Civil Code
Model adopted by the Real Estate Council (ROZ) in July 2003 and filed with the registry of the District Court in The Hague on 11 July 2003 and listed there under number 03-54. Any liability for adverse effects of the use of the text of the model is excluded by the ROZ.
Scope of the leased property
1. The leased property includes the systems and facilities present in the leased property, insofar as these are not excluded in the delivery report initialled by the parties and to be added to this lease as an appendix.
State
2. At the start of the lease, the leased property has been/will be delivered and accepted by the lessee in the state it is in at that time. This state will be recorded by or for the lessee and the lessor in a delivery report initialled by the parties and to be added to the lease as an appendix, which delivery report forms part of the lease. If no delivery report has been drawn up at the start of the lease, the leased property will be deemed to have been delivered and accepted in the state the lessee may expect from a well-maintained property of the type to which the lease pertains.
Defects
3. The leased property will be deemed to have a defect if given the state or given a quality or other circumstance that cannot be attributed to the lessee, it cannot provide the lessee with the enjoyment the lessee could expect when entering into the lease.
Inspection in connection with the suitability
4. Before entering into the lease, the lessee must thoroughly inspect the leased property to check whether the leased property is suitable or can be made suitable by the lessee for the purposes for which the lessee must use it. The lessor has not examined the suitability of the leased property and is only obliged to inform the lessee of defects known to the lessor of which it knows that they adversely affect the suitability. The lessor is not liable for the consequences of defects that were not known and should not have been known to the lessor.
Expertise
5. If the lessee or the lessor has insufficient expertise, it must seek the assistance of or let itself be represented by an expert with regard to the drawing up of the delivery report and the inspection referred to in Article 4.
Use
6.1 Throughout the term of the lease, the lessee shall actually, wholly, properly and itself use the leased property solely in accordance with the designated use set out in the lease. The lessee shall comply with existing restrictive rights, obligations attached to certain capacities and the requirements set or to be set by authorities or utility companies (including requirements regarding the lessees business, regarding the use of the leased property or regarding anything present in or at the leased property). The lessee shall provide the leased property with sufficient fixtures and fittings and keep it furnished. In this lease, utility companies also refers to similar companies engaged in the supply, transport and measurement of the consumption of electricity, water, etc.
6.2 The lessee must act in accordance with the provisions of the law and local bye-laws, as well as in accordance with the customs regarding leasing, and the regulations of authorities, utility companies and insurers. The lessee may only engage companies for work relating to security, fire prevention and lift engineering with which the lessor has consented in advance and which have been certified by the National Centre for Prevention (NCP) or the Dutch Institute for Lift Engineering (Stichting Nederlands Instituut voor Lifttechniek). If it has been agreed in connection with supplies and services to be provided by or on behalf of the lessor that the work described above will be carried out on the instructions of the lessor, the lessee may not carry out this work or have the work carried out itself. The lessee must always comply with the user instructions issued by those companies. The lessee must in addition comply with the oral and written instructions given by or on behalf of the lessor in the interest of the proper use of the leased property and the interior and exterior areas, systems and facilities of the building or complex of which the leased property forms part. This also refers to instructions regarding maintenance, appearance, noise level, order, fire safety, parking and the proper functioning of the systems or the building or the complex of which the leased property forms part.
6.3 When using the building or complex of which the leased property forms part, the lessee may not cause any nuisance or inconvenience. The lessee must ensure that third parties present on its behalf do not do this either.
6.4 The lessee has the right and the obligation to make use of the common facilities and services that are or will be available in the interest of the proper functioning of the building or the complex of which the leased property forms part.
6.5 The lessor has the right, for its own benefit or for the benefit of the lessee(s) or third parties, to dispose of the roofs, exterior walls, the areas not accessible to the public or the lessee, the appurtenances within the building or the complex, as well as of the gardens and grounds of the building or the complex for the purpose of installing (illuminated) advertising, signs, a central aerial system or other purposes. If the lessor wishes to exercise this right, the lessor shall inform the lessee in advance and the lessor shall take the lessees interests into account when exercising this right.
6.6 The lessor may deny the lessee access to the leased property if it has not (yet) fulfilled its obligations under the lease at the time it wishes to use the leased property for the first time. This shall not affect the start date of the lease or the obligations for the lessee arising from the lease.
(Government) regulations and licences/permits
6.7.1 The lessee is responsible for and must itself arrange for the necessary exemptions and/or licences/permits, including occupancy permits in connection with the conduct of the profession or business for which the leased property is used and/or has been designated. The related costs will be borne by the lessee. Refusal or revocation thereof will not constitute a reason to terminate the lease or take any other or further action against the lessor.
6.7.2 At the start of the lease, the lessee must itself examine whether the leased property is suitable for the purposes for which the lessee must use the leased property. If at the start of the lease or at a later time, government regulations or the regulations of other competent authorities prescribe alterations or facilities in, on or at the leased property in connection with the purpose for which the lessee wishes to use or is using the leased property, the lessee must make those alterations or facilities at its own expense, after having obtained the prior permission from the lessor.
6.7.3 If alterations or facilities must be made at, in or on the leased property in connection with the business conducted therein or in connection with the purpose for which it is used or will be used, the lessee will be liable for ensuring that the relevant requirements set by the authorities or other bodies are met during the execution of the work, such without prejudice to the provisions of Articles 6.8.1 up to and including 6.8.3 and 6 11.1 up to and including 6.11.7. The lessee will be liable for ensuring that the requirements of/in the licences/permits issued or to be issued are always met. The lessor will therefore not indemnify the lessee against (government) orders to conduct a further investigation or take measures.
Environment
6.8.1 If at the start of the lease an environmental survey regarding the leased property has been conducted, and during the term of the lease or immediately after termination of the lease - in an equivalent survey - higher concentrations of one or more substances to which the previous survey pertained are found under, in, at or around the leased property, then the lessee must pay for the damage arising from the contamination and the lessee will be liable towards the lessor for the costs associated with the elimination of the contamination or the taking of measures.
The lessee will indemnify the lessor in this regard against claims from third parties, including government bodies.
6.8.2 The provisions of Article 6.8.1 do not apply if the lessee demonstrates that the contamination has not arisen through an act or omission of itself, its employees or persons or goods under the lessees supervision, and is not related to a circumstance that can be attributed to the lessee.
6.8.3 The lessor will not indemnify the lessee against (government) orders to conduct a further investigation or take measures.
Waste materials/chemical waste
6.9 The lessee shall strictly comply with the directives, regulations or instructions of the authorities or other competent bodies concerning the (separate) collection of waste materials. If this obligation is not or not fully fulfilled, the lessee will be liable for the financial, criminal and potential other consequences arising therefrom.
Apartment right
6.10 .1 If the building or complex of which the leased property forms part has been or will be divided into apartment rights, the lessee must comply with the rules regarding their use arising from the deed of division and the regulations. This also applies if the building or complex is or becomes the property of a co-operative society.
6.10.2 Insofar as this is within its power, the lessor will not co-operate in the drawing up of regulations that conflict with the lease.
6.10.3 The lessor will ensure that the lessee is provided with the regulations regarding the use referred to in 6.10.1.
Prohibitions and procedural rules
6.11.1 The lessee may not:
a. have environmentally hazardous goods in, on, at or in the immediate vicinity of the leased property, including evil-smelling goods or goods representing a fire hazard or an explosion risk, unless they belong to the normal conduct of the profession or business;
b. load the floors of the leased property and of the building or the complex of which the leased property forms part beyond what is structurally permissible or is indicated in the lease;
c. use the leased property in such a manner that the use leads to soil contamination or other environmental contamination, damage to the leased property may arise or the appearance of the leased property may be harmed, said use also referring to the use of means of transport that may cause damage to floors or walls;
d. make alterations or facilities in, on or at the leased property which violate the regulations of the authorities or the utility companies or the conditions subject to which the owner of the leased property has acquired the ownership of the leased property or other restrictive rights, or which cause nuisance for other lessees or neighbours or impede them in their use.
6.11.2.1 The lessee shall always inform the lessor in writing well in advance of any alteration or addition the lessee intends to make or have made in, at or on the leased property, such as name signs, advertisements, boards, notices, publications, buildings, wooden structures, displays, packaging, goods, machines, lighting, sun blinds, rolling shutters, aerials with appurtenances, flagpoles, making windows opaque, etc.
6.11.2.2 Alterations and additions also refer to the making of holes in the facades, floors and walls.
6.11.2.3 The lessee must obtain the prior written consent from the lessor to alter the layout or appearance of the leased property in whole or in part, unless they are alterations and additions that can be undone or removed at the end of the lease at negligible costs.
6.11.2.4 Unless the parties have agreed otherwise in writing, the lessor will not consent to alterations or additions that the lessee may wish to make, if they cannot be undone at the end of the lease without damage to the leased property or at negligible costs or if they are not necessary for effective use of the leased property or if the quiet enjoyment is not increased by them or if there are compelling reasons on the part of the lessor for not making them.
6.11.2.5 The lessor has the right to give instructions regarding alterations or additions required by the lessee, such as with regard to their execution, location, dimensions or choice of materials. The lessee must comply with the regulations of the competent authorities regarding the alterations or additions made by the lessee.
6.11.2.6 Alterations and additions made by the lessee do not form part of the leased property, regardless of whether or not they were made with the lessors consent.
6.11.2.7 Insofar as the parties have not agreed otherwise in writing, alterations or additions made by or on behalf of the lessee must have been undone by the lessee before the end of the lease.
6.11.2.8 Unless the parties have agreed otherwise in writing, the lessee waives rights and entitlements on account of unjust enrichment in connection with alterations or additions made by or on behalf of the lessee that have not been undone at the end of the lease.
6.11.2.9 Without the prior written consent from the lessor, the lessee may not enter or allow entrance of the service and system areas, the roof terraces, roofs, gutters and locations of the leased property or the building or the complex of which the leased property forms part that are not intended for general use, or garage vehicles in other places than those intended for garaging.
6.11.3 The lessee must comply with the regulations of the authorities and other competent bodies, as well as the oral and written instructions of the lessor, regarding the periods within which and the manner in which loading and unloading must occur.
6.11.4 The lessor will not have any liability with regard to the alterations, additions, etc., set out and referred to in Articles 6.11.2.1 and 6.11.2.2.
6.11.5 The lessee shall keep access to fire extinguishers, escape routes and emergency doors in the leased property open at all times.
6.11.6 If the leased property has a lift, roll way, escalator or automatic door mechanism or similar facility, or if the leased property is accessible through one or more of the aforementioned facilities or similar facilities, these facilities shall always be used at ones own risk. All regulations given or to be given by or on behalf of the lessor, the relevant installers or the authorities must always be strictly complied with. If and as long as this is necessary, the lessor may put the aforementioned facilities out of operation, without the lessee being entitled to any compensation or reduction of the rent.
6.11.7 If items installed by the lessee (including advertisements or other signs) must be temporarily removed in connection with maintenance or repair work on the leased property or the building or the complex of which the leased property forms part, the costs of the removal, storage and renewed installation of the items will be at the expense and risk of the lessee, regardless of whether the lessor has consented to the installation of the items concerned.
Requests/consent.
6.12.1 If the lessor or the lessee require an amendment and/or addition to any provision of the lease after the signing of the lease, the lessor or the lessee must submit its request for such an amendment and/or addition in writing.
6.12.2 If and insofar as the lessors or lessees consent is required under any provision of this lease, this will only be deemed given if it has been given in writing.
6.12.3 Consent given by the lessor or the lessee applies only once and does not apply to other or subsequent cases. The lessor or the lessee will be entitled to attach conditions to their consent.
Penalty stipulation
7. If after receipt of a proper notice of default from the lessor, the lessee continues to fail to comply with the provisions of the lease and these general provisions, the lessee will forfeit to the lessor provided that no specific penalty has been agreed an immediately due and payable penalty of EUR 250 for each day that the lessee is in default. The foregoing does not prejudice the lessors right to claim full compensation if the damage incurred by it exceeds the penalty forfeited.
Sublease
8.1 Unless with the prior written consent from the lessor, the lessee may not lease or sublease all or part of the leased property to third parties, or transfer all or part of the lease rights to third parties, or contribute such rights to a partnership or legal entity.
8.2 If the lessee acts in violation of the aforementioned provision, the lessee will forfeit to the lessor, for each calendar day that the violation continues, an immediately due and payable penalty equal to twice the daily rent payable by the lessee at that time, without prejudice to the lessors right to claim specific performance, termination of the lease and/or compensation.
Rent adjustment
9.1 An adjustment of the rent pursuant to Article 4.5 of the lease shall be based on the change in the monthly price index figure according to the consumer price index (CPI) series all households (2000=100), published by Statistics Netherlands. The adjusted rent will be calculated according to the following formula: the adjusted rent is equal to the rent applicable on the adjustment date, multiplied by the index figure for the calendar month that is four calendar months before the calendar month in which the rent is adjusted, divided by the index figure for the calendar month that is sixteen months before the calendar month in which the rent is adjusted.
9.2 The rent will not be adjusted if rent indexation would lead to a rent below the last applicable rent. In that event, the last applicable rent remains unchanged until in a subsequent indexation, the index figure for the calendar month that is four calendar months before the calendar month in which the rent is adjusted exceeds the index figure for the calendar month that is four months before the calendar month in which the last rent adjustment was effected. The rent adjustment will then be based on the index figures for the calendar months referred to in the previous sentence.
9.3 The validity of a new indexed rent does not require that the lessee is given a separate advance notice of the indexation to be applied or applied.
9.4 If the CBS ceases publication of the aforementioned price index figure or changes the basis of its calculation, it will be replaced by an index figure that is as much as possible adjusted or similar to the preceding index figure. In the event of a difference of opinion, either party may request a decision from the director of the CBS, whose decision will be binding on the parties. The associated costs will be divided equally between the parties.
End of the lease or use
10.1.1 Unless otherwise agreed in writing, the lessee shall deliver the leased property to the lessor on termination of the lease or at the end of its use of the leased property in the state set out in the delivery report at the start of the lease, subject to normal wear and tear and obsolescence.
10.1.2 If no delivery report for the leased property was drawn up at the start of the lease, the lessee shall deliver the leased property to the lessor on termination of the lease or at the end of its use of the leased property in the state the lessor can expect from a well-maintained property of the type to which the lease pertains, without defects, unless the parties have agreed otherwise in writing and subject to normal wear and tear and obsolescence.
10.1.3 In the event of a dispute about the state of the leased property at the start of the lease, it will be assumed that the lessee has received the leased property in a good state and without defects.
10.1.4 The leased property shall also be delivered completely empty, free from use or rights of use, properly cleaned and with return of all keys, key cards etc. to the lessor. The lessee is obliged to remove at its own expense all items placed by it in, at or on the leased property or taken over by it from the previous lessee or user. The lessor will not owe any compensation for items not removed. Items not removed may be removed at the lessees expense. The provisions of Articles 6.11.2.6 and 6.11.2.7 apply.
10.2 If the lessee has not stopped using the leased property in a timely manner, the lessor will be entitled to gain access to the leased property and take possession of it at the lessees expense, without the lessee being entitled to compensation.
10.3 Any items apparently abandoned by the lessee, as it left them in the leased property when actually vacating it, may be removed by the lessor, at its own discretion and without incurring any liability, at the lessees expense. The lessor will be entitled to
have these items immediately destroyed at the lessees expense, or take possession of these items and, if desired, sell them and keep the proceeds, all of this unless the lessor knows that the successor lessee has taken over the items. If the latter applies, the lessee will be obliged to draw up, in co-operation with the successor lessee, a description of all items taken over or to be taken over by the successor lessee. This description of items, initialled by the lessee and the successor lessee, must be provided to the lessor immediately after it has been drawn up.
10.4 Unless otherwise agreed in writing between the lessee and the lessor, the lessee will under no circumstances be entitled to leave items in the leased property after termination of the lease in expectation of the successor lessees response to the question of whether it wishes to take over such items. If the lessee does not comply with this provision, the lessor will be entitled to have the items concerned immediately destroyed at the lessees expense, or take possession of them and if desired sell them and keep the proceeds.
10.5 The leased property must be inspected by the parties jointly in a timely manner before the termination of the lease or the end of its use. The parties shall draw up a report of this inspection, in which they lay down their findings regarding the leased propertys state. The report shall also stipulate the repair work and overdue maintenance at the expense of the lessee that appeared necessary according to the inspection, which work shall be carried out at the lessees expense, as well as the manner in which this work must be carried out. The inspection of the leased property and the drawing up and signing of the inspection report will be done by the parties or their authorised representatives. The parties may not claim afterwards that those representatives were not authorised.
10.6 If, after having been given a proper opportunity to do so, the lessee fails to co operate within a reasonable period in the inspection and/or recording of the findings and agreements in the inspection report, the lessor will be entitled to conduct the inspection in the lessees absence and declare the binding on the parties. The lessor must immediately provide a copy of the report to the lessee.
10.7 The lessee is obliged to carry out the work to be done according to the inspection report to the lessors satisfaction, within the period set out in the report or agreed between the parties. If also after receipt of a notice of default the lessee continues to fail to fulfil all or part of its obligations under the report, the lessor will be entitled to carry out the work itself and recover the related costs from the lessee.
10.8 The lessee will owe the lessor an amount for the time involved in making the repairs, counting from the date of termination of the lease, which amount will be calculated according to the last applicable rent and fee for additional supplies and services, without prejudice to the lessors right to claim compensation for further damage and costs.
Damage and liability
11.1 The lessee shall take appropriate measures in a timely manner to avoid and limit damage to the leased property, such as damage resulting from short circuits, fire, leakage, storms, frost or other weather conditions, and the inflow or outflow of gases or liquids. The lessee must immediately inform the lessor if such damage or an event as referred to in Article 11.6 occurs or threatens to occur.
11.2 If the lessee has the opportunity to do so, the foregoing also applies with regard to the building or the complex of which the leased property forms part.
11.3 The lessee will be liable towards the lessor for all damage or loss to the leased property, unless the lessee can prove that it, or the persons admitted to the leased property by it, or its employees and persons for which it is liable, are not to blame in this regard, or that the lessee is not guilty of negligence in this regard, such without prejudice to the provisions of Articles 13.1, 13.4 and 13.5 regarding the lessees obligations with regard to maintenance, repairs and improvements.
11.4 The lessee shall indemnify the lessor against penalties imposed on the lessor as a result of actions or omissions on the part of the lessee.
11.5 The lessor will not be liable for the consequences of defects of which it was not aware or should not have been aware at the time the lease was entered into.
11.6 The lessor will not be liable for injury caused to persons or damage caused to goods of the lessee, and the lessee will not be entitled to a rent reduction, set-off or suspension of payment obligations, or termination of the lease, if the quiet enjoyment of the leased property is diminished as a result of defects, including defects resulting from visible and non-visible defects in the leased property or the building or the complex of which the leased property forms part, weather conditions, interruption of the accessibility of the leased property, vacant space elsewhere, delays in the supply of gas, water, electricity, heat, ventilation or air conditioning, breakdowns of systems or equipment, the inflow or outflow of gases or fluids, fire, explosions or shortcomings in supplies and services. The lessor will also not be liable for injury caused to persons or damage caused to goods of third parties present in the leased property, and the lessee shall indemnify the lessor against third-party claims in this regard.
11.7 The lessee will be liable for damage resulting from alterations and additions made by or on behalf of it. The lessee shall indemnify the lessor against third-party claims for damage caused by alterations and facilities made by the Lessee.
11.8 The lessor will not be liable for the loss of profit by or damage to the lessee resulting from the activities of other lessees or interference with the use of the leased property by third parties, or for defects resulting from the lessees failure to fulfil its maintenance obligation.
11.9 The provisions of Articles 11.6 and 11.8 regarding loss of profit do not apply in the event of damage resulting from gross negligence or a serious default on the part of the lessor with regard to the state of the leased property or the building or the complex of which the leased property forms part. Nor will the provisions of Articles 11.6 and 11.8 apply to loss of profit if such loss is due to a defect in the leased property of which the lessor was aware or should have been aware when the lease was entered into, unless the lessee was also aware or could have been aware of the defect through the inspection set out in Article 4, in which case the parties will not regard the defect as a defect.
Bank guarantee
12.1 As security for the proper fulfilment of its obligations under the lease the lessee shall provide the lessor with a bank guarantee on signing the lease, in accordance with the model designated by the lessor and in the amount stated in the lease, which amount is related to the lessees payment obligations towards the lessor. This bank guarantee also applies to renewals of the lease, including amendments thereof, and must remain in effect for a period of at least six months after the date on which the leased property was actually vacated and the lease was terminated. In addition, the bank guarantee must apply to the lessors legal successors.
12.2 The lessee will not be entitled to any setoff of amounts against the bank guarantee.
12.3 If the bank guarantee is invoked, the lessee shall at the lessors request arrange for a new bank guarantee for the entire amount, which must comply with the provisions of Articles 12.1 and 12.4.
12.4 After an upward adjustment of the rent or the fee for supplies and services or the advance thereon or the applicable turnover tax, the lessee must at the lessors request immediately provide it with a new bank guarantee up to the amount adjusted for the new payment obligation.
12.5 Before the start of a new lease period under a renewal of the lease, the lessee must at the lessors request arrange for a new bank guarantee up to the amount adjusted for the new payment obligation.
12.6 If the lessee fails to fulfil the obligations set out in this article, the lessee will for each breach forfeit an immediately due and payable penalty to the lessor of EUR 250 per calendar day that the lessee remains in default after receiving a notice of default by registered letter.
Maintenance, repairs and improvements, inspections and surveys
13.1 The lessor shall pay the costs of the maintenance, repair and improvement work on the leased property set out in Article 13.3 below. The lessee will pay the costs of the other maintenance, repair and improvement work on the leased property, including the costs of inspections and surveys. If the leased property is part of a building or complex, the above also applies to the costs of the aforementioned work on the building or complex of which the leased property forms part, such as work on the common systems, spaces and other common facilities.
13.2 Unless the parties have agreed otherwise, the work referred to in Articles 13.3 and 13.4 will be carried out by or at the order of the party at whose expense it is. The parties must carry out the aforementioned work in a timely manner.
13.3 The lessor will bear the costs of:
a. maintenance, repair and improvement of the structural elements of the leased property, such as foundations, columns, beams, structural floors, roofs, roof terraces, supporting walls, exterior walls;
b. maintenance, repair and improvement of the stairways, steps, sewers, gutters and exterior windows/door frames belonging to the leased property. The provisions of Article 13.4(k) also apply in full to the sewers;
c. replacement of parts and improvement of the systems belonging to the leased property;
d. exterior paintwork.
The work referred to under (a) up to and including (d) will be paid by the lessor, unless the work must be deemed minor repairs, including minor and day-to-day maintenance within the meaning of the law or work on items not placed in, on or at the leased property by or on behalf of the lessor.
13.4 For the sake of clarity, or contrary or supplementary to the provisions of Article 13.1, the following work shall be paid by the lessee:
a. exterior maintenance if and insofar as it is work that must be deemed minor repairs, including minor and day-to-day maintenance within the meaning of the law, as well as interior maintenance that is maintenance as referred to in Article 13.3, all of this without prejudice to the other provisions of this article;
b. maintenance, repair and improvement of hinges and locks, glazing and glass doors, plate-glass windows, windowpanes and other windows;
c. maintenance and repair of roller shutters, Venetian blinds, canopies and other sunblinds;
d. maintenance, repair and improvement of switches, sockets, telephone systems, lamps, lighting (including fittings), batteries, floor coverings, soft furnishings, carpeting and curtains, interior paintwork, sinks, kitchen facilities and sanitary facilities;
e. maintenance, repair and improvement of cables/pipes and taps for gas, water and electricity, and fire, burglary and theft prevention devices with accessories;
f. maintenance, repair and improvement of boundaries, garden and grounds, including the paving;
g. periodic and corrective maintenance, as well as periodic surveys and remote management of the technical systems belonging to the leased property, including improvement of minor parts. This work may only be carried out by companies that have been approved by the lessor;
h. (periodic and non-recurring) surveys and inspections, whether or not required by the government or otherwise deemed reasonably necessary for the purpose of the soundness and safety or to check the proper functioning of (technical and other) systems that belong to the leased property or its immovable appurtenances; the aforementioned surveys and inspections shall be conducted at the order of the lessor; the provisions of Articles 16.3 up to and including 16.8 apply as much as possible to the associated costs;
i. maintenance, repair and improvement of items that have been or will be installed by or on behalf of the lessee, whether or not on the basis of a provisional sum made available to the lessee by the lessor;
j. the care for cleaning the interior and exterior of the leased property, and keeping it clean, including the cleaning of the leased propertys windows, roller shutters, Venetian blinds, canopies and other sunblinds, frames/windows and facades, and the removal of graffiti on the leased property;
k. the care for emptying grease traps, the cleaning and unclogging of drains, gutters and all drainpipes/sewers up to the leased propertys municipal main sewer system, the sweeping of chimneys and the cleaning of ventilating ducts.
13.5 The lessee shall pay for maintenance, repair and improvement of alterations and additions made by or on behalf of the lessee.
13.6 If, after receiving a demand, the lessee continues to fail to carry out maintenance, repair or improvement work for which it is responsible - or if in the lessors opinion such work has been carried out improperly or poorly -, the lessor will be entitled to carry out the maintenance, repair or improvement work deemed necessary by it at the lessees expense.
If the work to be paid by the lessee cannot be delayed, the lessor will be entitled to carry out this work immediately at the lessees expense.
13.7 The lessor will consult with the lessee in advance on the manner in which maintenance, repair or improvement work to be carried out by it will be carried out, taking the lessees interests as much as possible into account. If the lessee requires that the work is carried out outside the normal working hours, the extra costs thereof shall be paid by the lessee.
13.8 The lessee will be responsible for the proper and competent use of the technical systems in the leased property. The lessee will also be responsible for the maintenance carried out on the systems by itself or at its order. The fact that the maintenance has been carried out by a company approved by the lessor will not discharge the lessee from this liability.
13.9 The lessee shall immediately inform the lessor in writing of any defects in the leased property. In its notice, the lessee shall give the lessor a reasonable period to start remedying the defect for which the lessor is responsible, i.e. at least six weeks, except in the event of an emergency.
13.10 If the lessee and the lessor have agreed that maintenance, repair and improvement work in, on or at the leased property or the building or the complex of which the leased property forms part for which the lessee is responsible, as set out in Articles 13.1, 13.4 and 13.5, will not be carried out at the order of the lessee, but at the order of the lessor, the lessor will pass the costs thereof on to the lessee. In a number of cases, the lessor will enter into maintenance contracts for this purpose.
Adjustments by or on behalf of the lessor
14.1 The lessor may carry out work and conduct inspections on, at or in the leased property or the building or the complex of which the leased property forms part or on adjacent premises for the purpose of maintenance, repairs and improvements. This includes the placing of additional facilities, the making of alterations or the carrying out of work that is necessary in connection with environmental or other requirements or measures from the government, utility companies or other competent bodies.
14.2 If the lessor wishes to renovate the leased property, it shall submit a renovation proposal to the lessee. A renovation proposal of the lessor will be deemed reasonable if at least 51% of the lessees whose leased properties are affected by the renovation have consented to it and these lessees jointly lease at least 70% of the total number of square metres of lettable floor area, including vacant spaces, of the building or the complex of which the leased property forms part and that is affected by the renovation. For the purpose of calculating these percentages, the lessor will be deemed to be the lessee of the non-leased number of square metres of lettable floor area.
14.3 Renovation means (partial) demolition, alternative new construction and additions and alterations to the leased property or the building or the complex of which the leased property forms part.
14.4 The provisions of Article 7:220, paragraphs 1, 2 and 3, of the Dutch Civil Code do not apply. Renovation and maintenance work on the leased property or the building or the complex of which the leased property forms part will not constitute defects for the lessee. The lessee shall tolerate maintenance work on and renovation of the leased property or the building or the complex of which the leased property forms part and enable the lessor to carry out such work, without being entitled to reduction of the rent or any other payment obligation, or full or partial termination of the lease and/or compensation.
14.5 The lessor may make alterations to the shape and layout of, and relocate or eliminate, the parts of the leased property in respect of which the lessee does not have an exclusive right of use, such as common areas, lifts, stairways, escalators, corridors, entrances and/or other immovable appurtenances.
Access by the lessor
15.1 If the lessor wishes to have the leased property valued or carry out work in, on or at the leased property, the lessee will be obliged to give access to the lessor or the party presenting itself to the lessee for such purposes, and enable the lessor or such person to carry out the work deemed necessary.
15.2 To carry out the work set out in the first paragraph, the lessor and/or the person designated by it will be entitled to enter the leased property, after consultation with the lessee, between 7.00 a.m. and 5.30 p.m. on working days.
In case of an emergency, the lessor will be entitled to enter the leased property without prior consultation and, if necessary, outside the hours set out above.
15.3 In the event of an intended lease, sale or auction of the leased property, and during a period of one year before the end of the lease, the lessee must - after prior notice from the lessor or the person designated by it - allow inspection of the leased property on at least two working days per week, without being entitled to any consideration. The lessee shall tolerate that the normal to let or for sale signs or posters are placed at or near the leased property.
Costs of supplies and services
16.1 In addition to the rent, the lessee shall pay the costs of delivery, transport, measurement and consumption of water and electricity for the leased property, including the costs of entering into the relevant agreements and meter charges, as well as any other costs and penalties charged by the utility companies. The lessee itself must enter into supply agreements with the relevant bodies, unless the leased property does not have any separate connections and/or the lessor arranges for this as part of the agreed supplies and services.
16.2 If no additional supplies or services have been agreed between the parties, the lessee shall arrange for them at its own expense and risk and to the lessors satisfaction. The lessee shall in that event enter into service contracts regarding the systems that belong to the leased property itself, subject to the prior consent of the lessor.
16.3 If the parties have agreed that additional supplies and services will be provided by or on behalf of the lessor, the lessor will determine the fee payable by the lessee therefor on the basis of the costs incurred for the supplies and services and the related administrative work. Insofar as the leased property is part of a building or complex, and the supplies and services also pertain to other parts of the building or complex, the lessor will determine the lessees reasonable share of the costs of those supplies and services. The lessor need not take into account the circumstance that the lessee does not use one or more of the supplies or services. If one or more parts of the building or complex is not in use, the lessor will ensure, when determining the lessees share, that this share is not higher than it would have been if the entire building or complex was in use.
16.4 The lessor shall annually provide the lessee with an itemised summary of the costs of the supplies and services, stating the manner in which they have been calculated and, insofar as applicable, the lessees share of those costs.
16.5 After termination of the lease, the lessor shall provide a summary for the period for which it has not yet provided one. This final summary will be provided after the lapse of no more than 14 months from the date on which the preceding summary was provided. Neither the lessor nor the lessee will claim a set-off before the final summary has been made.
16.6 If the summary for the relevant period shows, taking advance payments into account, that the lessee has paid too little or that the lessor has received too much, the appropriate amount shall be paid or refunded within one month after the summary was provided. Challenging the accuracy of the summary will not lead to suspension of the payment obligation.
16.7 After consultation with the lessee, the lessor will be entitled to change the type and scope of the supplies and services or discontinue them.
16.8 The lessor will be entitled to adjust the advance on the fee for supplies and services payable by the lessee to the costs expected by it during the term, for example in the situation set out in Article 16.7.
16.9 If the supply of gas, electricity, heat and/or (hot) water forms part of the supplies and services to be provided by the lessor, the lessor may, after consultation with the lessee, adjust the method for determining the consumption and the related lessees share of the costs of the consumption.
16.10 If the consumption of gas, electricity, heat and/or (hot) water is determined by means of consumption meters, and a dispute arises regarding the lessees share of the costs of the consumption because the meters did not function (properly), the lessees share will be determined by a company consulted by the lessor which is specialised in measuring and determining the consumption of gas, electricity, heat and/or (hot) water. This also applies in the event of damage, destruction or fraud with regard to the meters, without prejudice to any other rights the lessor may have against the lessee in that event, such as the right to repair or renovation of the meters and compensation for the damage suffered.
16.11 Except in the event of gross negligence or serious default on the part of the lessor, the lessor will not be liable for any damage resulting from the non-functioning or improper delivery of the aforementioned facilities and services. Nor will the lessee be entitled to a rent reduction and/or a set-off against any other payment obligation in that event.
Costs, default
17.1 In all cases in which the lessor has a demand, notice of default or writ issued to the lessee, or in the event of proceedings against the lessee to compel it to specific performance of the lease or vacation of the leased property, the lessee must compensate the lessor for all costs incurred therefor, both in and out of court, with the exception of the legal costs to be paid by the lessor pursuant to a final judicial decision. The parties set the costs incurred in advance at an amount that is not below the normal rate charged by court bailiffs.
17.2 The lessee will be in default through the mere lapse of a certain term.
Payments
18.1 The rent and any other amounts payable under this lease must be paid no later than on the due date in a legal Dutch tender - without suspension, reduction, deduction or set-off against a claim the lessee has or believes to have against the lessor by deposit or transfer to an account to be designated by the lessor. This will not prejudice the lessees right to remedy defects itself and deduct the reasonable costs thereof from the rent if the lessor has failed to remedy them. The lessor will be free to change the location or manner of payment by written notice to the lessee. The lessor will be entitled to determine to which outstanding claim under the lease a payment received by it from the lessee will be applied, unless the lessee expressly indicates otherwise with the payment. If the latter applies, the provisions of Article 6:50 of the Dutch Civil Code will not apply.
18.2 Whenever an amount payable by the lessee under the lease has not been paid promptly on the due date, the lessee will automatically forfeit to the lessor an immediately due and payable penalty of 2% of the amount payable per calendar month for each calendar month since the due date, in which context a month already started counts as a full month, and with a minimum of EUR 300 per month.
Taxes, charges, levies, premiums
Turnover tax
19.1 If it has been agreed that the rent is subject to turnover tax, the lessee and lessor hereby expressly state that the rent has been determined on the basis of the assumption that the lessee would permanently use the leased property (or have it used), at least for the minimum percentage set or to be set by law, for activities entitling to deduction of turnover tax, such that the parties can opt for lease subject to turnover tax.
19.2 The lessee and the lessor make use of the possibility under Announcement 45, decree of 24 March 1999, no. VB 99/571, to waive the joint filing of an option request for lease subject to turnover tax and confine themselves to a statement to be completed and signed by the lessee, which statement will form an integral part of the present lease.
19.3. a If the lessee does not or no longer use the leased property (or does not or no longer have it used) for activities entitling to deduction of turnover tax and as a result thereof the exception to the exemption from payment of turnover tax on the rent is terminated, the lessee will no longer owe turnover tax on the rent to the lessor or its legal successor(s), but the lessee will then with effect from the date on which such termination came into effect owe the lessor or its legal successor(s) such a separate payment in addition to the rent and instead of the turnover tax, that the latter is fully compensated for:
I | The turnover tax on the operating costs of the leased property or investments therein that the lessor or its legal successor(s) can no longer deduct due to the termination of the option. |
II | The turnover tax that the lessor or its legal successor(s) will be payable to the tax authorities due to the termination of the option, pursuant to a recalculation within the meaning of Article 15, paragraph 4, of the 1968 Dutch Turnover Tax act or a review within the meaning of Articles 11 up to and including 13 of the 1968 Turnover Tax Implementation Decree. |
III | Any other damage that the lessor or its legal successor(s) suffer due to the termination of the option. |
19.3. b The financial loss to be suffered by the lessor or its legal successor(s) due to the termination of the option shall always be paid by the lessee to the lessor or its legal successor(s) simultaneously with the periodic rent payments and, except for the damage referred to in Article 19.3.a(I), shall be equally distributed over the remaining term of the current lease period, if possible by means of an annuity, but will become immediately and fully due and payable by the lessee as a lump sum in the event that the lease is terminated early for any reason.
19.4 The provisions of Article 19.3a(II) will not apply if at the time this lease is entered into the adjustment period for deduction of the input tax with respect to the leased property has expired.
19.5 If the situation referred to in Article 19.3.a occurs, the lessor or its legal successor(s) shall inform the lessee of the amounts to be paid by the lessor or its legal successor(s) to the tax authorities and give insight into the other damage referred to in Article 19.a(III). The lessor or its legal successor(s) shall co-operate if the lessee wishes to have the statement from the lessor or its legal successor(s) audited by an independent registered accountant. The costs thereof shall be borne by the lessee.
19.6 In the event that the requirement of use of the leased property for purposes as set out in Article 19.1 has not been fulfilled in any financial year, the lessee shall inform the lessor or its legal successor(s) thereof by means of a signed statement within four weeks after the end of the financial year. Within the same period, the lessee shall send a copy of its statement to the turnover tax inspector.
19.7 If the lessee fails to fulfil the notice obligation referred to in Article 19.6 and/or fails to fulfil the obligation to use the leased property as referred to in Article 19.9, or it subsequently turns out that the lessee started from the wrong assumption, so that it appears afterwards that the lessor or its legal successor(s) have wrongly charged
turnover tax on the rent, the lessee will be in default and the lessor or its legal successor(s) will be entitled to recover the resulting financial loss from the lessee. This loss consists of the entire turnover tax still payable by the lessor or its legal successor(s) to the tax authorities plus interest, increases and other costs and damage. The provisions of this paragraph provide for a compensation scheme in the event that the option should be terminated with retroactive effect, such in addition to the scheme set out in Article 19.3. The additional damage arising for the lessor or its legal successor(s) from such retroactive application will be immediately and fully due and payable by the lessee as a lump sum. The lessor or its legal successor(s) will cooperate if the lessee wishes to have the statement from the lessor or its legal successor(s) audited by an independent registered accountant. The costs thereof shall be borne by the lessee.
19.8 The provisions of Articles 19.3.a, 19.3.b, 19.5 and 19.7 will also apply if the lessor or its legal successor(s) are not confronted with the damage as a result of the termination of the option applicable to the parties until after the lease has been terminated, early or otherwise. The damage can in that event immediately be claimed by the lessor or its legal successor(s), in full and as a lump sum.
19.9 Without prejudice to the other relevant provisions of this lease, the lessee shall in any event use or have used the leased property before the end of the financial year that follows the financial year in which the lessee began leasing the leased property, under application of the option right.
Other taxes, charges, levies, premiums, etc
20.2.1 The following shall be paid by the lessee, also if the lessor receives the relevant assessments:
a. | property taxes in respect of the actual use of the leased property or the actual co-use of service areas, general spaces and so-called common spaces; |
b. | environmental levies, including the surface water pollution levy, the waste water purification costs contribution and any other contribution for environmental protection purposes; |
c. | betterment levies or related taxes or levies, in their entirety or a proportional part thereof, if and insofar as the lessee benefits from what the assessment or levy arises from; |
d. | sewerage charges; |
e. | other existing or future taxes, including taxes levied for facilities in public areas, such as flag and advertising taxes, municipal taxes on encroachments on or above public land, and charges, levies and dues: |
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regarding the actual use of the leased property; |
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regarding the lessees goods; |
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all or part of which would not have been levied or imposed if the lessee had not been given use of the leased property. |
20.2.2 If charges, fees or taxes payable by the lessee are collected from the lessor, the lessee must pay them to the lessor on request.
20.2.3 If in connection with the nature or conduct of the profession or business of the lessee a higher fire insurance premium for structures or fittings and goods in the leased property or the building or the complex of which the leased property forms part is charged to the lessor or the other lessees of the building or complex than normal, the lessee shall compensate the lessor or the relevant other lessees for the amount above the normal premium. The lessor and the other lessees will be free in their choice of insurance company, the determination of the insured value and the assessment of the reasonableness of the premium to be paid.
Normal premium means the premium that the lessor or the lessee can stipulate from a reputed insurer for insurance of the leased property or the fixtures and fittings and goods therein against the risk of fire at the time immediately before the lease is entered into, without taking into account the nature of the business or profession to be conducted by the lessee in the leased property, as well as - during the term of the lease - any adjustment of this premium that is not due to a change in the nature or scope of the insured risk.
Several liability
21.1 If different natural persons or legal entities have committed themselves as lessee, they will always be jointly and severally liable and each of them will be fully liable towards the lessor for all the obligations arising from the lease. A suspension of a payment or a discharge granted by the lessor to one of the lessees, or an offer to that effect, will only concern that lessee.
21.2 The joint and several liability also applies to obligations under the lease, also with regard to the lessees heirs and legal successors.
Late availability
22.1 If the leased property is not available on the agreed start date of the lease because the leased property has not been completed on time, the preceding user has not vacated the leased property on time or the lessor has not yet obtained the government licences/permits to be arranged for by it, the lessee will not owe any rent or fees for additional supplies and services until the date on which the leased property is made available to it, and its other obligations and the agreed periods will be postponed accordingly. The rent indexation date remains unchanged.
22.2 The lessor will not be liable for any damage arising from the delay for the lessee, unless it is guilty of gross negligence or serious default.
22.3 The lessee cannot claim termination on account of the late delivery, unless it is due to gross negligence or serious default on the part of the lessor and the delay is such that the lessee cannot reasonably be expected to accept the lease unchanged.
Data Protection Act
23 If the lessee is a natural person, the lessee shall, when entering into the lease, by signing it give the lessor and the manager permission to include his or her personal data in a file or process them.
Address for service
24.1 From the start date of the lease, all notices from the lessor to the lessee in connection with the performance of this lease will be sent to the address of the leased property.
24.2 The lessee hereby undertakes to inform the lessor immediately in writing if it no longer actually conducts its business in the leased property, stating a new address for service.
24.3 If the lessee leaves the leased property without stating a new address for service to the lessor, the address of the leased property will be deemed to be the lessees address for service.
Complaints
25 The lessee shall submit any complaints and wishes in writing. In urgent situations, this may be done orally. The lessee must then as soon as possible confirm the complaint or wish in writing.
Manager
26 If a manager has been or will be appointed by the lessor, the lessee shall consult with the manager on all matters relating to the lease.
Final provision
27 If a part of the lease or these general provisions is invalid or voidable, this will not affect the validity of the remaining part of the lease or these general provisions.
In accordance with the provisions of Article 3:42 of the Dutch Civil Code, the invalid or void part is then replaced by what the parties would have agreed if they had been aware of the invalidity or voidability.
The leased property: ground floor
The leased property: fist floor
MEMORANDUM
Date: 13 June 2001
Re: | Alterations to the rented area |
By: | MvdA - IX-NL |
Introduction
This memo is to summarize the alterations Interxion is planning to the Tupolevlaan building at Schiphol-Rijk.
Interxion is Europes leading provider of datacenter services to the corporate market.
The datacenters are constructed according to a standard, covered in the Interxion DER (Design and Engineering Requirement). Though the DER is a company confidential document, please find at the end of this memo an excerpt from the DER, to give you an idea of the document. We invite you to have a scan through of the DER document at our offices.
Box in a box
A new building will be constructed on the inside of the rented area. Walls will be installed to create aisles and seperated technical and customer areas. An (indicative) floorplan is attached to show the suggested layout. A raised computer floor will be installed in both the aisles and all the areas.
As the buildout is fully self supporting, its indicated as a box in a box. Two pictures of the existing datacenter at Cessnalaan - Schiphol-Rijk are attached for some visual support.
A fence will be installed at the front and back of the building up till the waterline.
A statement of no objection from landlord in advance regarding the box in a box and fence is required.
No structural changes are made to the building other than the two explicitely mentioned in the paragraph below.
Required changes to the basic structure of the rented area
1. Chillers. Interxion prefers the installation of chiller units at mainlevel, before the dock levelers. However issues regarding permits must be anticipated. Therefore the alternative of installing chillers on the roof is under investigation. As current roofload doesnt suffice, additional steel columns and bars are to be installed by Interxion. A statement of no objection from landlord in advance is required.
2. Docklevelers. With reference to the floorplan, Interxion wishes to install powergenerators (backup use only, no permanent use) immediately in front of the dock levelers, under the extended roof. Its expected that we need to cover the immediate view on the generators, therefore approval is needed to extend the walls in front of the main dock levelers, on both sides of the building. A statement of no objection from landlord in advance is required.
2 General Guidelines
2.1 Deviation from the DER
Contractors shall inform the Interxion Director of Engineering of any deviation from the requirements of the DER, which is considered necessary in order to comply with national and/or local regulations.
Such deviations from the DER shall require approval by the Interxion HQ Director of Engineering prior to implementation.
2.2 Local Codes and Regulations
The following codes and regulations shall be applicable to all international sites to be built for Interxion:
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All regulations, by-laws, decrees and directives of the European Community, State, Province, Municipality, Water Board, etc. which apply to or affect the work. |
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The Standard sheets relating to the work as published by the local Standardisation Institute(s) in the versions that are current one month before the date at which the contracts are placed. |
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The applicable site and safety regulations applying on sites and in buildings of the Landlord as supplied by the Landlord. |
In case of contradicting requirements Contractor shall comply with the more stringent requirement.
Deviations from the DER as a result from the Local Codes and Regulations is subject to section 2.1 Deviations from the DER.
2.3 Documentation
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All documentation shall be written in the English language. |
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All drawings will be shown with dimensions given in millimeters. |
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All titles and legends shall be in English. |
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All Operation, Maintenance and Design manuals shall be written in English. |
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All drawings shall be drawn in AutoCad and where possible be limited to size A3. |
2.4 Materials
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All applied components shall of a quality that is compliant with the requirements of a high availability data centre. |
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Electrical and electronic equipment applied within the data centre shall comply with the RoHs (Restriction of Hazardous substances) Directive issued by the European Community. |
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Materials used within the datacenter shall not contain PVC. |
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Electroplated galvanized steel shall not be allowed for use within the date centre unless epoxy painted, to avoid zinc whisker formation. |
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Cadmium plated parts shall not be used within the datacentre. |
2.5 Access control
The construction contractor shall implement an access control system to ensure only authorized persons can enter the construction site.
3 General Technical Features
3.1 Data Centre Layout
The following figures illustrate the Physical Spaces in the Interxion buildings.
Dual-entry fibre
Power Inlets
Transformer
Generator
Battery Room
Delivery Area
Equipment Housing Area
Reception
Office & Workspace
Figure 3-1 Physical Spaces In Interxion Data Centres
List of works. Tupolevlaan 101
9th July 2007
Please find below the (not limited) list of works regarding the build out of the datacenter at the Tupolevlaan 101.
Civil:
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Partitioning walls |
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Water tide sealing |
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Raised floor |
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Light |
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Fire detection system |
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Fire suppression |
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Water detection system |
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Doors |
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Grid connections |
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Fiber connections |
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Reception area, waiting room flex desks |
Mechanical:
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Chiller units (cooling - outside) |
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Pipe and pump systems (chilled water) |
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CRAC (Computer Room A/C) units |
Electrical:
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Transformer station |
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Main electrical infrastructure (switchboard and sub boards) |
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UPS (Uninterruptible Power Supply) systems |
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Diesel generators |
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Customer server racks containing computer hardware |
Other:
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Security system (moving detectors, CCTV, electrical and mechanical mantraps, etc) |
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Data cabling for monitoring |
Right of first refusal: 1st floor
Interxion - Tupolevlaan
report on assessment of the construction options for placing coolers on the roof
05.07.07
architecten bna
PO Box 619
2130 AP Hoofddorp
office: |
Hoofdweg 850 | |
2132 MC Hoofddorp |
preliminary discussion on Interxions establishment at Tupolevlaan 101-119
location:
Municipality of Haarlemmermeer / Hoofddorp - location Meerlanden
07.06.07
15.00 pm 15.30 pm
present:
Mr H.N. van Veen | Municipality of Haarlemmermeer | |
Ms C.J.M. Bakhuijsen-Minck | Municipality of Haarlemmermeer | |
Mr M.J. Kreus M.J. van Keulen | ONX architecten | |
Mr R.V. Thani | ONX architecten |
introduction
In response to the wish of the company Interxion to establish itself at Tupolevlaan 109-119, Schiphol-Rijk, there has been a preliminary discussion with the above contact persons of the Municipality of Haarlemmermeer. During this discussion, the following points were noted as relevant to the decision-making on the establishment. For each point, the starting points for the remainder of the procedure are described.
1. Ties to the airport
Interxion is currently located at Cessnalaan 1 in Schiphol-Rijk and will move to Tupolevlaan 101-119 in Schiphol-Rijk.
Mr van Veen has concluded that this concerns a re-establishment within the Schiphol-Rijk area with an unchanged function in an existing building, that therefore no reassessment/application for airport ties is necessary.
2. Cooling units
The placing of cooling units on the roof of the industrial property is possible, provided that the total height including the building remains within the zoning plan requirement of 25m. The placement of cooling units is subject to a permit and must also be assessed by the building aesthetics committee of the municipality.
The cooling units must be shielded from view from street level, reasonable aesthetic demands must be met. Also for that reason, placement at ground level not desirable.
3. Fencing
The placing of fencing, height 2m, on the lot boundary is possible.
The placement of fencing is subject to a permit and must also be assessed by the municipal aesthetics committee.
The fencing must meet reasonable aesthetic demands.
4. Parking standards
No parking places shall be removed from the site. Changes are allowed if the current number of parking spaces is maintained.
Parking standards: |
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Offices: |
1 parking space per 35m2 GFA | |
Business premises: |
1 parking space per 80m2 GFA |
5. general
Any generators, batteries, etc., must be placed indoors.
PROJECT: |
Interxion -Tupolevlaan | |
SECTION: |
overview of constructional work on the placing of coolers on | |
the roof DATE: |
5 July 2007 | |
DOCUMENT: |
ONX/data/interxion/documenten/divers/03.kostenraming.doc |
Phase 1: placing steel construction with modular size 15 x 12.5 m plus all structural and system engineering work after the placing/connectig of the cooling units.
This placement is based on a number of assumptions, no rights may therefore be derived from this placement.
part |
description |
explanation |
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Demolition | Roof openings for placing columns | 10 openings of 400x400mm | ||
Steel construction | Placing columns in the hall (interior finishing) | Existing columns in a grid | ||
Placing inserts on the columns and beams on the roof (galvanized) | ||||
Placing Dejo grilles 37.5 m2 | ||||
Roof | Covering roof openings | Roofing supplier conformity declaration | ||
Making good insulation | ||||
Realizing upstands around the roof openings | ||||
Making good roof covering | Lead flashing as existing satellite platform | |||
Fire prevention | Fire resistant cladding bearing construction roof systems in the hall | |||
Structural | Making good and finishing column bases | |||
Safety features | Leash construction Concrete slabs and leash eye and steel cable | For safe access to the systems | ||
Marking line painted on the roof | ||||
roof access | Based on existing roof access |
FAX MESSAGE | ||
TO |
: O.N.X. Architecten | |
ATTN. |
: M.J. van Keulen / R. Thani | |
FAX NUMBER |
: 023 5366903 | |
NUMBER OF PAGES |
: 3 | |
DATE |
: 28.06.07 | |
SENDER |
: J. Burggraaf | |
SUBJECT |
: Interxion - Tupolevlaan | |
PROJECT NUMBER |
: 07050 |
Dear Mr Van Keulen,
Please find enclosed our construction proposal as discussed with you this morning.
We have again checked our whole calculation regarding this placement.
It showed that the piles (= field piles) below the new columns to be placed, HE 180A, exceed the allowable pile load by 6%. Exceeding by 4% is still acceptable.
This means that an expansion of the grid surface in the drawn situation is not feasible.
This obviously also applies to any screens placed around the cooling units.
We have meanwhile requested a price for the drawn situation.
I trust to have provided you with sufficient information,
Yours sincerely,
Bouwadviesbureau van derVen BV
on its behalf: J. Burggraaf
Layout steel construction on the roof
(Best) extend HE 240A on the roof
Cross-section new construction
Cooling Unit
existing roof
existing roofbeam
DEJO grilles
shields v/a
existing roof beam
FAX MESSAGE | ||
TO | : O.N.X. Architecten | |
ATTN. | : Mr R. Thani | |
FAX NUMBER | : 023 5367160 | |
NUMBER OF PAGES | : 3 | |
DATE | : 15.06.07 | |
SENDER | : J. Burggraaf | |
SUBJECT | : Interxion - Tupolevlaan | |
PROJECT NUMBER | : 07050 |
Dear Mr Thani, Dear Rick,
Please find enclosed our proposal for the construction of cooler units on the roof of the hall.
Your proposal to make a construction on the roof only and use the existing columns is not feasible, because the pile load below the columns would become too high.
One element of the solution proposed by us deserves special attention, the boxes must be next to each other, again in connection with the pile loads (see sketch below).
Free box | Cooling units max. 4 units | |
Cooling units | Free box | |
max. 4 units/box | Cooling units max. 4 units | |
Arrangement A | Arrangement B |
I trust to have provided you with sufficient information,
Yours sincerely,
Bouwadviesbureau van der Ven BV
on its behalf: Jan Burggraaf
Layout steel construction on the roof
HE 240A (best)
Cross-section new construction
FAX MESSAGE
to |
: Bouwadviesbureau van der Ven | |
attn. |
: Mr J. Burggraaf | |
date |
: 20.06.07 | |
fax number |
: 0180 415058 | |
number of pages |
: 15, including cover sheet | |
sender |
: Rick Thani | |
project: |
: Interxion - Tupolevlaan | |
notes |
: re: position cooler units |
Dear Mr Burggraaf, dear Jan,
Following our discussion with the client, I note the following points:
1. | the construction proposal of 15 June of this year will serve as the starting point for further elaboration |
2. | the cooling units will be placed between axis D and H + axis 3 and 4 (4 grid boxes) |
3. | a facade shield of press grilles will be placed around and above the cooling unit |
4. | a work floor of press grille will be placed around the cooling unit |
5. | from the roof hatch to the cooling units, taking into account the concrete slabs with linking point as leash facility |
6. | the cost indication for the main steel construction for the placing of the cooling units must include a number of provisional sums for the following items |
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front/roof shield press grilles |
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work floor press grilles |
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steel press grille staircase for access to the work floor |
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secondary steel construction for press grille parts |
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leash facilities |
7. | when preparing the total cost indication, please indicate the initial investment for one box, plus expansion in three steps for the other boxes. |
I trust to have provided you with sufficient information,
yours sincerely,
/s/ Rick Thani
Rick Thani
FAX MESSAGE
to |
: Bouwadviesbureau van der Ven BV | |
attn. |
: Mr. J. Burggraaf | |
date |
: 04.06.07 | |
fax number |
: 0180 415058 | |
number of pages |
: 4, including cover sheet | |
sender |
: Rick Thani | |
project |
: Interxion - Tupolevlaan | |
notes |
: re: position cooling units |
Dear Mr Burggraaf,
Following your fax of last Friday I have the following question. If the cooling units should still be placed on the roof, what additional structural measures will then be required?
Are the following options possible alternatives (see appendices)?
1. | doubling column + use of extra/heavier beams/trusses |
2. | replacing column by heavier column + extra/heavier beams/trusses |
3. | shortening span by placing extra columns + extra beams/trusses |
Applying the above between the 3 grids
I hope you can be of service, look forward to your reply
Yours sincerely,
/s/ Rick Thani
Rick Thani
FAX MESSAGE
to |
: Bouwadviesbureau van der Ven BV | |
attn. |
: Mr.. J. Burggraaf | |
date |
: 31.05.07 | |
fax number |
: 0180 415058 | |
number of pages |
: 5, including cover sheet | |
sender |
: Rick Thani | |
project |
: Interxion - Tupolevlaan | |
notes |
: re: position cooling units |
Dear Mr Burggraaf,
Following our telephone conversation of yesterday afternoon, we have determined five positions where the cooling units could be placed, see appendices.
Perhaps you could indicate which of these positions are/are not possible. Please find enclosed the data of the cooling unit (one cooling unit), the weight of the operational filled unit is 6281 kg. Intended are 14 cooling units (500kW) per possible position.
Did you provide the information of the architectural firm that made the design at the time?
Hopefully this would serve us, like your response.
Yours sincerely,
/s/ Rick Thani
Rick Thani
Number of parking spaces: 201
Multi-lessor building (business premises)
PLACEMENT COOLING UNITS ON THE ROOF
1st rider to the lease
between
Interxion Nederland B.V.
and
VA. No. 1 (Point of view Logistics) B.V.
regarding
Point of View Logistics
Tupolevlaan 101-119
in
Schiphol-Rijk
1st rider to THE LEASE BETWEEN
VA No. 1 (Point of view Logistics) B.V., with registered office at Locatellikade 1, 1076 AZ Amsterdam, in this matter duly represented by Mr S.M. Foxley and Mr T. van Rijn,
hereinafter referred to as the lessor,
and
Interxion Nederland B.V. , with registered office at Cessnalaan 1 in 1119 NJ Schiphol-Rijk, listed in the commercial register under number 34116837 , VAT number NL80 82 24 621 B01 , in this matter duly represented by Mr M.L.H. van den Assem,
hereinafter to be referred to as the lessee,
whereas:
|
the lessor and the lessee have agreed a lease with effective date 1 August 2007 regarding approx. 6,764.8 m2 of business premises and approx. 716.8 m2 office space and 28 parking spaces located on site in front of the loading doors behind the barriers and 5 parking spaces in front of the building, known locally as Tupolevlaan 101-119 in Schiphol-Rijk, |
|
the lessee has indicated to the landlord that it wishes to expand the leased property with 13 additional, reserved parking places (No. 3 on the attached drawing); |
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the lessee is willing to grant the request subject to the following conditions. |
declare to have agreed as follows:
1. | With effect from 1 September 2007, the leased property will be expanded with 13 additional parking spaces, located in the parking lot at the back of the building (see attached drawing No. 3), belonging to Tupolevlaan 101-119 in Schiphol-Rijk at a rent of EUR 600 per space per annum plus VAT. |
2. | All other provisions and conditions of the lease concluded between the parties with effective date 1 August 2007 remain unchanged and in full effect. |
Thus drawn up in triplicate and signed,
Place: Date: Place: Date:
Lessor: |
Lessee: |
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VA No. 1 (Point of view Logistics) B.V. | Interxion Nederland B.V. |
Appendix: drawing parking places
Delivery report on commencement of the lease belonging to lease dated
1 August 2007
Address premises: | Tupolevlaan 101 -109, | |
Schiphol-Rijk | ||
Type of premises: | office/business premises | |
Lessor: | VA No. 1 (Point of View | |
Logistics) B.V. | ||
Recording date: | 31.07.07 | |
Name of the new lessee: | Interxion Nederland B.V. | |
Contact person new lessee: | Paul MacPherson (Senior | |
Facility Manager) | ||
Effective date new lease: 01.08.07 |
Parts |
Technical state
Good/Medium/Poor |
Comments/details |
||||||
1. Structural |
||||||||
a. floors |
X | |||||||
b. walls/facades |
X | |||||||
c. ceilings |
X | In the office space on the 1st floor, some ceiling panels should be replaced in connection with drops of water | ||||||
d. columns |
X | |||||||
e. painting |
X | |||||||
f. doors/windows |
X | |||||||
g. glass |
X | |||||||
h. carpentry |
X | |||||||
i. shutters |
n/a | |||||||
2. Mechanical systems |
||||||||
a. airconditioning units |
X | In the last office room at the front, the air treatment produces a mechanical sound | ||||||
b. grids |
X | |||||||
c. radiators |
X | |||||||
d. boiler |
X | |||||||
e. waste water pump |
X |
7. Facilities |
Meter no. | Meter readings | Notes | |||||
a. electricity 1 day | The electricity meter is placed in a sealed of Netbeheer and can be read via telemetry. | |||||||
b. electricity II night | ||||||||
c. water | 00511 m3 | |||||||
d. gas | 2153152 | |||||||
e. district heating | ||||||||
f. C.A.I./data | ||||||||
8. Other matters | Various notes/observations | |||||||
a. Loading docks | Restoring the ceiling panels at the loading docks has been commissioned, but has not yet been implemented. | |||||||
b. Portocabin (including other loose materials) | The present portocabin and other loose materials, including pallets/desks/sign/car interior, etc., hall and adjacent spaces will be removed by the previous lessee no later than 3 August. | |||||||
c. Refuse containers | The present containers will be removed by the previous lessee no later than 3 August. | |||||||
d. Pressure hose | The lessee will arrange for disconnecting the pressure hose | |||||||
e. Cleaning | The lessee will make the leased property broom-clean. The costs incurred will be charged to the lessor. If the amount of the costs exceeds EUR 5000, the further consent from the lessor will be required. | |||||||
f. Instruction building-related systems | The lessee has requested the provision of instructions regarding the various building-related system (in English), in consultation with the Facility Manager | |||||||
g. Furniture | All the existing furniture in the office spaces on the 1st floor has been taken over by the lessee. |
Our reference: AMS104711/MNH/ssb
Interxion Nederland B.V.
M.L.H. van den Assem
Cessnalaan 1
1119 NJ SCHIPHOL
14.11.07
Dear Mr Van den Assem,
POINT OF VIEW LOGISTICS, Tupolevlaan 101-119 IN TE SCHIPHOL-RIJK
Please find enclosed the delivery report regarding the above-mentioned property, signed by Cushman & Wakefield.
We request that you return a signed copy to our office.
I trust to have provided you with sufficient information,
Yours sincerely, |
/s/ M.N. Hoftijzer |
M.N. Hoftijzer |
DESCRIPTION |
FROM | TO | DUE DATE |
NET
AMOUNT |
VAT
% |
VAT
AMOUNT |
||||||||||||||||||
Indexation on 01/08/2008 |
01/08/2008 | 30/09/2008 | 09/07/2008 | 2,221.19 | 19 | % | 422.034 | |||||||||||||||||
Indexation on 01/08/2008 |
01/08/2008 | 01/08/2008 | 09/07/2008 | 25.86 | 19 | % | ||||||||||||||||||
NET | 2,247.05 | |||||||||||||||||||||||
VAT | 426.94 | |||||||||||||||||||||||
TOTAL | 2,673.99 | EUR | ||||||||||||||||||||||
08.07.08
Dear lessee,
In accordance with the lease, the rent of your parking spaces will be adjusted as follows:
lessee |
Interxion Nederland B.V. | |
property |
Schiphol-Rijk - Tupolevlaan 101-119 | |
lessee number |
n23401a2 | |
date indexation |
1-Aug-08 | |
annual rent before indexation |
7.800,00 | |
rent calculation (cpi 2006=100) |
April-08 = 104.20 = 1,020 x 7,800.00 = 7,956.00 | |
Apr-07 102.12 | ||
new rent per year |
7,956.00 |
08.07.08
Dear lessee,
In accordance with the lease, the rent of your parking spaces will be adjusted as follows:
lessee |
Interxion Nederland B.V. | |
property |
Schiphol-Rijk - Tupolevlaan 101-119 | |
lessee number |
n23401a2 | |
date indexation |
1-Aug-08 | |
annual rent before indexation |
670,000.00 | |
rent calculation (cpi 2006=100) |
April-08 = 104.20 = 1,020 x 670,000 = 683,400.00 | |
Apr-07 102.12 | ||
new rent per year |
683,400,00 |
Exhibit 10.12
Confidential material has been omitted and filed separately with the Commission
In Madrid on 20 March, two thousand.
BY AND BETWEEN
Mr EDUARDO VIÑAMBRES MARTINEZ , of legal age, married, industrialist, resident in Madrid at no. 15 Avda. del Valle, with Tax Identification No. 1.683.083N, THE PARTY OF THE FIRST PART, AND
Mr NORBERTUS AUGUSTINUS WILHELMUS VAN DEN DRIES , married of Dutch nationality, domiciled at Koninginnegracht, 38, 2514 AD, The Hague (Holland) with passport no. 70263854, THE PARTY OF THE SECOND PART
ACTING HEREIN
[Translator: stamped and initialled at the left of each page:]
[Sole Administrator]
The first, on behalf of and representing, in his capacity as Sole Administrator, the Trading Company NAVES Y URBANAS ANDALUCIA, S.A. with the registered office in Madrid at no. 15 Avda. del Valle and with Corporate Tax Identification No. (C.I.F.) A/28301612, in accordance with the powers conferred thereupon by deed authorised by the Madrid Notary, Mr José Villaescusa Sanz, on 2 December 1998, and assigned entry number 12,723 in his records. (HEREINAFTER, THE LESSOR).
And the second, on behalf of and representing, in his capacity as Sole Director, the Trading Company INTERXION CARRIER HOTEL, S.L. , domiciled in Madrid c/ Velazquez 61, 3° izda. and [with] Corporate Tax Identification No. B/82517731, set up on 14 December 1999 before the Madrid Notary Mr Carlos Perez Baudin and assigned entry number 3668 in his records, in accordance with the powers conferred thereupon in the said Memorandum of Association of the company (HEREINAFTER, THE TENANT).
And both acting with power of representation, and with sufficient legal capacity to act which they mutually recognise.
HEREBY STATE
ONE : That the LESSOR is the owner of the Building located at the point where Calle Albasanz (no. 71) meets at the corner of Calle San Romualdo in Madrid, and which constitutes the registered property no. 17,891, Volume 1713, sheet 70, book 727 of Canillejas, of the Property Register no. 17 of Madrid (hereinafter called the PREMISES). These PREMISES have a total surface area of approximately 11,420 square meters and are described as follows:
BUILDING, built and completed according to the plan of Erja Ingenieros, is located on one site, roughly square-shaped, with a total surface area of two thousand nine hundred and thirty-six point seven nine square metres.
The fourth floor, housing the offices, restaurants and meeting rooms in one part and a workshop for new-development products in the other part, like the ground floor and second floor, is completely renovated, its surface area with the corresponding projections totalling 2,863.10 square metres.
The covered terrace or tower houses the rooms for the service lifts and lift and heating and air conditioning machinery. It has a surface area of 184.30 square metres.
The total constructed surface area, described above, totals eleven thousand and forty-six point seven square metres.
The roofs of the building, located on three different levels, have a surface area of 2,913.00 square metres.
The ground floor includes an area measuring 145.50 square metres used solely for the loading and unloading of goods, with the capacity to accommodate three trucks.
The foundation of the building was constructed using reinforced concrete isolated footing supporting the structure of the building which is also made of reinforced concrete.
The floor slabs in the production and storage areas are made of ribbed reinforced concrete slabs supported on girders which are also made of reinforced concrete.
In the rest of the building, the floor slabs are made of reinforced concrete without girders going in two directions.
The non-glazed facades have been made using lapped sheet sandwich panels with polyurethane-based insulation inside. The bottom part of the building has a reinforced concrete base.
In the glazed areas and projections of the offices there is a curtain wall made of anodised aluminium and double glazing.
The partition walls have been sealed with double hollow brickwork, rendered and with a damp-proofing treatment carried out on the outside, two expanded polyurethane layers providing insulation and a chamber partition of double hollow partition rendered and with plastic paint on the inside.
The inside partitioning is made of single hollow brick, coated with patent plaster, finishing plaster and various finishings on the walls, roofs and floors.
Various installations such as the electricity, air-conditioning, plumbing, telephone system, lift equipment and fire-protection equipment ensure the building is fit for purpose.
It is located where Calle Albasanz and Calle San Romualdo meet (new layout) in the city of Madrid, and overlooks both streets.
The side looking onto Calle Albasanz is 57.08 metres long and the side looking onto [Calle] San Romualdo is 52.09 metres [long].
Since the alignments of the two streets do not form a right angle, a triangle where nothing has been built has been left along Calle San Romualdo the bottom of which is 3.73 metres where the streets meet, reaching zero at the end of Calle San Romualdo further along from Calle Albasanz.
The ground floor of the building has four entrances:
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Main entrance, located at the corner where the two facades meet; |
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Entrance for warehouse and production staff, via Calle Albasanz; |
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Entrance for the trucks delivering raw material and the trucks carrying finished products, located on Calle Albasanz, after the staff entrance; |
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Entrance to the basement car park, located at the far end of the side looking onto Calle Albasanz. |
The building has a basement, ground floor, four floors and a roof, with the surface areas described below.
The basement has a surface area of 1,410.60 square metres, backing onto the facade of Calle Albasanz along the whole of its length. It is used for vehicle parking for users of the building.
The ground floor occupies the whole of the built site and has a surface area of 2,818.40 square metres. It is mainly used to store raw materials and finished products.
There is also a newly-built mezzanine level on this floor measuring approximately 400 square metres for use as offices.
The first floor comprises two areas. One of these areas is located next to the point where the streets meet and houses the cloakrooms and toilets. The other area, adjacent to the partition wall and Calle Albasanz, is taken up by the auxiliary production services, such as compressed air, air-conditioning and air-operated conveyance. Both make a total of 525.90 square metres.
The second floor takes up the whole of the built site, and with the projections of Calle San Romualdo, it has a surface area of 2,789.70 square metres. It is used for production.
On the third floor, construction has only been carried out near the corner of [Calle] Albasanz and [Calle] San Romualdo, occupying a surface area of 454.70 square metres. This floor houses the technical production services.
The PREMISES are free from all charges, attachments, easements and liens.
TWO : The LESSOR declares that the Premises have the appropriate planning approval (industrial, commercial, offices and parking) so that the TENANT can carry out its business in accordance with the Law and the provisions and requirements of the City Council.
The LESSOR is responsible for the truthfulness of the description and planning status and for the licences for the PREMISES, all of which will enable the activity of the TENANT to be carried out in accordance with the applicable legislation.
THREE : The TENANT is interested in renting the aforementioned premises owned by NAVES Y URBANAS ANDALUCIA, S.A. (THE LESSOR) and the latter renting them out to the TENANT.
FOUR : The parties thus agreed, mutually and reciprocally acknowledge the legal capacity necessary to enter into and be bound by and agree to sign this lease contract (hereinafter the Contract [)] relating to the PREMISES for use other than residential, which shall be governed by the stipulations contained therein, and in the absence thereof, by the provisions of the current Ley de Arrendamientos Urbanos [Urban Leases Law] (Law no. 29 of 24 November 1994, hereinafter LAU ) for rental for use other than residential and, in addition, by the provisions of the Civil Code.
CLAUSES
One : PURPOSE OF THE CONTRACT
The purpose of this contract is the rental of the PREMISES specified in the opening statement, the LESSOR having earlier provided the TENANT with a disk containing the plans of the PREMISES.
THE TENANT shall use the property PREMISES to carry out the activities specific to its company purpose, in particular, the installation operation and maintenance of international data centres which enable (in the widest sense) the establishment and operation of telecommunications devices and equipment of third parties, and the provision by the TENANT (directly or through third parties) of services relating to telecommunications (with or without cable), including, though not limited to (i) telecommunications consultancy, and (ii) joint-establishment and location services.
Two : TERM OF THE CONTRACT
This contract shall have a term of TEN (10) YEARS , which shall be binding for both parties, with effect from the date upon which this contract is signed.
Expressly and at its sole discretion, THE TENANT is entitled to extend the term of this contract for an additional period of TEN (10) YEARS , without the need for the consent of the LESSOR. Upon the expiry of the extended period, the parties can, by common accord, agree to continue it.
The TENANT must notify the LESSOR in writing of its decision as to whether or not to extend the Contract nine months before the expiry thereof.
Upon the expiry, however, of the corresponding extension, without agreement established otherwise and without the TENANT having restored peaceful possession of the property to the LESSOR, a penalty shall come into force to the benefit of the same, which the parties voluntarily set in the amount of 1,500,000 pesetas or 9,015.18 euro for each day of delay in handing over possession.
Three : HANDING OVER THE PREMISES
By the mere fact of signing this Contract, THE TENANT takes possession of the PREMISES in the state in which they are currently found, without obligation on the part of THE LESSOR to carry out any work whatsoever, since that which remained to be done shall be carried out directly by THE TENANT and in exchange the latter shall enjoy the rent-free period as set out below, both owing to the work not carried out by THE LESSOR, and for that which THE TENANT must carry out at its own expense in order to adapt the PREMISES to its requirements.
Four: FINANCIAL CONDITIONS
4.1 - RENT - A monthly rent is agreed of *** or *** which comes to an annual total of *** or *** which must be paid by the TENANT in monthly instalments, which will be increased by the amount required by legislation on Value-Added Tax.
4.2 - METHOD OF PAYMENT - These monthly instalments shall be paid in advance, and be made in cash in the first FIVE (5) working days of each month, by deposit to the current account no. 0104 0309 91 0300090762 held by the LESSOR with Banco Argentaria.
The LESSOR shall be required to issue and deliver within two working days of the payment of the rent made by the TENANT, a bill confirming collection of the rent, in legally established terms.
4.3 - VALUE-ADDED TAX - This rent shall be subject to Value-Added Tax (VAT) and thus, the total amount for each successive rental bill shall be required to accrue, at the legal rate applicable at any time and automatically, the applicable amount for this tax, which shall be itemised separately from the other amounts shown on the invoice.
4.4 - RENT-FREE PERIOD - In return for the works which the TENANT will carry out on the PREMISES, the LESSOR shall grant to the TENANT a rent-free period, so that the first monthly instalment that needs to be paid shall fall due in the month of August 2000.
Thus, no rent shall fall due for the period between todays date and 31 July 2000 (both inclusive).
4.5 - ANNUAL REVIEWS - The rent agreed shall be reviewed annually. The price of the rent shall be revised by increasing or decreasing the rent prior to the date of application, taking, as a percentage change, the Consumer Price Index (CPI) set by the National Statistics Institute (or substitute Body, if applicable) for the Total National Aggregate. Assuming that the rent is reviewed and the indices for the whole of the period reviewed have not been closed, the LESSOR can either apply it provisionally, in respect of those which have been closed by the National Statistics Institute, and once final certification has been given, apply the relevant index, with effect from the time that the rent review was proposed, or else can apply this review as a function of the certification corresponding to the index for the last twelve months closed by the National Statistics Institute. In either case, the review shall be considered automatically applicable without the need for notice whatsoever. Notwithstanding that, the LESSOR shall send a letter to the TENANT accompanied by the report of the National Statistics Institute in order to explain that the review made conforms to the CPI applicable during the period reviewed.
The first review shall be carried out within twelve months of the signing of this Contract in relation to the contractual rent and successive ones in relation to the contractual [rent] plus all the increases, voluntary or legal, including the applicable rental review.
Likewise, every FIVE (5) YEARS, the LESSOR shall be entitled to adjust the rent in line with market values, according to the technical publications which provide this information.
MARKET RENT: Upon the expiry of the first five years of this Contract and upon the expiry of any further five-year period (at the end of the 10th year, 15th year), the rent shall be revised to adapt it to market rates (the Market rent ).
Once this update has taken place, the Market Rent shall apply during the following annual period, and shall be adjusted annually in accordance with Clause 4.5.
Three months prior to the end of the 5th and 10th years of rent and subsequent extensions, if applicable, the LESSOR must inform the TENANT of the rent which will have been determined by an independent property expert chosen by the LESSOR from among the leading renowned international property consultants. If the TENANT does not agree with the proposed market rent indicated by the LESSOR, it shall inform the TENANT [sic] of this, designating in its communication a second independent property expert chosen by the TENANT from among the leading renowned international property consultants, who must set the market rent by common accord through the property expert designated originally by the LESSOR in its communication within no more than 30 days of the notification of the LESSOR.
If the two experts fail to reach an agreement, a third independent property expert designated by the two previous from among the leading renowned international property consultants shall establish, on the basis of the two proposals submitted, which of these two should be considered as Market Rent, provided that these proposals do not differ by more than 10%. If the two original proposals differ by more than 10%, the third expert shall set, independently, the market level within a maximum period of 30 days of their appointment, and the Market Rent shall be considered to be the average of the two closest proposals.
The fees of the experts appointed by each party shall be paid by the party which appointed them, whilst the fees of the third expert shall be paid by the party whose evaluation of the market rent was furthest away from the market rent determined by this third expert.
The experts must evaluate the market rent solely on the basis of the following criteria.
Market rent means the rent which can be obtained on the market should the whole of the Premises be rented with peaceful possession of the same on the date of the notification made by the LESSOR, by contracting parties freely available to enter into contract without payment of premium or bonus whatsoever, for a term equal to the term of this Contract, all in accordance with the terms and conditions established in this Contract, assuming moreover, the following:
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that prior to the notification of the LESSOR, a reasonable period of time has elapsed (in line with the nature of the property and market rental situation) within which it has been possible to market and negotiate the new rental; |
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that the rent is payable as from the time that the new rental contract is signed; |
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that the Leased Premises are rented out for use similar to the existing use. |
Likewise, in determining the market rent, the experts will, as far as possible, observe the following criteria in order to make market comparisons:
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comparisons will be made between premises which have a similar surface area. For this reason, it will be understood that the premises have a similar surface area when the difference between each is no more than 15%; |
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the premises to be compared should be located in similar parts of the city, and |
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for the purposes of setting the rent, the state of the Premises as they are when handed over to the TENANT shall be taken into account. |
Furthermore, in the calculation of the market rent the following shall not be taken into account:
(i) | the goodwill that might be ascribed to the Premises owing to the fact that business activity has been carried out on the same; |
(ii) | any increase that might arise from the existence of a potential tenant with a special interest. |
If the LESSOR fails to communicate to the TENANT its proposed market rent in the period stipulated, the TENANT shall be entitled to initiate the market rent review mechanism.
However, if the TENANT does not initiate the review mechanism it shall be understood that the parties have waived [their right to] the rent review, in which case the rent for the five previous years up to the next review, five years later, shall apply, without prejudice to the review in accordance with the CPI.
Five - WORKS
5.1 - Works of the LESSOR
The LESSOR is carrying out some renovation work in the building according to the plan dated October 1998 and the planning permission granted by the City Council on 25 February 1999 under the number 117/98/2758, attached as Annexe 1.
5.2 - Works of the TENANT
The TENANT is entitled and authorised to carry out, at any time, any of the works necessary or appropriate to adapt the PREMISES to its own business needs.
For this reason, the TENANT shall prepare, in conjunction with the experts chosen by the LESSOR, an appropriate plan to present as an amendment to the original to the City Council of this capital.
The works to be carried out by the TENANT shall not affect the structural elements.
5.3 - Inspections
The parties agree that either the LESSOR or an appointed specialist shall have the right to perform a reasonable inspection of the works carried out by the TENANT on a working day, provided these inspections are notified at least two days beforehand.
5.4 - Handing back the PREMISES
Upon the expiry of this contract, or any extensions thereto, the TENANT shall hand back the PREMISES in the same state in which it received them, subject to normal, correct usage and except for the improvements made on the PREMISES in conjunction with or authorised by the LESSOR.
Upon the expiry of the contract, the TENANT may elect to remove the air conditioning equipment, or reach an agreement to leave it on the PREMISES subject to appropriate compensation by the LESSOR.
The TENANT shall have the same option in relation to all those installations for which it has paid and which can be removed or maintained.
5.5 - Improvements
The TENANT shall not be allowed to carry out improvement works on the PREMISES without the prior written consent of the LESSOR.
However, works necessary or appropriate to adapt the PREMISES to the specific business needs of the TENANT, carried out in accordance with the provisions of the second paragraph of subclause 5.2 do not require the LESSORs consent.
Six : SERVICES AND SUPPLIES
6.1 - Expenses for services and supplies
The LESSOR declares that the PREMISES have access to the telecommunications and electricity network, connection to a suitable infrastructure for use of the appropriate services and supplies, such as electricity, water, telephone, etc.
The TENANT shall bear the costs attached to the installation and maintenance of the services and supplies corresponding to the PREMISES, such as electrical energy, water, telephone, etc., as well as their corresponding meters, which must be taken out in its name.
6.2 - Maintenance
The TENANT shall bear the maintenance costs of the services for fire detection and extinguishing, ventilation of garages, pressure unit, air conditioning and lifts, and indoor and outdoor cleaning.
6.3 - Services to be provided
The TENANT shall freely decide the type and level of service to be provided within the PREMISES, such as cleaning, security and surveillance, etc., and contract the services with companies it considers appropriate, and shall bear the costs of these services.
6.4 - Inspections
The LESSOR shall have the right to designate a person who will monitor and inspect the premises on its behalf during the period of validity of this contract.
This supervisor or inspector shall have access restricted to those areas of the building which are communicated by the TENANT to the LESSOR, given the necessary confidentiality required of certain operations or activities of the TENANT or clients thereof.
Seven : LICENCES, PERMITS, TAXES AND CHARGES
7.1 - Permits for the PREMISES
THE LESSOR states that the PREMISES are in possession of the mandatory permits required for its construction and all its installations, and that it has a permit for the works being carried out at the PREMISES, without prejudice to the obligation incumbent upon THE TENANT to apply for the appropriate permits for the works it is carrying out and for its business.
7.2 - TENANT PERMITS
The TENANT shall be solely responsible for managing, obtaining and paying for the approvals, permits and authorisations, whether pertaining to the municipal, autonomous region or state authority or required by the European Union, necessary for the activity to be carried out at the PREMISES or which arise as a result of the use or occupancy of the PREMISES, as well as the works permit and business licence of the TENANT. The LESSOR undertakes to collaborate diligently with the TENANT in obtaining these permits/licences.
Likewise, whenever the TENANT is to make changes to the original plan submitted to the City Council of this Capital in relation to the works necessary for the purposes of the company purpose thereof, the TENANT shall also be responsible for obtaining updated permits and approvals required by these works.
7.3 - Immovable Property Tax
The LESSOR shall be responsible for paying the Impuesto de Bienes Inmuebles (I.B.I.) [i.e. the Immovable Property Tax] applicable to the PREMISES.
Eight : SIGNS AND OTHER SUCH FACILITIES
The TENANT is expressly authorised to set up neon signs, placards/posters and notices on the outside of the building, and more specifically, on the facade or roof of the building covered by this contract.
Similarly, the TENANT is authorised to install air conditioning equipment, irrespective of the central cooling system attached to the property.
Likewise, the TENANT is entitled to carry out the adaptation works required for its business purposes.
Nine : DEPOSIT
Under the terms of this instrument, the TENANT shall pay to the LESSOR as a deposit the sum of *** as a guarantee for the precise fulfilment of the obligations assumed under the terms of this contract and to cover any damage that might be caused to the PREMISES. This amount is equivalent to two months rent, in accordance with the L.A.U. [ Ley de Arrendamientos Urbanos i.e. Urban Leases Act], which the LESSOR shall not return to the TENANT until, upon the expiry of the contract, the PREMISES leased have been handed back in a good state of repair. The existence of the deposit shall not be grounds for any delay or non-payment of rents.
Ten : INSURANCE
The LESSOR shall pay the Insurance corresponding to the PREMISES covered by this contract whilst the TENANT shall pay the insurance corresponding to the activity to be carried out thereupon.
Eleven : WAIVER OF RIGHTS UNDER THE L.A.U. [Urban Leases Act]
The TENANT waives the right to the compensation specified in Article 34 of the current L.A.U., in the case of termination of the contract owing to the expiry of the term. Likewise, the TENANT is entitled to partially sublet the PREMISES, the LESSOR waiving herein the rights granted thereto under Article 32.2 of the current L.A.U.
Twelve : SUNDRY MATTERS
12.1 - Access to the Premises
The TENANT agrees to allow the LESSOR or anyone designated thereby to enter the leased PREMISES for the purpose of monitoring its state or for inspection and verification of any class of works or repairs affecting the PREMISES, in accordance with clause 6.4 and provided that these inspections do not interfere with the normal activity of the TENANT and that the latter is given at least two days notice.
12.2 - Hazardous materials
If, during the normal course of its business and provision of its services, the TENANT needs to store or handle any material or substance normally considered as hazardous, harmful or contaminating/polluting, the TENANT is allowed to do so provided that:
(i) | it has requested the relevant licences; |
(ii) | it has taken the necessary safety measures; and |
(iii) | it has informed the LESSOR. |
Thirteen : BREACH
The failure by either party to fulfil the obligations incumbent thereupon under the terms of this contract, as well as the obligations stipulated in 35 and 27.2 d) of the L.A.U., shall entitle the other party to terminate the contract ipso jure , in accordance with the provisions of Article 1124 of the Civil Code.
The termination of this Contract at the request of either party shall require the prior and reliable notification to the party in breach, informing them of the intention to terminate the contract, after which the party summoned shall have a period of fifteen days in which to make good the breach at stake, and should they do so, the contract shall not be terminated. The costs of the injunction shall be paid by the party in breach.
Fourteen : COMMUNICATIONS
For the purpose of notification, in relation to the rights and responsibilities of this Contract, the domicile of the TENANT is established as the PREMISES rented out.
Fifteen : JURISDICTION
For the interpretation and performance of this Contract the parties submit to the Courts and Tribunals of Madrid to the exclusion of their own.
Sixteen : LEGAL REGULATION
This Contract shall be governed by the will of the parties and for all matters not envisaged thereby, it shall be governed by the L.A.U. and by the Civil Code.
And in witness whereof to all the foregoing, the parties sign this document in duplicate, at the place and on the date ut supra [as above].
THE LESSOR | THE TENANT | |
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Confidential material has been omitted and filed separately with the Commission
ANNEX TO THE LEASE AGREEMENT INVOLVING THE BUILDING SITUATED ON
C/ALBASANZ, 71, MADRID, REGISTERED PROPERTY NO. 17,891,
SIGNED ON 20 MARCH 2000
In Madrid, on 15 March 2006
BY AND BETWEEN
ON THE ONE HAND : Ms. María del Rocío Viñambres González, of legal age, holding Tax Identity Number 7.488.791-Z, with address at Avda. del Valle, 15, Madrid.
AND ON THE OTHER HAND : Mr. Robert J.M. Assink, of legal age, holding Foreigners Identity Number X-1.589.529-E, with address at Avenida Jesús de Monasterio, 2 chalet 37 San Sebastián de los Reyes, Madrid.
ACTING
As regards the former party, on behalf and in representation of the commercial entity NAVES Y URBANAS ANDALUCIA, S.A., (HEREINAFTER THE LESSOR), holding Company Tax ID No. A-28301612 and with address at Avda. del Valle, 15, Madrid, in her capacity as Agent, pursuant to the power of attorney granted before the Notary of Madrid, Mr. Ignacio Manrique Plaza, on 27 December 2000, under his protocol number 8,352.
As regards the latter party, on behalf and in representation of the commercial entity INTERXION ESPAÑA, S.L., (HEREINAFTER THE LESSEE), holding Company Tax ID No. B-82517731 and with address at C/Albasanz, 71, Madrid, in the capacity of Sole Director, pursuant to the authority conferred upon him by virtue of the power of attorney granted before the Notary of Madrid, Mr. Carlos Pérez Bauduin, on 2 April 2001, under his protocol number 1,167.
And both parties, in the capacity in which they act, mutually acknowledge one anothers sufficient legal capacity to contract and:
THEY DECLARE
That they, the parties, intend to renew, by virtue of this ANNEX, the lease agreement to which they are bound dated 20 March 2000, the object of which is the building that is the property of Naves y Urbanas Andalucía, S.A. situated at C/Albasanz, 71, Madrid (registered property 17.891 of Register no. 17 of Madrid) and to such end
Naves y Urbanas Andalucia, S.A. P.P. |
1
THEY AGREE
One -That the duration of the contract, obligatory for both parties, shall be fifteen years (15 years), calculated from 20 March 2000. The extension set forth in favour of the Lessee shall be that detailed in the contract of 20 March 2000, in other words, of ten years (10 years), and authorisation from the Lessor shall not be necessary for this.
Two -That the monthly rent, as from 1 March 2006, shall be *** plus the corresponding VAT, an amount to which, as from 20 March 2006, the corresponding CPI that the INE [National Statistics Institute] sets forth for the period between March 2005 and March 2006 shall apply.
For subsequent yearly periods, the terms set forth under clause 4.5 of the contract signed on 20/03/00 shall apply.
MARKET RENT: The first review of the rent pursuant to market levels shall be performed on 20 March 2011, as set forth under clause 4.5 of the lease agreement entered into on 20 March 2000, and it shall be carried out pursuant to the forecasts set forth in such document. This review shall take place in all five-year periods during the contracts period of validity.
Three -That for anything not detailed herein, the terms of the contract of 20 March 2000 shall remain valid.
AND IN WITNESS WHEREOF, THE PARTIES SIGN TWO COPIES OF THIS DOCUMENT FOR A SINGLE PURPOSE, IN THE LOCATION AND ON THE DATE DETAILED UT SUPRA.
Naves y Urbanas Andalucía S.A. | ||
P.P. | ||
By the Lessor: | By the Lessee: | |
María del Rocio Viñambres González | Robert J.M. Assink | |
[stamp - Naves y Urbanas Andalucía S.A. | [stamp - interxion | |
(N.U.A.S.A) | Albasanz, 71 28037 Madrid | |
Avenida del Valle, 15 | Company Tax ID No. B82517731] | |
28003 Madrid] |
2
Exhibit 10.13
*** | Pursuant to a request for confidential treatment filed with the Securities and Exchange Commission, confidential portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission |
DATED 23 rd February 2000
ELIAHOU ZELOOF AMIRA ZELOOF
OFER ZELOOF AND OREN ZELOOF (1)
-and-
INTERXION CARRIER HOTEL LIMITED (2)
-and-
INTERXION HOLDING N.V. (3)
AGREEMENT
Relating to
Premises at Block B
The Old Truman Brewery
91 Brick Lane
London E1
BIRD & BIRD
90 Fetter Lane
London EC4A 1JP
THIS AGREEMENT is made the 23 rd day of February Two thousand
BETWEEN:-
(1) | ELIAHOU ZELOOF AMIRA ZELOOF OFER ZELOOF AND OREN ZELOOF all of 15 Hanbury Street London E1 (hereinafter called the Landlord which expression shall include where the context so admits its successors in title and assigns) |
(2) | INTERXION CARRIER HOTEL LIMITED whose registered office is at 90 Fetter Lane London EC4A 1JP (hereinafter called the Tenant which expression shall include where the context so admits its successors in title and assigns) |
(3) | INTERXION HOLDING N.V whose registered office is at Cessnalaan 1-33 1119NJ Schipol Netherlands and whose United Kingdom address for service shall be 90 Fetter Lane London EC4A 1JP (the Parent) |
IT IS HEREBY AGREED as follows:-
1. | Definitions |
In this Agreement the following expressions unless the context otherwise requires shall have the meanings hereinafter specified that is to say:-
1.1 the Building means Block B The Old Truman Brewery 91 Brick Lane London E1
1.2 the Conditions Precedent means:
1.2.1 The provision of written consent to the grant of this Agreement and the Lease by any parties which at the date hereof have a charge over the Landlords Superior Title
1
1.2.2 The grant to the Tenant of Planning Permission Necessary for the lawful carrying on of the Tenants Proposed Business and the carrying out of the Tenants Proposed Works
1.2.3 The obtaining of a full structural survey by the Tenant which in the Tenants reasonable opinion indicates that the Building is of a type and in a state suitable for the carrying on of the Tenants Proposed Business and the carrying out of the Tenants Proposed Works
1.2.4 The grant of the Court Order
1.3 the Court Order means an order of the court made pursuant to Section 38(4) of the Landlord and Tenant Act 1954 (the Act) authorising in relation to the tenancy to be created by the Lease the agreement between the Landlord and the Tenant to be contained in Clause 6 of the Lease excluding in relation to that tenancy the provisions of Sections 24 to 28 of the Act
1.4 the Completion Date shall mean the date (not to be before 10 March 2002) 10 working days after the date on which the relevant party notifies the other that the last outstanding Condition Precedent has been satisfied Provided That the relevant party shall so notify the other within five working days of becoming aware that the relevant Condition Precedent shall be satisfied or five working days after the date on which the Tenant shall be entitled to occupy the Premises in accordance with the provisions of this Agreement whichever shall be the later
1.5 the Landlords Solicitors shall mean Messrs Finers Stephens Innocent of 179 Great Portland Street London W1N 6LS (fao Mr Spencer Grimshaw)
1.6 Landlords Superior Title shall mean the freehold land comprised at the date hereof in title number NGL291450
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1.7 the Lease shall mean the lease of the Premises in the form annexed hereto which is to be granted to the Tenant in accordance with the provisions of this Agreement
1.8 the Long Stop Date shall mean 31st March 2002
1.9 the Premises shall mean those parts of the Building as set out in the schedule annexed hereto (the Schedule) subject to the Landlord procuring vacant possession thereof
1.10 Planning Permission means the grant of detailed planning permission for the Premises and the Equipment (as defined in the Lease) on the roof of the Building which contains conditions which are acceptable to the Tenant acting reasonably by Tower Hamlets Borough Council or such other competent authority to the Tenants Proposed Works and to the Tenants Proposed Business with office and other ancillary uses
1.11 the Tenants Proposed Business means the use of the Premises as a carrier hotel with offices and all uses ancillary thereto
1.12 the Tenants Proposed Works shall mean the works which the Tenant intends to carry out at the Premises details of which are annexed to this Agreement and which shall include the installation of the Tenants Equipment and such other works as the Tenant intends to carry out in relation to the Building and which shall not affect the exterior of the Building
1.13 the Tenants Equipment shall mean
(1) | computer cabling and telephone lines |
(2) | telecommunications equipment |
(3) | power systems including transformers, emergency generators, fuel tanks, uninterruptable power supplies, batteries, an earthing system, power distribution points and power management system |
(4) | air conditioning systems, chiller units, pipes, fans |
(5) | raised floors, partition walls, suspended ceilings, extra doors |
3
(6) | security and alarm systems |
(7) | fire suppression and detector systems (gas) |
(8) | cabling including power and telecommunications ducts and vertical rises |
(9) | water and drainage systems |
which is to be installed as part of the Tenants Proposed Works
1.14 the Term Commencement Date shall be 24 January 2000
1.15 the Tenants Solicitors shall mean Messrs Bird & Bird of 90 Fetter Lane London EC4A 1JP (fao Mr Andrew Stobban)
2. | Conditional Agreement |
2.1 Completion of the Lease is conditional upon the Conditions Precedent being satisfied by the Long Stop Date
2.2 If the Tenant wishes to vary those of the Tenants Proposed Works as affect the exterior of the Building it shall provide the Landlord with full plans and specifications and any other details which the Landlord may reasonably require in relation to such variation to the Tenants Proposed Works and upon receipt thereof the Landlord shall at the cost of the Tenant and with all due expedition examine such plans and specifications and inform the Tenant whether its consent is given to such plans and specifications or not and if the Landlord refuses consent then the Tenant may alter its plans and specifications and resubmit them to the Landlord and the Landlord shall examine them and inform the Tenant whether its consent is given in accordance with the terms of this Clause and this process may be repeated until the Landlords consent is given or until the Tenant serves notice on the Landlord that it does not intend to vary the Tenants Proposed Works provided that no such variations shall be permitted which shall prevent the Conditions Precedent being satisfied by the Long Stop Date
4
2.3
2.3.1 The Tenant shall use best endeavours to obtain (i) Planning Permission and (ii) any other consents required for the carrying on of the Tenants Proposed Business and the carrying out of the Tenants Proposed Works as soon as reasonably possible and in any event before the Long Stop Date
2.3.2 The Tenant shall inform the Landlord in writing no later than five working days after it has received Planning Permission and the consents referred to in Clause 2.3.1 above and for the avoidance of doubt the Tenant shall so notify the Landlord on each and every occasion that it shall receive Planning Permission or the consent (as the case may be)
2.4 The Tenant shall commission a full structural survey of the Building as soon as reasonably possible and in any event no later than 10 working days from the date of this Agreement and the Tenant shall procure that such survey shall be issued no later than six months from the date of this Agreement and the Tenant shall provide the Landlord with a full copy of such survey within five working days of receipt by the Tenant and at the same time shall give written notice to the Landlord of whether or not in the Tenants reasonable opinion the Building is suitable for the carrying out of the Tenants Proposed Works and/or carrying on of the Tenants Proposed Business
2.5
2.5.1 The Landlord shall as soon as reasonably possible submit a copy of this Agreement and the Lease to any party which has a charge over the Landlords Superior Title and shall use all reasonable endeavours to obtain the consent of such charges to this Agreement and the grant of the Lease as soon as reasonably possible
2.5.2 The Landlord shall inform the Tenant as soon as reasonably practicable once it has received the consents referred to in Clause 2.5.1 above
5
2.6
2.6.1 In relation to the Court Order the parties shall as soon as reasonably practicable make to the Mayors and City of London Court an application for the Court Order and shall diligently pursue such application and use their reasonable endeavours to obtain the Court Order
2.6.2 The Landlord shall inform the Tenant as soon as reasonably practicable once the Court Order has been granted
3. | Termination |
3.1 If at any time during the term of this Agreement it appears to the Tenant acting reasonably that it will not be possible to fulfil any or all of the Conditions Precedent then the Tenant may on giving not less than three months written notice to the Landlord terminate this Agreement or
3.2 If the Conditions Precedent have not been fulfilled by the Long Stop Date then this Agreement may be determined by either party on giving written notice to that effect to the other party (provided that the Landlord shall not be entitled to serve such notice on the Tenant if the Tenant shall have given written notice to the Landlord prior to the Long Stop Date whereby the Tenant shall waive those Conditions Precedent referred to in Clauses 1.2.2 and/or 1.2.3 which remain unfulfilled and the parties shall treat the date on which such notice is given as the date on which the Conditions Precedent are fulfilled for the purposes of the definition Completion Date in this Agreement)
and in either case all obligations (save for the Tenants and Parents obligations contained in Clause 8.6) hereunder shall cease (but without prejudice to the rights of either party in respect of any antecedent breach of the terms of this Agreement by the other) and the Tenant shall immediately procure the cancellation of any notice or other entry registered against the Landlord or the Landlords title in respect of this Agreement
6
4. | Restrictions |
4.1 Restrictions means all matters affecting the Premises or their use registered or capable of registration as local land charges and all notices charges orders resolutions demands proposals requirements regulations restrictions agreements directions or other matters affecting the Premises or their use served or made by any local or other competent authority or otherwise arising under any statute or any regulation or order made under any statute
4.2 The Premises shall be demised subject to all (if any) Restrictions affecting the Premises (whether in existence at the date of this Agreement or arising at any later date)
4.3 The Premises shall be demised subject to all rights of way and water rights of common and other rights easements quasi-easements liabilities and public rights affecting the same
4.4 No representation is made or warranty given by the Landlord as to the permitted use of the Premises for planning purposes
4.5 The Tenant acknowledges that its obligations under this Agreement and the Lease shall not be affected or lessened in any way by the fact that there may now or subsequently exist any Restrictions
5. | Representations etc. |
No immaterial error omission or misstatement in this Agreement or in any plan of the Premises referred to in this Agreement shall in any way affect the obligations of the parties under this Agreement or entitle any party to damages or compensation
6. | Grant of Lease |
6.1 On the Completion Date the Landlord shall grant to the Tenant and the Tenant shall accept the Lease of the Premises for a term commencing on the Term Commencement Date and expiring on 5th April 2015 in the form of the Lease
7
6.2 The Lease and the Counterpart shall be prepared by the Landlords Solicitors and an engrossment of the Counterpart shall be delivered to the offices of the Tenants solicitors at least five working days before the Completion Date
6.3 The Lease shall be completed on the Completion Date at the offices of the Landlords Solicitors or at such other place as the Landlords Solicitors shall reasonably require in the United Kingdom
7. | Occupation of the Premises before the grant of the Lease |
7.1 Subject to the terms of Clause 8 below the Tenant will be entitled to occupy each relevant part of the Premises as tenant at will for the purpose of commencing and completing the Tenants Proposed Works and carrying out the Tenants Proposed Business with effect from the dates shown in the Schedule for take up of each part of the Premises
7.2 The Tenant shall inform the Landlord within a reasonable period following completion of the Tenants Proposed Works
7.3 In respect of each part of the Premises which the Tenant is entitled to occupy under Clause 7.1 above from the date shown in the Schedule for take up of the relevant part of the Premises until the grant of the Lease:
7.3.1 the parties shall be liable (subject to the provisions of Clause 7.4 below) to observe and perform the same obligations as are imposed by the covenants on their respective parts and the conditions to be contained in the Lease in so far as they are not inconsistent with the provisions of this Agreement; and
7.3.2 the Landlord shall have and be entitled to all remedies by distress action or otherwise for recovering any monies or for breach of obligation on the part of the Tenant as if the Lease had then been granted
8
*** | Pursuant to a request for confidential treatment filed with the Securities and Exchange Commission, confidential portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission |
7.4 With effect from 24 January 2000 in respect of that part of the Premises described in the schedule 1 of the Schedule and with effect from the relevant dates shown in schedules 2, 3, 4 and 5 of the Schedule for each other part of the Premises the Tenant shall be responsible for and pay directly to any relevant authority all rates, taxes and utility charges attributable to the relevant part or parts of the Premises in accordance with the terms of the Lease and for the period commencing on 24 January 2000 in respect of that part of the Premises described in schedule 1 of the Schedule and with effect from the relevant date shown in schedules 2, 3, 4 and 5 of the Schedule for each other part of the Premises the Tenant will also be responsible for the due payment of the rent firstly reserved and secondly reserved by the Lease together in all cases with any Value Added Tax properly payable thereon
7.5 For the avoidance of doubt the sums which the Tenant shall pay at any given time under Clause 7.4 above shall be calculated (in accordance with the terms of Clause 7.6 below) according to the total area of the Premises as indicated in the Schedule but subject to further measurement which the Tenant is then entitled to occupy
*** | 7.6 The rent first reserved under the Lease shall be calculated at a rate of |
8. | Tenants Proposed Works |
The Tenant shall carry out the Tenants Proposed Works in accordance with the Planning Permission (provided that this Clause shall not prohibit the commencement of the Tenants Proposed Works prior to obtaining the Planning Permission) and all other permissions and the regulations (whether statutory or otherwise) required for the carrying out completion and retention of the Tenants Proposed Works
9
8.2 The Tenant shall carry out the Tenants Proposed Works with all due expedition and in a good and workmanlike manner and in compliance with all relevant consents, statutes, orders, bye-laws and the requirements of any competent authority
8.3 The Tenant shall fully and effectually indemnify the Landlord and keep the Landlord so indemnified against all loss, damage, claims and actions, demands or liabilities whatsoever and however arising whether directly or indirectly as a result of the Landlord permitting the Tenant access to the Premises for the purposes aforesaid and/or as a result of the carrying out and/or in completion of the Tenants Proposed Works and/or as a result of any other act or default of the Tenant or other persons expressly or impliedly authorised by the Tenant including (without prejudice the generality of the foregoing) in respect of any damage or disturbance caused to the Premises or to the Building and/or to the occupiers thereof by the carrying out of the Tenants Proposed Works or the reinstatement of the Premises or otherwise arising directly or indirectly therefrom and including any expenses and loss of income if the Premises and not cleared and reinstated as herein provided in the event the Tenant is required to vacate the same
8.4 The Tenant will cause no more damage nuisance and or disturbance to the Landlord and/or any other occupiers of the Landlords adjoining land and premises than is reasonably necessary in carrying out the Tenants Proposed Works (provided that the parties acting reasonably and in good faith shall use their reasonable endeavours to agree hours during which the Tenant carries out the Tenants Proposed Works) and shall make good any damage caused with all due expedition and to the reasonable satisfaction of the Landlord
8.5 The Tenant shall comply with all reasonable regulations made from time to time by the Landlord concerning the carrying out of the Tenants Proposed Works and in particular (but without limitation) the storage and delivery of plant equipment and machinery and other items in connection with the Tenants Proposed Works PROVIDED THAT the Landlord shall not make any regulations in this respect which would materially hold up or hinder completion of the Tenants Proposed Works
10
8.6 In the event that this Agreement is determined other than by completion of the Lease then the Tenant shall vacate the Premises within twenty working days and at the Tenants expense as soon as reasonably possible and in any event within three months of the date of the Landlords notice (subject to any extension of time as may be agreed by the parties acting reasonably in the event of delays in reinstatement arising on account of matters beyond the Tenants control) reinstate (and for the avoidance of doubt the obligation to reinstate shall include an obligation to remove all the Tenants plant equipment machinery and conducting media from the Building) the Premises and/or the remainder of the Building to the reasonable satisfaction of the Landlord and make good all consequential damage to the reasonable satisfaction of the Landlord and the Tenant shall be obliged to pay to the Landlord all sums which would otherwise be due under the Lease until such time as the Premises shall have been reinstated in accordance with the provisions of this Clause PROVIDED THAT if the Tenant is obliged within a period of three years from the date hereof to reinstate the Premises and/or the remainder of the Building then in consideration of the Landlord entering into this Agreement with the Tenant the Parent guarantees to and covenants with the Landlord that it shall promptly observe and perform the Tenants obligations under this Clause 8.6 or (if the Lease has been completed) Clause 2.7 of the Lease PROVIDED THAT the Parents liability under this Clause shall be limited to the sum of FOUR HUNDRED THOUSAND POUNDS (£400,000,00) plus VAT
8.7 For the avoidance of doubt the Landlord hereby confirms that it will not require the Tenant to enter into any further licence for alterations in respect of the Tenants Proposed Works within the Premises
9. | Non-assignment |
The Tenant shall not assign the benefit of this Agreement in whole or in part other than to a bank funding the Tenant for the carrying out of the Tenants Proposed Works and/or the Tenants remaining obligations in this Agreement and/or the Lease and the Landlord shall not be obliged to grant the Lease to any person other than the Tenant
11
10. | Executory Agreement |
10.1 This Agreement is an executory agreement only and shall not operate or be deemed to operate as a demise of the Premises
10.2 Save as described in Clause 8 hereof the Tenant shall not be entitled to occupation or possession of the Premises until the Lease is completed
11. | Disputes |
11.1 Save as otherwise expressly herein provided it is agreed that in the event of any dispute or difference arising between the parties hereto touching and concerning any matter or thing arising out of this Agreement (other than with regard to construction of this Agreement) if the Landlord so requires such dispute or difference whether arising before or after the determination of this Agreement shall be referred to some independent and fit person to be appointed by the parties or failing their Agreement within five working days after notice given by either party to the other on who shall be appointed by the President for the time being of the Royal Institution of Chartered Surveyors on the application of either party
11.2 In every case where a person is appointed under Clause 11.1 he shall act as an expert and not as an arbitrator and the decision of such person shall be conclusive and binding on the parties hereto and without appeal and any fees which may become payable to such person shall be within the award of that person
11.3 The parties shall be required to submit their representations to such person within a period of five working days of notice of his appointment and such expert shall be required to produce his decision within five working days thereafter
12. | Miscellaneous |
12.1 Section 196 of the Law of Property Act 1925 shall apply to any notices to be served under or by virtue of this Agreement
12
12.2 Save in so far as they have been fully performed or are provided for in the Lease the provisions of this Agreement shall remain in full force and effect after and notwithstanding completion of the Lease.
12.3 Subject to the terms of Clause 2.1 no defect in the Premises and/or the remainder of the Building and/or the remainder of the Landlords adjourning land and premises at the date hereof or on which the Lease is granted shall in any way lessen or affect the Tenants obligations under the Lease.
12.4 In this Agreement:-
12.4.1 Any reference to an Act of Parliament shall include any modification extension replacement or re-enactment thereof for the time being in force and shall also include instruments plans regulations permissions and directions for the time being made issued or given thereunder or deriving validity therefrom
12.4.2 The headings shall be ignored for the purpose of Interpretation
12.4.3 Words importing the neuter gender only shall include the masculine or feminine gender (as the case may be) and words importing the masculine gender only shall include the feminine gender and vice versa
12.4.4 Words importing the singular number only shall include the plural number and vice versa
12.4.5 Working day means a day on which clearing banks in the City of London are (or would be but for a strike lockout or other stoppage affecting particular banks or banks generally) open during normal banking hours
12.5 Every provision contained in this Agreement shall be severable and distinct from every other such provision and if at any time any one or more of such provisions is or becomes invalid illegal or unenforceable the validity legality and enforceability of the remaining such provisions shall not in any way be affected thereby
13
13. | Further Agreement |
On the dates shown in the Schedule and subject in each case to the Landlord procuring vacant possession of each relevant area (provided that the Landlord shall in each case previously have used all reasonable endeavours to procure such vacant possession) the Tenant shall be permitted to occupy each relevant area of the Premises shown in the Schedule in accordance with the terms of Clause 7 above
SIGNED by | ) |
/s/ |
||
duly authorised for and on | ) | |||
behalf of | ) | |||
ELIAHOU ZELOOF AMIRA ZELOOF | ) | |||
OFER ZELOOF AND OREN ZELOOF | ) | |||
SIGNED by | ) |
/s/ |
||
duly authorised for and on | ) | |||
behalf of INTERXION CARRIER HOTEL | ) | |||
LIMITED | ) | |||
SIGNED by | ) |
/s/ |
||
duly authorised for an on | ) | |||
behalf of INTERXION HOLDING N.V | ) | |||
[SCHEDULE TO BE ANNEXED] |
14
* * * Pursuant to a request for confidential treatment filed with the Securities and Exchange Commission, confidential portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission
24-Jan-2000 |
Area |
Square feet | Start | Square feet | ||||||||||||||
B3 - 600 | 6,542.00 | Schedule 1 | 24-Jan-2000 | 31,991 | ||||||||||||||
B3 - 602 | 1,323.00 | Schedule 2 | 1-Apr-2000 | 13,353 | ||||||||||||||
B3 - 607 | 581.00 | Schedule 3 | 15-Aug-2000 | 7,050 | ||||||||||||||
B2 - 500 | 7,188.00 | Schedule 4 | 1-Jan-2001 | 7,330 | ||||||||||||||
B2 - 502 | 1,459.00 | Schedule 5 | 20-Feb-2002 | 10,900 | ||||||||||||||
B2 - 503 | 1,259.00 | 70,624 | ||||||||||||||||
B2 - 504 | 1,280.00 | |||||||||||||||||
B2 - 505 | 1,076.00 | *** | 70,624.00 | |||||||||||||||
B2 - 510 | 2,690.00 | 70,624.00 | ||||||||||||||||
B1 - 400 | 5,957.00 | |||||||||||||||||
B-300/315/316 partially | 2,636.00 | |||||||||||||||||
Total | 31,991.00 | |||||||||||||||||
1-Apr-2000 |
demise schedule 2 |
Square feet | ||||||||||||||||
B3 - 604 | 1,323.00 | |||||||||||||||||
B3 - 605 | 1,291.00 | |||||||||||||||||
B3 - 606 | 1,280.00 | |||||||||||||||||
B3 - 610 | 2,685.00 | |||||||||||||||||
B4 - 710 (penthouse) | 2,647.00 | |||||||||||||||||
B2 - 506 | 1,334.00 | |||||||||||||||||
B2 - 507 | 793.00 | |||||||||||||||||
Corridors + toilets area 2nd | 2,000.00 | |||||||||||||||||
Total | 13,353.00 | |||||||||||||||||
15-Aug-2000 |
Area |
Square feet | ||||||||||||||||
B1-410 | 2,034.00 | |||||||||||||||||
B1-415 | 1,132.00 | |||||||||||||||||
B1-416 | 1,164.00 | |||||||||||||||||
B1-417 | 700.00 | |||||||||||||||||
B1-418 | 700.00 | |||||||||||||||||
B1-419 | 700.00 | |||||||||||||||||
Total | 7,050.00 | |||||||||||||||||
1-Jan-2001 |
Area |
Square feet | ||||||||||||||||
B3-617 | 3,829.00 | |||||||||||||||||
B3-618 | 220.00 | |||||||||||||||||
corridor/toilet | 500.00 | |||||||||||||||||
B3-601 | 781.00 | |||||||||||||||||
corridors + toilets 3rd floor | 2,000.00 | |||||||||||||||||
Total | 7,330.00 | |||||||||||||||||
28/2/2002 |
Area |
Square feet | ||||||||||||
B1-401 | 1,232.00 | |||||||||||||
B1-402 | 1,474.00 | |||||||||||||
B1-403 | 1,259.00 | |||||||||||||
B1-404 | 1,280.00 | |||||||||||||
B1-405 | 535.00 | |||||||||||||
B1-406 | 1,622.00 | |||||||||||||
B1-407 | 1,998.00 |
Exhibit 10.14
EXECUTION COPY
Dated 12 February 2010
BARCLAYS BANK PLC
as Revolving Agent
- and -
THE BANK OF NEW YORK MELLON, LONDON BRANCH
as Original Senior Secured Trustee
- and -
The Revolving Lenders
- and -
CERTAIN COMPANIES
as Original Debtors
- and -
BARCLAYS BANK PLC
acting as Security Trustee
- and -
others
INTERCREDITOR AGREEMENT
TABLE OF CONTENTS
SCHEDULE 1 THE REVOLVING LENDERS |
87 | |||
SCHEDULE 2 |
88 | |||
THE INTRA-GROUP LENDERS AND DEBTORS |
88 | |||
Part 1 The Intra-Group Lenders |
88 | |||
Part 2 The Debtors |
89 | |||
SCHEDULE 3 FORM OF DEBTOR ACCESSION DEED |
90 | |||
SCHEDULE 4 FORM OF CREDITOR/REPRESENTATIVE ACCESSION UNDERTAKING |
93 | |||
SCHEDULE 5 FORM OF DEBTOR RESIGNATION REQUEST |
95 | |||
SCHEDULE 6 SENIOR SECURED PARAMETERS |
96 | |||
SCHEDULE 7 TRANSACTION SECURITY DOCUMENTS |
97 | |||
SIGNATURES |
98 |
THIS AGREEMENT is dated 12 February 2010 and made between:
(1) | BARCLAYS BANK PLC as Revolving Agent; |
(2) | THE FINANCIAL INSTITUTIONS named in Schedule 1 ( The Revolving Lenders ) as Revolving Lenders; |
(3) | THE BANK OF NEW YORK MELLON, LONDON BRANCH as Original Senior Secured Trustee; |
(4) | INTERXION HOLDING N.V., a public company with limited liability ( naamloze vennootschap met beperkte aansprakelijkheid ), incorporated under Dutch law, having its seat ( statutaire zetel ) in Amsterdam, The Netherlands and its office address at Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands, Chamber of Commerce registration number 33301892 (the Company ); |
(5) | THE COMPANIES named in Part 1 of Schedule 2 ( The Intra-Group Lenders ) as Intra-Group Lenders; |
(6) | THE SUBSIDIARIES of the Company named in Part 2 of Schedule 2 ( The Debtors ) as Debtors (together with the Company, the Original Debtors ); |
(7) | BARCLAYS BANK PLC as hedge counterparty (the Original Hedge Counterparty ); and |
(8) | BARCLAYS BANK PLC as security trustee for the Secured Parties (the Security Trustee ). |
IT IS AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
In this Agreement:
1992 ISDA Master Agreement means the Master Agreement (Multicurrency - Cross Border) as published by the International Swaps and Derivatives Association, Inc.
2002 ISDA Master Agreement means the 2002 Master Agreement as published by the International Swaps and Derivatives Association, Inc.
Acceleration Event means a Revolving Acceleration Event or a Senior Secured Acceleration Event (as the context requires).
Additional Senior Secured Creditors means any Additional Senior Secured Trustee and any creditor in respect of Additional Senior Secured Liabilities arising pursuant to or in connection with any Additional Senior Secured Debt Instrument.
Additional Senior Secured Debt Instrument means any credit agreement, loan, indenture, trust deed or other instrument constituting or evidencing any Additional Senior Secured Liabilities.
Additional Senior Secured Liabilities means the Liabilities that the members of the Group and any other grantor of Transaction Security are permitted to incur in respect of any Senior Secured Notes (other than the Original Senior Secured Notes) pursuant to and in addition to the Senior Secured Liabilities arising in respect of the Original Senior Secured Notes and which may share the same priority and payment ranking as the Senior Secured Liabilities arising in respect of the Original Senior Secured Notes in accordance with the Debt Documents.
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Additional Senior Secured Trustee means any agent or trustee acting on behalf of any creditor in respect of any Additional Senior Secured Liabilities arising pursuant to or in connection with any Additional Senior Secured Debt Instrument.
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.
Allocated Amount has the meaning given to that term in Clause 4.14 ( Allocation of Priority Hedging Liabilities ).
Ancillary Document has the meaning given to the term Ancillary Document in the Original Revolving Facility Agreement.
Ancillary Facility has the meaning given to the term Ancillary Facility in the Original Revolving Facility Agreement.
Ancillary Lender means each Revolving Lender (or Affiliate of a Revolving Lender) which makes an Ancillary Facility available pursuant to the terms of any Revolving Facility Agreement.
Available Commitment has the meaning given to the term Available Commitment in the Original Revolving Facility Agreement.
Belgian Debtor means any Debtor incorporated and existing under Belgian law.
Borrowing Liabilities means, in relation to a member of the Group, the liabilities (not being Guarantee Liabilities) it may have as a borrower to a Creditor, Subordinated Creditor or Debtor in respect of Financial Indebtedness arising under the Debt Documents (whether incurred solely or jointly and including, without limitation, liabilities as a Borrower under and as defined in the Revolving Facility Documents and liabilities as an Issuer under and as defined in the Senior Secured Documents).
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London and Amsterdam and:
(a) | (in relation to any date for payment or purchase of a currency other than Euro) the principal financial centre of the country of that currency; or |
(b) | (in relation to any date for payment or purchase of Euro) any TARGET Day. |
Charged Property means all of the assets which from time to time are, or are expressed to be, the subject of the Transaction Security.
Close Out Netting means:
(a) | in respect of a Hedging Agreement or a Hedging Ancillary Document based on a 1992 ISDA Master Agreement, any step involved in determining the amount payable in respect of an Early Termination Date (as defined in the 1992 ISDA Master Agreement) under section 6(e) of the 1992 ISDA Master Agreement before the application of any subsequent Set off (as defined in the 1992 ISDA Master Agreement); |
(b) | in respect of a Hedging Agreement or a Hedging Ancillary Document based on a 2002 ISDA Master Agreement, any step involved in determining an Early Termination Amount (as defined in the 2002 ISDA Master Agreement) under section 6(e) of the 2002 ISDA Master Agreement before the application of any subsequent Set off (as defined in the 2002 ISDA Master Agreement); and |
(c) | in respect of a Hedging Agreement or a Hedging Ancillary Document not based on an ISDA Master Agreement, any step involved on a termination of the hedging transactions under that Hedging Agreement pursuant to any provision of that Hedging Agreement which has a similar effect to either provision referenced in paragraph (a) and paragraph (b) above. |
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Common Assurance means any guarantee, indemnity or other assurance against loss in respect of any of the Liabilities, the benefit of which (however conferred) is, to the extent legally possible, given to all the Secured Parties in respect of their Liabilities.
Common Currency means Euro.
Common Currency Amount means, in relation to an amount, that amount converted (to the extent not already denominated in the Common Currency) into the Common Currency at the Security Trustees Spot Rate of Exchange on the Business Day prior to the relevant calculation.
Common Transaction Security means any Transaction Security which, to the extent legally possible:
(a) | is created in favour of the Security Trustee as trustee for the other Secured Parties in respect of their Liabilities; or |
(b) | in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Trustee as trustee for the Secured Parties is created in favour of: |
(i) | all the Secured Parties in respect of their Liabilities; or |
(ii) | the Security Trustee under a parallel debt structure for the benefit of all the Secured Parties, |
and which ranks in the order of priority contemplated in Clause 2.2 ( Transaction Security ).
Consent means any consent, approval, release or waiver or agreement to any amendment.
Creditor/Representative Accession Undertaking means:
(a) | an undertaking substantially in the form set out in Schedule 4 ( Form of Creditor/Representative Accession Undertaking ); |
(b) | a Transfer Certificate or an Assignment Agreement (each as defined in the Revolving Facility Agreement); or |
(c) | an Increase Confirmation (as defined in the Revolving Facility Agreement), |
as the context may require, or
(d) | in the case of an acceding Debtor which is expressed to accede as an Intra-Group Lender in the relevant Debtor Accession Deed, that Debtor Accession Deed. |
Creditors means the Revolving Creditors, the Senior Secured Creditors, the Hedge Counterparties and the Intra-Group Lenders.
Debt Document means each of this Agreement, the Hedging Agreements, the Revolving Facility Documents, the Senior Secured Documents, the Security Documents, any agreement evidencing the terms of the Intra-Group Liabilities or the Subordinated Liabilities and any other document designated as such by the Security Trustee and the Company.
Debtor means each Original Debtor and any person which becomes a Party as a Debtor in accordance with the terms of Clause 18 ( Changes to the Parties ).
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Debtor Accession Deed means:
(a) | a deed substantially in the form set out in Schedule 3 ( Form of Debtor Accession Deed ); |
(b) | (only in the case of a member of the Group which is acceding as a borrower or guarantor under any Revolving Facility Agreement) an Accession Letter (as defined in the Revolving Facility Agreement); or |
(c) | (only in the case of a member of the Group which is acceding as a guarantor under a Senior Secured Indenture) a supplemental indenture in respect of the relevant Senior Secured Indenture. |
Debtor Liabilities means, in relation to a member of the Group, any liabilities owed to any Debtor (whether actual or contingent and whether incurred solely or jointly) by that member of the Group.
Debtor Resignation Request means a notice substantially in the form set out in Schedule 5 ( Form of Debtor Resignation Request ).
Defaulting Lender means a Revolving Lender which is a Defaulting Lender under, and as defined in, a Revolving Facility Agreement.
Delegate means any delegate, agent, attorney or co-trustee appointed by the Security Trustee.
Designated Gross Amount means, in relation to a Multi Account Overdraft Facility, that Multi Account Overdraft Facilitys maximum gross amount.
Designated Net Amount means, in relation to a Multi Account Overdraft Facility, that Multi Account Overdraft Facilitys maximum net amount.
Distress Event means any of:
(a) | an Acceleration Event; or |
(b) | the enforcement of any Transaction Security. |
Distressed Disposal means a disposal of an asset of a member of the Group which is:
(a) | being effected at the request of an Instructing Group in circumstances where the Transaction Security has become enforceable; |
(b) | being effected by enforcement of the Transaction Security; or |
(c) | being effected, after the occurrence of a Distress Event, by a Debtor to a person or persons which is not a member of the Group. |
Dutch Civil Code means the Dutch Civil Code ( Burgerlijk Wetboek ).
Dutch Debtor means any Debtor incorporated in The Netherlands.
Enforcement Action means:
(a) | in relation to any Liabilities: |
(i) | the acceleration of any Liabilities or the making of any declaration that any Liabilities are prematurely due and payable (other than as a result of it becoming unlawful for a Revolving Lender to perform its obligations under, or of any voluntary or mandatory prepayment arising under, the Debt Documents); |
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(ii) | the making of any declaration that any Liabilities are payable on demand; |
(iii) | the making of a demand in relation to a Liability that is payable on demand; |
(iv) | the making of any demand against any Debtor in relation to any Guarantee Liabilities of that Debtor which are due and payable but unpaid or any demand against any grantor of Transaction Security in relation to any guarantee, indemnity or other assurance against loss in respect of any Liabilities which are due and payable but unpaid; |
(v) | the exercise of any right to require any member of the Group or any grantor of Transaction Security to acquire any Liability (including exercising any put or call option against any member of the Group or any grantor of Transaction Security for the redemption or purchase of any Liability); |
(vi) | the exercise of any right of set off, account combination or payment netting against any Debtor or any grantor of Transaction Security in respect of any Liabilities which are due and payable but unpaid other than the exercise of any such right: |
(A) | as Close Out Netting by a Hedge Counterparty or by a Hedging Ancillary Lender; |
(B) | as Payment Netting by a Hedge Counterparty or by a Hedging Ancillary Lender; |
(C) | as Inter-Hedging Agreement Netting by a Hedge Counterparty; |
(D) | as Inter-Hedging Ancillary Document Netting by a Hedging Ancillary Lender; and |
(E) | which is otherwise expressly permitted under any Revolving Facility Agreement or any Senior Secured Indenture to the extent that the exercise of that right gives effect to a Permitted Payment; and |
(vii) | the suing for, commencing or joining of any legal or arbitration proceedings against any member of the Group or any grantor of Transaction Security to recover any Liabilities; |
(b) | the premature termination or close-out of any hedging transaction under any Hedging Agreement; |
(c) | the taking of any steps to enforce or require the enforcement of any Transaction Security (including the crystallisation of any floating charge forming part of the Transaction Security); |
(d) | the entering into of any composition, compromise, assignment or arrangement with any member of the Group or any grantor of Transaction Security which owes any Liabilities, or has given any Security, guarantee or indemnity or other assurance against loss in respect of the Liabilities (other than any action permitted under Clause 18 (Changes to the Parties)); or |
(e) | the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, receiver and manager, examiner, administrator or similar officer) in relation to, the winding up, dissolution, administration or reorganisation of any Debtor or any grantor of Transaction Security which owes any Liabilities, or has given any Security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities, or (as the case may be) any of such Debtors or any grantor of Transaction Securitys assets or any suspension of payments or moratorium of any indebtedness of any such Debtor or any grantor of Transaction Security, or any analogous procedure or step in any jurisdiction, except that the following shall not constitute Enforcement Action: |
(i) | to the extent entitled by law, the taking of any actions against any Creditor (or any agent, trustee or receiver acting on behalf of such Creditor) to challenge the basis on which any sale or disposal is to take place pursuant to the powers granted to such persons under any security documentation; |
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(ii) | the taking of any action falling within paragraphs (a)(vii) above which is necessary (but only to the extent necessary) to preserve the validity, existence or priority of claims in respect of Liabilities, including the registration of such claims before any court or governmental authority and the bringing, supporting or joining of proceedings to prevent any loss of the right to bring, support or join proceedings by reason of applicable limitation periods; |
(iii) | an Ancillary Lender, Hedge Counterparty or Issuing Bank bringing legal proceedings against any person solely for the purpose of: |
(A) | obtaining injunctive relief (or any analogous remedy outside England and Wales) to restrain any actual or putative breach of any Debt Document to which it is party; |
(B) | obtaining specific performance (other than specific performance of an obligation to make a payment) with no claim for damages; or |
(C) | requesting judicial interpretation of any provision of any Debt Document to which it is party with no claim for damages; |
(iv) | the taking of any action necessary to create, register or perfect any Transaction Security by any method of perfection (except possession or control or notifying any debtors to direct payments in respect of receivables that are subject to Transaction Security to a creditor (or on its behalf) or directly collecting accounts receivables that are subject to Transaction Security or other payment rights of any member of the Group that are subject to Transaction Security) or the taking of any action necessary to prove, preserve or protect (but not enforce) any Transaction Security; or |
(v) | bringing legal proceedings against any person in connection with any securities violation or common fraud. |
Euro or EUR means the single currency of Participating Member States of the European Union.
Event of Default means any event or circumstance specified as such in any Revolving Facility Agreement or a Senior Secured Indenture.
Final Discharge Date means the later to occur of the Senior Discharge Date and the Non Priority Hedging Discharge Date.
Financial Indebtedness has the meaning given to the term Financial Indebtedness in the Original Revolving Facility Agreement.
French Debtor means any Debtor incorporated under the laws of France.
French Security Document means any Security Document governed by French law.
French Security Interest means any Security governed by French law.
German Security Document means any Security Document governed by German law.
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German Security Interest means any Security governed by German law.
Group has the meaning given to the term Group in the Original Revolving Facility Agreement.
Guarantee Liabilities means, in relation to a member of the Group, the liabilities under the Debt Documents (present or future, actual or contingent and whether incurred solely or jointly) it may have to a Creditor, Subordinated Creditor or Debtor as or as a result of its being a guarantor or surety (including, without limitation, liabilities arising by way of guarantee, indemnity, contribution or subrogation and in particular any guarantee or indemnity arising under or in respect of the Revolving Facility Documents or the Senior Secured Documents).
Hedge Counterparty means:
(a) | the Original Hedge Counterparty; and |
(b) | any other Revolving Lender or any Affiliate of a Revolving Lender which becomes Party as a Hedge Counterparty pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking). |
Hedge Counterparty Obligations means the obligations owed by any Hedge Counterparty to the Debtors under or in connection with the Hedging Agreements.
Hedging Agreement means any master agreement in the form of the 1992 ISDA Master Agreement or 2002 ISDA Master Agreement together with schedule and confirmation or any schedule, confirmation or other agreement incorporating the terms of the 1992 ISDA Master Agreement or the 2002 ISDA Master Agreement and otherwise in accordance with this Agreement entered into or to be entered into by any Debtor and a Hedge Counterparty for the purpose of hedging the exposures of such Debtor permitted by Clause 23.27 (Treasury Transactions) of the Original Revolving Facility Agreement.
Hedging Ancillary Document means an Ancillary Document which relates to or evidences the terms of a Hedging Ancillary Facility.
Hedging Ancillary Facility means an Ancillary Facility which is made available by way of a hedging facility.
Hedging Ancillary Lender means an Ancillary Lender to the extent that that Ancillary Lender makes available a Hedging Ancillary Facility.
Hedging Liabilities means the Liabilities owed by any Debtor or any other grantor of Transaction Security to the Hedge Counterparties or any of them under or in connection with the Hedging Agreements.
Holding Company has the meaning given to the term Holding Company in the Original Revolving Facility Agreement.
Independent Financial Advisor means an investment banking firm, bank, accounting firm or third party appraiser, in any such case, of international standing, provided that such firm is not an Affiliate of the Company.
Insolvency Event means, in relation to any Debtor or any grantor of Transaction Security:
(a) | any resolution is passed or order made for the winding up, dissolution, receivership or examinership, administration or reorganisation of that Debtor or that grantor of Transaction Security, a moratorium is declared in relation to any indebtedness of that Debtor or that grantor of Transaction Security or an administrator is appointed to that Debtor or that grantor of Transaction Security; |
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(b) | any composition, compromise, assignment or arrangement is made with any of its creditors; |
(c) | the appointment of any liquidator, examiner receiver, receiver and manager, administrator, administrative receiver, compulsory manager or other similar officer in respect of that Debtor or that grantor of Transaction Security or any of its assets; |
(d) | a petition for insolvency proceedings is filed in respect of that Debtor or that grantor of Transaction Security (other than a frivolous or vexatious petition or any petition which is stayed or discharged within 21 days of that Debtor or that grantor of Transaction Security becoming aware of the same); or |
(e) | any analogous procedure or step is taken in any jurisdiction, |
provided that an Insolvency Event will not occur in the case of a solvent liquidation or reorganisation of a Debtor or a grantor of Transaction Security that is permitted under the Revolving Facility Documents and an Insolvency Event will not occur in the case of a solvent liquidation, reorganisation, arrangement, adjustment, proposal or composition of a Debtor or a grantor of Transaction Security that would not result in an Event of Default under the Senior Secured Documents.
Instructing Group means at any time:
(a) | prior to the Senior Discharge Date, the Majority Senior Creditors; or |
(b) | on or after the Senior Discharge Date but prior to the Final Discharge Date, the Majority Non Priority Creditors. |
Intercreditor Amendment means any amendment or waiver which is subject to Clause 24 (Consents, Amendments and Override).
Inter-Hedging Agreement Netting means the exercise of any right of set off, account combination, close-out netting or payment netting (whether arising out of a cross agreement netting agreement or otherwise) by a Hedge Counterparty against liabilities owed to a Debtor by that Hedge Counterparty under a Hedging Agreement in respect of Hedging Liabilities owed to that Hedge Counterparty by that Debtor under another Hedging Agreement.
Inter-Hedging Ancillary Document Netting means the exercise of any right of set off, account combination, close-out netting or payment netting (whether arising out of a cross agreement netting agreement or otherwise) by a Hedging Ancillary Lender against liabilities owed to a Debtor by that Hedging Ancillary Lender under a Hedging Ancillary Document in respect of Revolving Creditor Liabilities owed to that Hedging Ancillary Lender by that Debtor under another Hedging Ancillary Document.
Intra-Group Lenders means (i) each Debtor and (ii) each member of the Group which has made a loan available to, granted credit to or made any other financial arrangement having similar effect with a Debtor and which is named in Part 1 of Schedule 2 (The Intra-Group Lenders) as an Intra-Group Lender or which becomes a party as an Intra-Group Lender in accordance with the terms of Clause 18 (Changes to the Parties).
Intra-Group Liabilities means the Liabilities owed by any Debtor to any of the Intra-Group Lenders.
ISDA Master Agreement means a 1992 ISDA Master Agreement or a 2002 ISDA Master Agreement.
Issuing Bank means each lender that has agreed to be an issuing bank in respect of Letters of Credit under a Revolving Facility Agreement.
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Letter of Credit means a letter of credit or other guarantee, indemnity or instrument provided by an Issuing Bank under a Revolving Facility Agreement.
Liabilities means all present and future liabilities and obligations at any time of any Debtor or any grantor of Transaction Security to any Creditor or to any Subordinated Creditor under the Debt Documents, both actual and contingent and whether incurred solely or jointly or in any other capacity together with any of the following matters relating to or arising in respect of those liabilities and obligations:
(a) | any refinancing, novation, deferral or extension; |
(b) | any claim for breach of representation, warranty or undertaking or on an event of default or under any indemnity given under or in connection with any document or agreement evidencing or constituting any other liability or obligation falling within this definition; |
(c) | any claim for damages or restitution; and |
(d) | any claim as a result of any recovery by any Debtor or any grantor of Transaction Security of a Payment on the grounds of preference or otherwise, |
and any amounts which would be included in any of the above but for any discharge, non provability, unenforceability or non allowance of those amounts in any insolvency or other proceedings.
Liabilities Acquisition means, in relation to a person and to any Liabilities, a transaction where that person:
(a) | purchases by way of assignment or transfer; |
(b) | enters into any sub-participation in respect of; or |
(c) | enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of, |
the rights and benefits in respect of those Liabilities.
LMA Facility Agreement means the form of senior multicurrency term and revolving facilities agreement published by the Loan Market Association.
Majority Non Priority Creditors means, at any time, those Non Priority Hedge Counterparties whose Non Priority Credit Participations at any time aggregate more than 50.1 per cent, of the total Non Priority Credit Participations at that time.
Majority Revolving Lenders has the meaning given to the term Majority Lenders in the Original Revolving Facility Agreement after the application of clause 9.6(d) (Replacement of a Lender) of the Original Revolving Facility Agreement.
Majority Senior Creditors means:
(a) | while the aggregate principal amount outstanding under the Revolving Facility Documents is equal to or greater than EUR 20,000,000, the Majority Super Senior Creditors; and |
(b) | at all other times, those Senior Creditors whose Senior Credit Participations at that time aggregate more than 50.1 per cent. of the total Senior Credit Participations at that time. |
Majority Senior Secured Creditors means, at any time, those Senior Secured Creditors whose Senior Secured Credit Participations at that time aggregate more than 50.1 per cent. of the total Senior Secured Credit Participations.
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Majority Super Senior Creditors means, at any time, those Super Senior Creditors whose Super Senior Credit Participations at that time aggregate more than 66 2 / 3 per cent. of the total Super Senior Credit Participations at that time.
Maximum Priority Hedged Amount means an amount equal to EUR 50,000,000 (or its equivalent in any other currency).
Multi Account Overdraft Facility means an Ancillary Facility which is an overdraft facility comprising more than one account.
Non Priority Credit Participations means, in relation to a Non Priority Hedge Counterparty, the aggregate of:
(a) | in respect of any hedging transaction of that Non Priority Hedge Counterparty under any Hedging Agreement in respect of Non Priority Hedging Liabilities that has, as of the date the calculation is made, been terminated or closed out in accordance with the terms of this Agreement, the amount, if any, payable to it under any such Hedging Agreement in respect of that termination or close out as of the date of termination or close out (and before taking into account any interest accrued on that amount since the date of termination or close out) to the extent that amount is unpaid (that amount to be certified by the relevant Non Priority Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement); and |
(b) | after the Senior Discharge Date or after an Acceleration Event only, in respect of any hedging transaction of that Non Priority Hedge Counterparty under any Hedging Agreement in respect of Non Priority Hedging Liabilities that has, as of the date the calculation is made, not been terminated or closed out: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement), |
that amount, in each case, to be certified by the relevant Non Priority Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement.
Non Priority Hedge Counterparties means the Hedge Counterparties to the extent they are owed Non Priority Hedging Liabilities.
Non Priority Hedging Discharge Date means the first date on which all Non Priority Hedging Liabilities have been fully and finally discharged to the satisfaction of each Hedge Counterparty, whether or not as the result of an enforcement, and the Hedge Counterparties are under no further obligation to assume any Hedge Counterparty Obligations to any of the Debtors under the Debt Documents.
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Non Priority Hedging Liabilities means the Hedging Liabilities to the extent they are not Priority Hedging Liabilities.
Original Revolving Facility Agreement means the EUR 60,000,000 facilities agreement dated 1 February 2010 (as amended from time to time) between amongst others the Company and Barclays Bank PLC as agent.
Original Senior Secured Notes means the EUR 200,000,000 9.50% senior notes due 2017 of the Company to be issued on 12 February 2010, as amended from time to time.
Other Liabilities means, in relation to a member of the Group, any trading and other liabilities (not being Borrowing Liabilities or Guarantee Liabilities) it may have to the Subordinated Creditor, Intra-Group Lender or Debtor.
Party means a party to this Agreement.
Payment means, in respect of any Liabilities (or any other liabilities or obligations), a payment, prepayment, repayment, redemption, defeasance or discharge of those Liabilities (or other liabilities or obligations).
Payment Netting means:
(c) | in respect of a Hedging Agreement or a Hedging Ancillary Document based on an ISDA Master Agreement, netting under section 2(c) of the relevant ISDA Master Agreement; and |
(d) | in respect of a Hedging Agreement or a Hedging Ancillary Document not based on an ISDA Master Agreement, netting pursuant to any provision of that Hedging Agreement or a Hedging Ancillary Document which has a similar effect to the provision referenced in paragraph (a) above. |
Permitted Gross Amount means, in relation to a Multi Account Overdraft Facility, any amount, not exceeding the Designated Gross Amount, which is the aggregate gross debit balance of overdrafts comprised in that Multi Account Overdraft Facility.
Permitted Hedge Close Out means, in relation to a hedging transaction under a Hedging Agreement, a termination or close out of that hedging transaction which is permitted pursuant to Clause 4.9 (Permitted Enforcement: Hedge Counterparties).
Permitted Hedge Payments means the Payments permitted by Clause 4.3 (Permitted Payments: Hedging Liabilities).
Permitted Intra-Group Payments means the Payments permitted by Clause 6.2 (Permitted Payments: Intra-Group Liabilities).
Permitted Payment means a Permitted Revolving Lender Payment, a Permitted Hedge Payment, a Permitted Senior Secured Payment, a Permitted Intra-Group Payment or a Permitted Subordinated Creditor Payment.
Permitted Revolving Lender Payments means the Payments permitted by Clause 3.1 (Permitted Payment: Revolving Creditor Liabilities).
Permitted Senior Secured Payments means the Payments permitted by Clause 5.1 (Permitted Payments: Senior Secured Liabilities).
Permitted Subordinated Creditor Payments means the Payments permitted by Clause 7.2 (Permitted Payments: Subordinated Liabilities).
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Primary Creditors means the Super Senior Creditors, the Senior Secured Creditors and the Non Priority Hedge Counterparties.
Priority Hedging Liabilities means all the Hedging Liabilities to the extent they do not exceed the Maximum Priority Hedged Amount and otherwise determined in accordance with Clause 4.14 (Allocation of Priority Hedging Liabilities).
RCF Cash Cover means a Borrower paying an amount in the currency of a Letter of Credit or Ancillary Facility to an interest-bearing account in the name of that Borrower and the following conditions being met:
(a) | the account is with the Security Trustee or the Relevant Issuing Bank or Relevant Ancillary Lender; |
(b) | until no amount is or may be outstanding under that Letter of Credit or Ancillary Facility, withdrawals from the account may only be made to pay that Relevant Issuing Bank or Relevant Ancillary Lender amounts due and payable to it under the relevant Revolving Facility Agreement in respect of that Letter of Credit or Ancillary Facility; and |
(c) | that Borrower has executed a security document over that account, in form and substance satisfactory to the Security Trustee or Relevant Issuing Bank or Relevant Ancillary Lender with which that account is held, creating a first ranking security interest over that account. |
Receiver means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.
Recoveries has the meaning given to that term in Clause 14.1 (Order of Application).
Relevant Ancillary Lender means, in respect of any RCF Cash Cover, the Ancillary Lender (if any) for which that RCF Cash Cover is provided.
Relevant Issuing Bank means, in respect of any RCF Cash Cover, the Issuing Bank (if any) for which that RCF Cash Cover is provided.
Relevant Liabilities means:
(a) | in the case of a Creditor or Subordinated Creditor: |
(i) | the Liabilities owed to Creditors and Subordinated Creditors ranking (in accordance with the terms of this Agreement) pari passu with or in priority to that Creditor or Subordinated Creditor (as the case may be) together with all Representative Liabilities owed to the Representative of those Creditors; and |
(ii) | all present and future liabilities and obligations, actual and contingent, of the Debtors to the Security Trustee; and |
(b) | in the case of a Debtor or any other grantor of Transaction Security, the Liabilities owed to the Creditors and Subordinated Creditors together with the Representative Liabilities owed to the Representative of those Creditors and all present and future liabilities and obligations, actual and contingent, of the Debtors to the Security Trustee. |
Representative means each Revolving Agent and each Senior Secured Trustee.
Representative Liabilities means (as applicable) the Revolving Agent Liabilities and the Senior Secured Trustee Liabilities.
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Retiring Security Trustee has the meaning given to that term in Clause 17 (Change of Security Trustee and Delegation).
Revolving Acceleration Event means the giving of any notice under Clause 24.18 (Acceleration) of the Original Revolving Facility Agreement.
Revolving Agent means the Agent under and as defined in the Revolving Facility Agreement and any agent acting on behalf of the Revolving Lenders only pursuant to a Revolving Facility Document.
Revolving Agent Liabilities means the fees, costs and expenses owed by the Debtors to each Revolving Agent under or in connection with the Revolving Facility Documents (including any amount payable by way of indemnity or to reimburse any such agent for costs and expenses incurred).
Revolving Commitment has the meaning given to the term Commitment in the Original Revolving Facility Agreement and any commitment of any Revolving Lender to make available loans and credit to members of the Group under a Revolving Facility Document.
Revolving Creditor Liabilities means the Liabilities owed by the Debtors and any other grantor of Transaction Security to the Revolving Facility Finance Parties or any of them under or in connection with the Revolving Facility Documents and any refinancings thereof as described in paragraph (a) of Clause 8.3 (Refinancing of the Revolving Creditor Liabilities).
Revolving Facility means the super senior multicurrency revolving facility provided by the Revolving Lenders under the Original Revolving Facility Agreement and any revolving facilities or letter of credit made available under any Revolving Facility Agreement.
Revolving Facility Agreement means the Original Revolving Facility Agreement and any other loan agreement pursuant to which Revolving Lenders make loans and other forms of credit available to members of the Group having the same priority and payment ranking as the Revolving Facility made available under the Original Revolving Facility Agreement.
Revolving Facility Cash Collateral means any cash collateral provided by a Revolving Lender to an Issuing Bank under a Revolving Facility Agreement on terms substantially the same as those set out in the LMA Facility Agreement.
Revolving Facility Default means an event of default as defined in any Revolving Facility Agreement.
Revolving Facility Discharge Date means the first date on which all the Revolving Creditor Liabilities have been fully and finally discharged to the satisfaction of each Revolving Agent whether or not as a result of an enforcement, and the Revolving Lenders are under no further obligation to provide financial accommodation to any Debtors under the Revolving Facility Documents.
Revolving Facility Documents has the meaning given to the term Finance Documents in the Original Revolving Facility Agreement and each document relating to indebtedness permitted by the Debt Documents with the same priority and payment ranking as the Revolving Facility.
Revolving Facility Finance Parties has the meaning given to the term Finance Parties in the Original Revolving Facility Agreement and any other creditors of the Debtors from time to time under the Revolving Facility Documents.
Revolving Guarantor has the meaning given to the term Guarantor in the Original Revolving Facility Agreement and any other guarantor from time to time of Revolving Creditor Liabilities under the Revolving Facility Documents.
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Revolving Lenders means each Lender (as defined in the Original Revolving Facility Agreement), Issuing Bank and Ancillary Lender and any other lenders from time to time under the Revolving Facility Documents.
Secured Obligations means all the Liabilities and all other present and future obligations at any time due, owing or incurred by each Debtor and by each other grantor of Transaction Security to any Secured Party under the Debt Documents, both actual and contingent and whether incurred solely or jointly and as principal or surety or in any other capacity.
Secured Parties means the Security Trustee, any Receiver or Delegate and the Primary Creditors from time to time but, in the case of each Representative or Revolving Lender, only if it is a party to this Agreement or (in the case of a Representative or a Revolving Lender) has acceded to this Agreement, in the appropriate capacity, pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking).
Security means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
Security Documents means:
(a) | each of the Transaction Security Documents; |
(b) | any other document entered into at any time by any of the Debtors or any other grantor of Transaction Security creating any guarantee, indemnity, Security or other assurance against financial loss in favour of any of the Secured Parties as security for any of the Secured Obligations; and |
(c) | any Security granted under any covenant for further assurance in any of the documents set out in paragraphs (a) and (b) above. |
Security Property means:
(a) | the Transaction Security expressed to be granted in favour of the Security Trustee as trustee for the Secured Parties and all proceeds of that Transaction Security; |
(b) | all obligations expressed to be undertaken by a Debtor or any other grantor of Transaction Security to pay amounts in respect of the Liabilities to the Security Trustee as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by a Debtor or any other grantor of Transaction Security in favour of the Security Trustee as trustee for the Secured Parties; |
(c) | the Security Trustees interest in any trust fund created pursuant to Clause 10 (Turnover of Receipts); and |
(d) | any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Trustee is required by the terms of the Debt Documents to hold as trustee on trust for the Secured Parties. |
Security Trustees Spot Rate of Exchange means, in respect of the conversion of one currency (the First Currency ) into another currency (the Second Currency ) the Security Trustees spot rate of exchange for the purchase of the Second Currency with the First Currency in the London foreign exchange market at or about 11:00 a.m. (London time) on a particular day, which shall be notified by the Security Trustee in accordance with paragraph (d) of Clause 16.12 (Security Trustees obligations).
Senior Credit Participation means, in relation to a Senior Creditor, the aggregate of:
(a) | its aggregate Revolving Commitments, if any; and |
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(b) | in respect of any hedging transaction of that Senior Creditor under any Hedging Agreement that constitutes a Priority Hedging Liability and that has, as of the date the calculation is made, been terminated or closed out in accordance with the terms of this Agreement, the amount, if any, payable to it under any such Hedging Agreement in respect of that termination or close out as of the date of termination or close out (and before taking into account any interest accrued on that amount since the date of termination or close out) to the extent that amount is unpaid (that amount to be certified by the relevant Senior Creditor and as calculated in accordance with the relevant Hedging Agreement); |
(c) | after the later of the Revolving Facility Discharge Date and the Senior Secured Discharge Date or after an Acceleration Event only, in respect of any hedging transaction of that Senior Creditor under any Hedging Agreement that constitutes a Priority Hedging Liability and has, as of the date the calculation is made, not been terminated or closed out: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement), |
that amount, in each case, to be certified by the relevant Senior Creditor and as calculated in accordance with the relevant Hedging Agreement; and
(d) | the aggregate principal amount of the Senior Secured Liabilities owed to that Senior Creditor. |
Senior Creditors means the Super Senior Creditors and the Senior Secured Creditors.
Senior Discharge Date means the first date on which all Senior Liabilities have been fully and finally discharged to the satisfaction of each Revolving Agent (in the case of the Revolving Creditor Liabilities), each Hedge Counterparty (in the case of its Priority Hedging Liabilities) and each Senior Secured Trustee (in the case of the Senior Secured Liabilities), whether or not as the result of an enforcement, and no Hedge Counterparty (in respect of its Priority Hedging Liabilities only) is under any further obligation to assume any Hedge Counterparty Obligations to any Debtor under the Debt Documents and, as applicable, no Senior Creditor is under any further obligations to any Debtors under the Debt Documents.
Senior Liabilities means the Super Senior Liabilities and the Senior Secured Liabilities.
Senior Secured Acceleration Event means an acceleration event under section 6.02 (Acceleration) of the Senior Secured Indenture in respect of the Original Senior Secured Notes.
Senior Secured Credit Participations means, in relation to a Senior Secured Creditor, the aggregate principal amount of the Senior Secured Liabilities owed to that Senior Secured Creditor.
Senior Secured Creditors means the Senior Secured Noteholders, each Additional Senior Secured Creditor and each Senior Secured Trustee.
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Senior Secured Default means an event of default under and as defined in any Senior Secured Indenture.
Senior Secured Discharge Date means the first date on which all the Senior Secured Liabilities have been fully and finally discharged to the satisfaction of each Senior Secured Trustee whether or not as a result of an enforcement, and the Senior Secured Creditors are under no further obligations to any Debtors under the Senior Secured Documents.
Senior Secured Documents means each Senior Secured Indenture, the Senior Secured Notes, the Senior Secured Security, the Senior Secured Note Guarantees and this Agreement.
Senior Secured Indenture means any indenture pursuant to which the Senior Secured Notes are issued (or any guarantees therefore are given) and includes any Additional Senior Secured Debt Instrument.
Senior Secured Liabilities means the Liabilities owed by the Debtors or any other grantor of Transaction Security to the Senior Secured Creditors or any of them under or in connection with the Senior Secured Documents.
Senior Secured Note Guarantees means the guarantees granted in accordance with Clause 5.2 (Security: Senior Secured Creditors) in favour of the Senior Secured Creditors.
Senior Secured Noteholders means the holders, from time to time, of the Senior Secured Notes.
Senior Secured Notes means the Original Senior Secured Notes and any other notes issued by the Company pursuant to an Additional Senior Secured Debt Instrument (a) which are additional notes issued in compliance with Clause 8 (New Money and Refinancing) or (b) the proceeds of which are used to refinance, in whole or in part, any prior issue of Senior Secured Notes.
Senior Secured Parameters means the terms and conditions applicable to the Senior Secured Notes set out in Schedule 6 (Senior Secured Parameters).
Senior Secured Security means the Transaction Security granted in accordance with Clause 5.2 (Security: Senior Secured Creditors) in favour of the Security Trustee for the benefit of the Senior Secured Creditors.
Senior Secured Trustee Liabilities means fees and expenses owed by, and amounts owed by and/or payable by the Debtors to each Senior Secured Trustee under the Senior Secured Documents including:
(a) | any amounts payable to a Senior Secured Trustee personally by way of indemnity and/or remuneration pursuant to a Senior Secured Indenture (including guarantees of such amounts contained therein) or any other document entered into in connection with the issuance of Senior Secured Notes; |
(b) | compensation for and the fees and expenses of the collection by any Senior Secured Trustee of any amount payable to such Senior Secured Trustee for the benefit of the Senior Secured Noteholders; |
(c) | the costs of any actual or attempted Enforcement Action and any action permitted under paragraph (i) of the exception to the definition of Enforcement Action (in each case, including the fees and expenses of the Senior Secured Trustees agents and counsel); and |
(d) | amounts to be payable to any paying agent, registrar or any agent, custodian or other person appointed in accordance with the Senior Secured Documents by any Senior Secured Trustee in relation to the Senior Secured Notes and any VAT payable on such amount, |
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provided that, for the avoidance of doubt, Senior Secured Trustee Liabilities shall not include (i) any amount of principal or interest payable in respect of any Senior Secured Document or (ii) costs of bringing any claims, suit or proceeding against any Primary Creditor.
Senior Secured Trustees means the Original Senior Secured Trustee and each Additional Senior Secured Trustee.
Spanish Debtor has the meaning given to that term in Clause 15.14 (Spanish Guarantee Limitation).
Subordinated Creditor means any Restricted Person as defined in the Original Revolving Facility Agreement.
Subordinated Liabilities means the Liabilities owed to any Subordinated Creditor by the Company.
Subsidiary has the meaning given to the term Subsidiary in the Original Revolving Facility Agreement.
Super Senior Credit Participation means, in relation to a Super Senior Creditor, the aggregate of:
(a) | its aggregate Revolving Commitments, if any; and |
(b) | in respect of any hedging transaction of that Super Senior Creditor under any Hedging Agreement that constitutes a Priority Hedging Liability and that has, as of the date the calculation is made, been terminated or closed out in accordance with the terms of this Agreement, the amount, if any, payable to it under any such Hedging Agreement in respect of that termination or close out as of the date of termination or close out (and before taking into account any interest accrued on that amount since the date of termination or close out) to the extent that amount is unpaid (that amount to be certified by the relevant Super Senior Creditor and as calculated in accordance with the relevant Hedging Agreement) to the extent that it is a Priority Hedging Liability; and |
(c) | after the later of the Revolving Facility Discharge Date and the Senior Secured Discharge Date only or after an Acceleration Event, in respect of any hedging transaction of that Super Senior Creditor under any Hedging Agreement that constitutes a Priority Hedging Liability and has, as of the date the calculation is made, not been terminated or closed out: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement), |
that amount, in each case, to be certified by the relevant Super Senior Creditor and as calculated in accordance with the relevant Hedging Agreement.
Super Senior Creditors means (a) the Revolving Lenders and (b) the Hedge Counterparties to the extent that they are owed Priority Hedging Liabilities.
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Super Senior Discharge Date means the first date on which all the Super Senior Liabilities have been fully and finally discharged to the satisfaction of each Revolving Agent (in the case of the Revolving Creditor Liabilities) and each relevant Hedge Counterparty (in the case of its Priority Hedge Liabilities) whether or not as a result of enforcement, and the Super Senior Creditors are under no further obligation to provide financial accommodation to any Debtors under Revolving Facility Documents or (as applicable) no further obligation to assume any Hedge Counterparty Obligations to any of the Debtors under the Debt Documents.
Super Senior Liabilities means the Revolving Creditor Liabilities and the Priority Hedging Liabilities.
TARGET means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises interlinked national real time gross settlement systems and the European Central Banks payment mechanism and which began operations on 4 January 1 999.
TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
TARGET Day means:
(a) | until such time as TARGET is permanently closed down and ceases operations, any day on which both TARGET and TARGET2 are open for the settlement of payments in Euro; and |
(b) | following such time as TARGET is permanently closed down and ceases operations, any day on which TARGET2 is open for the settlement of payments in Euro. |
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
Transaction Security means the Security created or evidenced or expressed to be created or evidenced under or pursuant to the Security Documents.
Transaction Security Documents means each of the documents listed in Schedule 7 (Transaction Security Documents) together with any other document entered into by any person creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Debtors under any of the Revolving Facility Documents or the Senior Secured Documents.
VAT means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature.
1.2 | Construction |
(a) | Unless a contrary indication appears, a reference in this Agreement to: |
(i) | any Ancillary Lender, Creditor, Debtor, Hedge Counterparty, Intra- Group Lender, Issuing Bank, Original Senior Secured Trustee, Party, Primary Creditor, Representative, Revolving Agent, Revolving Guarantor, Revolving Lender, Senior Creditor, Security Trustee, Senior Secured Noteholder, Senior Secured Trustee or Subordinated Creditor shall be construed to be a reference to it in its capacity as such and not in any other capacity; |
(ii) | any Ancillary Lender, Creditor, Debtor, Hedge Counterparty, Issuing Bank, any Party, any Representative, any Revolving Lender, the Security Trustee or Subordinated Creditor or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Security Trustee, any person for the time being appointed as Security Trustee or Security Trustees in accordance with this Agreement; |
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(iii) | assets includes present and future properties, revenues and rights of every description; |
(iv) | a Debt Document or any other agreement or instrument is (other than a reference to a Debt Document or any other agreement or instrument in original form) a reference to that Debt Document, or other agreement or instrument, as amended, novated, supplemented, extended or restated as permitted by this Agreement; |
(v) | enforcing (or any derivation) the Transaction Security shall include the appointment of an administrator of a Debtor by the Security Trustee; |
(vi) | 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; |
(vii) | the original form of a Debt Document or any other agreement or instrument is a reference to that Debt Document, agreement or instrument as originally entered into; |
(viii) | a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality); |
(ix) | a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self regulatory or other authority or organisation; |
(x) | a provision of law is a reference to that provision as amended or re-enacted; and |
(xi) | the plural imports the singular and vice versa. |
(b) | Section, Clause and Schedule headings are for ease of reference only. |
(c) | An Event of Default is continuing if it has not been remedied or waived. |
(d) | References to a Senior Secured Trustee acting on behalf of the relevant Senior Secured Creditors shall be to such Senior Secured Trustee acting on behalf of the Senior Secured Creditors for which it has been appointed as agent or trustee. |
(e) | References to a Senior Secured Trustee acting on behalf of the Senior Secured Noteholders mean such Senior Secured Trustee acting on behalf of the Senior Secured Noteholders which it represents or, if applicable, with the consent of the requisite number of Senior Secured Noteholders required under and in accordance with the applicable Senior Secured Indenture. A Senior Secured Trustee will be entitled to seek instruction from the Senior Secured Noteholders which it represents to the extent required by the applicable Senior Secured Indenture as to any action to be taken by it under this Agreement. |
(f) | References to the date of this Agreement and similar phrases mean 12 February 2010. |
(g) | Dutch Terms |
In this Agreement, where it relates to a Dutch entity, a reference to:
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(i) | a winding-up, administration or dissolution includes a Dutch entity being: |
(A) | declared bankrupt (failliet verklaard); |
(B) | dissolved (ontbonden); |
(ii) | a moratorium includes (voorlopige) surséance van betaling and granted a moratorium includes (voorlopige) surséance van betaling verleend; |
(iii) | a trustee in bankruptcy includes a curator; |
(iv) | an administrator includes a bewindvoerder; and |
(v) | a Receiver or an administrative receiver does not include a curator or bewindvoerder. |
(h) | Spanish Terms |
In accordance with article 9 of the Spanish Limited Liability Companies Act 2/1995, 23 March (Ley de Sociedades de Responsabilidad Limitada) a Spanish Debtor which is a limited liability company (sociedad de responsabilidad limitada) cannot issue or secure the issue of notes or other securities such as the Senior Secured Notes and the Senior Secured Note Guarantees. Thus, the provisions of this Agreement, as they relate to the obligations of a Spanish Debtor that is a limited liability company (sociedad de responsabilidad limitada), shall be construed accordingly.
1.3 | Third Party Rights |
(a) | Unless expressly provided to the contrary in this Agreement, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Rights Act) to enforce or to enjoy the benefit of any term of this Agreement. |
(b) | Notwithstanding any term of this Agreement, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. |
(c) | Any Receiver, Delegate or any other person described in Clause 16.15 (No proceedings) may, subject to this Clause 1.3 and the Third Parties Rights Act, rely on any Clause of this Agreement which expressly confers rights on it. |
2. | RANKING AND PRIORITY |
2.1 | Primary Creditor Liabilities |
Each of the Parties agrees that the Liabilities owed by each Debtor and each other grantor of Transaction Security to the Primary Creditors shall rank in right and priority of payment in the following order and are postponed and subordinated to any prior ranking Liabilities as follows:
(a) | first, the Revolving Creditor Liabilities, the Priority Hedging Liabilities and the Senior Secured Liabilities pari passu and without any preference between them; and |
(b) | second, the Non Priority Hedging Liabilities. |
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2.2 | Transaction Security |
Each of the Parties agrees that the Transaction Security shall rank and secure the following Liabilities (but only to the extent that such Transaction Security is expressed to secure those Liabilities) in the following order:
(a) | first, the Revolving Agent Liabilities and the Senior Secured Trustee Liabilities pari passu and without any preference between them; |
(b) | second, the Revolving Creditor Liabilities (other than the Revolving Agent Liabilities) and the Priority Hedging Liabilities pari passu and without any preference between them; |
(c) | third, the Senior Secured Liabilities (other than the Senior Secured Trustee Liabilities); and |
(d) | fourth, the Non Priority Hedging Liabilities, |
and that in any event (irrespective of the manner in which such Transaction Security is constituted) all proceeds of the Transaction Security shall be applied in accordance with Clause 14.1 (Order of application).
2.3 | Subordinated and Intra-Group Liabilities |
(a) | Each of the Parties agrees that the Subordinated Liabilities and the Intra-Group Liabilities are postponed and subordinated to the Liabilities owed by the Debtors and any other grantor of Transaction Security to the Primary Creditors. |
(b) | This Agreement does not purport to rank any of the Subordinated Liabilities or the Intra-Group Liabilities as between themselves. |
3. | REVOLVING LENDERS AND REVOLVING CREDITOR LIABILITIES |
3.1 | Permitted Payments: Revolving Creditor Liabilities |
The Debtors may make Payments of the Revolving Creditor Liabilities at any time in accordance with the Revolving Facility Documents.
3.2 | Security: Revolving Lenders |
Other than as set out in Clause 3.3 (Security: Ancillary Lenders and Issuing Banks), the Revolving Lenders may take, accept or receive the benefit of:
(a) | any Security in respect of the Revolving Creditor Liabilities in addition to the Transaction Security described in Schedule 7 (Transaction Security Documents) and the Common Transaction Security if (except for any Security permitted under Clause 3.3 (Security: Ancillary Lenders and Issuing Banks)), but only to the extent legally possible, at the same time it is also offered either: |
(i) | to the Security Trustee as trustee for the other Secured Parties in respect of their Liabilities; or |
(ii) | in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Trustee as trustee for the Secured Parties: |
(A) | to the other Secured Parties in respect of their Liabilities; or |
(B) | to the Security Trustee under a parallel debt structure for the benefit of the other Secured Parties, |
and ranks in the same order of priority as that contemplated in Clause 2.2 (Transaction Security); and
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(b) | any guarantee, indemnity or other assurance against loss in respect of the Revolving Creditor Liabilities in addition to those contained in: |
(i) | the Original Revolving Facility Agreement (in its form on the date of this Agreement) (or any other Revolving Facility Agreement entered into in accordance with this Agreement); |
(ii) | this Agreement; or |
(iii) | any Common Assurance, |
if (except for any guarantee, indemnity or other assurance against loss permitted under Clause 3.3 (Security: Ancillary Lenders and Issuing Banks)), but only to the extent legally possible, at the same time it is also offered to the other Secured Parties in respect of their Liabilities and ranks in the same order of priority as that contemplated in Clause 2 (Ranking and Priority).
For the avoidance of doubt, this Clause 3.2 shall not prohibit the Revolving Lenders from taking, accepting or receiving the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Revolving Creditor Liabilities if the same is not capable of being granted in support of some or all of the Liabilities of the other Secured Parties.
3.3 | Security: Ancillary Lenders and Issuing Banks |
No Ancillary Lender or Issuing Bank will, unless the prior consent of the Majority Super Senior Creditors is obtained, take, accept or receive from any member of the Group the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities owed to it other than:
(a) | the Transaction Security described in Schedule 7 (Transaction Security Documents) and the Common Transaction Security; |
(b) | each guarantee, indemnity or other assurance against loss contained in: |
(i) | the Original Revolving Facility Agreement (in its form on the date of this Agreement) (or any other Revolving Facility Agreement entered into in accordance with this Agreement); |
(ii) | this Agreement; or |
(iii) | any Common Assurance; |
(c) | indemnities and assurances against loss contained in the Ancillary Documents no greater in extent than any of those referred to in paragraph (b) above (ignoring for this purpose differences arising as a result of guarantee limitation language); |
(d) | any RCF Cash Cover permitted under any Revolving Facility Agreement relating to any Ancillary Facility or for any Letter of Credit issued by an Issuing Bank; |
(e) | the indemnities contained in an ISDA Master Agreement (in the case of a Hedging Ancillary Document which is based on an ISDA Master Agreement) or any indemnities which are similar in meaning and effect to those indemnities (in the case of a Hedging Ancillary Document which is not based on an ISDA Master Agreement); or |
(f) | any Security, guarantee, indemnity or other assurance against loss giving effect to, or arising as a result of the effect of, any netting or set off arrangement relating to the Ancillary Facilities for the purpose of netting debit and credit balances arising under the Ancillary Facilities. |
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3.4 | Restriction on Enforcement: Ancillary Lenders and Issuing Banks |
Subject to Clause 3.5 (Permitted Enforcement Ancillary Lenders and Issuing Banks), so long as any of the Senior Liabilities (other than any Liabilities owed to the Ancillary Lenders or Issuing Banks) are or may be outstanding, none of the Ancillary Lenders nor the Issuing Banks shall be entitled to take any Enforcement Action in respect of any of the Liabilities owed to it in its capacity as Ancillary Lender or Issuing Bank.
3.5 | Permitted Enforcement: Ancillary Lenders and Issuing Banks |
(a) | The Ancillary Lenders and Issuing Banks may take Enforcement Action if: |
(i) | at the same time as, or prior to, that action, Enforcement Action has been taken in respect of the Revolving Creditor Liabilities (excluding the Liabilities owing to Ancillary Lenders and the Issuing Banks), in which case the Ancillary Lenders and the Issuing Banks may take the same Enforcement Action as has been taken in respect of those Revolving Creditor Liabilities; |
(ii) | that action is contemplated by any Revolving Facility Agreement or Clause 3.3 (Security: Ancillary Lenders and Issuing Banks); |
(iii) | that Enforcement Action is taken in respect of RCF Cash Cover which has been provided in accordance with any Revolving Facility Agreement; |
(iv) | at the same time as or prior to, that action, the consent of the Majority Senior Creditors to that Enforcement Action is obtained; or |
(v) | an Insolvency Event has occurred in relation to any member of the Group, in which case after the occurrence of that Insolvency Event, each Ancillary Lender and each Issuing Bank shall be entitled (if it has not already done so) to exercise any right it may otherwise have in respect of that member of the Group to: |
(A) | accelerate any of that member of the Groups Revolving Creditor Liabilities owing to it or declare them prematurely due and payable on demand; |
(B) | make a demand under any guarantee, indemnity or other assurance against loss given by that member of the Group in respect of any Revolving Creditor Liabilities for its benefit; |
(C) | exercise any right of set off or take or receive any Payment in respect of any Revolving Creditor Liabilities of that member of the Group owing to it; or |
(D) | claim and prove in the liquidation of that member of the Group for the Revolving Creditor Liabilities owing to it. |
(b) | Clause 3.4 (Restriction on Enforcement: Ancillary Lenders and Issuing Banks) shall not restrict any right of an Ancillary Lender to net or set off in relation to a Multi Account Overdraft Facility, in accordance with the terms of any Revolving Facility Agreement, to the extent that the netting or set off represents a reduction from a Permitted Gross Amount of that Multi Account Overdraft Facility to or towards its Designated Net Amount. |
4. | HEDGE COUNTERPARTIES AND HEDGING LIABILITIES |
4.1 | Identity of Hedge Counterparties |
(a) | Subject to paragraph (b) below, no person providing hedging arrangements to any Debtor shall be entitled to share in any of the Transaction Security or in the benefit of any guarantee or indemnity in respect of any of the liabilities arising in relation to those hedging arrangements nor shall those liabilities be treated as Hedging Liabilities unless that person is or becomes a party to this Agreement as a Hedge Counterparty. |
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(b) | Paragraph (a) above shall not apply to a Hedging Ancillary Lender. |
4.2 | Restriction on Payment: Hedging Liabilities |
The Debtors shall not, and shall procure that no other member of the Group will, make any Payment of the Hedging Liabilities at any time unless:
(a) | that Payment is permitted under Clause 4.3 (Permitted Payments: Hedging Liabilities); or |
(b) | the taking or receipt of that Payment is permitted under paragraph (c) of Clause 4.9 (Permitted Enforcement: Hedge Counterparties). |
4.3 | Permitted Payments: Hedging Liabilities |
(a) | Subject to paragraph (b) below, the Debtors may make Payments to any Hedge Counterparty in respect of the Hedging Liabilities then due to that Hedge Counterparty under any Hedging Agreement in accordance with the terms of that Hedging Agreement: |
(i) | if the Payment is a scheduled Payment arising under the relevant Hedging Agreement; |
(ii) | to the extent that the relevant Debtors obligation to make the Payment arises as a result of the operation of: |
(A) | any of sections 2(d) (Deduction or Withholding for Tax), 2(e) (Default Interest; Other Amounts), 8(a) (Payment in the Contractual Currency), 8(b) (Judgments) and 11 (Expenses) of the 1992 ISDA Master Agreement (if the Hedging Agreement is based on a 1992 ISDA Master Agreement); |
(B) | any of sections 2(d) (Deduction or Withholding for Tax), 8(a) (Payment in the Contractual Currency), 8(b) (Judgments), 9(h)(i) (Prior to Early Termination) and 11 (Expenses) of the 2002 ISDA Master Agreement (if the Hedging Agreement is based on a 2002 ISDA Master Agreement); or |
(C) | any provision of a Hedging Agreement which is similar in meaning and effect to any provision listed in paragraphs (A) or (B) above (if the Hedging Agreement is not based on an ISDA Master Agreement); |
(iii) | to the extent that the relevant Debtors obligation to make the Payment arises from a Permitted Hedge Close Out; or |
(iv) | subject to Clause 4.13 (On or after relevant Discharge Dale), if the Majority Senior Creditors give prior consent to the Payment being made. |
(b) | No Payment may be made to a Hedge Counterparty under paragraph (a) above if any scheduled Payment due from that Hedge Counterparty to a Debtor under a Hedging Agreement to which they are both party is due and unpaid (unless such scheduled Payment has not been made by the Hedge Counterparty as a result of it exercising its rights to withhold payments under the ISDA Master Agreement). |
(c) | Failure by a Debtor to make a Payment to a Hedge Counterparty which results solely from the operation of paragraph (b) above shall, without prejudice to Clause 4.4 (Payment obligations continue), not result in a default (however described) in respect of that Debtor under that Hedging Agreement. |
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4.4 | Payment obligations continue |
No Debtor shall be released from the liability to make any Payment (including of default interest, which shall continue to accrue) under any Debt Document by the operation of Clauses 4.2 ( Restriction on Payment: Hedging Liabilities ) and 4.3 ( Permitted Payments: Hedging Liabilities ) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses.
4.5 | No acquisition of Hedging Liabilities |
The Debtors shall not, and shall procure that no other member of the Group will:
(a) | enter into any Liabilities Acquisition; or |
(b) | beneficially own all or any part of the share capital of a company that is party to a Liabilities Acquisition, |
in respect of any of the Hedging Liabilities unless, subject to Clause 4.13 ( On or after relevant Discharge Date ), the prior consent of the Majority Senior Creditors and the relevant Hedge Counterparty is obtained.
4.6 | Amendments and Waivers: Hedging Agreements |
(a) | Subject to paragraph (b) below, the Hedge Counterparties may not, at any time, amend or waive any term of the Hedging Agreements. |
(b) | A Hedge Counterparty may amend or waive any term of a Hedging Agreement in accordance with the terms of that Hedging Agreement if that amendment or waiver does not breach another term of this Agreement. |
4.7 | Security: Hedge Counterparties |
The Hedge Counterparties may not take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss from any member of the Group in respect of the Hedging Liabilities other than:
(a) | the Transaction Security described in Schedule 7 ( Transaction Security Documents ) and the Common Transaction Security; |
(b) | any guarantee, indemnity or other assurance against loss contained in: |
(i) | this Agreement or the Original Revolving Facility Agreement (in its form on the date of this Agreement) (or any other Revolving Facility Agreement entered into in accordance with this Agreement); |
(ii) | any Common Assurance; or |
(iii) | the relevant Hedging Agreement no greater in extent than any of those referred to in paragraphs (i) and (ii) above; |
(c) | as otherwise contemplated by Clause 3.2 ( Security: Revolving Lenders ); and |
(d) | the indemnities contained in the ISDA Master Agreements (in the case of a Hedging Agreement which is based on an ISDA Master Agreement) or any indemnities which are similar in meaning and effect to those indemnities (in the case of a Hedging Agreement which is not based on an ISDA Master Agreement). |
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4.8 | Restriction on Enforcement: Hedge Counterparties |
Subject to Clause 4.9 ( Permitted Enforcement: Hedge Counterparties ) and Clause 4.10 ( Required Enforcement: Hedge Counterparties ) and without prejudice to each Hedge Counterpartys rights under Clauses 12.2 (Enforcement instructions) and 12.3 ( Manner of enforcement ), no Hedge Counterparty shall take any Enforcement Action in respect of any of the Hedging Liabilities or any of the hedging transactions under any of the Hedging Agreements at any time.
4.9 | Permitted Enforcement: Hedge Counterparties |
(a) | A Hedge Counterparty may terminate or close out in whole or in part any hedging transaction under that Hedging Agreement prior to its stated maturity: |
(i) | if a Distress Event has occurred; |
(ii) | if: |
(A) | in relation to a Hedging Agreement which is based on the 1992 ISDA Master Agreement: |
(1) | an Illegality or Tax Event or Tax Event Upon Merger (each as defined in the 1992 ISDA Master Agreement); or |
(2) | an event similar in meaning and effect to a Force Majeure Event (as defined in the 2002 ISDA Master Agreement), |
has occurred in respect of that Hedging Agreement;
(B) | in relation to a Hedging Agreement which is based on the 2002 ISDA Master Agreement, an Illegality or Tax Event, Tax Event Upon Merger or a Force Majeure Event (each as defined in the 2002 ISDA Master Agreement) has occurred in respect of that Hedging Agreement; or |
(C) | in relation to a Hedging Agreement which is not based on an ISDA Master Agreement, any event similar in meaning and effect to an event described in paragraphs (A) or (B) above has occurred under and in respect of that Hedging Agreement; |
(iii) | if an Insolvency Event has occurred; |
(iv) | if any hedging arrangement undertaken pursuant to a Hedging Agreement becomes speculative in the opinion of the relevant Debtor (acting reasonably); |
(v) | if the Liabilities in respect of which the Hedging Agreement has been entered into are repaid, prepaid or cancelled in whole or in part, provided that any termination or close out is pro rata to the amount so repaid, prepaid or cancelled; or |
(vi) | subject to Clause 4.13 ( On or after relevant Discharge Date ), if the Majority Senior Creditors give prior consent to that termination or close-out being made. |
(b) | If a Debtor has defaulted on any Payment due under a Hedging Agreement and the default has continued unwaived for more than 14 days after notice of that default has been given to the Security Trustee pursuant to paragraph (g) of Clause 21.3 ( Notification of prescribed events ), the relevant Hedge Counterparty: |
(i) | may, to the extent it is entitled to do so under the relevant Hedging Agreement, terminate or close out in whole or in part any hedging transaction under that Hedging Agreement; and |
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(ii) | until such time as the Security Trustee has given notice to that Hedge Counterparty that the Transaction Security is being enforced (or that any formal steps are being taken to enforce the Transaction Security), shall be entitled to exercise any right it might otherwise have to sue for, commence or join legal or arbitration proceedings against any Debtor to recover any Hedging Liabilities due under that Hedging Agreement. |
(c) | After the occurrence of an Insolvency Event in relation to any member of the Group, each Hedge Counterparty shall be entitled to exercise any right it may otherwise have in respect of that member of the Group to: |
(i) | prematurely close out or terminate any Hedging Agreement with that member of the Group owing to it; |
(ii) | make a demand under any guarantee, indemnity or other assurance against loss given by that member of the Group in respect of any Hedging Liabilities owing to it; |
(iii) | exercise any right of set off or take or receive any Payment in respect of any Hedging Liabilities of that member of the Group owing to it; or |
(iv) | claim and prove in the liquidation of that member of the Group for the Hedging Liabilities owing to it. |
4.10 | Required Enforcement: Hedge Counterparties |
(a) | Subject to paragraph (b) below, a Hedge Counterparty shall promptly terminate or close out in full any hedging transaction under all or any of the Hedging Agreements to which it is party prior to their stated maturity, following: |
(i) | the occurrence of an Acceleration Event and delivery to it of a notice from the Security Trustee that that Acceleration Event has occurred; and |
(ii) | delivery to it of a subsequent notice from the Security Trustee (acting on the instructions of an Instructing Group) instructing it to do so. |
(b) | Paragraph (a) above shall not apply to the extent that that Acceleration Event occurred as a result of an arrangement made between any Debtor and any Primary Creditor with the purpose of bringing about that Acceleration Event. |
(c) | If a Hedge Counterparty is entitled to terminate or close-out any hedging transaction under paragraph (b) of Clause 4.9 ( Permitted Enforcement: Hedge Counterparties ) (or would have been able to if that Hedge Counterparty had given the notice referred to in that paragraph) but has not terminated or closed out each such hedging transaction, that Hedge Counterparty shall promptly terminate or close-out in full each such hedging transaction following a request to do so by the Security Trustee (acting on the instructions of an Instructing Group). |
4.11 | Treatment of Payments due to Debtors on termination of hedging transactions |
(a) | If, on termination of any hedging transaction under any Hedging Agreement occurring after a Distress Event, a settlement amount or other amount (following the application of any Close Out Netting, Payment Netting or Inter-Hedging Agreement Netting in respect of that Hedging Agreement) falls due from a Hedge Counterparty to the relevant Debtor then that amount shall be paid by that Hedge Counterparty to the Security Trustee, treated as the proceeds of enforcement of the Transaction Security and applied in accordance with the terms of this Agreement. |
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(b) | The payment of that amount by the Hedge Counterparty to the Security Trustee in accordance with paragraph (a) above shall discharge the Hedge Counterpartys obligation to pay that amount to that Debtor. |
4.12 | Terms of Hedging Agreements |
The Hedge Counterparties (to the extent party to the Hedging Agreement in question) and the Debtors party to the Hedging Agreements shall ensure that, at all times:
(a) | each Hedging Agreement documents only hedging arrangements entered into for the purpose of hedging the types of liabilities described in the definition of Hedging Agreement and that no other transactions or arrangements are carried out under or pursuant to a Hedging Agreement; |
(b) | each Hedging Agreement is based either: |
(i) | on an ISDA Master Agreement; or |
(ii) | on another framework agreement which is similar in effect to an ISDA Master Agreement; |
(c) | in the event of a termination of the hedging transaction entered into under a Hedging Agreement, whether as a result of: |
(i) | a Termination Event or an Event of Default, each as defined in the relevant Hedging Agreement (in the case of a Hedging Agreement which is based on an ISDA Master Agreement); or |
(ii) | an event similar in meaning and effect to either of those described in paragraph (i) above (in the case of a Hedging Agreement which is not based on an ISDA Master Agreement), |
that Hedging Agreement will:
(A) | if it is based on a 1992 ISDA Master Agreement, provide for payments under the Second Method and will make no material amendment to section 6(e) ( Payments on Early Termination ) of the ISDA Master Agreement; |
(B) | if it is based on a 2002 ISDA Master Agreement, make no material amendment to the provisions of section 6(e) ( Payments on Early Termination ) of the ISDA Master Agreement; or |
(C) | if it is not based on an ISDA Master Agreement, provide for any other method the effect of which is that the party to which that event is referable will be entitled to receive payment under the relevant termination provisions if the net replacement value of all terminated transactions entered into under that Hedging Agreement is in its favour; and |
(d) | each Hedging Agreement will provide that: |
(i) | the relevant Hedge Counterparty will be entitled to designate an Early Termination Date (as defined in the relevant ISDA Master Agreement) or otherwise be able to terminate each transaction under such Hedging Agreement if so required pursuant to Clause 4.10 ( Required Enforcement: Hedge Counterparties ); and |
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(ii) | the Hedge Counterparty shall not be entitled to take the benefit of any credit support arrangements in respect of the Hedging Liabilities save for those expressly permitted under Clause 4.7 ( Security: Hedge Counterparties ). |
4.13 | On or after relevant Discharge Date |
At any time on or after the later to occur of the Revolving Facility Discharge Date and Senior Secured Discharge Date, any action in respect of the Priority Hedging Liabilities which is permitted under any of Clause 4.3 ( Permitted Payments: Hedging Liabilities ), Clause 4.5 (No acquisition of Hedging Liabilities) or Clause 4.9 ( Permitted Enforcement: Hedge Counterparties ) by reason of the prior consent of the Majority Senior Creditors shall be permitted without such consent.
4.14 | Allocation of Priority Hedging Liabilities |
In order for the Hedging Liabilities in respect of any Hedging Agreement to constitute Priority Hedging Liabilities, on or prior to entry into such Hedging Agreement, the Company and the relevant Hedge Counterparty shall advise the Security Trustee in writing of the maximum amount of the Priority Hedging Liabilities that shall be attributable to such Hedge Counterparty (the Allocated Amount), provided that neither any single Allocated Amount nor the aggregate of all the Allocated Amounts may exceed the Maximum Priority Hedged Amount at any time. Each Allocated Amount may not be:
(a) | changed without the prior written consent of the relevant Hedge Counterparty; and |
(b) | allocated to another Hedge Counterparty (the New Hedge Counterparty ) unless the relevant Hedge Counterparty to whom it had been allocated confirms in writing to the Security Trustee that all the relevant hedging transactions that are attributable to that Allocated Amount have been terminated or, if the hedging transactions are to be novated to the New Hedge Counterparty, the relevant Hedge Counterparty confirms in writing to the Security Trustee that it has no further liabilities, rights or obligations in respect of the relevant hedging transactions that are attributable to that Allocated Amount on the effectiveness of such novation. |
5 | SENIOR SECURED CREDITORS: RIGHTS AND OBLIGATIONS |
5.1 | Permitted Payments: Senior Secured Liabilities |
The Debtors may make payments of the Senior Secured Liabilities at any time in accordance with the Senior Secured Documents.
5.2 | Security: Senior Secured Creditors |
At any time prior to the Super Senior Discharge Date, the Senior Secured Creditors may not take, accept or receive from any member of the Group the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Senior Secured Liabilities other than:
(a) | the Common Transaction Security; |
(b) | any guarantee, indemnity or other assurance against loss contained in: |
(i) | the Original Senior Secured Indenture (in its form on the date of this Agreement) under which the Original Senior Secured Notes are issued (or in any other Senior Secured Indenture entered into in accordance with this Agreement); |
(ii) | this Agreement; or |
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(iii) | any Common Assurance; and |
(c) | as otherwise contemplated by Clause 3.2 ( Security: Revolving Lenders ), |
unless the prior consent of (prior to the Super Senior Discharge Date) the Majority Super Senior Creditors is obtained and provided that (after the Super Senior Discharge Date) to the extent legally possible at the time it is also offered to the Non Priority Hedge Counterparty in respect of their Liabilities and ranks in the same order of priority as that contemplated in Clause 2 ( Ranking and Priority ).
6. | INTRA-GROUP LENDERS AND INTRA-GROUP LIABILITIES |
6.1 | Restriction on Payment: Intra-Group Liabilities |
Prior to the Senior Discharge Date, the Debtors shall not, and shall procure that no other member of the Group will, make any Payments of the Intra-Group Liabilities and the Intra-Group Lenders shall not accept or agree to accept any such Payments at any time unless:
(a) | that Payment is permitted under Clause 6.2 ( Permitted Payments: Intra-Group Liabilities ); or |
(b) | the taking or receipt of that Payment is permitted under paragraph (a)(iii) of Clause 6.7 ( Permitted Enforcement: Intra-Group Lenders ). |
6.2 | Permitted Payments: Intra-Group Liabilities |
(a) | Subject to paragraph (b) below, the Debtors may make Payments in respect of the Intra-Group Liabilities (whether of principal, interest or otherwise) from time to time when due and the Intra Group Lenders may accept or agree to accept any such payment at any time. |
(b) | Payments in respect of the Intra-Group Liabilities may not be made pursuant to paragraph (a) above if, at the time of the Payment, an Acceleration Event has occurred unless prior to the Senior Discharge Date the Majority Senior Creditors consent to that Payment being made. |
6.3 | Payment obligations continue |
No Debtor shall be released from the liability to make any Payment (including of default interest, which shall continue to accrue) under any Debt Document by the operation of Clauses 6.1 ( Restriction on Payment: Intra-Group Liabilities ) and 6.2 ( Permitted Payments: Intra-Group Liabilities ) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses.
6.4 | Acquisition of Intra-Group Liabilities |
(a) | Subject to paragraph (b) below, each Debtor may, and may permit any other member of the Group to: |
(i) | enter into any Liabilities Acquisition; or |
(ii) | beneficially own all or any part of the share capital of a company that is party to a Liabilities Acquisition, |
in respect of any Intra-Group Liabilities at any time.
(b) | Subject to paragraph (c) below, no action described in paragraph (a) above may take place in respect of any Intra-Group Liabilities if: |
(i) | that action would result in a breach of any Revolving Facility Agreement or a Senior Secured Indenture; or |
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(ii) | at the time of that action, an Acceleration Event has occurred. |
(c) | The restrictions in paragraph (b) above shall not apply if: |
(i) | prior to the Senior Discharge Date, the Majority Senior Creditors consent to that action; or |
(ii) | that action is taken to facilitate Payment of the Senior Liabilities or the Non Priority Hedging Liabilities. |
6.5 | Security: Intra-Group Lenders |
Prior to the Final Discharge Date, the Intra-Group Lenders may not take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Intra-Group Liabilities unless:
(a) | that Security, guarantee, indemnity or other assurance against loss is expressly permitted under the terms of any Revolving Facility Agreement and any Senior Secured Indenture; or |
(b) | (prior to the Senior Discharge Date) the consent of the Majority Senior Creditors is obtained. |
6.6 | Restriction on enforcement: Intra-Group Lenders |
Subject to Clause 6.7 ( Permitted Enforcement: Intra-Group Lenders ), none of the Intra-Group Lenders shall be entitled to take any Enforcement Action in respect of any of the Intra-Group Liabilities at any time prior to the Final Discharge Date.
6.7 | Permitted Enforcement: Intra-Group Lenders |
(a) | After the occurrence of an Insolvency Event in relation to any Debtor or grantor of Transaction Security, each Intra-Group Lender may (unless otherwise directed by the Security Trustee or unless the Security Trustee has taken, or has given notice that it intends to take, action on behalf of that Intra-Group Lender in accordance with Clause 9.5 ( Filing of claims )) and shall if so directed by the Security Trustee, exercise any right it may otherwise have against that Debtor or grantor of Transaction Security to: |
(i) | accelerate any of that Debtors or grantor of Transaction Securitys Intra-Group Liabilities or declare them prematurely due and payable or payable on demand; |
(ii) | make a demand under any guarantee, indemnity or other assurance against loss given by that member of the Group in respect of any Intra-Group Liabilities; |
(iii) | exercise any right of set off or take or receive any Payment in respect of any Intra-Group Liabilities of that member of the Group; or |
(iv) | claim and prove in the liquidation of that member of the Group for the Intra-Group Liabilities owing to it. |
(b) | Paragraph (a) shall not apply to the extent that that Insolvency Event was the result of the actions of any Intra-Group Lender. |
6.8 | Notice of Assignment in respect of certain Intra-Group Liabilities |
(a) |
Each Debtor (a Charging Company) that has created Transaction Security over any Intra-Group Liabilities in respect of which it is a creditor hereby gives notice to each other Debtor (a Counterparty) that is from time to time a debtor in respect of all present and future Intra-Group Liabilities owing to such Charging Company of the Security over such Intra-Group |
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Liabilities created pursuant to the Security Documents in favour of the Secured Parties and confirms that the Counterparty may continue to deal with the Charging Company in relation to such Intra-Group Liabilities until such Counterparty receives written notice to the contrary from the Security Trustee (in which case such Counterparty shall deal only with the Security Trustee in respect of such Intra-Group Liabilities). |
(b) | Each Counterparty agrees to the terms of paragraph (a) above and confirms it has not received notice that the Charging Company has assigned its rights in respect of the Intra-Group Liabilities owed by such Counterparty (except pursuant to an Existing Transaction Security Document) to a third party or created any other interest (whether by way of Security or otherwise) in the Intra-Group Liabilities in favour of a third party. |
6.9 Representations: Intra-Group Lenders
Each Intra-Group Lender which is not a Debtor represents and warrants to the Primary Creditors, the Security Trustee and the Representatives that:
(a) | it is a corporation, duly incorporated or formed and validly existing under the laws of its jurisdiction of incorporation or formation; |
(b) | the obligations expressed to be assumed by it in this Agreement are, subject to any general principles of law limiting its obligations which are applicable to creditors generally, legal, valid, binding and enforceable obligations; and |
(c) | the entry into and performance by it of this Agreement does not and will not: |
(i) | conflict with any law or regulation applicable to it, its constitutional documents or any agreement or instrument binding upon it or any of its assets; or |
(ii) | constitute a default or termination event (however described) under any agreement or instrument binding on it or any of its assets. |
7. | SUBORDINATED LIABILITIES |
7.1 | Restriction on Payment: Subordinated Liabilities |
Prior to the Final Discharge Date, neither the Company nor any other Debtor shall, and the Company shall procure that no other member of the Group will, make any Payment of the Subordinated Liabilities at any time unless that Payment is permitted under Clause 7.2 ( Permitted Payments: Subordinated Liabilities ).
7.2 | Permitted Payments: Subordinated Liabilities |
The Company may make Payments in respect of the Subordinated Liabilities then due if:
(a) | prior to the Super Senior Discharge Date, the Majority Super Senior Creditors consent to that Payment being made; |
(b) | following the Super Senior Discharge Date but prior to the Senior Secured Discharge Date, either any such Payment is permitted under the Senior Secured Indenture or the Majority Senior Secured Creditors consent to that Payment being made; and |
(c) | following the Senior Secured Discharge Date but prior to the Non Priority Hedging Discharge Date, the Majority Non Priority Creditors consent to that Payment being made. |
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7.3 | Payment obligations continue |
Neither the Company nor any other Debtor shall be released from the liability to make any Payment (including of default interest, which shall continue to accrue) under any Debt Document by the operation of Clauses 7.1 ( Restriction on Payment: Subordinated Liabilities ) and 7.2 ( Permitted Payments: Subordinated Liabilities ) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses.
7.4 | No acquisition of Subordinated Liabilities |
Prior to the Final Discharge Date, the Debtors shall not, and shall procure that no other member of the Group will:
(a) | enter into any Liabilities Acquisition; or |
(b) | beneficially own all or any part of the share capital of a company that is party to a Liabilities Acquisition, |
in respect of any of the Subordinated Liabilities, unless the prior consent of the Majority Senior Creditors is obtained.
7.5 | Security: Subordinated Creditor |
No Debtor may grant to any Subordinated Creditor the benefit of any Security, guarantee, indemnity or other assurance against loss from any member of the Group in respect of any of the Subordinated Liabilities prior to the Final Discharge Date.
7.6 | Restrictions on Subordinated Liabilities |
Prior to the Final Discharge Date, no member of the Group may incur any liabilities of any kind whatsoever in favour of a Subordinated Creditor unless those liabilities are incurred by the Company and are subordinated (a) on terms satisfactory, prior to the Super Senior Discharge Date, to the Revolving Agent and in accordance with the terms of the Senior Secured Indenture and (b) following the Super Senior Discharge Date and prior to the Senior Secured Discharge Date, in accordance with the terms of the Senior Secured Indenture.
8. | NEW MONEY AND REFINANCING |
8.1 | Additional Revolving Creditor Liabilities |
(a) | If the Revolving Lenders increase a Revolving Facility and make further advances under such Revolving Facility to members of the Group to the extent permitted under the Debt Documents, each such advance will be deemed to be made under the terms of the relevant Revolving Facility Agreement and (to the extent permitted by applicable law) secured by the applicable Security Documents. |
(b) | To the extent permitted under the Debt Documents, if any Group Company incurs Revolving Creditor Liabilities under a Revolving Facility Agreement other than the Original Revolving Facility Agreement in accordance with the terms of the Revolving Facility Documents, any such Revolving Creditor Liabilities shall be deemed to be secured by the applicable Security Documents pari passu with the then existing Revolving Creditor Liabilities, provided that : |
(i) | the Revolving Agent in respect thereof accedes to this Agreement in accordance with Clause 18.4 ( Change of Representative ) ; and |
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(ii) | each lender in respect of such Revolving Creditor Liabilities accedes to this Agreement as a Revolving Lender in accordance with Clause 18.2 ( Change of Revolving Lender ). |
(c) | To the extent additional Revolving Creditor Liabilities incurred as contemplated in sub-paragraph (b) above cannot be secured pari passu with the then existing Revolving Creditor Liabilities under the applicable existing Security Documents without the Security under such existing Security Documents first being released, the Parties agree that the Security Trustee is hereby authorised to release the Security granted pursuant to such existing Security Documents provided that immediately on such release, new Security shall be provided in favour of the providers of such Revolving Creditor Liabilities and the Primary Creditors on terms substantially similar to the Security Documents released and subject to the same ranking as set out in Clause 2.2 ( Transaction Security ) and further provided that either (i) there is delivered to the Senior Secured Trustee, in form and substance satisfactory to it, an opinion of counsel opining that, following such release and grant of new Security, any new hardening period in respect of any such new Security securing the Senior Secured Liabilities is no longer than any new hardening periods in respect of such new Security securing the additional Revolving Creditor Liabilities or (ii) an Independent Financial Advisor delivers a solvency opinion, in form and substance reasonably satisfactory to the Senior Secured Trustee confirming the solvency of the Company and its Subsidiaries, taken as a whole, after giving effect to any transaction related to such incurrence of additional Revolving Creditor Liabilities. Nothing in this Agreement shall restrict the Senior Creditors, the Super Senior Creditors and the providers of the additional Revolving Creditor Liabilities from agreeing the ranking of their respective senior claims among themselves. |
8.2 | Additional Senior Secured Notes |
(a) | To the extent permitted by the Debt Documents, the Company may issue Senior Secured Notes, in addition to the Original Senior Secured Notes under a Senior Secured Indenture and such additional Senior Secured Notes shall (to the extent permitted by applicable law) be deemed to be secured by the applicable Security Documents pari passu with the then existing Senior Secured Liabilities, provided that : |
(i) | such additional indebtedness is issued in compliance with the Senior Secured Parameters or to the extent such indebtedness is not in compliance with the Senior Secured Parameters the terms thereof have been approved by (prior to the Revolving Facility Discharge Date) the Majority Revolving Lenders in accordance with the relevant Debt Documents; and |
(ii) | (if not already a Party) the Additional Senior Secured Trustee in respect thereof accedes to this Agreement, in accordance with Clause 18.4 ( Change of Representative ). |
(b) | To the extent additional Senior Secured Notes issued as contemplated in paragraph (a) above cannot be secured pari passu with the then existing Senior Secured Liabilities under the applicable existing Security Documents without the Security under such existing Security Documents first being released, the Parties agree that the Security Trustee is hereby authorised to release such existing Security Documents provided that immediately on such release, Security shall be provided in favour of Additional Senior Secured Creditors in respect of such Senior Secured Notes and the Primary Creditors on terms substantially similar to the Security Documents released and subject to the same ranking as set out in Clause 2.2 ( Transaction Security ). Nothing in this Agreement shall restrict the Senior Creditors and the relevant Additional Senior Secured Creditors from agreeing the ranking of their respective senior claims among themselves. |
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8.3 | Refinancing of the Revolving Creditor Liabilities |
(a) | The Revolving Creditor Liabilities, with the consent of the Company, may be refinanced or replaced (a Revolving Refinancing ) in whole or (with the consent of the requisite Revolving Facility Finance Parties) in part and any indebtedness incurred by Debtors in such Revolving Refinancing will be subject to, and have the benefit of this Agreement. |
(b) | The Parties acknowledge that the terms and conditions (including increased pricing and amount of principal) applicable to any such Revolving Refinancing may be different to those applicable to the Revolving Creditor Liabilities as at the date of this Agreement, but shall be required to be in accordance with the terms of the other Debt Documents. |
(c) | Each Representative, each Revolving Lender, each other Senior Secured Creditor party to this Agreement and each Hedge Counterparty hereby agree that if Security over any asset under the applicable Security Documents is released, whether by operation of law or otherwise, in connection with a Revolving Refinancing then (to the extent permissible under applicable law) the Security Trustee is hereby authorised to release the relevant asset from the Security under the applicable Security Documents provided that, on giving effect to such Revolving Refinancing, new Security shall be provided in favour of the providers of such Revolving Refinancing indebtedness and the Primary Creditors on terms substantially similar to the Security Documents released and subject to the same ranking as set out in Clause 2.2 ( Transaction Security ) and further provided that either (i) there is delivered to the Senior Secured Trustee, in form and substance satisfactory to it, an opinion of counsel opining that, following such release and grant of new Security, any new hardening period in respect of any such new Security securing the Senior Secured Liabilities is no longer than any new hardening periods in respect of such new Security securing such Revolving Refinancing indebtedness or (ii) an Independent Financial Advisor delivers a solvency opinion, in form and substance reasonably satisfactory to the Senior Secured Trustee confirming the solvency of the Company and its Subsidiaries, taken as a whole, after giving effect to any transaction related to such Revolving Refinancing. Nothing in this Agreement shall restrict the Senior Creditors and the providers of any Revolving Refinancing indebtedness from agreeing the ranking of their respective senior claims among themselves. |
(d) | Each Representative, each Revolving Lender, each other Senior Secured Creditor party to this Agreement and each Hedge Counterparty undertakes at the prior written request of any Revolving Agent to promptly execute all such documents and give such instructions to the Security Trustee as may be reasonably necessary, including, without limitation, entering into further security, priority and intercreditor agreements (including any Intercreditor Amendment) to provide substantially similar rights and remedies to the providers of such Revolving Refinancing indebtedness as those provided to the Revolving Lenders in this Agreement. |
8.4 | Refinancing of the Senior Secured Liabilities |
(a) | Notwithstanding any other terms of this Agreement but (prior to the Super Senior Discharge Date) to the extent permitted by the Revolving Facility Documents, the Senior Secured Liabilities may be discharged (a Senior Secured Refinancing ) in whole or in part from the proceeds of an incurrence by the Company of indebtedness where: |
(i) | such indebtedness is issued in compliance with the Senior Secured Parameters or to the extent such indebtedness is not in compliance with the said criteria, the terms thereof have been approved by (prior to the Revolving Facility Discharge Date) the Majority Revolving Lenders in accordance with the terms of the relevant Debt Documents; |
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(ii) | the Additional Senior Secured Trustee in respect thereof accedes to this Agreement in accordance with Clause 18.4 ( Change of Representative ); and |
(iii) | any Additional Senior Secured Creditor who is the lender of any Additional Senior Secured Liabilities made available by way of loan accedes to this Agreement in accordance with Clause 18.8 ( New Additional Senior Secured Creditors ). |
(b) | Each Representative, each Revolving Lender, each Senior Secured Creditor party to this Agreement and each Hedge Counterparty hereby agree that if Security over any asset under the applicable Security Documents is released, whether by operation of law or otherwise, in connection with a Senior Secured Refinancing then (to the extent permissible under applicable law) the Security Trustee is hereby authorised to release the relevant asset from the Security under the applicable Security Documents provided that , on giving effect to such Senior Secured Refinancing, Security shall be provided in favour of the providers of such Senior Secured Refinancing indebtedness and the Primary Creditors on terms substantially similar to the Security Documents released and subject to the same ranking as set out in Clause 2.2 ( Transaction Security ). Nothing in this Agreement shall restrict the Senior Creditors and the providers of any Senior Secured Refinancing indebtedness from agreeing the ranking of their respective senior claims among themselves. |
(c) | Each Representative, each Revolving Lender, each Senior Secured Creditor party to this Agreement and each Hedge Counterparty each undertake at the request of the relevant Senior Secured Trustee to promptly execute all such documents and give such instructions to the Security Trustee as may be reasonably necessary, including, without limitation, entering into further security, priority and intercreditor agreements (including any Intercreditor Amendment) to provide substantially similar rights and remedies to the providers of such Senior Secured Refinancing indebtedness as those provided to the Senior Secured Creditors in this Agreement. |
8.5 | Further Assurance |
Each Party agrees that it shall promptly execute all such documents as may reasonably be considered necessary in order to give effect to the refinancing of the Revolving Creditor Liabilities, the issuance of additional Senior Secured Notes and/or the refinancing of any of the Liabilities contemplated by this Clause 8, and to give effect to the security as contemplated by this Clause 8 in respect of such additional or refinanced Liabilities, including any amendment required to the terms of this Agreement and any amendment, consent, waiver or release in respect of any Security Document and any grant of security pursuant to a new Security Document.
9. | EFFECT OF INSOLVENCY EVENT |
9.1 | RCF Cash Cover |
This Clause 9 is subject to Clause 14.3 ( Treatment of RCF Cash Cover and Revolving Facility Cash Collateral ).
9.2 | Payment of distributions |
(a) | After the occurrence of an Insolvency Event in relation to any Debtor or any other grantor of Transaction Security, any Creditor entitled to receive a distribution out of the assets of that Debtor or that grantor of Transaction Security (as applicable) in respect of Liabilities owed to that Party shall, to the extent it is able to do so taking into account any limitations under applicable law, direct the person responsible for the distribution of the assets of that Debtor or that grantor of Transaction Security (as applicable) to pay that distribution to the Security Trustee until the Liabilities owing to the Secured Parties have been paid in full. |
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(b) | The Security Trustee shall apply distributions paid to it under paragraph (a) above in accordance with Clause 14 (Application of Proceeds). |
9.3 | Set Off |
To the extent that any member of the Groups Liabilities or any grantor of Transaction Securitys Liabilities (as the case may be) are discharged by way of set off (mandatory or otherwise) after the occurrence of an Insolvency Event in relation to (as applicable) that member of the Group or such grantor of Transaction Security, any Creditor which benefited from that set off shall to the extent legally permissible, pay an amount equal to the amount of the Liabilities owed to it which are discharged by that set off to the Security Trustee for application in accordance with Clause 14 (Application of Proceeds).
9.4 | Non cash distributions |
If the Security Trustee or any other Secured Party receives a distribution in a form other than in cash in respect of any of the Liabilities, the Liabilities will not be reduced by that distribution until and except to the extent that the realisation proceeds of such non cash distribution are actually applied towards the Liabilities.
9.5 | Filing of claims |
Without prejudice to any Ancillary Lenders right of netting or set off relating to a Multi Account Overdraft Facility (to the extent that the netting or set off represents a reduction from a Permitted Gross Amount of that Multi Account Overdraft Facility to or towards its Designated Net Amount), after the occurrence of an Insolvency Event in relation to a Debtor or any grantor of Transaction Security, each Creditor irrevocably authorises the Security Trustee (acting in accordance with Clause 9.7 (Security Trustee instructions)), on its behalf, to:
(a) | take any Enforcement Action (in accordance with the terms of this Agreement) against that Debtor or that grantor of Transaction Security (as applicable); |
(b) | demand, sue, prove and give receipt for any or all of (as applicable) that Debtors Liabilities or that grantor of Transaction Securitys Liabilities; |
(c) | to the extent legally permissible, collect and receive all distributions on, or on account of, any or all of (as applicable) that Debtors Liabilities or that grantor of Transaction Securitys Liabilities; and |
(d) | file claims, take proceedings and do all other things the Security Trustee considers reasonably necessary to recover (as applicable) that Debtors Liabilities or that grantor of Transaction Securitys Liabilities. |
9.6 | Creditors actions |
Each Creditor will:
(a) | do all things that the Security Trustee (acting in accordance with Clause 9.7 (Security Trustee instructions)) requests in order to give effect to this Clause 9; and |
(b) | if the Security Trustee is not entitled to take any of the actions contemplated by this Clause 9 or if the Security Trustee (acting in accordance with Clause 9.7 (Security Trustee instructions)) requests that a Creditor takes that action, undertakes that action itself in accordance with the instructions of the Security Trustee (acting in accordance with Clause 9.7 (Security Trustee instructions)) or grants a power of attorney to the Security Trustee (on such terms as the Security Trustee (acting in accordance with Clause 9.7 (Security Trustee instructions)) may reasonably require) to enable the Security Trustee to take such action. |
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9.7 | Security Trustee instructions |
For the purposes of Clause 9.5 (Filing of claims) and Clause 9.6 (Creditors actions) the Security Trustee shall act:
(a) | on the instructions of the group of Primary Creditors entitled, at that time, to give instructions under Clause 12.2 (Enforcement instructions) or Clause 12.3 (Manner of enforcement); or |
(b) | in the absence of any such instructions, as the Security Trustee sees fit. |
10. | TURNOVER OF RECEIPTS |
10.1 | RCF Cash Cover |
This Clause 10 is subject to Clause 14.3 (Treatment of RCF Cash Cover and Revolving Facility Cash Collateral).
10.2 | Turnover by the Creditors |
Subject to Clause 10.3 (Exclusions), Clause 10.4 (Permitted assurance and receipts) and (in the case of each Senior Secured Trustee) Clause 25 (Senior Secured Trustees), if at any time prior to the Final Discharge Date any Creditor receives or recovers:
(a) | any Payment or distribution of, or on account of or in relation to, or on account of the purchase or acquisition of, any of the Liabilities which is not either: |
(i) | a Permitted Payment; or |
(ii) | made in accordance with Clause 14 (Application of Proceeds); |
(b) | other than where Clause 9.3 (Set Off) applies, any amount by way of set off in respect of any of the Liabilities owed to it which does not give effect to a Permitted Payment; |
(c) | notwithstanding paragraphs (a) and (b) above, and other than where Clause 9.3 (Set Off) applies, any amount: |
(i) | on account of, or in relation to, any of the Liabilities: |
(A) | after the occurrence of a Distress Event; or |
(B) | as a result of any other Enforcement Action against a member of the Group (other than after the occurrence of an Insolvency Event in respect of that member of the Group); or |
(ii) | by way of set off in respect of any of the Liabilities owed to it after the occurrence of a Distress Event, |
other than, in each case, any amount received or recovered in accordance with Clause 14 (Application of Proceeds);
(d) | the proceeds of any enforcement of any Transaction Security except in accordance with Clause 14 (Application of Proceeds); or |
(e) | other than where Clause 9.3 (Set Off) applies, any distribution in cash or in kind or Payment of, or on account of or in relation to, any of the Liabilities owed by any member of the Group which is not in accordance with Clause 14 (Application of Proceeds) and which is made as a result of, or after, the occurrence of an Insolvency Event in respect of that member of the Group, |
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that Creditor will:
(i) | in relation to receipts and recoveries not received or recovered by way of set off: |
(A) | hold an amount of that receipt or recovery equal to the Relevant Liabilities (or if less, the amount received or recovered) on trust for the Security Trustee and promptly pay that amount to the Security Trustee for application in accordance with the terms of this Agreement; and |
(B) | promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Trustee for application in accordance with the terms of this Agreement; and |
(ii) | in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Security Trustee for application in accordance with the terms of this Agreement. |
10.3 | Exclusions |
Clause 10.2 (Turnover by the Creditors) shall not apply to any receipt or recovery:
(a) | by way of: |
(i) | Close-Out Netting by a Hedge Counterparty or a Hedging Ancillary Lender; |
(ii) | Payment Netting by a Hedge Counterparty or a Hedging Ancillary Lender; |
(iii) | Inter-Hedging Agreement Netting by a Hedge Counterparty; or |
(iv) | Inter-Hedging Ancillary Document Netting by a Hedging Ancillary Lender; or |
(b) | by an Ancillary Lender by way of that Ancillary Lenders right of netting or set off relating to a Multi Account Overdraft Facility (to the extent that that netting or set off represents a reduction from a Permitted Gross Amount of that Multi Account Overdraft Facility to or towards its Designated Net Amount); or |
(c) | that has been distributed by a Senior Secured Trustee to the Senior Secured Noteholders in accordance with Senior Secured Documents unless the Senior Secured Trustee had actual knowledge that the receipt or recovery falls within Clause 10.2 (Turnover by the Creditors) prior to distribution of the relevant amount. |
10.4 | Permitted assurance and receipts |
Nothing in this Agreement shall restrict the ability of any Primary Creditor to:
(a) | arrange with any person which is not a member of the Group any assurance against loss in respect of, or reduction of its credit exposure to, a Debtor (including assurance by way of credit based derivative or sub participation); or |
(b) | make any assignment or transfer permitted by Clause 18 (Changes to the Parties), |
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which:
(i) | is permitted by: |
(A) | any Revolving Facility Agreement; or |
(B) | each Senior Secured Indenture; and |
(ii) | is not in breach of: |
(A) | Clause 4.5 (No acquisition of Hedging Liabilities); |
(B) | Clause 6.4 (Acquisition of Intra-Group Liabilities); or |
(C) | Clause 7.4 (No acquisition of Subordinated Liabilities), |
and that Primary Creditor shall not be obliged to account to any other Party for any sum received by it as a result of that action.
10.5 | Sums received by Debtors |
If any of the Debtors or any other grantor of Transaction Security receives or recovers any sum which, under the terms of any of the Debt Documents, should have been paid to the Security Trustee, that Debtor or grantor of Transaction Security (as applicable) will, to the extent legally permissible:
(a) | hold an amount of that receipt or recovery equal to the Relevant Liabilities (or if less, the amount received or recovered) on trust for the Security Trustee and promptly pay that amount to the Security Trustee for application in accordance with the terms of this Agreement; and |
(b) | promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Trustee for application in accordance with the terms of this Agreement. |
10.6 | Saving provision |
If, for any reason, any of the trusts expressed to be created in this Clause 10 should fail or be unenforceable, the affected Creditor, Debtor or grantor of Transaction Security will, to the extent legally permissible, promptly pay an amount equal to that receipt or recovery to the Security Trustee to be held on trust by the Security Trustee for application in accordance with the terms of this Agreement.
11. | REDISTRIBUTION |
11.1 | Recovering Creditors rights |
(a) | Any amount paid by a Creditor (a Recovering Creditor) to the Security Trustee under Clause 9 (Effect of Insolvency Event) or Clause 10 (Turnover of Receipts) shall be treated as having been paid by the relevant Debtor and distributed to the Security Trustee and Primary Creditors (each a Sharing Creditor) in accordance with the terms of this Agreement. |
(b) | On a distribution by the Security Trustee under paragraph (a) above of a Payment received by a Recovering Creditor from a Debtor or, as the case may be, any other grantor of Transaction Security, as between the relevant Debtor or grantor of Transaction Security and the Recovering Creditor an amount equal to the amount received or recovered by the Recovering Creditor and paid to the Security Trustee (the Shared Amount) will be treated as not having been paid by that Debtor or that grantor of Transaction Security (as the case may be). |
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11.2 | Reversal of redistribution |
(a) | If any part of the Shared Amount received or recovered by a Recovering Creditor becomes repayable to a Debtor or any other grantor of Transaction Security and is repaid by that Recovering Creditor to that Debtor or grantor of Transaction Security (as applicable), then: |
(i) | each Sharing Creditor (subject, in the case of a Senior Secured Trustee, to Clause 25. l(b) (Liability)) shall, upon request of the Security Trustee, pay to the Security Trustee for the account of that Recovering Creditor an amount equal to the appropriate part of its share of the Shared Amount (together with an amount as is necessary to reimburse that Recovering Creditor for its proportion of any interest on the Shared Amount which that Recovering Creditor is required to pay) (the Redistributed Amount) ; and |
(ii) | as between the relevant Debtor or grantor of Transaction Security and each relevant Sharing Creditor, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Debtor or grantor of Transaction Security (as applicable). |
(b) | The Security Trustee shall not be obliged to pay any Redistributed Amount to a Recovering Creditor under paragraph (a)(i) above until it has been able to establish to its satisfaction that it has actually received that Redistributed Amount from the relevant Sharing Creditor. |
11.3 | Deferral of Subrogation |
No Creditor or Debtor or other grantor of Transaction Security will exercise any rights which it may have by reason of the performance by it of its obligations under the Debt Documents to take the benefit (in whole or in part and whether by way of subrogation, contribution or otherwise) of any rights under the Debt Documents of any Creditor which ranks ahead of it in accordance with the priorities set out in Clause 2 (Ranking and Priority) until such time as all of the Liabilities owing to each prior ranking Creditor (or, in the case of any Debtor or (as the case may be) other grantor of Transaction Security, owing to each Creditor) have been irrevocably paid in full.
12. | ENFORCEMENT OF TRANSACTION SECURITY |
12.1 | RCF Cash Cover |
This Clause 12 is subject to Clause 14.3 (Treatment of RCF Cash Cover and Revolving Facility Cash Collateral).
12.2 | Enforcement instructions |
(a) | The Security Trustee may refrain from enforcing the Transaction Security unless instructed otherwise by the Instructing Group. |
(b) | Subject to the Transaction Security having become enforceable in accordance with its terms the Instructing Group may give or refrain from giving instructions to the Security Trustee to enforce or refrain from enforcing the Transaction Security as they see fit. |
(c) | The Security Trustee is entitled to rely on and comply with instructions given in accordance with this Clause 12.2. |
(d) | The Security Trustee will provide notice to the Company before commencing enforcement of any Transaction Security. |
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12.3 | Manner of enforcement |
If the Transaction Security is being enforced pursuant to Clause 12.2 (Enforcement instructions), the Security Trustee shall enforce the Transaction Security in such manner (including, without limitation, the selection of any administrator of any Debtor to be appointed by the Security Trustee) as the Instructing Group shall instruct or, in the absence of any such instructions, as the Security Trustee sees fit.
12.4 | Exercise of voting rights |
(a) | After the occurrence of an Insolvency Event in respect of any Debtor, prior to the Senior Discharge Date, each Intra-Group Lender irrevocably authorises the Security Trustee to exercise all powers of convening meetings, voting and representation in relation to that Debtor in respect of the Intra-Group Liabilities and the Subordinated Liabilities and each relevant Intra-Group Lender will provide all forms of proxy and representation requested by the Security Trustee for such purpose. |
(b) | The Security Trustee shall give instructions for the purposes of paragraph (a) of this Clause 12.4 as directed by an Instructing Group. |
(c) | Nothing in this Clause 12.4 will entitle the Security Trustee to exercise or require any Intra-Group Lender to exercise such powers in order to waive or amend any provision of the Debt Documents or waive, reduce, discharge or extend the date for payment of or reschedule the Subordinated Liabilities. |
12.5 | Waiver of rights |
To the extent permitted under applicable law and subject to Clause 12.2 (Enforcement instructions), Clause 12.3 (Manner of enforcement), Clause 14 (Application of Proceeds) and paragraph (c) of Clause 13.2 (Distressed Disposals), each of the Secured Parties, the Debtors and other grantors of Transaction Security waives all rights it may otherwise have to require that the Transaction Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Transaction Security or of any other security interest, which is capable of being applied in or towards discharge of any of the Secured Obligations is so applied.
12.6 | Duties owed |
Each of the Secured Parties, the Debtors and other grantors of Transaction Security acknowledges that, in the event that the Security Trustee enforces or is instructed to enforce the Transaction Security prior to the Senior Discharge Date, the duties to the Non Priority Hedge Counterparties (in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Transaction Security) shall, subject to paragraph (c) of Clause 13.2 (Distressed Disposals), be no different to or greater than the duty that is owed by the Security Trustee, Receiver or Delegate to the Debtors or another other grantor of Transaction Security under general law.
1 3. | PROCEEDS OF DISPOSALS |
13.1 | Non-Distressed Disposals |
(a) | Subject to paragraph (c) below, if, in respect of a disposal of: |
(i) | an asset by a Debtor or a grantor of Transaction Security that is a member of the Group; or |
(ii) | an asset which is subject to the Transaction Security, |
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to another member of the Group:
(A) | that disposal is permitted under (prior to the Revolving Facility Discharge Date) the Revolving Facility Documents and (prior to the Senior Secured Discharge Date) the Senior Secured Documents; and |
(B) | that disposal is not a Distressed Disposal, |
the Security Trustee is irrevocably authorised (at the cost of the relevant Debtor or the Company and without any consent, sanction, authority or further confirmation from any Creditor, Debtor or other grantor of Transaction Security that is a member of the Group):
(iii) | to release the Transaction Security over that asset; |
(iv) | where that asset consists of shares in the capital of a Debtor, to release the Transaction Security over that Debtors or that other grantor of Transaction Security who is a member of the Groups assets; |
(v) | to execute and deliver or enter into any release of the Transaction Security described in paragraphs (iii) and (iv) above and issue any certificates of non crystallisation of any floating charge or any consent to dealing that may, in the discretion of the Security Trustee, be considered necessary or desirable. |
(b) | Subject to paragraph (c) below, if, in respect of a disposal of: |
(i) | an asset by a Debtor or a grantor of Transaction Security that is a member of the Group; or |
(ii) | an asset which is subject to the Transaction Security, |
to a person or persons outside the Group:
(A) | that disposal is permitted under (prior to the Revolving Facility Discharge Date) the Revolving Facility Documents and (prior to the Senior Secured Discharge Date) the Senior Secured Documents; |
(B) | that disposal is not a Distressed Disposal; and |
(C) | that disposal is notified to each Representative, |
the Security Trustee is irrevocably authorised (at the cost of the relevant Debtor or the Company and without any consent, sanction, authority or further confirmation from any Creditor, Debtor or other grantor of Transaction Security that is a member of the Group):
(iii) | to release the Transaction Security and any other claim (relating to a Debt Document) over that asset; |
(iv) | where that asset consists of shares in the capital of a Debtor, to release the Transaction Security and any other claim (relating to a Debt Document) over that Debtors or that other grantor of Transaction Security who is a member of the Groups assets; |
(v) | to execute and deliver or enter into any release of the Transaction Security and any claim described in paragraphs (iii) and (iv) above and issue any certificates of non crystallisation of any floating charge or any consent to dealing that may, in the discretion of the Security Trustee, be considered necessary or desirable. |
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(c) | If a disposal referred to in paragraph (a) or (b) above (each a Non-Distressed Disposal) is not made, each release of Transaction Security and, in respect of paragraph (b), each release of any claim, shall have no effect and the Transaction Security or claim (as the case may be) subject to that release shall continue in such force and effect as if that release had not been effected. |
13.2 Distressed Disposals
(a) | If a Distressed Disposal is being effected the Security Trustee is irrevocably authorised (at the cost of the relevant Debtor and without any consent, sanction, authority or further confirmation from any Creditor, Debtor or other grantor of Transaction Security): |
(i) | release of Transaction Security/non crystallisation certificates: to release the Transaction Security and any other claim over that asset and execute and deliver or enter into any release of that Transaction Security and claim and issue any letters of non crystallisation of any floating charge or any consent to dealing that may, in the discretion of the Security Trustee, be considered necessary or desirable; |
(ii) | release of liabilities and Transaction Security on a share sale (Debtor) : if the asset which is disposed of consists of shares in the capital of a Debtor, to release: |
(A) | that Debtor and any Subsidiary of that Debtor from all or any part of: |
(1) | its Borrowing Liabilities; |
(2) | its Guarantee Liabilities; and |
(3) | its Other Liabilities; |
(B) | any Transaction Security granted by that Debtor or any Subsidiary of that Debtor over any of its assets; and |
(C) | any other claim of an Intra-Group Lender, another Debtor or other grantor of Transaction Security over that Debtors assets or over the assets of any Subsidiary of that Debtor, |
on behalf of the relevant Creditors, Debtors and other grantors of Transaction Security;
(iii) | release of liabilities and Transaction Security on a share sale (Holding Company): if the asset which is disposed of consists of shares in the capital of any Holding Company of a Debtor, to release: |
(A) | that Holding Company and any Subsidiary of that Holding Company from all or any part of: |
(1) | its Borrowing Liabilities; |
(2) | its Guarantee Liabilities; and |
(3) | its Other Liabilities; |
(B) | any Transaction Security granted by any Subsidiary of that Holding Company over any of its assets; and |
(C) | any other claim of an Intra-Group Lender or another Debtor over the assets of any Subsidiary of that Holding Company, |
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on behalf of the relevant Creditors and Debtors;
(iv) | transfer of obligations in respect of liabilities on a share sale: if the asset which is disposed of consists of shares in the capital of a Debtor or the Holding Company of a Debtor (the Disposed Entity) and the Security Trustee (acting in accordance with paragraph (e) below) decides to transfer to another Debtor (the Receiving Entity) all or any part of the Disposed Entitys obligations or any obligations of any Subsidiary of that Disposed Entity in respect of: |
(A) | the Intra-Group Liabilities; or |
(B) | the Debtor Liabilities, |
to execute and deliver or enter into any agreement to:
(C) | agree to the transfer of all or part of the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities on behalf of the relevant Intra-Group Lenders and Debtors to which those obligations are owed and on behalf of the Debtors which owe those obligations; and |
(D) | to accept the transfer of all or part of the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities on behalf of the Receiving Entity or Receiving Entities to which the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities are to be transferred. |
(b) | The net proceeds of each Distressed Disposal shall be paid to the Security Trustee for application in accordance with Clause 14 (Application of Proceeds) as if those proceeds were the proceeds of an enforcement of the Transaction Security. |
(c) | In the case of a Distressed Disposal effected by or at the request of the Security Trustee (acting in accordance with paragraph (d) below), the Security Trustee shall ensure: |
(i) | the proceeds of such disposal are received in cash (or substantially in cash); |
(ii) | (x) all the claims of the Primary Creditors under the Debt Documents against any member of the Group (if any) whose shares are sold or disposed of pursuant to such Distressed Disposal are unconditionally released and discharged concurrently with such disposal (and not assumed by the relevant purchaser or any affiliate thereof) provided however that performance bonds and similar instruments shall not be required to be so released and discharged and (y) all Transaction Security in the assets that are sold or disposed of is simultaneously and unconditionally released and discharged concurrently with such sale. |
(d) | For the purposes of paragraphs (a)(ii), (a)(iii), (a)(iv) and (c) above, the Security Trustee shall act: |
(i) | if the relevant Distressed Disposal is being effected by way of enforcement of the Transaction Security, in accordance with Clause 12.3 (Manner of enforcement); and |
(ii) | in any other case: |
(A) | on the instructions of the Instructing Group; or |
(B) | in the absence of any such instructions, as the Security Trustee sees fit. |
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13.3 | Creditors and Debtors actions |
Each Creditor, Debtor and other grantor of Transaction Security will:
(a) | do all things that the Security Trustee requests in order to give effect to this Clause 13 (which shall include, without limitation, the execution of any assignments, transfers, releases or other documents that the Security Trustee may consider to be necessary to give effect to the releases or disposals contemplated by this Clause 13); and |
(b) | if the Security Trustee is not entitled to take any of the actions contemplated by this Clause 13 or if the Security Trustee requests that any Creditor, Debtor or other grantor of Transaction Security take any such action, take that action itself in accordance with the instructions of the Security Trustee, |
provided that the proceeds of those disposals are applied in accordance with Clause 13.2 (Distressed Disposals).
14. | APPLICATION OF PROCEEDS |
14.1 | Order of application |
Subject to the rights of creditors mandatorily preferred by law applying to companies generally and Clause 14.2 (Prospective liabilities) and Clause 14.3 (Treatment of RCF Cash Cover and Revolving Facility Cash Collateral), all amounts from time to time received or recovered by the Security Trustee pursuant to the terms of any Debt Document or in connection with the realisation or enforcement of all or any part of the Transaction Security (for the purposes of this Clause 14, the Recoveries) shall be held by the Security Trustee on trust to apply them at any time as the Security Trustee (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 14), in the following order of priority:
(a) | (i) in discharging any sums owing to the Security Trustee, any Receiver or any Delegate |
(ii) | in payment to each Revolving Agent on its own behalf for application towards the discharge of the Revolving Agent Liabilities (in accordance with the terms of the Revolving Facility Documents); and |
(iii) | in payment to each Senior Secured Trustee on its own behalf for application towards the discharge of the Senior Secured Trustee Liabilities (in accordance with the Senior Secured Documents), |
on a pro rata basis and ranking pari passu between paragraphs (i), (ii) and (iii) above, and in the case of paragraphs (ii) and (iii) above, arising in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of this Agreement or any action taken at the request of the Security Trustee under Clause 9.6 (Creditors actions);
(b) | in payment to: |
(i) | each Revolving Agent on behalf of the Revolving Lenders; and |
(ii) | the Hedge Counterparties, |
for application towards the discharge of:
(A) | the Revolving Creditor Liabilities (in accordance with the terms of the Revolving Facility Documents); and |
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(B) | the Priority Hedging Liabilities (on the basis that the maximum amount of Priority Hedging Liabilities that a Hedge Counterparty may claim for is limited to its Allocated Amount), |
on a pro rata basis between paragraphs (A) and (B) above;
(c) | in payment to each Senior Secured Trustee on behalf of the Senior Secured Noteholders for application (in accordance with the terms of the Senior Secured Documents) towards the discharge of the Senior Secured Liabilities on a pro rata basis; |
(d) | in payment to the Hedge Counterparties for application towards the discharge of the Non Priority Hedging Liabilities on a pro rata basis; |
(e) | if none of the Debtors is under any further actual or contingent liability under any Revolving Facility Document, Hedging Agreement or Senior Secured Document, in payment to any person to whom the Security Trustee is obliged to pay in priority to any Debtor; and |
(f) | the balance, if any, in payment to the relevant Debtor. |
14.2 | Prospective liabilities |
Following a Distress Event the Security Trustee may, in its discretion, hold any amount of the Recoveries in an interest bearing suspense or impersonal account(s) in the name of the Security Trustee with such financial institution (including itself) and for so long as the Security Trustee shall think fit (the interest being credited to the relevant account) for later application under Clause 14.1 (Order of Application) in respect of:
(a) | any sum to any Security Trustee, any Receiver or any Delegate; and |
(b) | any part of the Liabilities, |
that the Security Trustee reasonably considers, in each case, might become due or owing at any time in the future.
14.3 | Treatment of RCF Cash Cover and Revolving Facility Cash Collateral |
(a) | Nothing in this Agreement shall prevent any Issuing Bank or Ancillary Lender taking any Enforcement Action in respect of any RCF Cash Cover which has been provided for it in accordance with any Revolving Facility Agreement. |
(b) | To the extent that any RCF Cash Cover is not held with the Relevant Issuing Bank or Relevant Ancillary Lender, all amounts from time to time received or recovered in connection with the realisation or enforcement of that RCF Cash Cover shall be paid to the Security Trustee and shall be held by the Security Trustee on trust to apply them at any time as the Security Trustee (in its discretion) sees fit, to the extent permitted by applicable law, in the following order of priority: |
(i) | to the Relevant Issuing Bank or Relevant Ancillary Lender towards the discharge of the Revolving Creditor Liabilities for which that RCF Cash Cover was provided; and |
(ii) | the balance, if any, in accordance with Clause 14.1 (Order of Application). |
(c) | To the extent that any RCF Cash Cover is held with the Relevant Issuing Bank or Relevant Ancillary Lender, nothing in this Agreement shall prevent that Relevant Issuing Bank or Relevant Ancillary Lender receiving and retaining any amount in respect of that RCF Cash Cover. |
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(d) | Nothing in this Agreement shall prevent any Issuing Bank receiving and retaining any amount in respect of any Revolving Facility Cash Collateral provided for it in accordance with the terms of any Revolving Facility Agreement. |
14.4 | Investment of proceeds |
Prior to the application of the proceeds of the Security Property in accordance with Clause 14.1 (Order of Application) the Security Trustee may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Trustee with such financial institution (including itself) and for so long as the Security Trustee shall think fit (or until otherwise directed by an Instructing Group), the interest being credited to the relevant account, pending the application from time to time of those monies in the Security Trustees discretion in accordance with the provisions of this Clause 14.
14.5 | Currency Conversion |
(a) | For the purpose of, or pending the discharge of, any of the Secured Obligations the Security Trustee may convert any moneys received or recovered by the Security Trustee from one currency to another, at the Security Trustees Spot Rate of Exchange. |
(b) | The obligations of any Debtor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
14.6 | Permitted Deductions |
The Security Trustee shall be entitled, in its discretion, (a) to set aside by way of reserve amounts required to meet and (b) to make and pay, any deductions and withholdings (on account of taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement, and to pay all Tax which may be assessed against it in respect of any of the Charged Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Trustee under any of the Debt Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
14.7 | Good Discharge |
(a) | Any payment to be made in respect of the Secured Obligations by the Security Trustee: |
(i) | may be made to the relevant Representative on behalf of its Creditors; |
(ii) | may be made to the Relevant Issuing Bank or Relevant Ancillary Lender in accordance with paragraph (b)(i) of Clause 14.3 (Treatment of RCF Cash Cover and Revolving Facility Cash Collateral); or |
(iii) | shall be made directly to the Hedge Counterparties, |
and any payment made in that way shall be a good discharge, to the extent of that payment, by the Security Trustee.
(b) | The Security Trustee is under no obligation to make the payments to any Representative or the Hedge Counterparties under paragraph (a) of this Clause 14.7 in the same currency as that in which the Liabilities owing to the relevant Creditor are denominated. |
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14.8 | Calculation of Amounts |
For the purpose of calculating any persons share of any sum payable to or by it, the Security Trustee shall be entitled to:
(a) | notionally convert the Liabilities owed to any person into a common base currency (decided in its discretion by the Security Trustee), that notional conversion to be made at the spot rate at which the Security Trustee is able to purchase the notional base currency with the actual currency of the Liabilities owed to that person at the time at which that calculation is to be made; and |
(b) | assume that all moneys received or recovered as a result of the enforcement or realisation of the Security Property are applied in discharge of the Liabilities in accordance with the terms of the Debt Documents under which those Liabilities have arisen. |
(c) | Notwithstanding anything to the contrary set out in this Agreement, no money received or recovered from a French Debtor as a result of the enforcement or realisation of the Security Property shall be applied in discharge of any Liabilities if such discharge would result in or have the effect of an unlawful payment or discharge including (but not limited to) pursuant to Articles L.225-216, L.241-3 or L.242-36 and L.223-11 of the French Code de commerce. |
15. | HEDGE COUNTERPARTY GUARANTEE |
15.1 | Guarantee and Indemnity |
Each Debtor irrevocably and unconditionally jointly and severally:
(a) | guarantees to each Hedge Counterparty the punctual performance by each other Debtor of all its obligations under the Hedging Agreements; |
(b) | undertakes with each Hedge Counterparty that whenever another Debtor does not pay any amount when due under or in connection with any Hedging Agreement, that Debtor shall immediately on demand pay that amount as if it was the principal obligor; and |
(c) | agrees with each Hedge Counterparty that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Hedge Counterparty immediately on demand against any cost, loss or liability it incurs as a result of a Debtor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Hedging Agreement on the date when it would have been due. The amount payable by a Debtor under this indemnity will not exceed the amount it would have had to pay under this Clause 15 if the amount claimed had been recoverable on the basis of a guarantee. |
15.2 | Continuing Guarantee |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Debtor under the Hedging Agreements, regardless of any intermediate payment or discharge in whole or in part.
15.3 | Reinstatement |
If any discharge, release or arrangement (whether in respect of the obligations of any Debtor or any other grantor of Transaction Security or any security for those obligations or otherwise) is made by a Hedge Counterparty in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration, examinership, receivership or otherwise, without limitation, then the liability of each Debtor under this Clause 15 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
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15.4 | Waiver of defences |
(a) | The obligations of each Debtor under this Clause 15 will not be affected by an act, omission, matter or thing which, but for this Clause 15, would reduce, release or prejudice any of its obligations under this Clause 15 (without limitation and whether or not known to it or any Hedge Counterparty) including: |
(i) | any time, waiver or consent granted to, or composition with, any Debtor, any other grantor of Transaction Security or other person; |
(ii) | the release of any other Debtor, any other grantor of Transaction Security or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
(iii) | 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 Debtor, any other grantor of Transaction Security or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
(iv) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Debtor, any other grantor of Transaction Security or any other person; |
(v) | any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Hedging Agreement or any other document or security including, without limitation, any change in the purpose of, any extension of or increase in any Hedging Liability under any Hedging Agreement or any other document or security; |
(vi) | any unenforceability, illegality or invalidity of any obligation of any person under any Hedging Agreement or any other document or security; |
(vii) | any insolvency or similar proceedings; or |
(viii) | any benefit (beneficio) under Spanish Law, including but not limited to, benefits of prior exhaustion of the main debtors assets (excusión), division (división) and order (orden), which shall not in any event apply. |
(b) | Each Debtor irrevocably and unconditionally waives and abandons any and all rights or entitlement which it has or may have under the existing or future laws of the Island of Jersey whether by virtue of the customary law rights of: |
(i) | droit de discussion or otherwise, to require that recourse be had to the assets of any other person before any claim is enforced against it in respect of its obligations under any Hedging Agreement or this Clause 15, and irrevocably and unconditionally undertakes that if at any time proceedings are brought against it in respect of its obligations under any Hedging Agreement or this Clause 15 and any other person is not also joined in any such proceedings, it will not require that any other person be joined in or otherwise made a party to such proceedings, whether the formalities required by any law of the Island of Jersey whether existing or future in regard to the rights or obligations of sureties shall or shall not have been complied with or observed; and |
(ii) | droit de division or otherwise, to require that any liability under any Hedging Agreement or this Clause 15 be divided or apportioned with any other person or reduced in any manner. |
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15.5 | Debtor intent |
Without prejudice to the generality of Clause 15.4 (Waiver of defences), each Debtor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Hedging Agreements; any other variation or extension of the purposes for which any such hedging transaction or amount might be utilised from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
15.6 | Immediate recourse |
Each Debtor waives any right it may have of first requiring any Hedge Counterparty (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Debtor under this Clause 15. This waiver applies irrespective of any law or any provision of a Hedging Agreement to the contrary.
15.7 | Appropriations |
Until all amounts which may be or become payable by the Debtors under or in connection with the Hedging Agreements have been irrevocably paid in full, each Hedge Counterparty (or any trustee or agent on its behalf) may:
(a) | refrain from applying or enforcing any other moneys, security or rights held or received by that Hedge Counterparty (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Debtor shall be entitled to the benefit of the same; and |
(b) | hold in an interest-bearing suspense account any moneys received from any Debtor or on account of any Debtors liability under this Clause 15. |
15.8 | Deferral of Debtors Rights |
Until all amounts which may be or become payable by the Debtors under or in connection with the Hedging Agreement have been irrevocably paid in fall, no Debtor will exercise any rights which it may have by reason of performance by it of its obligations under any Hedging Agreement or by reason of any amount being payable, or liability arising, under this Clause 15:
(a) | to be indemnified by a Debtor or any other grantor of Transaction Security; |
(b) | to claim any contribution from any other guarantor of any Debtors obligations under the Hedging Agreements or this Clause 15; |
(c) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Hedge Counterparties under the Hedging Agreements or of any other guarantee or security taken pursuant to, or in connection with, the Hedging Agreements by any Hedge Counterparty; |
(d) | to bring legal or other proceedings for an order requiring any Debtor to make any payment, or perform any obligation, in respect of which any Debtor has given a guarantee, undertaking or indemnity under Clause 15.1 (Guarantee and Indemnity); |
(e) | to exercise any right of set off against any Debtor or any other grantor of Transaction Security; and/or |
(f) | to claim or prove as a creditor of any Debtor or any other grantor of Transaction Security in competition with any Hedge Counterparty. |
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If a Debtor or a grantor of Transaction Security receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Hedge Counterparties by the Debtors under or in connection with the Hedging Agreements or this Clause 15 to be repaid in full on trust for the Hedging Counterparties and shall promptly pay or transfer the same to the Security Trustee for applicable in accordance with Clause 14 (Application of proceeds).
15.9 | Release of Debtors right of contribution |
If any Debtor (a Retiring Debtor ) ceases to be a Debtor for the purpose of any sale or other disposal of that Retiring Debtor then on the date such Retiring Debtor ceases to be a Debtor:
(a) | that Retiring Debtor is released by each other Debtor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Debtor arising by reason of the performance by any other Debtor of its obligations under the Hedging Agreements or this Clause 15; and |
(b) | each other Debtor waives any rights it may have by reason of the performance of its obligations under this Clause 15 or the Hedging Agreements to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Hedge Counterparties under the Hedging Agreements, this Clause 15 or of any other security taken pursuant to, or in connection with, the Hedging Agreements or this Clause 15 where such rights or security are granted by or in relation to the assets of the Retiring Debtor. |
15.10 | Additional security |
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Hedge Counterparty.
15.11 | Dutch Guarantee Limitation |
Notwithstanding any other provision of this Clause 15 the guarantee, indemnity and other obligations of any Dutch Debtor expressed to be assumed in this Clause 15 shall be deemed not to be assumed by such Dutch Debtor to the extent that the same would constitute unlawful financial assistance within the meaning of Article 2:207c or 2:98c Dutch Civil Code or any other applicable financial assistance rules under any relevant jurisdiction (the Prohibition ) and the provisions of this Agreement and the other Debt Documents shall be construed accordingly. For the avoidance of doubt it is expressly acknowledged that the relevant Dutch Debtors will continue to guarantee all such obligations which, if included, do not constitute a violation of the Prohibition.
15.12 | French Guarantee Limitation |
No French Debtor shall have any liabilities as guarantor under this Clause 15.
15.13 | German Guarantee Limitation |
If the guarantee and indemnity granted in this Clause 15 (the Guarantee ) is given by a Debtor incorporated in Germany in the legal form of a limited liability company (Gesellschaft mit beschränkter Haftung (GmbH)) (a German GmbH Debtor ), the following shall apply:
(a) | The Hedge Counterparties shall be entitled to enforce the Guarantee against the relevant German GmbH Debtor or without limitation in respect of: |
(i) | all and any amounts which are owed under the Hedging Agreements by such German GmbH Debtor itself or by any of its Subsidiaries; and |
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(ii) | all and any amounts which correspond to funds that have been received under the Debt Documents or amounts borrowed or documentary credits or other financial accommodation provided under any ancillary facility, in each case to the extent lent or otherwise passed on to, or issued for the benefit of, the relevant German GmbH Debtor or any of its Subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time ((i) and (ii) are collectively referred to as the Unlimited Enforcement Events) . |
(b) | Beyond the Unlimited Enforcement Events the Hedge Counterparties shall not be entitled to enforce the Guarantee against the relevant German GmbH Debtor if and to the extent that: |
(i) | the Guarantee secures the obligations of an Debtor which is (x) a direct or indirect shareholder of the German GmbH Debtor or (y) an affiliated company (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the German GmbH Debtor (other than the German GmbH Debtor and its Subsidiaries) (the Up-Stream and/or Cross-Stream Guarantee) ; and |
(ii) | the enforcement would have the effect of (x) reducing the German GmbH Debtors net assets (Reinvermogen) (the Net Assets ) to an amount of less than its stated share capital (Stammkapital) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) thereby causing a violation of the capital maintenance requirements as set forth in section 30, para. 1 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschrankter Haftung) as amended from time to time provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Revolving Agent (such consent shall not be unreasonably withheld). |
(c) | The Net Assets shall be calculated as an amount equal to the sum of the values of the German GmbH Debtors assets (consisting of all assets which correspond to the items set forth in section 266 sub-section (2) A, B and C of the German Commercial Code (Handelsgesetzbuch) less the aggregate amount of the German GmbH Debtors liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section (3) B, C and D of the German Commercial Code), save that: |
(i) | any asset that is shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of such asset and that can be realised shall be taken into account with its market value, to the extent that such assets are not necessary for the relevant German GmbH Debtors business (nicht betriebsnotwendig) and to the extent that such realisation is necessary to satisfy the amount owed under the Guarantee (for the purpose of this clause a book value being significantly lower than the market value shall as a general rule be assumed if the book value is 35 per cent. lower than the market value); |
(ii) | obligations under loans provided to the German GmbH Debtor by any member of the Group shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the German GmbH Debtor; and |
(iii) | obligations under loans or other contractual liabilities incurred by the German GmbH Debtor in a culpable (schuldhaft) violation of the provisions of the Debt Documents shall not be taken into account as liabilities. |
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The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsädtze ordnungsmäBiger Buchfuhrung) and, to the extent such accounting principles provide for discretion, be based on the same principles that were applied by the German GmbH Debtor in the preparation of its most recent annual balance sheet (Jahresbilanz) and, in any event, in accordance with the jurisprudence from time to time of the German Federal Court of Justice (Bundesgerichtshof) relating to the protection of liable capital under Sections 30 and 31 of the German Limited Liability Companies Act.
(d) | The limitations set out in paragraph (b) above shall only apply if: |
(i) | the German GmbH Debtor delivers to the Revolving Agent, without undue delay but not later than within 10 Business Days (or such longer period as has been agreed between the German GmbH Debtor and the Revolving Agent) after receipt of a request for payment under the Guarantee by the Revolving Agent, a determination prepared by the German GmbH Debtors management stating which amount of the Up-Stream and/or Cross-Stream Guarantee cannot be enforced as it would cause the Net Assets of the relevant German GmbH Debtor being less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (taking into account the adjustments set out in paragraph (c) above (the Management Determination); and |
(ii) | provided that if the Revolving Agent (acting reasonably) disagrees with the Management Determination, the German GmbH Debtor delivers to the Revolving Agent, without undue delay but not later than within 20 Business Days (or such longer period as has been agreed between the German GmbH Debtor and the Revolving Agent) from the date the Revolving Agent has contested the Management Determination, an up to date balance sheet prepared by a firm of auditors of international standard and reputation which shows the amount of the Up-Stream and/or Cross-Stream Guarantee that cannot be enforced without the Net Assets of the relevant German GmbH Debtor becoming less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (the Balance Sheet). The Balance Sheet shall be prepared in accordance with the principles set out in paragraph (c) above and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to paragraph (c) above. |
If the German GmbH Debtor fails to deliver the Management Determination or the Balance Sheet within the aforementioned time periods, the Hedge Counterparties shall be entitled to enforce the Guarantee irrespective of the limitations set out in paragraph (b) above.
(e) | If the Revolving Agent (acting for and on behalf of the Hedge Counterparties) disagrees with the Management Determination and/or the Balance Sheet, the Revolving Agent (acting for and on behalf of the Hedge Counterparties) shall be entitled to enforce the Guarantee up to the amount which, according to the Management Determination or the Balance Sheet, as the case may be, can be enforced in compliance with the limitations set out in paragraph (b) above. In relation to any additional amounts for which the German GmbH Debtor is liable under the Guarantee, the Hedge Counterparties shall be entitled to further pursue their claims (if any) and the relevant German GmbH Debtor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the demand under the Guarantee was made). |
(f) | No reduction of the amount enforceable under this Clause 15.13 will prejudice the right of the Hedge Counterparties to continue enforcing the Guarantee (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims guaranteed. |
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15.14 | Spanish Guarantee Limitation |
(a) | The obligations under this Clause 15 of any Debtor incorporated in Spain (a Spanish Debtor) as a sociedad de responsabilidad limitada shall (i) not extend to any obligation incurred by any Debtor as a result of such Debtor borrowing (or guaranteeing the borrowing of) funds (but only in respect of those funds) for the purpose of (A) acquiring quotas (participaciones sociales) representing the share capital of such Spanish Debtor or quotas (participaciones sociales) or shares (acciones) representing the share capital of a company within its group or (B) refinancing a previous debt incurred by any Debtor for the acquisition of quotas (participaciones sociales) representing the share capital of such Spanish Debtor or quotas (participaciones sociales) or shares (acciones) representing the share capital of a company within its group, and shall (ii) be deemed not to be undertaken or incurred by a Spanish Debtor to the extent that the same would constitute unlawful financial assistance within the meaning of article 40.5 of the Spanish Limited Liability Companies Act 2/1995, 23 March (Ley de Sociedades de Responsabilidad Limitada) and, in that case, all provisions of this Agreement shall be construed accordingly in the sense that, in no case, can any guarantee or Security given by a Spanish Debtor secure repayment of the abovementioned funds. |
(b) | For the purposes of paragraph (a) above, a reference to the group of a Spanish Debtor shall mean such Spanish Debtor and any other companies constituting a group as such term is defined under article 42 of the Spanish Commercial Code (Código de Comercio), |
(c) | The obligations under this Clause 15, any Spanish Debtor incorporated as a sociedad anonima shall (i) not extend to any obligation incurred by any Debtor as a result of such Debtor borrowing (or guaranteeing the borrowing of) funds (but only in respect of those funds) for the purpose of (A) acquiring shares (acciones) representing the share capital of such Spanish Debtor or shares (acciones) or quotas (participaciones sociales) representing the share capital of its holding company or (B) refinancing a previous debt incurred by any Debtor for the acquisition of shares (acciones) representing the share capital of such Spanish Debtor or shares (acciones) or quotas (participaciones sociales) representing the share capital of its holding company, and shall (ii) be deemed not to be undertaken or incurred by a Spanish Debtor to the extent that the same would constitute unlawful financial assistance within the meaning of article 81 of the Royal Decree-Law on Spanish Stock Companies (Texto Refundido de la Ley de Sociedades Anonimas), and, in that case, all provisions of this Agreement shall be construed accordingly in the sense that, in no case, can any guarantee or Security given by a Spanish Debtor secure repayment of the above-mentioned funds. |
(d) | For the purposes of paragraph (c) above, a reference to a holding company of a Spanish Debtor shall mean the company which, directly or indirectly, owns the majority of the voting rights of such Spanish Debtor or that may have a dominant influence on such Spanish Debtor. It shall be presumed that one company has a dominant influence on another company when: |
(i) | any of the scenarios set out in section 1 of article 42 of the Spanish Commercial Code (Codigo de Comercio) are met; or |
(ii) | when at least half plus one of the members of the managing body of the Spanish Debtor are also members of the managing body or top managers (altos directivos) of the dominant company or of another company controlled by such dominant company. |
15.15 | Republic of Ireland Guarantee Limitation |
The guarantee and indemnity contained in this Clause 15 (the Guarantee) shall not apply to any liability of a Debtor incorporated in the Republic of Ireland to the extent that it would result in this Guarantee constituting unlawful financial assistance within the meaning of Section 60 of the Companies Act 1963 or any equivalent and applicable provisions under the laws of any relevant jurisdiction.
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15.16 | Danish Guarantee Limitation |
Notwithstanding anything set out to the contrary in this Agreement (including without limitation Clause 2 (Ranking and priority), Clause 14 (Application of proceeds) and Clause 20 (Indemnities)), the obligations of any Debtor incorporated in Denmark hereunder shall be limited if and to the extent required to comply with Danish statutory provisions on unlawful financial assistance, at the date of this Agreement including, but not limited to, Sections 115 and 115a of the Danish Act on Public Limited Liability Companies or Sections 49 and 50 of the Danish Private Limited Companies Act.
15.17 | Belgian Guarantee Limitation |
The guarantee, indemnity and other obligations of any Belgian Debtor under this Clause 15 (Hedge Counterparty Guarantee) shall not include any liability which would constitute unlawful financial assistance within the meaning of Article 629 of the Belgian Company Code and shall be limited, at any time, to a maximum aggregate amount equal to the greater of:
(a) | an amount equal to EUR 5,000,000; |
(b) | an amount equal to 90 per cent. of that Belgian Debtors net assets (as determined in accordance with the Belgian Companies Code and accounting principles generally accepted in Belgium, but not taking intra-groups debts into account as debts) as shown by the latest audited annual financial statements publicly available on the date on which the relevant demand is made; |
(c) | the aggregate amount outstanding on the day prior to the date on which the relevant demand is made, of (i) the principal amount borrowed by the Belgian Debtor under and pursuant to the Revolving Facility Agreement, and (ii) any intra-group loans or facilities made to the Belgian Debtor by any other member of the Group using all or part of the proceeds of the Revolving Facility Agreement and the Senior Secured Notes (whether or not such intra-group loan is retained by the Belgian Debtor for its own purposes or on-lent to another Group company) outstanding on the day prior to the date on which the relevant demand is made, it being understood that such aggregate amount of (i) and (ii) shall be limited, at any time, to a maximum aggregate amount of EUR 10 million; and |
(d) | the aggregate value of the enforcement proceeds of the assets that have been pledged, charged, assigned by way of security or mortgaged to the benefit of the Security Trustee by that Belgian Debtor. |
It is agreed between Parties that paragraph (c) shall only apply if the Belgian Debtors net assets (as determined in accordance with the Belgian Companies Code and accounting principles generally accepted in Belgium, but not taking intra-groups debts into account as debts) as shown by the latest audited financial statements publicly available on the date on which the relevant demand is made, exceed EUR 2.5 million.
16. | THE SECURITY TRUSTEE |
16.1 | Trust |
(a) | The Security Trustee declares that it shall hold the Security Property on trust for the Secured Parties on the terms contained in this Agreement. |
(b) | Each Party agrees that the Security Trustee shall have only those duties, obligations and responsibilities expressly specified in this Agreement or in the Security Documents to which the Security Trustee is expressed to be a party (and no others shall be implied). |
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16.2 | Parallel Debt |
(a) | Notwithstanding any other provision of this Agreement, each Debtor hereby irrevocably and unconditionally undertakes to pay to the Security Trustee, as creditor in its own right and not as representative of the other Secured Parties, sums equal to and in the currency of each amount payable by such Debtor to each of the Secured Parties under each of the Debt Documents as and when that amount falls due for payment under the relevant Debt Document or would have fallen due but for any discharge resulting from failure to another Secured Party to take appropriate steps, in insolvency proceedings affecting that Debtor, to preserve its entitlement to be paid that amount (with respect to German Security Interests, this undertaking shall be an abstract acknowledgement of a debt (abstraktes Schuldanerkenntnis)). |
(b) | Subject to paragraph (d) below, the Security Trustee shall have its own independent right to demand payment of the amounts payable by each Debtor under this Clause 16, irrespective of any discharge (other than by way of payment) of such Debtors obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings affecting that Debtor, to preserve their entitlement to be paid those amounts. |
(c) | Any amount due and payable by the Debtors to the Security Trustee under this Clause 16 shall be decreased to the extent that the other Secured Parties have received (and are able to retain) payment in full of the corresponding amount under the other provisions of the Debt Documents and any amount due and payable by the Debtors to the other Secured Parties under those provisions shall be decreased to the extent that the Security Trustee has received (and is able to retain) payment in full of the corresponding amount under this Clause 16. |
(d) | The rights of the Secured Parties (other than the Security Trustee) to receive payment of amounts payable by each Debtor under the Debt Documents are several and are separate and independent from, and without prejudice to, the rights of the Security Trustee to receive payment under this Clause 16. |
16.3 | Joint and Several Creditor |
(a) | Each of the Debtors and the Secured Parties agree that the Security Trustee shall be the joint and several creditor (together with the relevant Secured Party) of each and every obligation of such Debtor towards each of the Secured Parties under the Debt Documents and that accordingly the Security Trustee will have its own independent right to demand performance by the relevant Debtor of such obligation. However, any discharge of a Debtor of any such obligation to one of the Security Trustee or a Secured Party shall, to the same extent, discharge such Debtor vis-a-vis the other party, and a Secured Party and the Security Trustee shall not, by virtue of this Clause 16.3, be entitled to pursue the Debtor concurrently for the same obligation. |
(b) | Without limiting or affecting the Security Trustees rights against any Debtor (whether under this Clause or under any other provision of any Debt Document), the Security Trustee agrees with each Secured Party that, subject as set out in the next sentence, it will not exercise its rights as a joint and several creditor with a Secured Party except with the consent of the relevant Secured Party. However, for the avoidance of doubt, nothing in the previous sentence shall in any way limit the Security Trustees right to act in the protection or preservation of rights under or to enforce any Debt Document as contemplated by this Agreement and/or the relevant Debt Document (or to do any act reasonably incidental to any of the foregoing). |
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16.4 Appointment as agent and administrator in relation to German Security Interests
(a) | In relation to the German Security Interests, the Security Trustee shall: |
(i) | hold, administer and (subject to the same having become enforceable and to the terms of this Agreement) realise any such German Security Interest which is Security transferred or assigned (Sicherungseigentum/Sicherungsabtretung) or otherwise granted under a non-accessory security right (nicht-akzessorische Sicherheit) to it in its own name as trustee (treuhänderisch) for the benefit of the Secured Parties; and |
(ii) | administer and (subject to the same having become enforceable and to the terms of this Agreement) realise in the name of and on behalf of the Secured Parties any German Security Interest which is pledged (Verpfändung) or otherwise transferred to any Secured Party under an accessory security right (akzessorische Sicherheit) in the name and on behalf of the Secured Parties. |
(b) | Each Secured Party (other than the Security Trustee) hereby authorises the Security Trustee to accept as its representative (Stellvertreter) any pledge or other creation of any accessory security right made to such Secured Party in relation to the Debt Documents and to act and execute on its behalf as its representative (Stellvertreter), subject to the terms of the Debt Documents, amendments or releases of, accessions and alterations to, and to carry out similar dealings with regard to any German Security Document which creates a pledge or any other accessory security right (akzessorische Sicherheit). |
(c) | Each Secured Party which becomes a party to any Revolving Facility Document or any Senior Secured Document ratifies and approves all acts and declarations previously done by the Security Trustee on such Secured Partys behalf (including for the avoidance of doubt the declarations made by the Security Trustee as representative without power of attorney (Vertreter ohne Vertretungsmacht)) in relation to the creation of any pledge (Pfandrecht) on behalf and for the benefit of any Secured Party in respect of the German Security Documents. |
(d) | Each relevant Debtor and each relevant Secured Party agrees that the German Security Documents entered into between them in addition to this Agreement shall be subject to the relevant terms of this Agreement. |
(e) | The Security Trustee shall and is hereby authorised by each of the Secured Parties (and to the extent it may have any interest therein, every other party hereto) to execute on behalf of itself and each other Party where relevant without the need for any further referral to, or authority from, any other person all necessary releases or confirmations of any security created under the German Security Interests in relation to the disposal of any asset which is permitted under the German Security Interests or consented or agreed upon in accordance with the Debt Documents. |
(f) | Each Secured Party hereby irrevocably authorises the Security Trustee to act on its behalf and if required under applicable law, or if otherwise appropriate, in its name and on its behalf in connection with the preparation, execution and delivery of the German Security Interests and the perfection and monitoring of the German Security Interests, including but not limited to, any share pledge, mortgage, assignment or transfer of title for security purposes. The Security Trustee is authorised to make all statements necessary or appropriate in connection with the foregoing sentence. |
(g) | Each of the Debtors and the Secured Parties hereby relieves the Security Trustee from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch BGB) in order to enable the Security Trustee to perform its duties and obligations as Security Trustee hereunder. |
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(h) | It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trust expressed to be created by this Clause 16.4, the relationship of the Secured Parties to the Security Trustee in relation to any German Security Interest shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Clause 16.4 shall have full force and effect between the Parties. |
16.5 Appointment as agent and administrator in relation to Spanish Security Interests
(a) | In relation to the Spanish Security Interests, the Security Trustee shall: |
(i) | accept, hold, administer and (subject to the same having become enforceable and to the terms of this Agreement) realise any such Spanish Security Interest which is Security granted transferred or assigned or otherwise granted under a non-accessory security right to the Secured Parties or to the Security Trustee in its own name as trustee or security agent for the benefit of the Secured Parties or on behalf of the Secured Parties; and |
(ii) | administer, enforce and (subject to the same having become enforceable and to the terms of this Agreement) realise in the name of and on behalf of the Secured Parties any Spanish Security Interest which is pledged or otherwise transferred to any Secured Party under an accessory security right in the name and on behalf of the Secured Parties. |
(b) | Each Secured Party (other than the Security Trustee) hereby authorises the Security Trustee to accept as its representative any pledge or other creation of any accessory security right made to such Secured Party in relation to the Debt Documents and to act and execute on its behalf as its representative, subject to the terms of the Debt Documents, amendments or releases of, accessions and alterations to, and to carry out similar dealings with regard to any Spanish Security Document which creates a pledge or any other accessory security right. |
(c) | Each Secured Party which becomes a party to any Revolving Facility Document or any Senior Secured Document ratifies and approves all acts and declarations previously done by the Security Trustee on such Secured Partys behalf (including for the avoidance of doubt the declarations made by the Security Trustee as representative in relation to the creation of any pledge on behalf and for the benefit of any Secured Party in respect of the Spanish Security Documents). |
(d) | Each relevant Debtor and each relevant Secured Party agrees that the Spanish Security Documents entered into between them in addition to this Agreement shall be subject to the relevant terms of this Agreement. |
(e) | The Security Trustee shall and is hereby authorised by each of the Secured Parties (and to the extent it may have any interest therein, every other party hereto) to execute on behalf of itself and each other Party where relevant without the need for any further referral to, or authority from, any other person all necessary releases or confirmations of any security created under the Spanish Security Documents in relation to the disposal of any asset which is permitted under the Spanish Security Documents or consented or agreed upon in accordance with the Debt Documents. |
(f) |
Each Secured Party hereby irrevocably authorises the Security Trustee to act on its behalf and if required under applicable law, or if otherwise appropriate, in its name and on its behalf in connection with the acceptance, preparation, execution, enforcement and delivery of the Spanish Security Interests and Spanish Security Documents and the perfection and monitoring of the Spanish Security Interests and the Spanish Security Documents, including but not limited to, any share pledge, mortgage, assignment or transfer of title for security |
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purposes. The Security Trustee is authorised to make all statements necessary or appropriate in connection with the foregoing sentence and collect all amounts payable to any Secured Party in respect of any Transaction Security Document in one or more accounts opened by the Security Trustee for such purpose, and the Security Trustee shall thereafter distribute any such amounts due to the Secured Parties in accordance with the provisions of this Agreement. |
(g) | It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trust expressed to be created by this Clause 16.5, the relationship of the Secured Parties to the Security Trustee in relation to any Spanish Security Interest shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Clause 16.5 shall have fall force and effect between the Parties. |
16.6 | French Security |
The Security Trustee is hereby appointed as agent (mandataire) of the Secured Parties pursuant to Article 1984 et seq. of the French Code Civil, to represent and act on behalf of each Secured Party in relation to any actions required or advisable in connection with the entry into, performance, management and foreclosure of, and in respect of any dispute arising from or in connection with, any French Security Interest created pursuant to any French Security Document, pursuant and subject to the provisions of Clauses 16.7 (No independent power) to 16.23 (Winding up of trust) (inclusive), which shall apply mutatis mutandis for the purposes of the Security Trustee acting as agent (mandataire) of the Secured Parties pursuant to Article 1984 et seq. of the French Code Civil.
16.7 | Appointment of the Security Trustee in relation to Belgian Security Documents |
(a) | For the purposes of this Clause 16.7, Belgian Security Document means any Security Document governed by Belgian law. |
(b) | Each Secured Party (other than the Security Trustee) hereby appoints the Security Trustee as: |
(i) | its representative (vertegenwoordiger / representant) within the meaning of article 5 of the Belgian Financial Collateral Act of 15 December 2004 in respect of the Belgian Security Documents relating to financial instruments and cash on account; and |
(ii) | its representative (lasthebber / mandataire) within the meaning of Article 1984 et seq. of the Belgian Civil Code in respect of any Belgian Security Document other than any mentioned in paragraph (i) above, |
to represent and act on behalf of each Secured Party in relation to any action required or advisable in connection with the entry into, performance, management and foreclosure of, and in respect of any dispute arising from or in connection with, any Belgian Security Document, pursuant and subject to the provisions of Clauses 16.8 (No independent power) to 16.23 (Winding up of trust) (inclusive), which shall apply mutatis mutandis for the purposes of the Security Trustee acting as representative of the Secured Parties within the meaning of paragraphs (i) and (ii) above.
16.8 | No independent power |
Subject to Clause 14.3 (Treatment of RCF Cash Cover and Revolving Facility Cash Collateral), the Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any rights or powers arising under the Security Documents except through the Security Trustee.
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16.9 Instructions to Security Trustee and exercise of discretion
(a) | Subject to paragraphs (d) and (e) below, the Security Trustee shall act in accordance with any instructions given to it by an Instructing Group or, if so instructed by an Instructing Group, refrain from exercising any right, power, authority or discretion vested in it as Security Trustee and shall be entitled to assume that (i) any instructions received by it from a Representative, the Creditors or a group of Creditors are duly given in accordance with the terms of the Debt Documents and (ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked. |
(b) | The Security Trustee shall be entitled to request instructions, or clarification of any direction, from an Instructing Group as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it. |
(c) | Save as provided in Clause 12 (Enforcement of Transaction Security), any instructions given to the Security Trustee by an Instructing Group shall override any conflicting instructions given by any other Parties. |
(d) | Paragraph (a) above shall not apply: |
(i) | where a contrary indication appears in this Agreement; |
(ii) | where this Agreement requires the Security Trustee to act in a specified manner or to take a specified action; |
(iii) | in respect of any provision which protects the Security Trustees own position in its personal capacity as opposed to its role of Security Trustee for the Secured Parties including, without limitation, the provisions set out in Clause 16.11 (Security Trustees discretions) to Clause 16.27 (Disapplication); |
(iv) | in respect of the exercise of the Security Trustees discretion to exercise a right, power or authority under any of: |
(A) | Clause 13.1 (Non-Distressed Disposals); |
(B) | Clause 14.1 (Order of application); |
(C) | Clause 14.2 (Prospective liabilities); |
(D) | Clause 14.3 (Treatment of RCF Cash Cover and Revolving Facility Cash Collateral); and |
(E) | Clause 14.6 (Permitted Deductions). |
(e) | If giving effect to instructions given by an Instructing Group would (in the Security Trustees opinion) have an effect equivalent to an Intercreditor Amendment, the Security Trustee shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Trustee) whose consent would have been required in respect of that Intercreditor Amendment. |
(f) | In exercising any discretion to exercise a right, power or authority under this Agreement where either: |
(i) | it has not received any instructions from an Instructing Group as to the exercise of that discretion; or |
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(ii) | the exercise of that discretion is subject to paragraph (d)(iv) above, |
the Security Trustee shall do so having regard to the interests of all the Secured Parties.
(g) | In determining the amount of the Senior Secured Liabilities of any Senior Secured Noteholder or group of Senior Secured Noteholders for any purposes under this Agreement whether requests from, or the consent of, the Majority Senior Creditors have been obtained the Security Trustee shall only be required to consider: |
(i) | in respect of Senior Secured Noteholders (other than Additional Senior Secured Creditors), instructions from the Senior Secured Trustee (in accordance with the relevant Senior Secured Documents) indicating the amount of the Senior Secured Liabilities held by the relevant Senior Secured Noteholders requesting or consenting to such action; and |
(ii) | in respect of Additional Senior Secured Creditors, instructions from the applicable Additional Senior Secured Trustee (in accordance with the applicable Senior Secured Debt Instrument) indicating the amount of the Additional Senior Secured Liabilities held by the relevant Additional Senior Secured Creditors. |
16.10 | Security Trustees Actions |
Without prejudice to the provisions of Clause 12 (Enforcement of Transaction Security) and Clause 16.9 (Instructions to Security Trustee and exercise of discretion), the Security Trustee may (but shall not be obliged to), in the absence of any instructions to the contrary, take such action in the exercise of any of its powers and duties under the Debt Documents as it considers in its discretion to be appropriate.
16.11 | Security Trustees discretions |
The Security Trustee may:
(a) | assume (unless it has received actual notice to the contrary from a Hedge Counterparty or from one of the Representatives) that (i) no Event of Default has occurred and no Debtor or any other grantor of Transaction Security is in breach of or default under its obligations under any of the Debt Documents and (ii) any right, power, authority or discretion vested by any Debt Document in any person has not been exercised; |
(b) | if it receives any instructions or directions under Clause 12 (Enforcement of Transaction Security) to take any action in relation to the Transaction Security, assume that all applicable conditions under the Debt Documents for taking that action have been satisfied; |
(c) | engage, pay for and rely on the advice or services of any legal advisers, accountants, tax advisers, surveyors or other experts (whether obtained by the Security Trustee or by any other Secured Party) whose advice or services may at any time seem necessary, expedient or desirable; |
(d) | rely upon any communication or document believed by it to be genuine and, as to any matters of fact which might reasonably be expected to be within the knowledge of a Secured Party, any Creditor, Subordinated Creditor, a Debtor or any other grantor of Transaction Security, upon a certificate signed by or on behalf of that person; and |
(e) | refrain from acting in accordance with the instructions of any Party (including bringing any legal action or proceeding arising out of or in connection with the Debt Documents) until it has received any indemnification and/or security that it may in its discretion require (whether by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in so acting. |
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16.12 | Security Trustees obligations |
The Security Trustee shall promptly:
(a) | copy to (i) each Representative and (ii) each Hedge Counterparty the contents of any notice or document received by it from any Debtor or any other grantor of Transaction Security under any Debt Document; |
(b) | forward to a Party the original or a copy of any document which is delivered to the Security Trustee for that Party by any other Party provided that, except where a Debt Document expressly provides otherwise, the Security Trustee is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party; |
(c) | inform (i) each Representative and (ii) each Hedge Counterparty of the occurrence of any Event of Default or any default by a Debtor or any other grantor of Transaction Security in the due performance of or compliance with its obligations under any Debt Document of which the Security Trustee has received notice from any other Party; and |
(d) | to the extent that a Party (other than the Security Trustee) is required to calculate a Common Currency Amount, and upon a request by that Party, notify that Party of the relevant Security Trustees Spot Rate of Exchange. |
16.13 | Excluded obligations |
Notwithstanding anything to the contrary in the Debt Documents, the Security Trustee shall not:
(a) | be bound to enquire as to (i) whether or not any Event of Default has occurred or (ii) the performance, default or any breach by a Debtor or any other grantor of Transaction Security of its obligations under any of the Debt Documents; |
(b) | be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account; |
(c) | be bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other information if disclosure would, or might in its reasonable opinion, constitute a breach of any law or be a breach of fiduciary duty; |
(d) | have or be deemed to have any relationship of trust or agency with, any Debtor or any other grantor of Transaction Security or any Subordinated Creditor. |
16.14 | Exclusion of liability |
None of the Security Trustee, any Receiver nor any Delegate shall accept responsibility or be liable for:
(a) | the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Security Trustee or any other person in or in connection with any Debt Document or the transactions contemplated in the Debt Documents, or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document; |
(b) | the legality, validity, effectiveness, adequacy or enforceability of any Debt Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(c) | any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Debt Documents, the Security Property or otherwise, whether in accordance with an instruction from a Representative or otherwise unless directly caused by its gross negligence or wilful misconduct; |
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(d) | the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Debt Documents, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, the Debt Documents or the Security Property; or |
(e) | any shortfall which arises on the enforcement or realisation of the Security Property. |
16.15 | No proceedings |
No Party (other than the Security Trustee, that Receiver or that Delegate) may take any proceedings against any officer, employee or agent of the Security Trustee, a Receiver or a Delegate in respect of any claim it might have against the Security Trustee, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Debt Document or any Security Property and any officer, employee or agent of the Security Trustee, a Receiver or a Delegate may rely on this Clause subject to Clause 1.3 (Third Party Rights) and the provisions of the Third Parties Rights Act.
16.16 | Own responsibility |
Without affecting the responsibility of any Debtor or any other grantor of Transaction Security for information supplied by it or on its behalf in connection with any Debt Document, each Secured Party confirms to the Security Trustee that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Debt Document including but not limited to:
(a) | the financial condition, status and nature of each member of the Group and each grantor of Transaction Security; |
(b) | the legality, validity, effectiveness, adequacy and enforceability of any Debt Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(c) | whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Debt Document, the Security Property, the transactions contemplated by the Debt Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(d) | the adequacy, accuracy and/or completeness of any information provided by the Security Trustee or by any other person under or in connection with any Debt Document, the transactions contemplated by any Debt Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document; and |
(e) | the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property, |
and each Secured Party warrants to the Security Trustee that it has not relied on and will not at any time rely on the Security Trustee in respect of any of these matters.
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16.17 No | responsibility to perfect Transaction Security |
The Security Trustee shall not be liable for any failure to:
(a) | require the deposit with it of any deed or document certifying, representing or constituting the title of any Debtor or any other grantor of Transaction Security to any of the Charged Property; |
(b) | obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Debt Documents or the Transaction Security; |
(c) | register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any jurisdiction or to give notice to any person of the execution of any of the Debt Documents or of the Transaction Security; |
(d) | take, or to require any of the Debtors or any other grantor of Transaction Security to take, any steps to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under the laws of any jurisdiction; or |
(e) | require any further assurances in relation to any of the Security Documents. |
16.18 | Insurance by Security Trustee |
(a) | The Security Trustee shall not be under any obligation to insure any of the Charged Property, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Debt Documents. The Security Trustee shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance. |
(b) | Where the Security Trustee is named on any insurance policy as an insured party, it shall not be responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless a Representative shall have requested it to do so in writing and the Security Trustee shall have failed to do so within fourteen days after receipt of that request. |
16.19 | Custodians and nominees |
The Security Trustee may appoint and pay any person to act as a custodian or nominee on any terms in relation to any assets of the trust as the Security Trustee may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created under this Agreement and the Security Trustee shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the proceedings or acts of any person.
16.20 | Acceptance of title |
The Security Trustee shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any of the Debtors or any other grantor of Transaction Security may have to any of the Charged Property and shall not be liable for or bound to require any Debtor or any other grantor of Transaction Security to remedy any defect in its right or title.
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16.21 | Refrain from illegality |
Notwithstanding anything to the contrary expressed or implied in the Debt Documents, the Security Trustee may refrain from doing anything which in its opinion will or may be contrary to any relevant law, directive or regulation of any jurisdiction and the Security Trustee may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
16.22 | Business with the Debtors |
The Security Trustee may accept deposits from, lend money to, and generally engage in any kind of banking or other business with any of the Debtors and any other grantor of Transaction Security.
16.23 | Winding up of trust |
If the Security Trustee, with the approval of each of the Representatives and each Hedge Counterparty, determines that (a) all of the Secured Obligations and all other obligations secured by the Security Documents have been fully and finally discharged and (b) none of the Secured Parties is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Debtor pursuant to the Debt Documents:
(a) | the trusts set out in this Agreement shall be wound up and the Security Trustee shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Trustee under each of the Security Documents; and |
(b) | any Retiring Security Trustee shall release, without recourse or warranty, all of its rights under each of the Security Documents. |
16.24 | Perpetuity period |
The perpetuity period under the rule against perpetuities, if applicable to this Agreement, shall be the period of eighty years from the date of this Agreement.
16.25 | Powers supplemental |
The rights, powers and discretions conferred upon the Security Trustee by this Agreement shall be supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Trustee by general law or otherwise.
16.26 | Trustee division separate |
(a) | In acting as trustee for the Secured Parties, the Security Trustee shall be regarded as acting through its trustee division which shall be treated as a separate entity from any of its other divisions or departments. |
(b) | If information is received by another division or department of the Security Trustee, it may be treated as confidential to that division or department and the Security Trustee shall not be deemed to have notice of it. |
16.27 | Disapplication |
Section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Trustee in relation to the trusts constituted by this Agreement. Where there are any inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 and the provisions of this Agreement, the provisions of this Agreement shall, to the extent allowed by law, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act.
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16.28 | Intra-Group Lenders and Debtors: Power of Attorney |
Each Intra-Group Lender and Debtor by way of security for its obligations under this Agreement irrevocably appoints the Security Trustee to be its attorney to do anything which that Intra-Group Lender or Debtor has authorised the Security Trustee or any other Party to do under this Agreement or is itself required to do under this Agreement but has failed to do (and the Security Trustee may delegate that power on such terms as it sees fit).
17. | CHANGE OF SECURITY TRUSTEE AND DELEGATION |
17.1 | Resignation of the Security Trustee |
(a) | The Security Trustee may resign and appoint one of its affiliates as successor by giving notice to the Company, each Representative and the Hedge Counterparties. |
(b) | Alternatively the Security Trustee may resign by giving not less than 30 days notice to the other Parties in which case (prior to the Revolving Facility Discharge Date) the Majority Revolving Lenders or (after the Revolving Facility Discharge Date and prior to the Senior Secured Discharge Date) the Senior Secured Trustees may appoint a successor Security Trustee (after consultation with the Company). |
(c) | If the Majority Revolving Lenders (or, after the Revolving Facility Discharge Date and prior to the Senior Secured Discharge Date, the Senior Secured Trustees) have not appointed a successor Security Trustee in accordance with paragraph (b) above within 30 days after the notice of resignation was given, the Security Trustee (after consultation with the Representatives) may appoint a successor Security Trustee which must be a financial institution of good standing and have an office in the United Kingdom through which it will be acting for the purposes of the Debt Documents to which it is party including this Agreement. |
(d) | The retiring Security Trustee (the Retiring Security Trustee) shall, at its own cost, make available to the successor Security Trustee such documents and records and provide such assistance as the successor Security Trustee may reasonably request for the purposes of performing its functions as Security Trustee under the Debt Documents. |
(e) | The Security Trustees resignation notice shall only take effect upon (i) the appointment of a successor and (ii) the transfer of all of the Security Property to that successor. |
(f) | Upon the appointment of a successor, the Retiring Security Trustee shall be discharged from any further obligation in respect of the Debt Documents (other than its obligations under paragraph (b) of Clause 16.23 (Winding up of trust) and under paragraph (d) above) but shall, in respect of any act or omission by it whilst it was the Security Trustee, remain entitled to the benefit of Clauses 16 (The Security Trustee), 20.1 (Debtors indemnity) and 20.3 (Primary Creditors indemnity). Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party. |
(g) | The Majority Revolving Lenders (or, after the Revolving Facility Discharge Date and prior to the Senior Secured Discharge Date, the Senior Secured Trustees) may, by notice to the Security Trustee, require it to resign in accordance with paragraph (b) above. In this event, the Security Trustee shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Company. |
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17.2 | Delegation |
(a) | Each of the Security Trustee, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Debt Documents. |
(b) | That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Trustee, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties and it shall not be bound to supervise, or be in any way responsible for any loss incurred by reason of any misconduct or default on the part of any such delegate or sub delegate. |
17.3 | Additional Security Trustees |
(a) | The Security Trustee may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co trustee jointly with it (i) if it considers that appointment to be in the interests of the Secured Parties or (ii) for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Trustee deems to be relevant or (iii) for obtaining or enforcing any judgment in any jurisdiction, and the Security Trustee shall give prior notice to the Company and each of the Representatives of that appointment. |
(b) | Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Trustee by this Agreement) and the duties and obligations that are conferred or imposed by the instrument of appointment. |
(c) | The remuneration that the Security Trustee may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Trustee. |
1 8. | CHANGES TO THE PARTIES |
18.1 | Assignments and transfers |
No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities except as permitted by this Clause 18.
18.2 | Change of Revolving Lender |
(a) | No person who is a lender of any Revolving Creditor Liabilities made available under a Revolving Facility Agreement other than the Original Revolving Facility Agreement to any Debtor shall become a Revolving Lender unless (if not already a Party) at the same time, it accedes to this Agreement as a Revolving Lender pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking). |
(b) | A Revolving Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities if: |
(i) | that assignment or transfer is in accordance with the terms of the relevant Revolving Facility Agreement to which it is a party; and |
(ii) | any assignee or transferee has (if not already party to this Agreement as a Revolving Lender) acceded to this Agreement, as a Revolving Lender, pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking), |
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18.3 | Change of Hedge Counterparty |
A Hedge Counterparty may transfer any of its rights and benefits or obligations in respect of the Hedging Agreements to which it is a party to another Revolving Lender or an Affiliate of a Revolving Lender if such transferee has (if not already party to this Agreement as a Hedge Counterparty) accedes to this Agreement as a Hedge Counterparty pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking).
18.4 | Change of Representative |
No person shall become a Representative unless (if not already a Party) at the same time, it accedes to this Agreement as a Representative pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking).
18.5 | Change of Intra-Group Lender |
Subject to Clause 6.4 (Acquisition of Intra-Group Liabilities) and to the terms of the other Debt Documents, any Intra-Group Lender may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of the Intra-Group Liabilities to another member of the Group if that member of the Group has (if not already party to this Agreement as an Intra-Group Lender) acceded to this Agreement as an Intra-Group Lender, pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking).
18.6 | New Intra-Group Lender |
If any Intra-Group Lender or any member of the Group makes any loan to or grants any credit to or makes any other financial arrangement having similar effect with any Debtor, in an aggregate amount of EUR 2,000,000 (or its equivalent) or more, the Company will procure that the person giving that loan, granting that credit or making that other financial arrangement (if not already party to this Agreement as an Intra-Group Lender) accedes to this Agreement, as an Intra-Group Lender pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking).
18.7 | New Ancillary Lender |
If any Affiliate of a Revolving Lender becomes an Ancillary Lender in accordance with clause 9.8 {Affiliates of Lenders as Ancillary Lenders) of the Original Revolving Facility Agreement, it shall not be entitled to share in any of the Transaction Security or in the benefit of any guarantee or indemnity in respect of any of the liabilities arising in relation to its Ancillary Facilities unless it has (if not already party to this Agreement as a Revolving Lender) acceded to this Agreement as a Revolving Lender and to any Revolving Facility Agreement as an Ancillary Lender pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking).
18.8 | New Additional Senior Secured Creditor |
(a) | No person who is a lender of any Additional Senior Secured Liabilities made available to any Debtor by way of loan shall become an Additional Senior Secured Creditor unless (if not already a Party) at the same time, it accedes to this Agreement as an Additional Senior Secured Creditor pursuant to Clause 18.9 (Creditor/Representative Accession Undertaking). |
(b) | An Additional Senior Secured Creditor may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities if: |
(i) | that assignment or transfer is in accordance with the terms of the relevant Additional Senior Secured Debt Instrument to which it is a party; and |
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(ii) | any assignee or transferee has (if not already party to this Agreement as a Revolving Lender) acceded to this Agreement as an Additional Senior Secured Creditor, pursuant to Clause 18.9 {Creditor/Representative Accession Undertaking). |
18.9 | Creditor/Representative Accession Undertaking |
With effect from the date of acceptance by the Security Trustee and, in the case of an Affiliate of a Revolving Lender, the relevant Revolving Agent, of a Creditor/Representative Accession Undertaking duly executed and delivered to the Security Trustee by the relevant acceding party or, if later, the date specified in that Creditor/Representative Accession Undertaking:
(a) | any Party ceasing entirely to be a Creditor or Representative shall be discharged from further obligations towards the Security Trustee and other Parties under this Agreement and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and |
(b) | as from that date, the replacement or new Creditor or Representative shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this Agreement in that capacity; and |
(c) | any new Ancillary Lender (which is an Affiliate of a Revolving Lender) shall also become party to any relevant Revolving Facility Agreement as an Ancillary Lender and shall assume the same obligations and become entitled to the same rights as if it had been an original party to such Revolving Facility Agreement as an Ancillary Lender. |
18.10 | New Debtor |
(a) | If any member of the Group: |
(i) | incurs any Liabilities; or |
(ii) | gives any security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities, |
the Debtors will procure that the person incurring those Liabilities or giving that assurance accedes to this Agreement as a Debtor, in accordance with paragraph (b) below, no later than contemporaneously with the incurrence of those Liabilities or the giving of that assurance.
(b) | With effect from the date of acceptance by the Security Trustee of a Debtor Accession Deed duly executed and delivered to the Security Trustee by the new Debtor or, if later, the date specified in the Debtor Accession Deed, the new Debtor shall assume the same obligations (subject to any limitations set out in the Debtor Accession Deed to which it is party) and become entitled to the same rights as if it had been an original Party to this Agreement as a Debtor. |
18.11 | Additional parties |
(a) | Each of the Parties appoints the Security Trustee to receive on its behalf each Debtor Accession Deed and Creditor/Representative Accession Undertaking delivered to the Security Trustee and the Security Trustee shall, as soon as reasonably practicable after receipt by it, sign and accept the same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Agreement or, where applicable, by any Revolving Facility Agreement. |
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(b) | In the case of a Creditor/Representative Accession Undertaking delivered to the Security Trustee by any new Ancillary Lender (which is an Affiliate of a Revolving Lender): |
(i) | the Security Trustee shall, as soon as practicable after signing and accepting that Creditor/Representative Accession Undertaking in accordance with paragraph (a) above, deliver that Creditor/Representative Accession Undertaking to the relevant Revolving Agent; and |
(ii) | the relevant Revolving Agent shall, as soon as practicable after receipt by it, sign and accept that Creditor/Representative Accession Undertaking if it appears on its face to have been completed, executed and delivered in the form contemplated by this Agreement. |
18.12 Resignation of a Debtor
(a) | Without prejudice to Clauses 8 (New Money and Refinancing) and 13.2 (Distressed Disposals), no Representative shall accept a Resignation Letter (as defined in the Revolving Facility Agreement) from a Revolving Guarantor under clause 26.5 (Resignation of a Guarantor) of the Original Revolving Facility Agreement unless each Hedge Counterparty has notified the Security Trustee that no payment is due from that Revolving Guarantor to that Hedge Counterparty under Clause 15 (Hedge Counterparty Guarantee). The Security Trustee shall, upon receiving that notification, notify such Representative. |
(b) | The Company may request that a Debtor ceases to be a Debtor by delivering to the Security Trustee a Debtor Resignation Request. |
(c) | The Security Trustee shall accept a Debtor Resignation Request and notify the Company and each other Party of its acceptance if: |
(i) | the Company has confirmed that no Event of Default is continuing or would result from the acceptance of the Debtor Resignation Request; |
(ii) | to the extent that the Revolving Facility Discharge Date has not occurred, each Revolving Agent notifies the Security Trustee that that Debtor is not, or has ceased to be, a Borrower or a Guarantor (as defined under any Revolving Facility Agreement); |
(iii) | each Hedge Counterparty notifies the Security Trustee that that Debtor is under no actual or contingent obligations to that Hedge Counterparty in respect of the Hedging Liabilities; |
(iv) | to the extent that the Senior Secured Discharge Date has not occurred, each Senior Secured Trustee notifies the Security Trustee that the Debtor is not, or has ceased to be a Debtor (under and as defined in the Senior Secured Documents); and |
(v) | the Company confirms that that Debtor is under no actual or contingent obligations in respect of the Intra-Group Liabilities. |
(d) | Upon notification by the Security Trustee to the Company of its acceptance of the resignation of a Debtor, that member of the Group shall cease to be a Debtor and shall have no further rights or obligations under this Agreement as a Debtor. |
1 9. | COSTS AND EXPENSES |
19.1 | Security Trustees ongoing costs |
(a) | In the event of (i) an Event of Default or (ii) the Security Trustee considering it necessary or expedient or (iii) the Security Trustee being requested by a Debtor or an Instructing Group or any Representative to undertake duties which the Security Trustee and the Company agree to be of an exceptional nature and/or outside the scope of the normal duties of the Security Trustee under the Debt Documents, the Company shall pay to the Security Trustee any additional remuneration (together with any applicable VAT) that may be agreed between them. |
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(b) | If the Security Trustee and the Company fail to agree upon the nature of those duties or upon any additional remuneration, that dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Trustee and approved by the Company or, failing approval, nominated (on the application of the Security Trustee) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Company) and the determination of any investment bank shall be final and binding upon the parties to this Agreement. |
19.2 | Transaction expenses |
The Company shall, promptly on demand, pay the Security Trustee the amount of all costs and expenses (including legal fees) (together with any applicable VAT) reasonably incurred by the Security Trustee and any Receiver or Delegate in connection with the negotiation, preparation, printing, execution, syndication and perfection of:
(a) | this Agreement and any other documents referred to in this Agreement and the Transaction Security; and |
(b) | any other Debt Documents executed after the date of this Agreement. |
19.3 | Stamp taxes |
The Company shall pay and, within three (3) Business Days of demand, indemnify the Security Trustee against any cost, loss or liability the Security Trustee incurs in relation to all stamp duty, registration and other similar Tax payable in respect of any Debt Document.
19.4 | Interest on demand |
If any Creditor or Debtor fails to pay any amount payable by it under this Agreement on its due date, interest shall accrue on the overdue amount (and be compounded with it) from the due date up to the date of actual payment (both before and after judgment and to the extent interest at a default rate is not otherwise being paid on that sum) at the rate which is one per cent, per annum over the rate at which the Security Trustee was being offered, by leading banks in the London interbank market, deposits in an amount comparable to the unpaid amounts in the currencies of those amounts for any period(s) that the Security Trustee may from time to time select.
19.5 | Enforcement and preservation costs |
The Company shall, within three (3) Business Days of demand, pay to the Security Trustee the amount of all costs and expenses (including legal fees and together with any applicable VAT) incurred by it in connection with the enforcement of or the preservation of any rights under any Debt Document and the Transaction Security and any proceedings instituted by or against the Security Trustee as a consequence of taking or holding the Transaction Security or enforcing these rights.
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20. | INDEMNITIES |
20.1 | Debtors indemnity |
Each Debtor shall promptly indemnify the Security Trustee and every Receiver and Delegate against any cost, loss or liability (other than loss of profit or to the extent incurred as a result of gross negligence or wilful misconduct) (together with any applicable VAT) incurred by any of them:
(a) | in relation to or as a result of: |
(i) | any failure by the Company to comply with obligations under Clause 19 (Costs and Expenses ); |
(ii) | the taking, holding, protection or enforcement of the Transaction Security; |
(iii) | the exercise of any of the rights, powers, discretions and remedies vested in the Security Trustee, each Receiver and each Delegate by the Debt Documents or by law; or |
(iv) | any default by any Debtor or any other grantor of Transaction Security in the performance of any of the obligations expressed to be assumed by it in the Debt Documents; or |
(b) | which otherwise relates to any of the Security Property or the performance of the terms of this Agreement (otherwise than as a result of its gross negligence or wilful misconduct). |
Each Debtor expressly acknowledges and agrees that the continuation of its indemnity obligations under this Clause 20.1 will not be prejudiced by any release or disposal under Clause 13.2 (Distressed Disposals) taking into account the operation of that Clause 13.2.
20.2 | Priority of indemnity |
The Security Trustee and every Receiver and Delegate may indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in Clause 20.1 (Debtors indemnity) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.
20.3 | Primary Creditors indemnity |
(a) | Each Primary Creditor (except for any Senior Secured Trustee and except for any Senior Secured Noteholder save to the extent of any amounts payable to such Senior Secured Noteholder (or the relevant Senior Secured Trustee on its behalf) by the Security Trustee) shall (in the proportion that the Liabilities due to it bears to the aggregate of the Liabilities due to all the Primary Creditors for the time being (or, if the Liabilities due to each of those Primary Creditors is zero, immediately prior to their being reduced to zero)), indemnify the Security Trustee and every Receiver and every Delegate, within three (3) Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Trustees, Receivers or Delegates gross negligence or wilful misconduct) in acting as Security Trustee, Receiver or Delegate under the Debt Documents (unless the relevant Security Trustee, Receiver or Delegate has been reimbursed by a Debtor pursuant to a Debt Document) and the Debtors shall jointly and severally indemnify each Primary Creditor against any payment made by it under this Clause 20. |
(b) | For the purposes only of paragraph (a) above, to the extent that any hedging transaction under a Hedging Agreement has not been terminated or closed out, the Hedging Liabilities due to any Hedge Counterparty in respect of that hedging transaction will be deemed to be: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of those hedging transactions, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
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(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement), |
that amount, in each case, to be certified by the relevant Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement.
20.4 | The Companys indemnity to Primary Creditors |
The Company shall promptly and as principal obligor indemnify each Primary Creditor against any cost, loss or liability (together with any applicable VAT), whether or not reasonably foreseeable, incurred by any of them in relation to or arising out of the operation of Clause 13.2 (Distressed Disposals).
21. | INFORMATION |
21.1 | Information and dealing |
(a) | The Creditors shall provide to the Security Trustee from time to time (through their respective Representatives in the case of a Revolving Lender or a Senior Secured Noteholder) any information that the Security Trustee may reasonably specify as being necessary or desirable to enable the Security Trustee to perform its functions as trustee. |
(b) | Subject to clause 33.8 (Communication when Agent is Impaired Agent) of the Original Revolving Facility Agreement each Revolving Lender and each Senior Secured Noteholder shall deal with the Security Trustee exclusively through its Representative and the Hedge Counterparties shall deal directly with the Security Trustee and shall not deal through any Agent. |
(c) | No Representative shall be under any obligation to act as agent or otherwise on behalf of any Hedge Counterparty except as expressly provided for in, and for the purposes of, this Agreement. |
21.2 | Disclosure |
Notwithstanding any agreement to the contrary, each of the Debtors consents, until the Final Discharge Date, to the disclosure by any of the Primary Creditors, the Agents and the Security Trustee to each other (whether or not through an Agent or the Security Trustee) of such information concerning the Debtors as any Primary Creditor, any Agent or the Security Trustee shall see fit.
21.3 | Notification of prescribed events |
(a) | If a Revolving Facility Default either occurs or ceases to be continuing the relevant Revolving Agent shall, upon becoming aware of that occurrence or cessation, notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Hedge Counterparty. |
(b) | If a Senior Secured Default either occurs or ceases to be continuing the relevant Senior Secured Trustee shall, upon becoming aware of that occurrence or cessation, notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Hedge Counterparty. |
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(c) | If a Revolving Acceleration Event occurs the relevant Revolving Agent shall notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each other Party. |
(d) | If a Senior Secured Acceleration Event occurs the relevant Senior Secured Trustee shall notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each other Party. |
(e) | If the Security Trustee enforces, or takes formal steps to enforce, any of the Transaction Security it shall notify each Party of that action. |
(f) | If any Primary Creditor exercises any right it may have to enforce, or to take formal steps to enforce, any of the Transaction Security it shall notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Party of that action. |
(g) | If a Debtor defaults on any Payment due under a Hedging Agreement, the Hedge Counterparty which is party to that Hedging Agreement shall, upon becoming aware of that default, notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Revolving Agent, each other Hedge Counterparty and each Senior Secured Trustee. |
(h) | If a Hedge Counterparty terminates or closes-out, in whole or in part, any hedging transaction under any Hedging Agreement under Clause 4.9 (Permitted Enforcement: Hedge Counterparties) it shall notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Representative and each other Hedge Counterparty. |
22. | NOTICES |
22.1 | Communications in writing |
Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated, may be made by fax or letter.
22.2 | Security Trustees communications with Revolving Lenders, Senior Secured Trustees and Hedge Counterparties |
The Security Trustee shall be entitled to carry out all dealings:
(a) | with the Revolving Lenders and the Senior Secured Noteholders through their respective Representatives and may give to the Representatives, as applicable, any notice or other communication required to be given by the Security Trustee to a Revolving Lender or Senior Secured Noteholder; and |
(b) | with each Hedge Counterparty directly with that Hedge Counterparty. |
22.3 | Addresses |
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with this Agreement is:
(a) | in the case of the Company: |
Interxion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
75
Fax: +31 (0) 208 880 7601
Attention: D.C. Ruberg;
(b) | in the case of the Security Trustee: |
Barclays Bank PLC
7th Floor
5 The North Colonnade
Canary Wharf
London E14 4BB
Fax: +44 (0)20 7773 4893
Attention: Duncan Nash;
(c) | in the case of the Original Senior Secured Trustee: |
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
Fax: +44 (0)20 7964 2536
Attention: Trustee Administration; and
(d) | in the case of each other Party, that notified in writing to the Security Trustee on or prior to the date on which it becomes a Party, |
or any substitute address, fax number or department or officer which that Party may notify to the Security Trustee (or the Security Trustee may notify to the other Parties, if a change is made by the Security Trustee) by not less than five (5) Business Days notice.
22.4 | Delivery |
(a) | Any communication or document made or delivered by one person to another under or in connection with this Agreement will only be effective: |
(i) | if by way of fax, when received in legible form; or |
(ii) | if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, |
and, if a particular department or officer is specified as part of its address details provided under Clause 22.3 (Addresses), if addressed to that department or officer.
(b) | Any communication or document to be made or delivered to the Security Trustee will be effective only when actually received by the Security Trustee and then only if it is expressly marked for the attention of the department or officer identified with the Security Trustees signature below (or any substitute department or officer as the Security Trustee shall specify for this purpose). |
(c) | Any communication or document made or delivered to the Company in accordance with this Clause 22.4 will be deemed to have been made or delivered to each of the Debtors. |
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22.5 | Notification of address and fax number |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 22.3 ( Addresses ) or changing its own address or fax number, the Security Trustee shall notify the other Parties.
22.6 | Electronic communication |
(a) | Any communication to be made between the Security Trustee and a Representative, a Revolving Lender or a Hedge Counterparty, under or in connection with this Agreement may be made by electronic mail or other electronic means, if the Security Trustee and the relevant Representative, Revolving Lender or Hedge Counterparty: |
(i) | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
(ii) | notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and |
(iii) | notify each other of any change to their address or any other such information supplied by them. |
(b) | Any electronic communication made between the Security Trustee and a Representative, a Revolving Lender or a Hedge Counterparty will be effective only when actually received in readable form and in the case of any electronic communication made by a Revolving Lender, Hedge Counterparty or Representative to the Security Trustee only if it is addressed in such a manner as the Security Trustee shall specify for this purpose. |
22.7 | English language |
(a) | Any notice given under or in connection with this Agreement must be in English. |
(b) | All other documents provided under or in connection with this Agreement must be: |
(i) | in English; or |
(ii) | if not in English, and if so required by the Security Trustee, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
23. | PRESERVATION |
23.1 | Partial invalidity |
If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
23.2 | No impairment |
If, at any time after its date, any provision of a Debt Document (including this Agreement) is not binding on or enforceable in accordance with its terms against a person expressed to be a party to that Debt Document, neither the binding nature nor the enforceability of that provision or any other provision of that Debt Document will be impaired as against the other party(ies) to that Debt Document.
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23.3 | Remedies and waivers |
No failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
23.4 | Waiver of defences |
The provisions of this Agreement will not be affected by an act, omission, matter or thing which, but for this Clause 23.4, would reduce, release or prejudice the subordination and priorities expressed to be created by this Agreement including (without limitation and whether or not known to any Party):
(a) | any time, waiver or consent granted to, or composition with, any Debtor, any other grantor of Transaction Security or other person; |
(b) | the release of any Debtor, any other grantor of Transaction Security or any other person under the terms of any composition or arrangement with any creditor of any member of the Group or any grantor of Transaction Security; |
(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 Debtor or other person or any non presentation or non observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security; |
(d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Debtor, any other grantor of Transaction Security or other person; |
(e) | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of a Debt Document or any other document or security; |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security; |
(g) | any intermediate Payment of any of the Liabilities owing to the Primary Creditors in whole or in part; or |
(h) | any insolvency or similar proceedings. |
23.5 | Priorities not affected |
Except as otherwise provided in this Agreement the priorities referred to in Clause 2 ( Ranking and Priority ) will:
(a) | not be affected by any reduction or increase in the principal amount secured by the Transaction Security in respect of the Liabilities owing to the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the Liabilities or any other circumstances; |
(b) | apply regardless of the order in which or dates upon which this Agreement and the other Debt Documents are executed or registered or notice of them is given to any person; and |
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(c) | secure the Liabilities owing to the Primary Creditors in the order specified, regardless of the date upon which any of the Liabilities arise or of any fluctuations in the amount of any of the Liabilities outstanding. |
24. | CONSENTS, AMENDMENTS AND OVERRIDE |
24.1 | Required consents |
(a) | Subject to paragraphs (b) and (c) below and to Clause 24.4 ( Exceptions ), this Agreement may be amended or waived only with the consent of the Company, the Representatives and the Security Trustee. |
(b) | An amendment that has the effect of changing or which relates to: |
( I ) | curing defects, resolving ambiguities or reflecting changes of a minor, technical or administrative nature, may be made by the Security Trustee and the Company; and |
(ii) | the requirements of any person proposing to act as a Representative which are customary for persons acting in such capacity, may be made by the Security Trustee and the Company. |
(c) | Subject to paragraph (b) above, if any amendment or waiver may impose new or additional obligations on a Party under this Agreement, the prior written consent of that Party is required. |
24.2 | Amendments and Waivers: Transaction Security Documents |
(a) | Subject to paragraphs (b) and (c) below and to Clause 24.4 (Exceptions) and unless the provisions of any Debt Document expressly provide otherwise, the Security Trustee may, if authorised by an Instructing Group, and if the Company consents, amend the terms of, waive any of the requirements of or grant consents under, any of the Transaction Security Documents which shall be binding on each Party. |
(b) | Subject to paragraph (c) below and paragraph (c) of Clause 24.4 (Exceptions), the prior consent of each Representative is required to authorise any amendment or waiver of, or consent under, any Transaction Security Document which would affect the nature or scope of the Charged Property or the manner in which the proceeds of enforcement of the Transaction Security are distributed. |
(c) | The prior consent of the Revolving Agent only is required to authorise any amendment or waiver of, or consent under, any Transaction Security Document that is entered into only for the benefit of the Super Senior Creditors (or any of them). |
24.3 | Effectiveness |
Any amendment, waiver or consent given in accordance with this Clause 24 will be binding on all Parties and the Security Trustee may effect, on behalf of any Creditor, any amendment, waiver or consent permitted by this Clause 24.
24.4 | Exceptions |
(a) | Subject to paragraph (c) below, if the amendment, waiver or consent may impose new or additional obligations on or withdraw or reduce the rights of any Party other than: |
(i) | in the case of a Primary Creditor, in a way which affects or would affect Primary Creditors of that Partys class generally; or |
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(ii) | in the case of a Debtor, to the extent consented to by the Company under paragraph (a) of Clause 24.2 (Amendments and Waivers: Transaction Security Documents), |
the consent of that Party is required.
(b) | Subject to paragraph (c) below, an amendment, waiver or consent which relates to the rights or obligations of a Representative, the Security Trustee (including, without limitation, any ability of the Security Trustee to act in its discretion under this Agreement) or a Hedge Counterparty may not be effected without the consent of that Representative or, as the case may be, the Security Trustee or that Hedge Counterparty. |
(c) | Neither paragraph (a) nor (b) above, nor paragraph (b) of Clause 24.2 (Amendments and Waivers: Transaction Security Documents) shall apply: |
(i) | to any release of Transaction Security, claim or Liabilities; or |
(ii) | to any consent, |
which, in each case, the Security Trustee gives in accordance with Clause 13 (Proceeds of Disposals).
24.5 | Disenfranchisement of Defaulting Lenders |
(a) | For so long as a Defaulting Lender has any Available Commitment: |
(i) | in ascertaining: |
(A) | the Majority Revolving Lenders, the Majority Super Senior Creditors or the Majority Senior Creditors; or |
(B) | whether: |
(1) | any relevant percentage (including, for the avoidance of doubt, unanimity) of Super Senior Credit Participations or (as applicable) Senior Credit Participations; or |
(2) | the agreement of any specified group of Primary Creditors, |
has been obtained to approve any request for a Consent or to carry any other vote or approve any action under this Agreement,
that Defaulting Lenders Revolving Commitments will be reduced by the amount of its Available Commitments and, to the extent that that reduction results in that Defaulting Lenders Revolving Commitments being zero, that Defaulting Lender shall be deemed not to be a Revolving Lender.
(b) | For the purposes of this Clause 24.5, the Security Trustee may assume that the following Creditors are Defaulting Lenders: |
(i) | any Revolving Lender which has notified the Security Trustee that it has become a Defaulting Lender; |
(ii) | any Revolving Lender to the extent that the relevant Revolving Agent has notified the Security Trustee that that Revolving is a Defaulting Lender; and |
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(iii) | any Revolving Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender in the Revolving Facility Agreement has occurred, |
unless it has received notice to the contrary from the Revolving Lender concerned (together with any supporting evidence reasonably requested by the Security Trustee) or the Security Trustee is otherwise aware that the Revolving Lender has ceased to be a Defaulting Lender.
24.6 | Calculation of Super Senior Credit Participations and Senior Credit Participations |
For the purpose of ascertaining whether any relevant percentage of Super Senior Credit Participations or Senior Credit Participations has been obtained under this Agreement, the Security Trustee may notionally convert the Super Senior Credit Participations or (as applicable) Senior Credit Participations into their Common Currency Amounts.
24.7 | Deemed consent |
If, at any time prior to the Super Senior Discharge Date, the Revolving Lenders give a Consent in respect of the Revolving Facility Documents then, if that action was permitted by the terms of this Agreement, the Intra-Group Lenders will (or will be deemed to):
(a) | give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(b) | do anything (including executing any document) that the Revolving Lenders may reasonably require to give effect to paragraph (a) of this Clause 24.7. |
24.8 | Excluded consents |
Clause 24.7 ( Deemed consent ) does not apply to any Consent which has the effect of:
(a) | increasing or decreasing the Liabilities; |
(b) | changing the basis upon which any Permitted Payments are calculated (including the timing, currency or amount of such Payments); |
(c) | changing the terms of this Agreement or of any Security Document. |
24.9 | No liability |
None of the Revolving Lenders nor any Revolving Agent will be liable to any other Creditor or Debtor for any Consent given or deemed to be given under this Clause 24.
24.10 | Agreement to override |
Unless expressly stated otherwise in this Agreement, this Agreement overrides anything in the Debt Documents to the contrary provided however, that nothing herein shall override any consent rights of any member of the Group arising under a Revolving Facility Document with respect to such Revolving Facility Document or a Senior Secured Document with respect to such Senior Secured Document.
25. | SENIOR SECURED TRUSTEES |
25.1 | Liability |
(a) |
It is expressly understood and agreed by each Party that this Agreement is executed and delivered by any Senior Secured Trustee not individually or personally but solely in its capacity as trustee in the exercise of the powers and authority conferred and vested in it under |
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the Senior Secured Documents for and on behalf of the Senior Secured Noteholders, and it shall have no liability for acting for itself or in any capacity other than as trustee and nothing in this Agreement shall impose on it any obligation to pay any amount out of its personal assets. Prior to taking any action under this Agreement any Senior Secured Trustee may request and rely upon an opinion of counsel or opinion of another qualified expert, at the expense of the Company. |
(b) | Notwithstanding any other provision of this Agreement, each Senior Secured Trustees respective obligations hereunder (if any) to make any payment or repayment (however described) of any amount or to hold any amount on trust shall be only to make payment or repayment (however described) of such amount to or hold any such amount on trust to the extent that (i) it has actual knowledge that such obligation has arisen and (ii) it has received and has not distributed to the relevant recipient any such amount. |
(c) | It is further understood by each Party that in no case shall any Senior Secured Trustee be (i) personally responsible or accountable in damages or otherwise to any other Party for any loss, damage or claim incurred by reason of any act or omission performed or omitted by any Senior Secured Trustee in good faith in accordance with this Agreement or any of the Debt Documents in a manner such Senior Secured Trustee believed to be within the scope of the authority conferred on it by this Agreement or any of the Debt Documents or by law, or (ii) personally liable for or on account of any of the statements, representations, warranties, covenants or obligations stated to be those of any other Party, all such liability, if any, being expressly waived by the Parties and any person claiming by, through or under such Party; provided that, in the case of sub paragraphs (i) and (ii) above, each Senior Secured Trustee (or any successor Senior Secured Trustee) shall be personally liable under this Agreement for its own gross negligence or wilful misconduct. Notwithstanding any other provisions of this Agreement or any other Senior Secured Document to which the Senior Secured Trustee is a party to, in no event shall the Senior Secured Trustee be liable for special, indirect, punitive or consequential loss or damages of any kind whatsoever (including but not limited to lost profits) whether or not foreseeable even if the Senior Secured Trustee has been advised of the likelihood of such loss or damage and regardless of whether the claim for loss or damage is made in negligence, for breach of contract or otherwise. |
(d) | It is also acknowledged that no Senior Secured Trustee shall have any responsibility for the actions of any individual Senior Secured Noteholder. |
25.2 | No Fiduciary Duty |
No Senior Secured Trustee shall be deemed to owe any fiduciary duty to any Creditor (each a Third Party and collectively, the Third Parties ) (save in respect of such persons for whom it acts as trustee pursuant to the relevant Senior Secured Indenture) and shall not be personally liable to any Third Party if it shall in good faith mistakenly pay over or distribute to any Third Party or to any other person cash, property or securities to which any other Third Party shall be entitled by virtue of this Agreement or otherwise save to the extent that the same results from its negligence or wilful misconduct. With respect to any Third Party, each Senior Secured Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in the Debt Documents and this Agreement and no implied agreement, covenants or obligations with respect to the other Third Parties shall be read into this Agreement against any Senior Secured Trustee.
25.3 | No Action |
No Senior Secured Trustee shall have any obligation to take any action under this Agreement unless it is indemnified or secured to its satisfaction (whether by way of payment in advance or otherwise) in accordance with the terms of the relevant Senior Secured Indenture provided that this shall not affect any obligation arising under this Agreement to turnover monies received by it. No Senior Secured Trustee is required to indemnify any person whether or not a Party, in respect of any of the transactions contemplated by this Agreement.
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25.4 | Other Parties Not Affected |
This Clause 25 is intended to afford protection to each Senior Secured Trustee only. No provision of this Clause 25 shall alter or change the rights and obligations as between the other parties to this Agreement in respect of each other.
25.5 | Notices |
(a) | Each Senior Secured Trustee shall at all times be entitled to and may rely on any notice, consent or certificate given or granted by any other Representative or the Security Trustee pursuant to the terms of this Agreement without being under any obligation to enquire or otherwise determine whether any such notice, consent or certificate has been given or granted by the relevant Representative or the Security Trustee and shall not be, in any circumstances, held liable for so relying. |
(b) | In acting under and in accordance with this Agreement and without prejudice to its obligations under this Agreement, each Senior Secured Trustee is entitled to seek instructions from the Senior Secured Noteholders, at any time, and where it so acts on the instructions of the requisite percentage of the Senior Secured Noteholders, such Senior Secured Trustee shall not incur any liability to any person for so acting, other than in accordance with the relevant Senior Secured Indenture. |
25.6 | Trustee Liabilities |
Subject to Clause 14.1 ( Order of application ), no provision of this Agreement shall alter or otherwise affect the rights and obligations of any Debtor to make payments in respect of the Senior Secured Trustee Liabilities as and when the same are due and payable and receipt and retention by any Senior Secured Trustee of the same or taking of any step or action by any Senior Secured Trustee in respect of its rights under the Senior Secured Documents to the same.
25.7 | Provisions survive Termination |
The provisions of this Clause 25 shall survive the termination of this Agreement.
25.8 | Resignation |
Any Senior Secured Trustee may resign or be removed in accordance with the terms of the Senior Secured Note Indenture provided that a replacement Senior Secured Trustee agrees with the Parties to become the replacement Senior Secured Trustee under this Agreement in accordance with Clause 18.4 ( Change of Representative ).
25.9 | Reliance and Information |
Any Senior Secured Trustee may rely and shall be fully protected in acting or refraining from acting upon any notice or other document reasonably believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person. Each Creditor confirms that it has not relied exclusively on any information provided to it by any Senior Secured Trustee. No Senior Secured Trustee is obliged to check the adequacy, accuracy or completeness of any document it forwards to another Party.
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25.10 Trustee division separate
(a) | In acting as trustee for Senior Secured Noteholders, a Senior Secured Trustee shall be regarded as acting through its trustee division which shall be treated as a separate entity from any of its other divisions or departments. |
(b) | If information is received by another division or department of any Senior Secured Trustee, it may be treated as confidential to that division or department and that Senior Secured Trustee shall not be deemed to have notice of it. |
26. | COUNTERPARTS |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
27. | GOVERNING LAW |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law save in relation to Clause 16.4 ( Appointment as agent and administrator in relation to German Security Interests ) and Clause 16.2 ( Parallel Debt ) which, to the extent relating to German Security Interests, are governed by and shall be construed in accordance with the laws of the Federal Republic of Germany, in relation to Clause 16.6 ( French Security ) which is governed and shall be construed in accordance with French law and in relation to Clause 16.7 ( Appointment of the Security Trustee in relation to Belgian Security Documents ) which is governed and shall be construed in accordance with Belgian law.
28. | ENFORCEMENT |
28.1 | Jurisdiction |
(a) | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute ). |
(b) | The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. |
(c) | This Clause 28.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions. |
28.2 | Service of process |
(a) | Without prejudice to any other mode of service allowed under any relevant law: |
(i) | each Debtor (unless incorporated in England and Wales): |
(A) | irrevocably appoints Interxion Carrier Hotel Ltd. as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement and Interxion Carrier Hotel Ltd., by its execution of this Agreement, accepts that appointment; and |
(B) | agrees that failure by a process agent to notify the relevant Debtor of the process will not invalidate the proceedings concerned; |
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(b) | If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Company (in the case of an agent for service of process for a Debtor), must immediately (and in any event within three days of such event taking place) inform the Security Trustee and the Representatives and appoint another agent on terms acceptable to each Revolving Agent or, after the Super Senior Discharge Date, each Senior Secured Trustee. Failing this, the Revolving Agents or, after the Super Senior Discharge Date, the Senior Secured Trustees may appoint another agent for this purpose. |
(c) | Each Debtor not incorporated in England and Wales expressly agrees and consents to the provisions of this Clause 28 and Clause 27 (Governing Law). |
29. | SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN |
29.1 | Security Trustee accounting |
For the purposes of the Debt Documents (including the guarantees under this Agreement or the Revolving Facility Agreement), the Security Trustee, in its capacity as such, shall open and maintain in its book a special credit account for each creditor party under a Debt Document (a Creditor Party). In each of such accounts the Security Trustee shall debit the amounts owed by a Debtor to a Creditor Party, including the interest, fees, expenses, default interest, additional costs and any other amounts that are payable by a Debtor pursuant to a Debt Document. Likewise, all amounts received by the Security Trustee from a Debtor pursuant a Debt Document shall be credited in that account, so that the sum of the balance of the credit account represents the amount owed by a Debtor to a Creditor Party at any time.
29.2 | Individual account of each Creditor Party |
In addition to the special unified account referred to in Clause 29.1 above, each Creditor Party shall open and maintain in its books a special credit account from which the interest, fees, expenses, default interest, additional costs and any other amounts that a Debtor owes to such Creditor Party hereunder shall be debited and in which all amounts received by the Creditor Party from the Debtor under the relevant Debt Document shall be credited.
29.3 | Determination of balance due in the event of enforcement before the Spanish courts |
In the event of enforcement of a Debt Document (including the guarantees under this Agreement or the Revolving Facility Agreement) before the Spanish courts, the Security Trustee shall settle the credit accounts referred to above in Clauses 29.1 (Security Trustee accounting) and 29.2 (Individual account of each Creditor Party). It is expressly agreed for purposes of enforceability via judicial or out-of-court methods pursuant to Spanish Law, that the balance due from the accounts referred to in this Clauses 29.1 (Security Trustee accounting) and 29.2 (Individual account of each Creditor Party) resulting from the certificate issued for such purpose by the Security Trustee shall be deemed a liquid, due and payable amount enforceable against a Debtor, provided that it is evidenced in a notarial document that the settlement was made in the form agreed to by the parties in the enforceable instrument documenting this Agreement (titulo ejecutivo) and that the balance due matches with the balance that appears in the corresponding open account of the Creditor Party in connection to the relevant Debt Document.
The Security Trustee shall previously notify the Debtor of the amount due as a result of the settlement.
29.4 | Enforcement before the Spanish courts |
In the event that a Creditor Party decides, for the purposes of the enforcement of a Debt Document (that has been raised to the status of public document in Spain) before the Spanish courts, to commence the ordinary enforcement proceeding set forth in Articles 517, et seq., of the Law of Civil Procedure (Ley de Enjuciamiento Civil), the Parties expressly agree for purposes of Article 571, et seq., of such
85
Law of Civil Procedure that the settlement to determine the summarily enforceable debt be made by the Security Trustee. Therefore, the following will be sufficient for the commencement of the summary proceedings: (i) the notarial deed (escritura de elevacioń a público) evidencing this Agreement (or the relevant Debt Document that has been raised to the status of public document in Spain); (ii) a certificate, issued by the Security Trustee, of the debt for which the Debtor is liable, as well as the extract of the debit and credit entries and the entries corresponding to the application of interest that determines the actual balance for which enforcement is requested and the document providing evidence (documento fehaciente) that the settlement of the debt has been carried out in the form agreed to in this Agreement; and (iii) a notarial document providing evidence of the prior notice to the Debtor of the amount due as a result of the settlement.
The Debtor shall bear all taxes, expenses and duties accruing or that are incurred on by reason of the notarial instruments referred to in the previous paragraph.
29.5 | Public deed |
This Agreement has been executed in a private document. Each Party shall be entitled to request to the other the formalisation of this Agreement and/or a Debt Document into a public deed before a Spanish Notary Public at any moment. The Company shall bear all costs and expenses relating to such formalisation. The public deed by which this Agreement is raised to the status of public document will confirm in Spanish the guarantee granted by a Spanish Debtor under Clause 15 (Hedge Counterparty guarantee) of this Agreement and the appointment of the Security Trustee under Clause 16.5 (Appointment as agent and administrator in relation to Spanish Security Interests).
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement and executed as a deed by the Intra-Group Lenders and the Debtors and is intended to be and is delivered by them as a deed on the date specified above.
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SCHEDULE 1
THE REVOLVING LENDERS
Name of Revolving Lender
Citibank N. A., London Branch
Bank of America, N.A. (London Branch)
Barclays Bank PLC
Fortis Bank (Nederland) N.V.
Credit Suisse AG, London Branch
Jefferies Finance LLC
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SCHEDULE 2
THE INTRA-GROUP LENDERS AND DEBTORS
Part 1 - The Intra-Group Lenders
Company Name |
Place of Incorporation/Registration |
Registration Number |
||
Interxion Holding N.V. | Netherlands | 33301892 | ||
Interxion Nederland BV | Netherlands | 34116837 | ||
Interxion HeadQuarters BV | Netherlands | 34128125 | ||
Interxion Belgium NV | Belgium | RPR Brussels 0471.625.579 | ||
Interxion Danmark ApS | Denmark | CVR No. 2514 7022 | ||
Interxion Carrier Hotel Ltd | England | 03753969 | ||
Interxion France Sarl | France | 423 945 799 RCS Bobigny | ||
Interxion Deutschland GmbH | Germany | HRB 47103, commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main | ||
Interxion Ireland Limited | Republic of Ireland | 321944 | ||
Interxion Espańa SL | Spain | CIF B82517731 (registered with the Commercial Registry of Madrid in volume 14952, section 8, book 0, page M-249071) |
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Part 2 - The Debtors
Company Name |
Place of Incorporation/Registration |
Registration Number |
||
Interxion Holding N.V. |
Netherlands | 33301892 | ||
Interxion Nederland BV |
Netherlands | 34116837 | ||
Interxion HeadQuarters BV |
Netherlands | 34128125 | ||
Interxion Belgium NV |
Belgium | RPR Brussels 0471.625.579 | ||
Interxion Danmark ApS |
Denmark | CVR No. 2514 7022 | ||
Interxion Carrier Hotel Ltd |
England | 03753969 | ||
Interxion France Sarl |
France | 423 945 799 RCS Bobigny | ||
Interxion Deutschland GmbH |
Germany | HRB 47103, commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main | ||
Interxion Ireland Limited |
Republic of Ireland | 321944 | ||
Interxion España SL |
Spain | CIF B82517731 (registered with the Commercial Registry of Madrid in volume 14952, section 8, book 0, page M-249071) |
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SCHEDULE 3
FORM OF DEBTOR ACCESSION DEED
THIS AGREEMENT is made on [ ] and made between:
(1) | [Insert Full Name of New Debtor] (the Acceding Debtor) ; and |
(2) | [Insert Full Name of Current Security Trustee] (the Security Trustee) , for itself and each of the other parties to the intercreditor agreement referred to below. |
This agreement is made on [date] by the Acceding Debtor in relation to an intercreditor agreement (the Intercreditor Agreement) dated [ ] between, amongst others, [ ] as security agent, [ ] as Revolving Agent, the Creditors and the Debtors (each as defined in the Intercreditor Agreement).
The Acceding Debtor intends to [incur Liabilities under the following documents]/[give a guarantee, indemnity or other assurance against loss in respect of Liabilities under the following documents]:
[Insert details (date, parties and description) of relevant documents]
the Relevant Documents.
IT IS AGREED as follows:
29.6 | Terms defined in the Intercreditor Agreement shall, unless otherwise defined in this Agreement, bear the same meaning when used in this Agreement. |
29.7 | The Acceding Debtor and the Security Trustee agree that the Security Trustee shall hold: |
(i) | [ any Security in respect of Liabilities created or expressed to be created pursuant to the Relevant Documents; |
(ii) |
all proceeds of that Security; and ] 1 |
(iii) | all obligations expressed to be undertaken by the Acceding Debtor to pay amounts in respect of the Liabilities to the Security Trustee as trustee for the Secured Parties (in the Relevant Documents or otherwise) and secured by the Transaction Security together with all representations and warranties expressed to be given by the Acceding Debtor (in the Relevant Documents or otherwise) in favour of the Security Trustee as trustee for the Secured Parties, |
on trust for the Secured Parties on the terms and conditions contained in the Intercreditor Agreement.
29.8 | The Acceding Debtor confirms that it intends to be party to the Intercreditor Agreement as a Debtor, undertakes to perform all the obligations expressed to be assumed by a Debtor under the Intercreditor Agreement and agrees that it shall be bound by all the provisions of the Intercreditor Agreement as if it had been an original party to the Intercreditor Agreement subject to the following limitations: |
[ ]
29.9 | [ In consideration of the Acceding Debtor being accepted as an Intra-Group Lender for the purposes of the Intercreditor Agreement, the Acceding Debtor also confirms that it intends to be party to the |
1 |
Include to the extent that the Security created in the Relevant Documents is expressed to be granted to the Security Trustee as trustee for the Secured Parties. |
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Intercreditor Agreement as an Intra-Group Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by an Intra-Group Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement ] . 2
29.10 |
[ This Accession Agreement Letter will be formalised in a Spanish Public Document at the cost of the Company, so that it may have the status of a public document and for all purposes contemplated in Article 517, number 4 of the Spanish Civil Procedural Law (Law 1/2000 of 7th January) (Ley de Enjuiciamiento Civil). The public deed raising this Accession Document to the status of public document must reproduce in Spanish the clause 29 of the Agreement (Special Provisions regarding enforcement under the Laws of Spain), the confirmation of the personal guarantee granted by a Spanish Debtor under Clause 15 (Hedge Counterparty Guarantee) of this Agreement and the granting of authority by the Secured Parties to the Security Trustee under Clause 16.5 (Appointment as agent and administrator in relation to Spanish Security Interests) ] 3 |
[6]/[7] This Agreement and any non-contractual obligations arising out of or in connection with it are is governed by, English law.
THIS AGREEMENT has been signed on behalf of the Security Trustee and executed as a deed by the Acceding Debtor and is delivered on the date stated above.
2 |
Include this paragraph in the relevant Debtor Accession Deed if the Acceding Debtor is also to accede as an Intra-Group Lender to the Intercreditor Agreement. |
3 |
Include this paragraph if the Acceding Debtor is a company incorporated under the laws of Spain. |
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in the presence of |
||
Signature of witness | ||
Name of witness | ||
Address of witness | ||
Occupation of witness ] | ||
Address for notices: |
||
Address: |
||
Fax: |
||
The Security Trustee |
||
[ Full Name of Current Security Trustee ] |
||
By: |
||
Date: |
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SCHEDULE 4
FORM OF CREDITOR/REPRESENTATIVE ACCESSION UNDERTAKING
To: | [ Insert full name of current Security Trustee] for itself and each of the other parties to the Intercreditor Agreement referred to below. |
[To: |
[Insert full name of current Revolving Agent] as Revolving Agent. ] 4 |
From: | [ Acceding Creditor/Representative ] |
THIS UNDERTAKING is made on [ date ] by [ insert full name of new Revolving Lender/Additional Senior Secured Creditor/Hedge Counterparty/Revolving Agent/Senior Secured Trustee/Intra-Group Lender ] ] (the Acceding [ Revolving Lender/Additional Senior Secured Creditor/Hedge Counterparty/Revolving Agent/Senior Secured Trustee/Intra-Group Lender ]) in relation to the intercreditor agreement (the Intercreditor Agreement ) dated [] between, among others, [INSERT NAME OF SECURITY TRUSTEE] as security agent, [INSERT NAME OF REVOLVING AGENT] as Revolving Agent, the Creditors and the Debtors (each as defined in the Intercreditor Agreement). Terms defined in the Intercreditor Agreement shall, unless otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In consideration of the Acceding [ Revolving Lender/Additional Senior Secured Creditor/Hedge Counterparty/Revolving Agent/Senior Secured Trustee/Intra-Group Lender ] being accepted as a [ Revolving Lender/Additional Senior Secured Creditor/Hedge Counterparty/Intra-Group Lender/Revolving Agent/Senior Secured Trustee ] for the purposes of the Intercreditor Agreement, the Acceding [ Revolving Lender/Additional Senior Secured Creditor/Hedge Counterparty/Revolving Agent/Senior Secured Trustee/Intra-Group Lender ] confirms that, as from [ date ], it intends to be party to the Intercreditor Agreement as a [Revolving Lender/Additional Senior Secured Creditor/Hedge Counterparty/Revolving Agent/Senior Secured Trustee/Intra-Group Lender] and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a [ Revolving Lender/Additional Senior Secured Creditor/Hedge Counterparty/Revolving Agent/Senior Secured Trustee/Intra-Group Lender ] and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
[ The Acceding Lender is an Affiliate of a Revolving Lender and has become a provider of an Ancillary Facility. In consideration of the Acceding Lender being accepted as an Ancillary Lender for the purposes of any Revolving Facility Agreement, the Acceding Lender confirms, for the benefit of the parties to any Revolving Facility Agreement, that, as from [ date ], it intends to be party to any Revolving Facility Agreement as an Ancillary Lender, and undertakes to perform all the obligations expressed in the Revolving Facility Agreement to be assumed by a Finance Party and agrees that it shall be bound by all the provisions of any Revolving Facility Agreement, as if it had been an original party to any Revolving Facility Agreement as an Ancillary Lender. ]
This Undertaking and any non-contractual obligations arising out of or in connection with it are governed by English law.
THIS UNDERTAKING has been entered into on the date stated above [ and is executed as a deed by the Acceding Creditor, if it is acceding as an Intra-Group Lender and is delivered on the date stated above ].
Acceding [Creditor/Representative]
[ EXECUTED as a DEED ]
[ insert full name of Acceding
Creditor/Representative ]
4 |
Include only in the case of an Ancillary Lender which is an Affiliate of a Revolving Lender. |
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By: | ||
Address: | ||
Fax: |
Accepted by the Security Trustee | [ Accepted by the Revolving Agent ] | |||
for and on behalf of | for and on behalf of | |||
[ Insert full name of current Security Trustee ] |
[ Insert full name of Revolving Agent ] | |||
Date: |
Date:] 5 |
5 |
Include only in the case of an Ancillary Lender which is an Affiliate of a Revolving Lender. |
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SCHEDULE 5
FORM OF DEBTOR RESIGNATION REQUEST
To: | [ ] as Security Trustee |
From: | [resigning Debtor] and [the Company] |
Dated:
Dear Sirs
[ Company ] - [] Intercreditor Agreement
dated [] (the Intercreditor Agreement)
29.12 | Pursuant to Clause [18.12] (Resignation of a Debtor) of the Intercreditor Agreement we request that [resigning Debtor] be released from its obligations as a Debtor under the Intercreditor Agreement. |
29.13 | We confirm that: |
(i) | no Event of Default is continuing or would result from the acceptance of this request; and |
(ii) | [resigning Debtor] is under no actual or contingent obligations in respect of the Intra-Group Liabilities. |
29.14 | This letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
[Company] | [resigning Debtor] | |||||||
By: | By: | |||||||
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SCHEDULE 6
SENIOR SECURED PARAMETERS
Issuer: | The Company | |
Redemption Date: | Not earlier than the final scheduled maturity date for the Original Senior Secured Notes | |
Guarantees and Security: | As set out in Clause 5.2 (Security: Senior Secured Creditors) |
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SCHEDULE 7
TRANSACTION SECURITY DOCUMENTS
1. | Transaction Security Documents |
(a) | The following share security: |
(i) | a share pledge agreement in relation to the shares in Interxion HeadQuarters B.V. made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(ii) | a share pledge agreement in relation to the shares in Interxion Nederland B.V. made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(iii) | a share pledge agreement in relation to the shares in Interxion France SARL made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(iv) | a share pledge agreement in relation to the shares in Interxion Deutschland GmbH made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(v) | a notarised deed of share pledge agreement in relation to the shares in Interxion España S.L. made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(vi) | a share charge agreement in relation to the shares in Interxion Carrier Hotel Limited made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(vii) | a share pledge agreement in relation to the shares in Interxion Belgium N.V. made between Interxion Holding N.V. as pledgor and the Security Trustee; |
(viii) | a share charge agreement in relation to the shares in Interxion Ireland Limited made between Interxion Holding N.V. as chargor and the Security Trustee; and |
(ix) | a share pledge agreement in relation to the shares in Interxion Danmark ApS made between Interxion Holding N.V. as pledgor, the secured parties listed therein and the Security Trustee. |
(b) | Security granted to the Security Trustee by the Company and each other Debtor over its rights in respect of any inter-company loan receivables owed to it by any member of the Group. |
(c) | Security granted to the Security Trustee by the Company and each other Debtor over all its banks accounts other than any bank account that is a blocked account with a bank that has provided a guarantee or other assurance against loss on behalf of a Debtor in respect of rental lease, supplier or stock payments including those bank accounts listed in schedule 16 (Continuing Security) of the Original Revolving Facility Agreement. |
2. | Where relevant in a particular jurisdiction the Transaction Security referred to in paragraph 1 above shall be granted to the Security Trustee and the other Secured Parties listed in the relevant Transaction Security Document. |
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SIGNATURES
THE COMPANY | ||
EXECUTED AS A DEED | ||
By: INTERXION HOLDING NV | ||
as the Company | ||
/s/ David C Ruberg | Signature of Director | |
David C Ruberg | Name of Director | |
in the presence of | ||
/s/ Maarten Overmars | Signature of witness | |
Maarten Overmars | Name of witness | |
Carolina Mac Gillavrylaan 1472 | ||
1098 XD Amsterdam | ||
The Netherlands | Address of witness | |
Trainee Lawyer | Occupation of witness |
THE DEBTORS AND INTRA-GROUP LENDERS
EXECUTED AS A DEED | ||
By: INTERXION HOLDING NV | ||
as Debtor and Intra-Group Lender |
||
/s/ David C Ruberg | Signature of Director | |
David C Ruberg | Name of Director | |
in the presence of | ||
/s/ Maarten Overmars | Signature of witness | |
Maarten Overmars | Name of witness | |
Carolina Mac Gillavrylaan 1472 | ||
1098 XD Amsterdam | ||
The Netherlands | Address of witness | |
Trainee Lawyer | Occupation of witness |
EXECUTED AS A DEED | ||
By: INTERXION HEADQUARTERS BV | ||
as Debtor and Intra-Group Lender |
||
/s/ David C Ruberg | Signature of Director | |
David C Ruberg | Name of Director | |
in the presence of | ||
/s/ Maarten Overmars | Signature of witness | |
Maarten Overmars | Name of witness | |
Carolina Mac Gillavrylaan 1472 | ||
1098 XD Amsterdam | ||
The Netherlands | Address of witness | |
Trainee Lawyer | Occupation of witness |
EXECUTED AS A DEED | ||
By: INTERXION NEDERLAND BV | ||
as Debtor and Intra-Group Lender |
||
/s/ David C Ruberg | Signature of Director | |
David C Ruberg | Name of Director | |
in the presence of | ||
/s/ Maarten Overmars | Signature of witness | |
Maarten Overmars | Name of witness | |
Carolina Mac Gillavrylaan 1472 | ||
1098 XD Amsterdam | ||
The Netherlands | Address of witness | |
Trainee Lawyer | Occupation of witness |
EXECUTED AS A DEED | ||
By: INTERXION BELGIUM NV | ||
as Debtor and Intra-Group Lender |
||
/s/ Jaap Camman | Signature of Director | |
Jaap Camman |
Name of Director | |
in the presence of | ||
/s/ L. Ashworth | Signature of witness | |
L. Ashworth | Name of witness | |
Linklaters LLP | ||
WTC Amsterdam, | ||
Zuidpein 180, 1077XV | ||
Amsterdam, The Netherlands | Address of witness | |
Solicitor (England & Wales) | Occupation of witness |
EXECUTED AS A DEED | ||
By: INTERXION DANMARK ApS | ||
as Debtor and Intra-Group Lender |
||
/s/ Jaap Camman | Signature of Director | |
Jaap Camman | Name of Director | |
in the presence of | ||
/s/ L. Ashworth | Signature of witness | |
L. Ashworth | Name of witness | |
Linklaters LLP, | ||
WTC Amsterdam | ||
Zuidpein 180, 1077XV, | ||
Amsterdam, The Netherlands | Address of witness | |
Solicitor (England & Wales) | Occupation of witness |
EXECUTED AS A DEED | ||
By: INTERXION CARRIER HOTEL LIMITED | ||
as Debtor and Intra-Group Lender |
||
/s/ Brad Anthony | Signature of Director | |
Brad Anthony | Name of Director | |
in the presence of | ||
/s/ Gillian McNally | Signature of witness | |
Gillian McNally |
Name of witness | |
Arthur Cox Solicitors | ||
Earlsfort Centre | ||
Earlsfort Terrace, D2 | Address of witness | |
Trainee Solicitors | Occupation of witness |
EXECUTED AS A DEED | ||
By: | INTERXION FRANCE SARL | |
as Debtor and Intra-Group Lender |
/s/ Fabrice Coquio | Signature of Director | |
Fabrice Coquio |
Name of Director | |
in the presence of | ||
/s/ Eric Fiszelson | Signature of witness | |
Eric Fiszelson |
Name of witness | |
75012 Paris | ||
France | Address of witness | |
Occupation of witness |
EXECUTED AS A DEED | ||
By: | INTERXION DEUTSCHLAND GMBH | |
as Debtor and Intra-Group Lender |
/s/ Brad Anthony Foy | Signature of Director | |
Brad Anthony Foy | Name of Director | |
in the presence of | ||
/s/ Gillian McNally | Signature of witness | |
Gillian McNally | Name of witness | |
Arthur Cox Solicitors |
||
Earlsfort Centre |
||
Earlsfort Terrace | ||
Dublin 2 | Address of witness | |
Trainee Solicitor |
Occupation of witness |
EXECUTED AS A DEED
1NTERXION IRELAND LIMITED
as Debtor and Intra-Group Lender
Present when the Common Seal
of INTERXION IRELAND LIMITED
was affixed hereto in the presence of:
/s/ |
Director |
/s/ |
Director / Secretary |
Signature of witness: | /s/ Ruth Lonergan | |
Name of witness: |
Ruth Lonergan |
|
Address of witness: |
Earlsfort Terrace |
|
Dublin 2 | ||
Occupation of witness: | Solicitor |
EXECUTED AS A DEED
By: INTERXION ESPANA S.L.
as Debtor and Intra-Group Lender
/s/ Robert Assink | Signature of Director | |
Robert Assink | Name of Director | |
in the presence of | ||
/s/ M.J. Monzon Ruz, Sylvia Helena Cicala Kellner |
Signature of witness | |
(1) M.J. Monzon Ruz | Name of witness | |
(2) Sylvia Helena Cicala Kellner | ||
Address of witness | ||
(1) Office Manager | Occupation of witness | |
(2) Sales Support |
THE SECURITY TRUSTEE
BARCLAYS BANK PLC
as Security Trustee |
||
By: | /s/ |
THE ORIGINAL SENIOR SECURED TRUSTEE
THE BANK OF NEW YORK MELLON, LONDON BRANCH
as Original Senior Secured Trustee |
||
By: | /s/ Marco Thuo | |
Marco Thuo | ||
Vice President |
THE REVOLVING AGENT
BARCLAYS BANK PLC
as Revolving Agent |
||
By: | /s/ |
THE REVOLVING LENDERS
CITIBANK N.A., LONDON BRANCH
as Revolving Lender |
||
By: | /s/ |
BANK OF AMERICA, N.A. (LONDON BRANCH) as Revolving Lender | ||
By: | /s/ K. Davey | |
BARCLAYS BANK PLC
|
||
as Revolving Lender | ||
By: | /s/ |
FORTIS BANK (NEDERLAND) N.V.
as Revolving Lender |
||||||||
By: | /s/ J. de Vries | /s/ I.L.F. Kalthoff | ||||||
J. de Vries | I.L.F. Kalthoff |
CREDIT SUISSE AG, LONDON BRANCH
as Revolving Lender |
||||||||
By: | /s/ Paul Kelly | /s/ Phillip Tamplin | ||||||
Managing Director | Director |
JEFFERIES FINANCE LLC
as Revolving Lender |
||
By: | /s/ E.J. Hess | |
Managing Director |
THE ORIGINAL HEDGE COUNTERPARTY | ||
BARCLAYS BANK PLC | ||
as Hedge Counterparty | ||
By: | /s/ | |
Exhibit 10.15
Dated 11 November 2010
THE BANK OF NEW YORK MELLON, LONDON BRANCH
as Original Senior Secured Trustee
- and -
CERTAIN COMPANIES
as Original Debtors
- and -
BARCLAYS BANK PLC
acting as Security Trustee
- and -
others
ADDITIONAL INTERCREDITOR AGREEMENT
TABLE OF CONTENTS
Page | ||||||
1. |
DEFINITIONS AND INTERPRETATION | 1 | ||||
2. |
RANKING AND PRIORITY | 2 | ||||
3. |
APPLICATION OF PROCEEDS WITH RESPECT TO SENIOR SECURED LIABILITIES | 2 | ||||
4. |
CONTINUING OBLIGATIONS | 2 | ||||
5. |
COMPANY CONFIRMATION | 3 | ||||
6. |
SECURITY TRUSTEE AND ORIGINAL SENIOR SECURED TRUSTEE | 3 | ||||
7. |
PRESERVATION | 3 | ||||
8. |
NOTICES | 4 | ||||
9. |
CONSENTS, AMENDMENTS AND OVERRIDE | 6 | ||||
10. |
COUNTERPARTS | 7 | ||||
11. |
GOVERNING LAW | 7 | ||||
12. |
ENFORCEMENT | 7 | ||||
13. |
MISCELLANEOUS | 8 | ||||
14. |
SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN | 8 | ||||
SCHEDULE 1 DEBTORS |
10 | |||||
SIGNATURES |
11 |
i
THIS AGREEMENT is dated |
November 2010 and made between: |
(1) | THE BANK OF NEW YORK MELLON, LONDON BRANCH as Original Senior Secured Trustee; |
(2) | INTERXION HOLDING N.V., a public company with limited liability (naamloze vennootschap), incorporated under Dutch law, having its seat (statutaire zetel) in Amsterdam, The Netherlands and its office address at Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands, Chamber of Commerce registration number 33301892 (the Company ); |
(3) | THE SUBSIDIARIES of the Company named in Schedule 1 (The Debtors) as Debtors (together with the Company, the Original Debtors); and |
(4) | BARCLAYS BANK PLC as security trustee for the Secured Parties (the Security Trustee ). |
WHEREAS:
The Company intends to issue 50,000,000 9.50% senior secured notes due February 2017 (the Additional Senior Secured Notes ) under the Senior Secured Indenture, pursuant to which the Issuer issued the Original Senior Secured Notes, dated 12 February 2010 among, inter alias, the Original Senior Secured Trustee and the Company (the Original Senior Secured Indenture ).
The Additional Senior Secured Notes are Additional Senior Secured Liabilities owed to the Additional Senior Secured Creditors. The members of the Group and any other grantor of Transaction Security are permitted to incur Additional Senior Secured Liabilities. The Additional Senior Secured Creditors are Senior Secured Creditors for the purposes of the Original Intercreditor Agreement provided that the provisions of the Original Intercreditor have been complied with.
As further assurance, certain of the Original Debtors will enter into additional security documents (in addition to the existing Transaction Security) on or around the time of issuance of the Additional Senior Secured Notes which shall secure all amounts owed to the Primary Creditors under the Debt Documents (the Additional Security).
The parties to this Agreement wish to confirm that, as provided for in the Original Intercreditor Agreement, the Additional Senior Secured Liabilities will contractually rank and be secured by the Transaction Security (including the Additional Security) pari passu (including in relation to Clause 14 (Application of proceeds) of the Original Intercreditor Agreement) with the other Senior Secured Liabilities arising in accordance with the Debt Documents.
In connection with the above and under section 4.21 of the Original Senior Secured Indenture, the Issuer (as defined therein) may request at the time of, or prior to, entering into the Additional Senior Secured Notes that the relevant guarantors, the Original Senior Secured Trustee and the Security Trustee enter into an additional intercreditor agreement.
NOW THEREFORE , to avoid any ambiguity, the parties hereto enter into this additional intercreditor agreement to further evidence the Additional Senior Secured Notes as constituting Senior Secured Notes and the Liabilities incurred by members of the Group and any other grantor of Transaction Security in respect of such Additional Senior Secured Notes as constituting Additional Senior Secured Liabilities.
IT IS AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
Terms used but not defined in this Agreement shall have the meaning ascribed to them in the intercreditor agreement dated February 12, 2010 among Barclays Bank plc as Revolving Agent and Security Trustee, The Bank of New York Mellon, London Branch as Original Senior Secured Trustee, the Revolving Lenders named in Schedule 1 of such agreement, InterXion Holding N,V. and the Debtors and Intra-Group Lenders named in Schedule 2 of such agreement (the Original Intercreditor Agreement ), To the extent required, Clause 1.2 (Construction) of the Original Intercreditor Agreement is incorporated into this Agreement by reference.
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1.1 | Third Party Rights |
(a) | Unless expressly provided to the contrary in this Agreement, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Rights Act ) to enforce or to enjoy the benefit of any term of this Agreement. |
(b) | Notwithstanding any term of this Agreement, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. |
(c) | Any Receiver, Delegate or any other person described in Clause 16.15 (No proceedings) of the Original Intercreditor Agreement may, subject to this Clause 1.1 and the Third Parties Rights Act, rely on any Clause of this Agreement which expressly confers rights on it. |
2. | RANKING AND PRIORITY |
2.1 | Senior Secured Liabilities |
As intended by Clause 2.1 (Primary Creditor Liabilities) of the Original Intercreditor Agreement, each of the parties to this Agreement confirms and agrees that the Liabilities owed by each Debtor and each other grantor of Transaction Security to the creditors in respect of the Additional Senior Secured Notes (other than the Senior Secured Trustee Liabilities) constitute Additional Senior Secured Liabilities and rank in right and priority of payment pari passu with other Senior Secured Liabilities (other than the Senior Secured Trustee Liabilities) and without any preference.
2.2 | Transaction Security |
Each of the parties to this Agreement confirms and agrees that the Additional Security is treated between the parties as ranking in right and priority pari passu with the existing Transaction Security so that upon enforcement or realisation of any such Additional Security, all monies and/or assets received by or on behalf of any Primary Creditor shall be applied in the order set out in Clause 14 ( Application of proceeds ) of the Original Intercreditor Agreement.
Each of the parties to this Agreement confirms and agrees that the Additional Security ranks and secures the Additional Senior Secured Liabilities in respect of the Additional Senior Secured Notes (other than the Senior Secured Trustee Liabilities) pari passu with other Senior Secured Liabilities (other than the Senior Secured Trustee Liabilities) and without any preference between them.
3. | APPLICATION OF PROCEEDS WITH RESPECT TO SENIOR SECURED LIABILITIES |
Each of the parties to this Agreement confirms and agrees that, all amounts applied by the Security Trustee in accordance with paragraph (c) of Clause 14.1 (Order of application) of the Original Intercreditor Agreement, shall be applied towards the discharge of (he Senior Secured Liabilities (which for the avoidance of doubt shall include the Additional Senior Secured Liabilities) on a pari passu and pro rata basis.
4. | CONTINUING OBLIGATIONS |
The provisions of the Original Intercreditor Agreement, each Transaction Security Document and the other Debt Documents shall continue in full force and effect and are not affected by this Agreement. This Agreement is not an amendment of the Original Intercreditor Agreement.
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5. | COMPANY CONFIRMATION |
The Company confirms that the entry into this Agreement does not conflict with or affect the terms of the Debt Documents and that the provisions of paragraph (a) of clause 8.2 ( Additional Senior Secured Notes ) of the Original Intercreditor Agreement have been complied with.
6. | SECURITY TRUSTEE AND ORIGINAL SENIOR SECURED TRUSTEE |
To the extent that the identity of either the Security Trustee or the Original Senior Secured Trustee changes in accordance with the terms of the Original Intercreditor Agreement, such partys successor shall, promptly following its appointment, agree to the terms of this Agreement (in a form acceptable to the parties to this Agreement).
The Security Trustee and the Original Senior Secured Trustee enter into this Agreement following the request of the Company in accordance with the terms of the Senior Secured Indenture without liability to any person.
7. | PRESERVATION |
7.1 | Partial invalidity |
If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
7.2 | No impairment |
If any provision of this Agreement is not binding on or enforceable in accordance with its terms against a person expressed to be a party to it, neither the binding nature nor the enforceability of that provision or any other provision of this Agreement will be impaired as against the other party(ies) hereto.
7.3 | Remedies and waivers |
No failure to exercise, nor any delay in exercising, on the part of any party to this Agreement, any right or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
7.4 | Waiver of defences |
The provisions of this Agreement will not be affected by an act, omission, matter or thing which, but for this Clause 7.4, would reduce, release or prejudice the subordination and priorities expressed to be created by this Agreement including (without limitation and whether or not known to any party):
(a) | any time, waiver or consent granted to, or composition with, any Debtor, any other grantor of Transaction Security or other person; |
(b) | the release of any Debtor, any other grantor of Transaction Security or any other person under the terms of any composition or arrangement with any creditor of any member of the Group or any grantor of Transaction Security; |
(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 Debtor or other person or any non presentation or non observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security; |
3
(d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Debtor, any other grantor of Transaction Security or other person; |
(e) | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of a Debt Document or any other document or security; |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security; |
(g) | any intermediate Payment of any of the Liabilities owing to the Primary Creditors in whole or in part; or |
(h) | any insolvency or similar proceedings. |
7.5 | Priorities not affected |
The priorities referred to in Clause 1 (Ranking and Priority) will:
(a) | not be affected by any reduction or increase in the principal amount secured by the Transaction Security in respect of the Liabilities owing to the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the Liabilities or any other circumstances; |
(b) | apply regardless of the order in which or dates upon which this Agreement, the Additional Security and any other Debt Documents are executed or registered or notice of them is given to any person; |
(c) | secure the Liabilities owing to the Primary Creditors in the order specified, regardless of the date upon which any of the Liabilities arise or of any fluctuations in the amount of any of the Liabilities outstanding; |
(d) | not be affected by the nature, type or any provision of any of the Additional Security; and |
(e) | not be affected by the respective date(s) or time(s) at which moneys may be or have been advanced or become owing or payable or secured in relation to the Additional Security and the transactions contemplated under the Debt Documents. |
8. | NOTICES |
8.1 | Communications in writing |
Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated, may be made by fax or letter.
8.2 | Security Trustees communications with Senior Secured Trustees |
The Security Trustee shall be entitled to carry out all dealings with the Senior Secured Noteholders through their respective Representatives and may give to the Representatives, as applicable, any notice or other communication required to be given by the Security Trustee to a Senior Secured Noteholder.
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8.3 | Addresses |
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each party for any communication or document to be made or delivered under or in connection with this Agreement is:
(a) | in the case of the Company: |
Interxion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Fax: +31 (0) 208 880 7601
Attention: D.C. Ruberg;
(b) | in the case of the Security Trustee: |
Barclays Bank PLC
7th Floor
5 The North Colonnade
Canary Wharf
London E14 4BB
Fax: +44 (0)20 7773 4893
Attention: Duncan Nash;
(c) | in the case of the Original Senior Secured Trustee: |
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
Fax: +44 (0)20 7964 2536
Attention: Trustee Administration; and
(d) | in the case of each other party, that notified in writing to the Security Trustee on or prior to the date on which it becomes a party, |
or any substitute address, fax number or department or officer which that party may notify to the Security Trustee (or the Security Trustee may notify to the other parties, if a change is made by the Security Trustee) by not less than five (5) Business Days notice.
8.4 | Delivery |
(a) | Any communication or document made or delivered by one person to another under or in connection with this Agreement will only be effective: |
(i) | if by way of fax, when received in legible form; or |
(ii) | if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, |
and, if a particular department or officer is specified as part of its address details provided under Clause 8.3 ( Addresses ), if addressed to that department or officer.
(b) | Any communication or document to be made or delivered to the Security Trustee will be effective only when actually received by the Security Trustee and then only if it is expressly marked for the attention of the department or officer identified with the Security Trustees signature below (or any substitute department or officer as the Security Trustee shall specify for this purpose). |
5
(c) | Any communication or document made or delivered to the Company in accordance with this Clause 8.4 will be deemed to have been made or delivered to each of the Debtors. |
8.5 | Notification of address and fax number |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 8.3 (Addresses) or changing its own address or fax number, the Security Trustee shall notify the other parties.
8.6 | Electronic communication |
(a) | Any communication to be made between the Security Trustee and a Representative, under or in connection with this Agreement may be made by electronic mail or other electronic means, if the Security Trustee and the relevant Representative: |
(i) | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
(ii) | notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and |
(iii) | notify each other of any change to their address or any other such information supplied by them. |
(b) | Any electronic communication made between the Security Trustee and a Representative will be effective only when actually received in readable form and in the case of any electronic communication made by a Representative to the Security Trustee only if it is addressed in such a manner as the Security Trustee shall specify for this purpose. |
8.7 | English language |
(a) | Any notice given under or in connection with this Agreement must be in English. |
(b) | All other documents provided under or in connection with this Agreement must be: |
(i) | in English; or |
(ii) | if not in English, and if so required by the Security Trustee, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
9. | CONSENTS, AMENDMENTS AND OVERRIDE |
9.1 | Required consents |
(a) | Subject to paragraphs (b) and (c) below, this Agreement may be amended or waived only with the consent of the Company, the Original Senior Secured Trustee and the Security Trustee. |
(b) | An amendment that has the effect of changing or which relates to: |
(i) | curing defects, resolving ambiguities or reflecting changes of a minor, technical or administrative nature, may be made by the Security Trustee and the Company; and |
6
(ii) | the requirements of any person proposing to act as a Senior Secured Trustee which are customary for persons acting in such capacity, may be made by the Security Trustee and the Company. |
(c) | Subject to paragraph (b) above, if any amendment or waiver may impose new or additional obligations on a party or may withdraw or reduce the rights of any party under this Agreement, the prior written consent of that party is required. |
9.2 | Effectiveness |
Any amendment, waiver or consent given in accordance with this Clause 9 will be binding on all parties and the Security Trustee may effect any amendment, waiver or consent permitted by this Clause 9.
10. | COUNTERPARTS |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
11. | GOVERNING LAW |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
12. | ENFORCEMENT |
12.1 | Jurisdiction |
(a) | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute). |
(b) | The parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. |
(c) | This Clause 12.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions. |
12.2 | Service of process |
(a) | Without prejudice to any other mode of service allowed under any relevant law: |
(i) | each Debtor (unless incorporated in England and Wales): |
(A) | irrevocably appoints Interxion Carrier Hotel Ltd. as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement and Interxion Carrier Hotel Ltd., by its execution of this Agreement, accepts that appointment; and |
(B) | agrees that failure by a process agent to notify the relevant Debtor of the process will not invalidate the proceedings concerned; |
7
(b) | If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Company (in the case of an agent for service of process for a Debtor), must immediately (and in any event within three days of such event taking place) inform the Security Trustee and the Representatives and appoint another agent on terms acceptable to each Senior Secured Trustee. Failing this the Senior Secured Trustees may appoint another agent for this purpose. |
(c) | Each Debtor not incorporated in England and Wales expressly agrees and consents to the provisions of this Clause 12 and Clause 11 (Governing Law). |
13. | MISCELLANEOUS |
All rights, duties, liabilities and immunities of the Trustee and the Security Trustee under the Original Intercreditor Agreement are hereby incorporated into this Agreement without amendment.
14. | SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN |
14.1 | Security Trustee accounting |
For the purposes of the Debt Documents, the Security Trustee, in its capacity as such, shall open and maintain in its book a special credit account for each creditor party under a Debt Document (a Creditor Party ). In each of such accounts the Security Trustee shall debit the amounts owed by a Debtor to a Creditor Party, including the interest, fees, expenses, default interest, additional costs and any other amounts that are payable by a Debtor pursuant to a Debt Document. Likewise, all amounts received by the Security Trustee from a Debtor pursuant a Debt Document shall be credited in that account, so that the sum of the balance of the credit account represents the amount owed by a Debtor to a Creditor Party at any time.
14.2 | Individual account of each Creditor Party |
In addition to the special unified account referred to in Clause 14.1 above, each Creditor Party shall open and maintain in its books a special credit account from which the interest, fees, expenses, default interest, additional costs and any other amounts that a Debtor owes to such Creditor Party hereunder shall be debited and in which all amounts received by the Creditor Party from the Debtor under the relevant Debt Document shall be credited.
14.3 | Determination of balance due in the event of enforcement before the Spanish courts |
In the event of enforcement of a Debt Document before the Spanish courts, the Security Trustee shall settle the credit accounts referred to above in Clauses 14.1 ( Security Trustee accounting ) and 14.2 ( Individual account of each Creditor Party ). It is expressly agreed for purposes of enforceability via judicial or out-of-court methods pursuant to Spanish Law, that the balance due from the accounts referred to in this Clauses 14.1 ( Security Trustee accounting ) and 14.2 ( Individual account of each Creditor Party ) resulting from the certificate issued for such purpose by the Security Trustee shall be deemed a liquid, due and payable amount enforceable against a Debtor, provided that it is evidenced in a notarial document that the settlement was made in the form agreed to by the parties in the enforceable instrument documenting this Agreement (titulo ejecutivo) and that the balance due matches with the balance that appears in the corresponding open account of the Creditor Party in connection to the relevant Debt Document.
The Security Trustee shall previously notify the Debtor of the amount due as a result of the settlement.
14.4 | Enforcement before the Spanish courts |
In the event that a Creditor Party decides, for the purposes of the enforcement of a Debt Document (that has been raised to the status of public document in Spain) before the Spanish courts, to commence the ordinary enforcement proceeding set forth in Articles 517, et seq., of the Law of Civil Procedure (Ley de Enjuciamiento Civil), the parties expressly agree for purposes of Article 571, et seq., of such
8
Law of Civil Procedure that the settlement to determine the summarily enforceable debt be made by the Security Trustee. Therefore, the following will be sufficient for the commencement of the summary proceedings regarding this Agreement and, in particular, the Additional Senior Secured Notes: (i) the notarial deed (escritura de elevación a público) evidencing this Agreement (or the relevant Debt Document that has been raised to the status of public document in Spain); (ii) a certificate, issued by the Security Trustee, of the debt for which the Debtor is liable, as well as the extract of the debit and credit entries and the entries corresponding to the application of interest that determines the actual balance for which enforcement is requested and the document providing evidence (documento fehaciente) that the settlement of the debt has been carried out in the form agreed to in this Agreement; and (iii) a notarial document providing evidence of the prior notice to the Debtor of the amount due as a result of the settlement.
The Debtor shall bear all taxes, expenses and duties accruing or that are incurred by reason of the notarial instruments referred to in the previous paragraph.
14.5 | Public deed |
This Agreement has been executed in a private document. Each party shall be entitled to request to the other the formalisation of this Agreement and/or a Debt Document into a public deed (which will include the confirmation of this clause in Spanish) before a Spanish Notary Public at any moment. The Company shall bear all costs and expenses relating lo such formalisation.
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement and executed as a deed by the Intra-Group Lenders and the Original Debtors and is intended to be and is delivered by them as a deed on the date specified above.
9
SCHEDULE 1
DEBTORS
Company Name |
Place of Incorporation/ Registration |
Registration Number |
||
Interxion Holding N.V. |
Netherlands | 33301892 | ||
Interxion Operational B.V. |
Netherlands | 34389232 | ||
Interxion Nederland B.V. |
Netherlands | 34116837 | ||
Intention HeadQuarters B.V. |
Netherlands | 34128125 | ||
Interxion Belgium N.V. |
Belgium | RPR Brussels 0471.625.579 | ||
Interxion Carrier Hotel Ltd |
England | 03753969 | ||
Interxion France SAS |
France | 423 945 799 RCS Bobigny | ||
Interxion Deutschland GmbH |
Germany |
HRB 47103, commercial register
(Handelsregister) of the local court (Amtsgericht) of Frankfort am Main |
||
Interxion Ireland Limited |
Republic of Ireland | 321944 | ||
Interxion Espana, S.A. |
Spain |
CIF A-82517731 (registered with the
Madrid in volume 14952, section 8,
book 0, page M-249071) |
10
SIGNATURES
11
EXECUTED AS A DEED
By: INTERXION ESPAÑA, S.A,.
as Debtor and Intra-Group Lender
EXECUTED AS A DEED
By: INTERXION FRANCE SAS
as Debtor and Intra-Group Lender
/s/ Fabrice Coquio | Signature of President | |
Fabrice Coquio | Name of President | |
in the presence of | ||
/s/ Ingid Nicot | Signature of witness | |
Ingid Nicot | Name of witness | |
Executive Assistant Interxion |
||
45 Avenue Victor Hugo | ||
France | Address of witness | |
Occupation of witness | ||
Signature of Director | ||
Name of Director | ||
in the presence of | ||
Signature of witness | ||
Name of witness | ||
Address of witness | ||
Occupation of witness |
EXECUTED AS A DEED
By: INTERXION FRANCE SAS
as Debtor and Intra-Group Lender
EXECUTED AS A DEED
1NTERXION IRELAND LIMITED
as Debtor and Intra-Group Lender
Present when the Common Seal
of INTERXION IRELAND LIMITED
was affixed hereto in the presence of:
/s/ |
Director |
/s/ |
Director / Secretary |
Signature of witness: | /s/ | |
Name of witness: | ||
Address of witness: | ||
Dublin 3 | ||
Occupation of witness: |
THE SECURITY TRUSTEE
BARCLAYS BANK PLC
as Security Trustee
By: /s/ Laura Denford
THE ORIGINAL SENIOR SECURED TRUSTEE
THE BANK OF NEW YORK MELLON, LONDON BRANCH
as Original Senior Secured Trustee |
||
By: | /s/ Marco Thuo | |
Marco Thuo | ||
Vice President |
Exhibit 10.16
INTERXION HOLDING N.V.
FIFTH AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
This FIFTH AMENDED AND RESTATED SHAREHOLDERS AGREEMENT is entered into on this 24 th day of December, 2009 by and among INTERXION HOLDING N.V. , a limited liability company ( naamloze vennootschap ) organized under the laws of The Netherlands (the Company ), and each of the parties listed on Schedule I hereto.
W I T N E S S E T H
WHEREAS, in connection with the issuance and sale of Series B Preferred Stock, the Companys shareholders entered into a shareholders agreement on August 3, 2000, as amended by the First Amendment to Shareholders Agreement dated September 5, 2000, the Second Amendment to Shareholders Agreement dated November 9, 2000 and the Third Amendment to Shareholders Agreement dated April 1, 2001 (the 2000 Shareholders Agreement );
WHEREAS, on August 27, 2002, the Company and certain shareholders entered into an investment agreement (the Investment Agreement ) pursuant to which such shareholders purchased shares of 2002 Series A convertible, exchangeable, preferred stock ( 2002 Series A Preferred Stock ) of the Company, for an aggregate amount of 20,241,915 euros;
WHEREAS, on August 27, 2002 in connection with the entering into of the Investment Agreement, the Companys shareholders amended and restated the 2000 Shareholders Agreement by entering into the Amended and Restated Shareholders Agreement (the 2002 Shareholders Agreement );
WHEREAS, on December 12, 2003, the Company and certain shareholders entered into an investment agreement (the 2003 Investment Agreement ), pursuant to which the Company sold to such shareholders senior secured convertible notes of the Company in the aggregate principal amount of 4,506,513 euros, convertible into shares of 2002 Series A Preferred Stock, and in connection therewith, certain technical amendments were effected to the 2002 Shareholders Agreement pursuant to Amendment No. 1 to Amended and Restated Shareholders Agreement dated December 12, 2003 ( Amendment No. 1 );
WHEREAS, on April 23, 2004, the Company and certain shareholders entered into an investment agreement (the 2004 Investment Agreement ), pursuant to which the Company sold to such shareholders senior secured convertible notes of the Company in the aggregate principal amount of 1,023,250 euros, convertible into shares of 2002 Series A Preferred Stock, and in connection therewith, certain technical amendments were effected to the 2002 Shareholders Agreement pursuant to Amendment No. 2 to Amended and Restated Shareholders Agreement dated April 23, 2004 ( Amendment No. 2 );
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WHEREAS, on February 14, 2006, the Company and certain shareholders entered into an investment agreement (the 2006 Investment Agreement ), pursuant to which the Company sold to such shareholders senior secured convertible notes of the Company in the aggregate principal amount of 7,000,000 euros, convertible into shares of 2002 Series A Preferred Stock, and in connection therewith, certain technical amendments were effected to the 2002 Shareholders Agreement pursuant to Amendment No. 3 to Amended and Restated Shareholders Agreement dated February 14, 2006 ( Amendment No. 3 ; together with Amendment No. 1 and Amendment No. 2, the Prior Amendments ; and the 2002 Shareholders Agreement, as amended by the Prior Amendments, the First Amended and Restated Shareholders Agreement );
WHEREAS, in June 2007 all of the shareholders who had elected to enter into the 2003 Investment Agreement, the 2004 Investment Agreement and/or the 2006 Investment Agreement, have elected to convert into shares of 2002 Series A Preferred Stock the aggregate principal amount of all outstanding senior secured convertible notes of the Company issued pursuant to the 2003 Investment Agreement, the 2004 Investment Agreement and the 2006 Investment Agreement, as well as all of the accrued but unpaid interest on those senior secured convertible notes;
WHEREAS, as a result of the conversion of the outstanding senior secured convertible notes of the Company into shares of 2002 Series A Preferred Stock, the aggregate amount for which the holders of 2002 Series A Preferred Stock are deemed to have purchased shares of 2002 Series A Preferred Stock has consequently increased to 34,807,841.40 euros (the 2002 Series A Preferred Stock Purchase Price );
WHEREAS, the capitalization of the Company as of the date hereof, calculated on a Fully Diluted Basis is set forth in Exhibit A hereto;
WHEREAS, the Ordinary Shares held by the Stichting pursuant to the Stock Option Plan referred to in Section 5.10 of this Agreement are being held or will be held, as the case may be, for the purpose of issuing depositary receipts ( certificaten ) for such Ordinary Shares to those entitled to such depositary receipts under the Stock Option Plan;
WHEREAS, the parties on 23 August 2007 entered into the Second Amended and Restated Shareholders Agreement to provide for (i) certain restrictions on the transfer of equity securities in the Company held by the Shareholders, (ii) certain matters relating to the management of the Company, (iii) certain matters relating to an exit from the Shareholders respective investments in the Company, (iv) the incorporation into one document of the Prior Amendments and the updating of certain provisions in light of Company developments and (v) certain other matters set forth herein;
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WHEREAS, the parties on 27 November 2007 entered into the Third Amended and Restated Shareholders Agreement to provide for updates on certain provisions in order to (i) increase the efficiency of the management of the Company; and (ii) improve the Companys ability to attract and retain key employees;
WHEREAS, the parties on 28 July 2008 entered into the Fourth Amended and Restated Shareholders Agreement to provide for an update on one provision in order to increase the efficiency of the management of the Company;
WHEREAS, the parties wish to enter into this Fifth Amended and Restated Shareholders Agreement to further increase the efficiency of the management of the Company; and
WHEREAS, a glossary of defined terms is attached hereto as Exhibit B .
NOW THEREFORE, in consideration of the premises, mutual agreements, covenants and representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
SECTION 1
GENERAL RESTRICTIONS ON TRANSFER
OF EQUITY AND DEBT SECURITIES
1.1 | General prohibition. |
a. | No Shareholder may, directly or indirectly, sell, assign, transfer, hypothecate, pledge or otherwise encumber or dispose of, by operation of law or otherwise (collectively, transfer ) any Shares (or rights to receive Shares) or Warrants now or hereafter acquired by such Shareholder, or any interest therein, except as specifically required or permitted by the Articles of Association, this Agreement or if consented to in writing by (i) Shareholders holding a majority or more of the issued and outstanding Shares, in connection with a transfer of Ordinary Shares (or rights to receive Ordinary Shares) or Warrants, or any interest therein, and (ii) holders of 2002 Series A Preferred Stock holding a majority or more of the issued and outstanding 2002 Series A Preferred Stock, in connection with a transfer of 2002 Series A Preferred Stock or any interest therein. |
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b. | In addition to the restrictions on transfer contained in the Articles of Association and this Agreement, no Shareholder shall transfer any Shares (or rights to receive Shares) or Warrants to any Person, including any Shareholder, and the Company shall not issue any Shares or other equity securities to any Person, including any Shareholder, unless the transferee of such Shares (or rights to receive Shares) or Warrants, or the Person to whom Shares or equity securities are issued, as the case may be, shall have executed and delivered to the other parties hereto, as a condition to such Persons acquisition of the relevant Shares (or rights to receive Shares), Warrants or other equity securities, an appropriate written instrument confirming that such Person takes such Shares (or rights to receive Shares), Warrants or other equity securities, subject to all of the terms and conditions of this Agreement. |
c. | Any Person to whom a Shareholder transfers any of such Shareholders Shares (or rights to receive Shares) or Warrants in accordance with the provisions of this Agreement shall succeed to the rights and obligations of such Shareholder hereunder insofar as such rights and obligations relate to the Shares (or rights to receive Shares), and Warrants of such transferee. |
d. | Unless a transfer or issuance of Shares (or rights to receive Shares), Warrants or other equity securities is being effected pursuant to an effective registration statement under the U.S. Securities Act and is accompanied by a prospectus approved by the Netherlands Authorities for the Financial Markets in accordance with the Wet op het financieel toezicht (the Dutch Securities Act ), such transfer or issuance may not be effected until the Company receives either: (i) one or more opinions of counsel reasonably satisfactory to the Company to the effect that such transfer or issuance is covered by an effective registration statement or exempt from the registration requirements of the U.S. Securities Act and the prospectus delivery requirements of the Dutch Securities Act; or (ii) other evidence satisfactory to the Company in its sole discretion that such transfer or issuance is exempt from such requirements. |
e. | Upon completion of any transfer permitted or required hereunder, the transferring Shareholder (if such Shareholder no longer holds any Shares (or rights to receive Shares) or Warrants) shall cease to have any rights hereunder and shall be released from all obligations hereunder, except for rights, obligations or liabilities hereunder that accrued, arose out of or related to events occurring on or conditions existing prior to the date of such transfer. |
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1.2 | Permitted Affiliate and Related Party Transfers . |
Each Shareholder that is not an individual (other than the Stichting) may transfer any or all of such Shareholders Shares (or rights to receive Shares) or Warrants, without being subject to any of the restrictions or requirements set forth in this Agreement, except for the provisions of Sections 1.1.b. and 1.1.c, to such Shareholders (a) Affiliates and (b) direct partners and Indirect Limited Partners (collectively, Partners ). In addition to the foregoing;
(i) a Shareholder that is an individual may transfer such Shareholders Shares or Warrants to any Person by operation of law upon such Shareholders death, pursuant to a will ( testament ) or by intestacy;
(ii) the Stichting may transfer Shares to the Company pursuant to article 7, paragraph 3, of the Administratie voorwaarden Aandelen InterXion Holding B.V., dated August 23, 1999 (the Administration Conditions ); and
(iii) Paribas may transfer economic (but not legal) ownership of all of the Shares and Warrants held by it to its employees and advisors.
In the case of clauses (i) and (ii) above, without being subject to any of the restrictions or requirements set forth in this Agreement, except for the Documentary Requirements and the provisions of Sections 1.1.b. and 1.1.c., each Shareholder covenants that following any permitted transfer of Shares or Warrants to an Affiliate, it will not cause such Affiliate to cease being an Affiliate of the Shareholder, unless such Affiliate first transfers the Shares or Warrants back to the Shareholder or another of its Affiliates. In addition, each Shareholder covenants that it will vote in favor of any transfer contemplated by this Section 1.2 and will cause any member of the Supervisory Board nominated by it to vote in favor of any transfer contemplated by this Section 1.2.
1.3 | Right of first refusal. |
a. |
Ordinary Shares . Except with respect to transfers otherwise permitted by this Agreement, if any Shareholder holding Ordinary Shares receives an offer (an Offer ) from a bona fide third party (the Offeror ) to purchase Ordinary Shares owned by such Shareholder, which Offer such Person (the Selling Shareholder ) is willing to accept, the Selling Shareholder shall afford a right of first refusal to the non-selling Shareholders of the same series and to all holders of 2002 Series A Preferred Stock (collectively, the non-Selling Company Shareholders ) by giving written notice to the non-Selling Company Shareholders accompanied by a detailed description of the terms and conditions and a copy of any documents relating to the proposed sale (an Offer Notice ) not less than thirty (30) days prior to such proposed sale. The Offer Notice shall specify the interest which the Selling Shareholder proposes to sell (the Offered Shares ) and the material terms of the |
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proposed transaction, including the identity of the Offeror, the terms of the Offer and the price for the interest. The non-Selling Company Shareholders shall each notify the Selling Shareholder, within fifteen (15) days after receipt of the Offer Notice, whether the non-Selling Company Shareholders desire to purchase all or a portion of the Offered Shares in accordance with the terms of the Offer Notice. If non-Selling Company Shareholders elect to purchase all of the Offered Shares, the Selling Shareholder shall allocate the Offered Shares to the non-selling Company Shareholders who have agreed to buy Offered Shares in proportion to the non-Selling Company Shareholders respective total ownership interests in the Company, calculated on an as converted basis and such sale shall be made at the time, price, and upon the terms specified in the Offer Notice. If the non-Selling Company Shareholders do not elect to purchase all of the Offered Shares, then the Selling Shareholder may sell the Offered Shares to the Offeror on terms no less favorable to the Selling Shareholder than those offered to the non-Selling Company Shareholders. If a non-Selling Company Shareholder makes an election to purchase any Offered Shares within the required period, but fails to consummate the purchase within one (1) week of the date of sale, as set forth in the Offer Notice, then the unsold Offered Shares shall be re-offered to the other non-Selling Company Shareholders in accordance with this Section 1.3.a. If a sale to be made by the Selling Shareholder has not been abandoned and the Offered Shares are not sold to the Offeror by the Selling Shareholder within six (6) months of the date of the Offer Notice, the Selling Shareholder must re-offer the Offered Shares to the non-Selling Company Shareholders in accordance with this Section 1.3.a. |
b. |
2002 Series A Preferred Stock . Except with respect to transfers otherwise permitted by this Agreement, if any holder of 2002 Series A Preferred Stock receives an Offer from an Offeror to purchase shares of 2002 Series A Preferred Stock owned by such holder, which Offer the Selling Shareholder is willing to accept, the Selling Shareholder shall afford a right of first refusal to the non-Selling Company Shareholders by giving written notice to the non-Selling Company Shareholders accompanied by an Offer Notice not less than thirty (30) days prior to such proposed sale. The Offer Notice shall specify the Offered Shares and the material terms of the proposed transaction, including the identity of the Offeror, the terms of the Offer and the price for the interest. The non-Selling Company Shareholders shall each notify the Selling Shareholder within fifteen (15) days after receipt of the Offer Notice, whether the non-Selling Company Shareholders desire to purchase all or a portion of the Offered Shares in accordance with the terms of the Offer Notice. If non-selling Company Shareholders elect to purchase all of the Offered Shares, the Selling Shareholder shall allocate the Offered Shares to the non-Selling Company Shareholders who have agreed to buy Offered Shares in accordance with the priorities set forth in the immediately following sentence, and such sale shall be |
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made at the time, price and upon the terms specified in the Offer Notice. The Offered Shares shall be allocated among electing non-Selling Company Shareholders in the following priority: (i) first , to the other holders of 2002 Series A Preferred Stock pro rata in proportion to the number of shares of 2002 Series A Preferred Stock owned by such electing non-Selling Company Shareholders until the Offered Shares cannot be further allocated to the holders of 2002 Series A Preferred Stock; and (ii) second , to the extent any Offered Shares are not allocated to the holders of 2002 Series A Preferred Stock, to the Ordinary Shareholders pro rata in proportion to the number of Ordinary Shares owned by such electing non-Selling Company Shareholders. If the non-Selling Company Shareholders do not elect to purchase all of the Offered Shares, then the Selling Shareholder may sell the Offered Shares to the Offeror on terms no less favorable to the Selling Shareholder than those offered to the non-Selling Company Shareholders. If a non-Selling Company Shareholder makes an election to purchase any Offered Shares within the required period, but fails to consummate the purchase within one (1) week of the date of sale, as set forth in the Offer Notice, then the unsold Offered Shares shall be re-offered to the other non-Selling Company Shareholders in accordance with this Section 1.3.b. If a sale to be made by the Selling Shareholder has not been abandoned and the Offered Shares are not sold to the Offeror by the Selling Shareholder within six (6) months of the date of the Offer Notice, the Selling Shareholder must re-offer the Offered Shares to the non-Selling Company Shareholders in accordance with this Section 1.3.b. |
1.4 | Tag-along . |
a. |
Ordinary Shares . Except with respect to transfers otherwise permitted by this Agreement and after complying with the provisions of Section 1.3 hereof, if any Shareholder holding Ordinary Shares receives an Offer from an Offeror to purchase Ordinary Shares owned by such Shareholder, which Offer such Selling Shareholder is willing to accept, the Selling Shareholder shall afford the non-Selling Company Shareholders the right to participate in such sale by giving written notice to the non-Selling Company Shareholders accompanied by a detailed description of the terms and conditions (including, without limitation, the price for each Share and the identity of the Offeror) and a copy of any documents relating to the proposed sale (together the Co-Sale Notice ) not less than thirty (30) days prior to such proposed sale. The non-Selling Company Shareholders shall notify the Selling Shareholder within fifteen (15) days after receipt of the Co-Sale Notice whether the non-Selling Company Shareholders desire to participate in the sale of the Ordinary Shares; provided, however, that a non-Selling Company Shareholder must elect to sell at least 50,000 Ordinary Shares (or, if less, all of such non-Selling Company Shareholders Ordinary Shares) in order to participate in a sale under this |
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Section 1.4.a. If non-Selling Company Shareholders elect to participate in the sale of the Ordinary Shares, the Selling Shareholder shall grant to the electing non-Selling Company Shareholders the right to sell to the Offeror such number of Ordinary Shares equal to the total number of Ordinary Shares proposed to be purchased by the Offeror multiplied by a fraction, (i) the numerator of which is the total number of Shares held by the electing non-Selling Company Shareholders and (ii) the denominator of which is (A) the total number of Shares held by the electing non-Selling Company Shareholders plus (B) the total number of Shares held by the Selling Shareholder. The number of Ordinary Shares to be sold among the non-Selling Company Shareholders shall be based on their respective pro rata total ownership interests in the Company, calculated on an as converted basis, and such sale shall be made at the time, price and upon the terms specified in the Co-Sale Notice. If none of the non-Selling Company Shareholders elects to participate in the sale or a non-Selling Company Shareholder makes an election within the required period, but fails to consummate participation in the sale within one (1) week of the date of the sale, as set forth in the Co-Sale Notice, then the Selling Shareholder may sell the Ordinary Shares to the Offeror on terms no more favorable to the Selling Shareholder than those offered to the non-Selling Company Shareholders. If a sale to be made by the Selling Shareholder has not been abandoned and the Offered Shares are not sold to the Offeror by the Selling Shareholder within six (6) months of the date of the Co-Sale Notice, the Selling Shareholder must re-offer the right to the non-Selling Company Shareholders to participate in such sale in accordance with this Section 1.4.a. |
b. |
2002 Series A Preferred Stock . Except with respect to transfers otherwise permitted by this Agreement, and after complying with the provisions of Section 1.3 above and subject to Section 1.4.a. above and Section 1.4.c. below, if any holder of 2002 Series A Preferred Stock receives an Offer from an Offeror to purchase 2002 Series A Preferred Stock owned by such holder, which Offer such Selling Shareholder is willing to accept, the Selling Shareholder shall afford the non-selling holders of 2002 Series A Preferred Stock (the non-Selling Preferred Shareholders ) the right to participate in such sale by giving written notice to such non-Selling Preferred Shareholders accompanied by a Co-Sale Notice not less than thirty (30) days prior to such proposed sale. The non-Selling Preferred Shareholders shall notify the Selling Shareholder within fifteen (15) days after receipt of the Co-Sale Notice whether the non-Selling Preferred Shareholders desire to participate in the sale of the 2002 Series A Preferred Stock; provided, however, that a non-Selling Preferred Shareholder must elect to sell at least 50,000 shares of 2002 Series A Preferred Stock (or, if less, all of such non-Selling Preferred Shareholders shares of 2002 Series A Preferred Stock) in order to participate in a sale under this Section 1.4.b. If non-Selling Preferred Shareholders elect to participate in the sale of the shares of 2002 Series A Preferred |
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Stock, the Selling Shareholder shall grant to the electing non-Selling Preferred Shareholders, the right to sell to the Offeror such number of shares of 2002 Series A Preferred Stock equal to the total number of shares of 2002 Series A Preferred Stock proposed to be purchased by the Offeror multiplied by a fraction, (i) the numerator of which is the total number of shares of 2002 Series A Preferred Stock held by the electing non-Selling Preferred Shareholders and (ii) the denominator of which is (A) the total number of shares of 2002 Series A Preferred Stock held by the electing non-Selling Preferred Shareholders plus (B) the total number of shares of 2002 Series A Preferred Stock held by the Selling Shareholder. The number of shares of 2002 Series A Preferred Stock to be sold among the non-Selling Preferred Shareholders shall be based on their respective pro rata total ownership interests of the 2002 Series A Preferred Stock and such sale shall be made at the time, price and upon the terms specified in the Co-Sale Notice. If none of the non-Selling Preferred Shareholders elects to participate in the sale or a non-Selling Preferred Shareholder makes an election within the required period, but fails to consummate participation in the sale within one (1) week of the date of the sale, as set forth in the Co-Sale Notice, then the Selling Shareholder may sell the 2002 Series A Preferred Stock to the Offeror on terms no more favorable to the Selling Shareholder than those offered to the non-Selling Preferred Shareholders. If a sale to be made by the Selling Shareholder has not been abandoned and the Offered Shares are not sold to the Offeror by the Selling Shareholder within six (6) months of the date of the Co-Sale Notice, the Selling Shareholder must re-offer the right to the non-Selling Preferred Shareholders to participate in such sale in accordance with this Section 1.4.b. |
c. |
Special Tag Along . If holders of shares of 2002 Series A Preferred Stock (the Preferred Selling Shareholders ) receive an Offer from an Offeror to purchase Shares owned by such holders in a transaction or series of related transactions, which Offer such Preferred Selling Shareholders are willing to accept, the Preferred Selling Shareholders shall, subject to the proviso in the immediately following sentence, afford the non-selling Company Shareholders the right to participate in such sale by giving written notice to such non-Selling Company Shareholders accompanied by a Co-Sale Notice not less than thirty (30) days prior to such proposed sale. The non-Selling Company Shareholders shall notify the Preferred Selling Shareholders within fifteen (15) days after receipt of the Co-Sale Notice whether the non-Selling Company Shareholders desire to participate in the sale of Shares; provided, however, that a non-Selling Company Shareholder holding only Ordinary Shares may participate in a sale under this Section 1.4.c. only if and to the extent net proceeds in respect of the sale of 2002 Series A Preferred Stock exceed the 2002 Series A Liquidation Price relating to all shares of 2002 Series A Preferred Stock. If non-Selling Company Shareholders holding only Ordinary Shares are not permitted to participate in a sale as a result of the foregoing proviso, then the provisions of Section |
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1.4.b. above shall apply to the sale. If non-Selling Company Shareholders holding only Ordinary Shares are permitted to participate and elect to participate in the sale of the Shares, the Preferred Selling Shareholders shall grant to the electing non-Selling Company Shareholders the right to sell Shares to the Offeror which shall be allocated among the Preferred Selling Shareholders and the electing non-Selling Company Shareholders in the following priority: (i) first , the Preferred Selling Shareholders and the other electing holders of 2002 Series A Preferred Stock shall be entitled to sell their shares of 2002 Series A Preferred Stock until such holders receive the full 2002 Series A Liquidation Price in respect of their shares of 2002 Series A Preferred Stock; and (ii) thereafter , in the event any additional Shares to be sold to the Offeror remain unsold, the holders of Ordinary Shares and the holders of 2002 Series A Preferred Stock shall be entitled to sell their Shares on a pro rata basis based on the number of outstanding Shares owned by such holders on an as converted basis. Such sale shall be made at the time, price and upon the terms specified in the Co-Sale Notice. If none of the non-Selling Company Shareholders elects to participate in the sale or a non-Selling Company Shareholder makes an election within the required period, but fails to consummate participation in the sale within one (1) week of the date of the sale, as set forth in the Co-Sale Notice, then the Preferred Selling Shareholder(s) may sell the Shares to the Offeror on terms no more favorable to the Preferred Selling Shareholders than those offered to the non-Selling Company Shareholders. If a sale to be made by the Preferred Selling Shareholders has not been abandoned and the Offered Shares are not sold to the Offeror by the Preferred Selling Shareholder(s) within six (6) months of the date of the Co-Sale Notice, the Preferred Selling Shareholders must re-offer the right to the non-Selling Company Shareholders to participate in such sale in accordance with this Section 1.4.c. The provisions set forth in this Section 1.4.c. shall terminate upon the closing of an initial public offering of Shares by the Company. |
1.5 | Waiver of transfer provisions in the Articles of Association . |
The Shareholders hereby waive applicability of article 11 of the Articles of Association that could be invoked to delay or prevent any transfer of Shares which is required or permitted to be made by this Agreement and each Shareholder agrees to execute such further waivers of such provisions as shall be necessary as a condition to effecting any such transfer. Each Shareholder hereby irrevocably appoints the Company as his or its attorney-in-fact for the purpose of executing any and all waivers which such Shareholder is required to execute pursuant to the preceding sentence.
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SECTION 2
TRANSFERS; CERTAIN PROVISIONS
APPLICABLE TO CONDER AND VAN DEN DRIES; HOLDING COMPANY
SHAREHOLDERS, VAN DUYN AND VAN DE BRANDHOF
2.1. | Prohibitions on transfer at holding company level . |
a. | Until the earlier to occur of consummation of the Companys (i) IPO or, if applicable, the expiration of a lock-up period in connection with such IPO, or (ii) Sale; |
(a) | each Holding Company Shareholder may not issue shares in its capital, or grant rights to acquire shares in its capital, to any Person; and |
(b) | all of the issued and outstanding shares in the capital of such Holding Company Shareholder shall not be transferred to any Person. |
b. | Without prejudice to the Sections 1.2 or 2.1.a, and provided that the Beneficial Owner of a Holding Company Shareholder at all times maintains management and voting control of the Holding Company Shareholder; |
(a) | each Holding Company Shareholder may, at any time, issue shares in its capital or grant rights to acquire shares in its capital to any Person; and |
(b) | each shareholder of a Holding Company Shareholder may directly or indirectly transfer up to a maximum of 49.9% of the shares in the capital of the Holding Company Shareholder to one or more Affiliates, provided that the Affiliate(s) agree(s) in writing to be bound by all of the provisions of this Agreement (including this Section 2.1.b.). |
2.2 | Guarantee by Van den Dries . |
Van den Dries hereby irrevocably and unconditionally guarantees to the other parties hereto the due and punctual performance by Conder, or an Affiliate of Conder, of all of the obligations of Conder under this Agreement.
2.3 | Draft European Telecom Exchange . |
Van den Dries developed a draft for a European Telecom eXchange and confirms that he has transferred to the Company all global exclusive rights in this matter and in particular, the rights to the name InterXion, and, insofar as necessary, confirms that he has transferred all such rights to the Company, the latter having accepted said transfer, and van den Dries confirms to not have provided rights in such property to any Person, directly or indirectly.
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2.4 | Guarantee by van Duyn and van de Brandhof . |
Van Duyn hereby unconditionally and irrevocably guarantees to the other parties hereto the due and punctual performance by van Duyn B.V. of all of the obligations of van Duyn B.V. under this Agreement. Van de Brandhof hereby unconditionally and irrevocably guarantees to the other parties hereto the due and punctual performance by Beauchamp of all of the obligations of Beauchamp under this Agreement.
SECTION 3
CERTAIN PROVISIONS RELATING TO THE STICHTING
3.1 | Management Board of Stichting . |
The Stichting shall continue to be managed in accordance with the terms as set forth in the Stichtings articles of association. The chairman of the Stichting shall possess a tie-breaking vote in the event of a deadlock between himself and the other member of the management board of the Stichting. Notwithstanding the foregoing, the Stichtings management shall unanimously pass certain resolutions, including those that determine how the Stichting should vote its shares.
3.2 | Transfer and Voting of Shares by the Stichting . |
Except as otherwise provided in Section 3.3, the Stichting shall not transfer any Shares held by it, except for transfers of Shares to the Company pursuant to article 7, paragraph 3, of the Administration Conditions.
3.3 | Termination of Administration by the Stichting . |
The Stichting may not terminate its administration of the Shares held by it ( decertificering ) or in connection with any such termination of administration, transfer any Shares held by it to any holder of depositary receipts issued by it, except in conjunction with, and substantially simultaneously with, the consummation of (i) an IPO or (ii) a Sale.
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SECTION 4
[Intentionally omitted in the agreement of 27 August 2002]
SECTION 5
MANAGEMENT OF THE COMPANY
5.1 | The Supervisory Board. |
a. | Election . |
i. | The Company shall at all times have a supervisory board, which shall consist of up to five (5) persons (the Supervisory Board ). Baker shall be entitled to nominate three (3) members, one (1) of which shall be nominated by Lamont Finance N.V. and two (2) of which shall be nominated by Chianna Investment N.V.; Parc-IT shall be entitled to nominate one (1) member; and the meeting of the holders of Ordinary Shares shall be entitled to nominate one (1) member. Each of the Shareholders agrees to vote its Shares in favor of such nominations. At Bakers request, to ensure that the Company remains a foreign private issuer for purposes of U.S. federal securities laws at all times, a majority of the Supervisory Board shall be comprised of persons who are not U.S. citizens or residents. Baker shall have the priority right to nominate U.S. citizens or residents to become members of the Supervisory Board before other Shareholders who have nomination rights under this Section 5.1.a.i. The Supervisory Board shall appoint a member of the Supervisory Board nominated by Baker as chairman of the Supervisory Board (the Chairman ). In the event that any vote by the Supervisory Board results in a tie, the Chairman shall have the right to cast the deciding vote. |
ii. | Nomination rights of a specific Shareholder, as set forth in Section 5.1.a.i., shall lapse when such Shareholder is no longer a Shareholder of the Company. The Shareholders shall vote in favor of the Articles of Association to be amended accordingly. |
b. | No Employment Relationship . None of the members of the Supervisory Board shall be employed by the Company or any of its subsidiaries. |
c. | Language; Minutes; Meetings . The Supervisory Board shall meet as often as it deems appropriate. The working language for meetings of the Supervisory Board shall be English and written minutes shall be kept in English. Meetings of the Supervisory Board may be held telephonically or in person. |
d. | Quorum . A meeting of the Supervisory Board shall only be quorate if a majority of the members of the Supervisory Board is present. |
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e. | Removal . The Shareholders shall, from time to time, to the extent necessary, vote their Shares with respect to the removal of members of the Supervisory Board in such manner as the Shareholder or Shareholders who nominated such member of the Supervisory Board shall direct. Each of the Shareholders agrees to direct any such action to the other Shareholders only with respect to members of the Supervisory Board nominated by any of them. |
f. | [Intentionally omitted in the agreement of 23 August 2007.] |
g. | Compensation . Each ordinary member of the Supervisory Board shall be entitled to compensation at the rate of 15,000 euros per year. The Chairman shall be entitled to compensation at the rate of 25,000 euros per year. These compensation amounts shall apply for the fiscal year 2006 onwards and can thereafter be adjusted by a decision of the meeting of the holders of 2002 Series A Preferred Stock. Each member of the Supervisory Board shall be reimbursed in accordance with the Companys payment policy for all reasonable expenses (including, but not limited to, travel and out-of-pocket expenses) incurred by such member in connection with serving on the Supervisory Board. In addition to the compensation pursuant to this section, each member of the Supervisory Board may also from time to time be entitled to receive options pursuant to Section 5.10. |
5.2 | Management Board . |
a. | Election . Each member of the Management Board shall be elected by the general meeting of shareholders of the Company from a binding nomination of the meeting of the holders 2002 Series A Preferred Stock. |
b. | Removal; Suspension . A member of the Management Board may be removed or suspended by the general meeting of shareholders of the Company. In the event that a member of the Management Board is removed or suspended without the prior proposal of the meeting of the holders of 2002 Series A Preferred Stock, the shareholders resolution shall require a two-thirds (2/3) majority representing more than half of the issued capital of the Company. |
c. | Language; Meetings . The working language of the Management Board shall be English. If the Company has more than one (1) Managing Director, the Management Board shall meet at least once a week. Written minutes of such meetings shall be kept in English. These meetings may be held telephonically as well as in person. |
d. | Supervisory Board Meetings . The Management Board shall meet with the Supervisory Board at least quarterly, or more often as may be requested by the Supervisory Board. |
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5.3 | Committees. |
a. | Representation . Baker shall be entitled to representation on any committee of the Company (including, without limitation, audit, compensation and nomination committees) created by the Supervisory Board, whether existing as of the date hereof or established hereafter, and if requested in writing by Baker to the Company, on any such committees of each of its subsidiaries. |
b. | Written Rules . The Supervisory Board shall, as soon as practicable after the establishment of a committee of the Company, adopt written procedural rules or regulations for such committee. |
5.4 | Business Plan . |
a. | Effect of Plan . The Company shall at all times maintain a rolling three-year strategic plan (the Strategic Plan ). The Company shall for each fiscal year maintain an annual budget which will be based on the then applicable Strategic Plan and on the plans for the current fiscal year (the Annual Budget ). The business of the Company and its subsidiaries shall at all times be managed and operated in accordance with the Annual Budget. |
b. | Presentation Annual Budget and Strategic Plan . The Management Board shall, not later than forty (40) days before the end of each fiscal year provide to the Supervisory Board for its approval (i) an Annual Budget for the coming fiscal year; and (ii) an update of the Strategic Plan incorporating the coming fiscal year and the two subsequent fiscal years. Such update shall include a reconciliation between the Strategic Plan as presented for the previous fiscal year and this update. |
c. | [Intentionally omitted in agreement of 23 August 2007] |
d. | Timing . The Management Board and the Supervisory Board shall each use their best efforts to have each Strategic Plan and each Annual Budget (collectively the Business Plan ) approved no later than two (2) weeks prior to the beginning of each fiscal year. |
e. | [Intentionally omitted in the agreement of 23 August 2007] |
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5.5 | Consent Rights of the Supervisory Board . |
The Company shall not, nor will it permit any of its subsidiaries, to take any actions that are not in accordance with authorization procedures as approved by the Supervisory Board or any of the following actions (whether individually or part of a series of related transactions), unless such actions have been approved in advance by the Supervisory Board:
a. | Except as contemplated by the Business Plan, acquisitions or dispositions of assets having a value in any calendar year in excess of 500,000 euros, in the aggregate on a consolidated basis; |
b. | Except as contemplated by the Business Plan, incurrence or assumption of indebtedness or lease obligations, including entering into or amending any credit, loan or debt facility, in any calendar year in the aggregate on a consolidated basis in excess of 1,000,000 euros, including funded debt and guarantees, or entering into any commitment to incur or assume any such indebtedness or lease obligations; |
c. | [Intentionally omitted in the agreement of 23 August 2007] |
d. | Issuance of new Shares (or rights to acquire shares) of the Company or delegation of the right to issue Shares in the capital of the Company, and to exclude applicability of preemptive rights with respect to such issuance, to any other body than the general meeting of shareholders, or the issuance of any debt security of the Company or the issuance of equity or debt security of any subsidiary; |
e. | Engaging in any new line of business other than as conducted on the date hereof or as contemplated by the Business Plan; |
f. | Except as contemplated by the Investment Documents, engaging in any transaction with (i) any Shareholder or any Affiliate of a Shareholder or (ii) any Affiliate of the Company, including the Companys direct and indirect subsidiaries, unless on an arms length basis and on commercially reasonable terms; |
g. | Except as contemplated by the Business Plan, the pledge of, or the placing of other encumbrances on, any of the shares of the Companys subsidiaries; |
h. | Except as contemplated herein, the complete or partial transfer to third parties of control over the activities of the Company or any of its subsidiaries; |
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i. | Acquisition of interests in, or entering into joint ventures or partnerships with other enterprises or companies; |
j. | Establishment of any subsidiary, branch or representative office, except as contemplated by the Business Plan; |
k. | Initiating or settling litigation or other claims, in each case other than suits involving an amount less than 250,000 euros; |
l. | Except as contemplated by the Business Plan or by business cases as approved by the Supervisory Board, entering into or terminating any contract or series of related contracts involving the expenditure of more than 1,000,000 euros by the Company or any subsidiary; |
m. | Exercise of voting rights with respect to shares held by the Company in any subsidiary of the Company with respect to any matter set forth in this Section 5.5 or Section 5.6; |
n. | Selection or appointment of any agent or manager in any debt or equity offering of the Company or any subsidiary; |
o. | Declaration and payment of interim dividends or other distributions with respect to shares in the Companys capital; |
p. | Subject to Dutch law, approval and dismissal of the Companys independent accountants; and |
q. | Hiring, firing or changing the compensation of any employee of the Company that reports directly to the Chief Executive Officer. |
5.6 | Consent rights of the holders of 2002 Series A Preferred Stock |
The Company shall not take any of the actions set forth below (whether individually or as part of a series of related transactions) without the prior approval of the meeting of the holders of 2002 Series A Preferred Stock:
a. | Issuance of new Shares (or rights to acquire shares) of the Company or delegation of the right to issue Shares in the capital of the Company, and to exclude applicability of preemptive rights with respect to such issuance, to any other body than the general meeting of shareholders; |
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b. | Merger, consolidation, change of control or other similar type of business combination involving the Company and any other company; |
c. | Demerger or spin-off involving the Company or any of its assets; |
d. | Dispositions of assets having a value in any calendar year in excess of 10,000,000 euros, in the aggregate on a consolidated basis; |
e. | Incurrence or assumption of indebtedness or lease obligations, including entering into any credit, loan or debt facility, in any calendar year in the aggregate on a consolidated basis in excess of an amount of 120,000,000 euros, including funded debt and guarantees, or entering into any commitment to incur or assume any such indebtedness or lease obligations, provided that for the calculation of the aforementioned amount, refinancing arrangements of existing indebtedness or lease obligations will not be taken into consideration; |
f. | Dissolution of or winding up of the Company or other corporate reorganization or transaction which results in the sale of all or substantially all of the Companys assets on a consolidated basis; |
g. | Declaration of dividends or other distributions and establishment of reserves not required to be maintained by the Articles of Association or by law; |
h. | [Intentionally omitted in the agreement of 27 August 2002] |
i. | [Intentionally omitted in the agreement of 23 August 2007] |
j. | Except as contemplated by the Investment Documents, engaging in any transaction with (i) any Shareholder or any Affiliate of a Shareholder or (ii) any Affiliate of the Company, including the Companys direct and indirect subsidiaries, unless on an arms length basis and on commercially reasonable terms; |
k. | Except as contemplated by the Investment Documents, issuance of shares in the Companys capital or the granting of rights to acquire Shares in the Companys capital and exclusion of preemptive rights with respect to (i) the issuance of Shares in the Companys capital or (ii) the granting of rights to acquire Shares in the Companys capital; |
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24 December 2009
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l. | Except as contemplated by the Investment Documents, redemption or repurchase of any Shares in the Companys capital or any other reduction of the Companys share capital; |
m. | Initiating or settling litigation or other claims, in each case other than suits involving an amount less than 10,000,000 euros; and |
n. | [Intentionally omitted in the agreement of 23 August 2007] |
o. | [Intentionally omitted in this agreement] |
p. | Filing of any registration statement with respect to a primary or secondary debt or equity offering of the Company or any subsidiary. |
q. | [Intentionally omitted in the agreement of 23 August 2007] |
r. | [Intentionally omitted in the agreement of 23 August 2007] |
s. | [Intentionally omitted in the agreement of 23 August 2007] |
5.7 | Articles of association of the Companys subsidiaries . |
The Company covenants that it shall take all necessary actions to continue to harmonize the articles of association or other governing documents of all of its direct or indirect current and future subsidiaries (whether Dutch or foreign), as promptly as practicable, to provide that none of the actions listed in Section 5.5. or Section 5.6 may be taken by such subsidiary without the written consent of the general meeting of shareholders or the supervisory board. The Company covenants to take such action at the time of making additional proposed amendments to the articles of association or governing documents of such subsidiaries. The Company further covenants that between the date hereof and the effective date of any such amendments, unless otherwise approved by the meeting of the holders of 2002 Series A Preferred Stock, the Company shall not cause any of its subsidiaries to take actions which would otherwise require shareholder or Supervisory Board approval under the amended articles of association of each subsidiary, as contemplated by this Section 5.7.
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5.8 | Financial statements . |
a. | The Company shall deliver to the Supervisory Board: |
(i) | as soon as available and in any event within ninety (90) days after the end of each fiscal year, audited consolidated statements of income, retained earnings and changes in financial position of the Company and its consolidated subsidiaries for such year and the related balance sheet as at the end of such year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, prepared in accordance with U.S. GAAP (with a reconciliation to IFRS) or IFRS, consistently applied; |
(ii) | in the time frame agreed upon with the Supervisory Board, unaudited consolidated statements of income, retained earnings and changes in financial position of the Company and its consolidated subsidiaries for such month or such fiscal quarter, as the case may be, and the related balance sheet as at the end of such month or such fiscal quarter, as the case may be, prepared in accordance with U.S. GAAP (with a reconciliation to IFRS) or IFRS, consistently applied; and |
(iii) | from time to time, such other information regarding the business, affairs or financial conditions of the Company as the Supervisory Board may reasonably request. |
b. | The Company shall also deliver to a Shareholder the financial statements referred to in Sections 5.8. a.i. and 5.8. a.ii as soon as practicable following receipt of a written request from a Shareholder. |
5.9 | Access to other information/Tax . |
a. | Subject to the prior approval of the Management Board and the Chairman, each member of the Supervisory Board shall have the right, at the Companys expense, to visit and inspect the properties of the Company and its subsidiaries and to examine and audit the books and records of the Company and its subsidiaries (and to make copies thereof or extracts therefrom) and to discuss the respective affairs, finances and accounts of the Company and its subsidiaries with the respective directors and officers of the Company and its subsidiaries. The Company and the Management Board will give such assistance as any member of the Supervisory Board may reasonably request in connection with the exercise of his rights under this Section 5.9. |
b. |
The Company shall promptly notify each Shareholder if the Company or any of its subsidiaries is treated as a controlled foreign corporation ( CFC ) or a passive foreign investment company ( PFIC ) or a foreign personal holding company ( FPHC ), in each case, within the meaning of the U.S. Internal |
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Revenue Code of 1986, as amended (the IRC ). At the request of any Shareholder, the Company shall, at the Companys expense, provide such Shareholder on a timely basis with any information such Shareholder reasonably requests to enable such Shareholder to timely and properly make an election under Section 1295 of the IRC for the Company or any of its subsidiaries or to comply with the reporting requirements relating to such an election, and any other information as may be requested by any Shareholder for purposes of completing United States federal, state or local income tax returns, including, without limitation, with respect to the status as a CFC or a FPHC of the Company or any of its subsidiaries. |
c. | PFIC/CFC . In the event that the Company or any of its subsidiaries is classified as a PFIC, the Company will provide all Shareholders with the information needed to report income and gain pursuant to an election to treat the Company or any of its subsidiaries as a qualified electing fund (a QEF ). The Company agrees to use its reasonable best efforts to avoid being classified as a PFIC. Although the Company also agrees to use its reasonable best efforts to avoid becoming a CFC in the future, the Shareholders acknowledge that such determination depends upon shareholder voting and value percentages, which are beyond the Companys control. |
d. | Check-the-box-elections . The Company has made an election with respect to all of its subsidiaries, except those for which such an election is not available, on IRS Form 8832, to treat its subsidiaries (now and hereinafter created) as disregarded entities for U.S. federal income tax purposes. The Company agrees not to form any subsidiaries for which such an election cannot be made unless: (a) consent is obtained from a majority of the 2002 Series A Preferred Stock; or (b) the country in which the subsidiary is formed does not offer an entity with limited liability for which such an election can be made. |
e. | Dividends . As soon as practicable after the Initial Closing Date, the Company and each Shareholder shall use best efforts to take all steps necessary, including making amendments to the Articles of Association proposed by the requisite Shareholders (if permitted under applicable law), to timely qualify the dividends payable on 2002 Series A Preferred Stock as a return of capital or other distribution not subject to Dutch withholding tax. |
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5.10 | Stock Option Plan . |
a) | The Company shall at all times maintain in force a stock option plan (the Stock Option Plan ). All amendments or changes to the Stock Option Plan shall require the approval of the Supervisory Board. The Shares covered by the Stock Option Plan shall continue to be held by the Stichting and options to acquire such Shares may continue to be granted to existing and new employees of the Company and its subsidiaries and to advisors and members of the Supervisory Board of the Company. |
b) | The Stock Option Plan shall continue to provide for the grant by the Supervisory Board of options thereunder for depositary receipts for Ordinary Shares at an exercise price for each such share represented by such depositary receipt as set by the Supervisory Board. |
c) | In case an option is granted at an exercise price which is below the Fair Market Value of an Ordinary Share, the exercise price shall not be below the Initial 2002 Series A Conversion Price. |
d) | The maximum number of options to be issued will be such that following the date hereof, the total number of outstanding or reserved options and the number of shares issued pursuant to the exercise of options shall represent no more than 14% of the total number of Shares on a Fully Diluted Basis at the date this Agreement is entered into. |
e) | Options to acquire securities of the Company shall not be granted by the Company: |
(i) | to any Supervisory Board member without the prior approval of the holders of at least a majority of the 2002 Series A Preferred Stock; and |
(ii) | to any employee of or any advisor to the Company without the prior approval of the Supervisory Board. |
5.11 | Full -time involvement of Chief Executive Officer; Non-compete . |
The Chief Executive Officer shall, while he is employed by the Company and/or any of its subsidiaries, perform his obligations under such employment arrangement(s) on a full-time basis, and shall not, without the prior written consent of the Supervisory Board engage in any other paid or non-paid activity.
The Company shall ensure that insofar as allowed under mandatory requirements of applicable law:
(i) each employee of the Company and its subsidiaries shall have a contract with the Company containing a covenant not to compete in the form of Schedule 5.11.(i) hereto;
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(ii) each employee of the Company and its subsidiaries shall have entered into a contract containing a provision regarding ownership of intellectual property and inventions in the form of Schedule 5.11.(ii) ; and
(iii) no officer or managing director of any of the Companys subsidiaries shall be a member of a supervisory or an advisory board or similar boards of a Person without the prior approval of the Supervisory Board.
5.12 | Insurance . |
The Company shall continue to maintain insurance for the Company, members of the Supervisory Board and Management Board, its officers and managing directors of its subsidiaries of the types normally maintained by companies operating similar businesses as the Company. As set forth in the Articles of Association, the Company also agrees to indemnify each member of the Supervisory Board and the Management Board to the fullest extent permitted under Dutch law.
5.13 | Financial Controls; Signature Authority . |
All cash not needed for the operation of the Companys business will be:
(i) deposited in a current account at an internationally recognized bank; or
(ii) invested in money market securities (of the type approved by the Supervisory Board) having a maturity that at all times matches the Companys cash flow needs as established pursuant to the Business Plan.
Bank transfers of any kind (including, but not limited to, the current account described in the previous sentence) relating to amounts greater than 100,000 euros (or the equivalent thereof) shall require the signature of at least one of the officers of the Company duly authorized (the Authorized Officers ) pursuant to an authorization document as will be prepared by the Management Board and approved by the Supervisory Board in relation to each fiscal year. The Company covenants to implement a similar requirement for each of its subsidiaries as soon as practicable, but in no event later than thirty (30) days after the date hereof, and with respect to the subsidiaries, any such individual transaction or series of related transactions shall require the signature of both the subsidiarys managing director and an Authorized Officer.
5.14 | Accountants . |
The Shareholders shall exercise their vote such that the independent accountants appointed to audit the Companys annual accounts shall at all times continue to be an international accounting firm.
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5.15 | [ Intentionally omitted in the agreement of 23 August 2007 ] |
5.16. | Amendment of the Articles of Association . |
No amendment to the Articles of Association shall be approved by the general meeting of shareholders, unless upon the proposal of the meeting of the holders of 2002 Series A Preferred Stock.
5.17. | [Intentionally omitted in the agreement of 23 August 2007] |
SECTION 6
[Intentionally omitted in the agreement of 23 August 2007]
SECTION 7
[Intentionally omitted in the agreement of 27 August 2002]
SECTION 8
CONVERSION
8.1 | Preferred Stock Conversion Right . |
a. | Right to Convert . A holder of shares of 2002 Series A Preferred Stock may convert such shares into Ordinary Shares at any time in whole or in part at the option of such holder. For the purposes of conversion, each share of 2002 Series A Preferred Stock as of the date hereof has an initial conversion price of 0.20 euro per share (the Initial 2002 Series A Conversion Price ). The Conversion Price for the 2002 Series A Preferred Stock shall initially equal the Initial 2002 Series A Conversion Price. The Initial 2002 Series A Conversion Price shall be divided by its Conversion Price in effect on the Conversion Date to determine the number of Ordinary Shares issuable for each share of 2002 Series A Preferred Stock upon conversion. Immediately following such conversion, the rights of the relevant holder of converted shares of 2002 Series A Preferred Stock as holder shall cease and the Persons entitled to receive Ordinary Shares upon the conversion of the relevant shares of 2002 Series A Preferred Stock shall be treated for all purposes as having become the owners of such Ordinary Shares. |
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b. | Automatic Conversion . Upon (i) the consummation of an IPO or a Sale and (ii) the payment (at the option of a holder of shares of 2002 Series A Preferred Stock in cash or in Ordinary Shares) of all accrued and unpaid dividends as well as of the 2002 Series A Liquidation Price, the Company shall cause the outstanding shares of 2002 Series A Preferred Stock to be automatically converted into Ordinary Shares at the Conversion Price of 2002 Series A Preferred Stock in effect immediately after giving effect to and subject, in all respects, to the consummation of such IPO or Sale. |
Immediately following such conversion, the rights of the holders of converted shares of 2002 Series A Preferred Stock as holders shall cease and the Shareholders entitled to receive Ordinary Shares upon the conversion of shares of 2002 Series A Preferred Stock shall be treated for all purposes as having become the owners of such Ordinary Shares.
c. | Conversion Date . The date on which a holder of 2002 Series A Preferred Stock converts its shares of 2002 Series A Preferred Stock into Ordinary Shares or the date on which shares of 2002 Series A Preferred Stock are automatically converted into Ordinary Shares pursuant to Section 8.1., as the case may be, shall be the Conversion Date . As soon as practicable thereafter, the Company shall register the number of full Ordinary Shares issuable upon the conversion in the shareholders register. |
d. | Fractional Shares . The Company shall not issue fractional Ordinary Shares upon conversion of shares of 2002 Series A Preferred Stock. |
e. | Taxes . If a holder converts shares of 2002 Series A Preferred Stock, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of Ordinary Shares upon the conversion. |
f. | Reservation of Shares; Listing . The Company has reserved and shall continue to reserve out of its authorized but unissued Ordinary Shares, a sufficient number of Ordinary Shares to permit the conversion of the 2002 Series A Preferred Stock in full. All Ordinary Shares that may be issued upon conversion of the 2002 Series A Preferred Stock shall be fully paid and non-assessable. The Company shall endeavor to comply with all securities laws regulating the offer and delivery of Ordinary Shares upon conversion of 2002 Series A Preferred Stock and if Ordinary Shares or ADRs representing such Ordinary Shares are then listed or thereafter become listed on any national securities exchange or automated quotation system, the Company shall use its best efforts to list such Ordinary Shares or ADRs on each such exchange or system on which the Ordinary Shares or ADRs are or become listed, as the case may be. |
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g. | Adjustments to the Conversion Price . If and whenever the Company shall issue or sell, or is, in accordance with Sections 8.1. g.i. through 8.1. g.viii., deemed to have issued or sold, any Ordinary Shares (other than options to acquire Ordinary Shares under the Stock Option Plan and Ordinary Shares issuable upon the exercise of such options that are reserved for issuance as of the date of filing of the deed of amendment to the Articles of Association (the Deed ) as contemplated by the Investment Documents, as long as the exercise price per share of such options is not less than the Fair Market Value per share of the Ordinary Shares on the date of grant of such options) for a consideration per share less than the higher of: |
(1) the Conversion Price in effect immediately prior to the time of such issue or sale; or
(2) the Fair Market Value of the Ordinary Shares determined as of the date of such issue or sale,
then, immediately upon such actual issue or sale, or the date Ordinary Shares are deemed to have been issued or sold pursuant to Section 8.1.g.i. through 8.1.g.viii., as the case may be, the Conversion Price of the 2002 Series A Preferred Stock shall be reduced to whichever of the following Conversion Prices is lower:
a) | the Conversion Price determined by dividing (1) the sum of (x) the product derived by multiplying the Conversion Price in effect immediately prior to such issue or sale by the number of shares of Ordinary Shares Deemed Outstanding immediately prior to such issue or sale, plus (y) the consideration, if any, received by the Company upon such issue or sale, by (2) the number of shares of Ordinary Shares Deemed Outstanding immediately after such issue or sale; or |
b) | the Conversion Price determined by multiplying the Conversion Price in effect immediately prior to such issue or sale by a fraction, the numerator of which shall be the sum of (1) the number of shares of Ordinary Shares Deemed Outstanding immediately prior to such issue or sale multiplied by the Fair Market Value of the Ordinary Shares determined as of the date of such issuance or sale, plus (2) the consideration, if any, received by the Company upon such issue or sale, and the denominator of which shall be the product derived by multiplying the Fair Market Value of the Ordinary Shares by the number of Ordinary Shares Deemed Outstanding immediately after such issue or sale. |
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Notwithstanding the foregoing provisions of this Section 8.1, the issuance of options to acquire Ordinary Shares under the Stock Option Plan with an exercise price that is below Fair Market Value but equal to or greater than the Initial 2002 Series A Conversion Price will not trigger a reduction in the Conversion Price pursuant to the formulas under subparagraph a) and b) above.
Notwithstanding the foregoing provisions of this Section 8.1.g;
(a) if and whenever the Company shall issue or sell, or is, in accordance with Sections 8.1.g.i. through 8.1.g.viii., deemed to have issued or sold, any Ordinary Shares (other than options to acquire Ordinary Shares under the Stock Option Plan and Ordinary Shares issuable upon the exercise of such options that are reserved for issuance as of the date of filing of the Deed as contemplated by the Investment Documents, as long as the exercise price per share of such options is not less than the Fair Market Value per share of the Ordinary Shares on the date of grant of such options) for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issue or sale; and
(b) at such time, Shareholders holding New Warrants are entitled to full-ratchet anti-dilution protection in accordance with article 2(a)(i) or 2(a)(ii) of such New Warrants, then, immediately upon such actual issue or sale, or the date Ordinary Shares are deemed to have been issued or sold pursuant to Section 8.1.g.i. through 8.1.g.viii., as the case may be, the Conversion Price shall be reduced to the lowest price per share for which such Ordinary Shares have been issued or sold (or deemed to have been issued or sold).
For purposes of this Section 8.1., the following subparagraphs g.i to g.viii shall also be applicable:
(i) |
If at any time the Company shall in any manner grant (whether directly or by assumption in a merger or otherwise) any warrants or other rights to subscribe for or to purchase, or any options for the purchase of, Ordinary Shares or any stock or security convertible into or exchangeable for Ordinary Shares (such warrants, rights or options being called Options and such convertible or exchangeable stock or securities being called Convertible Securities ) whether or not such Options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Ordinary Shares are issuable upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities (determined by dividing (A) the total amount, |
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if any, received or receivable by the Company as consideration for the granting of such Options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus, in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (B) the total maximum number of Ordinary Shares issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Conversion Price or Fair Market Value of the Ordinary Shares immediately prior to the time of the granting of such Options, then the total maximum number of Ordinary Shares issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options, shall be deemed to have been issued for such price per share as of the date of granting of such Options or the issuance of such Convertible Securities and (for purposes of determining the number of shares of Ordinary Shares Deemed Outstanding) thereafter shall be deemed to be outstanding. Except as otherwise provided in subparagraph (g)(iii), no adjustment of the Conversion Price shall be made upon the actual issue of Ordinary Shares or of such Convertible Securities upon exercise of such Options or upon the actual issue of such Ordinary Shares upon conversion or exchange of such Convertible Securities, but shall be made only upon the date of such deemed issuance. |
(ii) |
In the event that the Company shall in any manner issue (whether directly or by assumption in a merger or otherwise) or sell any Convertible Securities, whether or not the rights to exchange or convert any such Convertible Securities are immediately exercisable, and the price per share for which Ordinary Shares are issuable upon such conversion or exchange (determined by dividing (A) the total amount received or receivable by the Company as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (B) the total maximum number of Ordinary Shares issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Conversion Price or Fair Market Value of the Ordinary Shares immediately prior to the time of such issue or sale, then the total maximum number of Ordinary Shares issuable upon conversion or exchange of all such Convertible Securities shall be deemed |
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to have been issued for such price per share as of the date of the issue or sale of such Convertible Securities and (for purposes of determining the number of Ordinary Shares Deemed Outstanding) thereafter shall be deemed to be outstanding, provided that: |
(a) except as otherwise provided in subparagraph (g)(iii), no adjustment of the Conversion Price shall be made upon the actual issue of such Ordinary Shares upon conversion or exchange of such Convertible Securities (but shall be made only upon the date of such deemed issuance); and
(b) if any such issue or sale of such Convertible Securities is made upon exercise of any Options to purchase any such Convertible Securities for which adjustments of the Conversion Price have been or are to be made pursuant to other provisions of this paragraph (g); no further adjustment of the Conversion Price, whether provided for under this subparagraph (g)(ii) or otherwise in this Agreement, shall be made by reason of such issue or sale.
(iii) | Upon the happening of any of the following events, namely, if the purchase price provided for in any Option referred to in subparagraph (g)(i), the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in subparagraph (g)(i) or (g)(ii), or the rate at which Convertible Securities referred to in subparagraph (g)(i) or (g)(ii) are convertible into or exchangeable for Ordinary Shares shall change at any time (including, but not limited to, changes under or by reason of provisions designed to protect against dilution), the Conversion Price in effect at the time of such event shall forthwith be readjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities still outstanding provided for such changed purchase price, additional consideration or conversion rate, as the case may be, at the time initially granted, issued or sold, provided that no adjustment shall be made to such Conversion Price pursuant to this paragraph (g) that would increase the Conversion Price above the Conversion Price in effect immediately prior to the issuance of such Option or Convertible Security; and on the expiration or termination of any such Option or the termination of any such right to convert or exchange such Convertible Securities, the Conversion Price then in effect hereunder shall forthwith be increased to the Conversion Price which would have been in effect at the time of such expiration or termination had such Option or Convertible Securities, to the extent outstanding immediately prior to such expiration or termination, never been issued. |
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(iv) | In the event that the Company declares a dividend or makes any other distribution upon any stock of the Company payable in Ordinary Shares (except for dividends or distributions upon the Ordinary Shares payable solely in Ordinary Shares), Options or Convertible Securities, any Ordinary Shares, Options or Convertible Securities, as the case may be, issuable in payment of such dividend or distribution shall be deemed to have been issued or sold without consideration. |
(v) | In the event that the Company shall make or issue, or fix a record date for the determination of holders of Ordinary Shares entitled to receive a dividend or other distribution payable in securities of the Company, then and in each such event, lawful and adequate provision shall be made so that the holders of 2002 Series A Preferred Stock shall receive upon conversion thereof, in addition to the number of Ordinary Shares receivable thereupon, the number of securities of the Company which they would have received had their 2002 Series A Preferred Stock been converted into Ordinary Shares on the date of such event and had they thereafter, during the period from the date of such event to and including the Conversion Date, retained such securities receivable by them as aforesaid during such period, giving application to all adjustments called for during such period under this Section 8 with respect to the rights of the holders of the 2002 Series A Preferred Stock. |
(vi) | In the event that any Ordinary Shares, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor, without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In the event that any Ordinary Shares, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Supervisory Board, without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration of 0.02 euro. |
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(vii) | In the event that the Company shall fix a date to determine the holders of its Ordinary Shares for the purpose of entitling them: |
(a) to receive a dividend or other distribution payable in Ordinary Shares, Options or Convertible Securities; or
(b) to subscribe for or purchase Ordinary Shares, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the Ordinary Shares deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(viii) | The number of Ordinary Shares outstanding at any given time shall not include Shares owned or held by or for the account of the Company (or any subsidiary), and the disposition of any Ordinary Shares so owned shall be considered an issue or sale of Ordinary Shares for the purpose of this subparagraph (g). |
h. | Subdivisions . In the event that the Company shall at any time subdivide (by any stock split, stock dividend or otherwise) its outstanding Ordinary Shares into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision shall be proportionately reduced, and, conversely, in such case, the outstanding Ordinary Shares shall be combined into a smaller number of shares, such Conversion Price in effect immediately prior to such combination shall be proportionately increased. |
i. |
Reorganizations, Reclassifications, Mergers, Etc . Except for an event which the holders of the 2002 Series A Preferred Stock elect to treat as a Liquidation Event, if any capital reorganization or reclassification of the capital stock of the Company, or a merger or consolidation of the Company with or into another company or the sale of all or substantially all of the Companys properties and assets to any other Person, shall be effected in such a way that holders of Ordinary Shares shall be entitled to receive stock, securities or assets with respect to or in exchange for Ordinary Shares, then, as a condition of such reorganization, reclassification, merger, consolidation or sale, lawful and adequate provisions shall be made whereby each holder of a share or shares of 2002 Series A Preferred Stock shall thereupon have the right to receive, upon the basis and upon the terms and conditions specified herein and in lieu of the Ordinary Shares immediately theretofore receivable upon the conversion of such share or shares of 2002 Series A Preferred Stock, such shares of stock, securities or assets as may be issued or payable with respect to or in exchange |
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for a number of outstanding Ordinary Shares equal to the number of Ordinary Shares immediately theretofore receivable upon such conversion had such reorganization, reclassification, merger, consolidation or sale not taken place, and in any such case appropriate provisions shall be made with respect to the rights and interests of such holder to the end that the provisions hereof (including without limitation provisions for: |
a) adjustments of the Conversion Price then in effect; and
b) the right to convert pursuant to Sections 8.1.a and 8.1.b);
shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise of such conversion rights.
j. | Rounding . No adjustment in the Conversion Price need be made until all cumulative adjustments amount to 1% or more of such Conversion Price as last adjusted. Any adjustments that are not made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this paragraph shall be made to the nearest 1/10,000th of a euro or to the nearest 1/10,000th of a share, as the case may be. No adjustment in the Conversion Price shall reduce such Conversion Price below the then nominal value of the Ordinary Shares. |
k. | Ordinary Shares . As used in this Section 8, the term Ordinary Shares shall mean and include the Companys authorized Ordinary Shares, as constituted on the date of filing of the Deed as contemplated by the Investment Documents, and shall also include any capital stock of any class of the Company thereafter authorized which shall not be limited to a fixed sum or percentage of nominal value in respect of the rights of the holders thereof to participate in dividends or in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of the Company; provided that the Ordinary Shares receivable upon conversion of shares of 2002 Series A Preferred Stock shall include only shares designated as Ordinary Shares of the Company on the date of filing of the Deed, or in case of any reorganization or reclassification of the outstanding shares thereof, the stock, securities or assets provided for in paragraph 8.1. i. |
l. | Notice of Adjustment . Whenever the Conversion Price is adjusted, the Company shall promptly mail to holders of 2002 Series A Preferred Stock, first class, postage prepaid, a notice of the adjustment. The Company shall make available to holders of 2002 Series A Preferred Stock upon request, a certificate from the Companys independent public accountants briefly stating the facts requiring the adjustment and the manner of computing it. |
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m. | Other Notices . In the event that at any time: |
(i) the Company shall declare any dividend upon its Ordinary Shares payable in cash or stock or make any other distribution to the holders of its Ordinary Shares;
(ii) the Company shall offer for subscription pro rata to the holders of its Ordinary Shares any additional shares of stock of any class or other rights;
(iii) there shall be any capital reorganization or reclassification of the capital stock of the Company, or a consolidation or merger of the Company with or into, or a sale of all or substantially all its assets to, another Person or Persons; or
(iv) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company;
Then, in any one or more of said cases, the Company shall give, by first class mail, postage prepaid, or by facsimile, addressed to each holder of any shares of 2002 Series A Preferred Stock at the address of such holder as shown on the books of the Company, (A) prior written notice no later than the fifteenth (15 th ) day before the date on which the books of the Company shall close or a record shall be taken for such dividend, distribution or subscription rights or for determining rights to vote in respect of any such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding up and (B) in the case of any such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding up, prior written notice no later than the fifteenth (15 th ) day before the date when the same shall take place. Such notice in accordance with the foregoing clause (A) shall also specify, in the case of any such dividend, distribution or subscription rights, the date on which the holders of Ordinary Shares shall be entitled thereto and such notice in accordance with the foregoing clause (B) shall also specify the date or projected date on which the holders of Ordinary Shares shall be entitled to exchange their Ordinary Shares for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding up, as the case may be.
8.2 | Treatment . |
In the event that as a result of Section 8.1, Ordinary Shares are to be issued, the Company shall issue those shares as stock dividend, and to the extent the distributable reserves are insufficient or such issuance is otherwise prohibited by law, the holders of 2002 Series A Preferred Stock shall pay (in cash or in kind) the nominal value of those shares.
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SECTION 9
EXCHANGE
9.1 | Exchange Loan . |
At any time after the date hereof, to the extent permitted by applicable law, if approved by holders of at least a majority of the 2002 Series A Preferred Stock, shares of 2002 Series A Preferred Stock may be exchanged for a debt interest (an Exchange Loan ) in the Company on substantially the same terms as the 2002 Series A Preferred Stock held by the holders of 2002 Series A Preferred Stock and as described in the form of note on Schedule 9.1 . A decision to exchange shares of 2002 Series A Preferred Stock shall be taken within ten (10) days of the date that notice has been delivered to all holders of 2002 Series A Preferred Stock by a holder of 2002 Series A Preferred Stock desiring to exchange shares of 2002 Series A Preferred Stock for an Exchange Loan. If such decision is approved in accordance with this Section 9.1 and an exchange is permitted under applicable law, all holders of 2002 Series A Preferred Stock shall have the right, but not the obligation, to exchange shares of 2002 Series A Preferred Stock for an Exchange Loan. Exchanges of 2002 Series A Preferred Stock shall take place on a pro rata basis, in proportion to the holders respective amount of shares proposed to be exchanged to the number of shares that can be repurchased by the Company under applicable law as a result of the exchange. Following any such exchange of 2002 Series A Preferred Stock for debt, such Exchange Loan may be re-exchanged for Ordinary Shares.
SECTION 10
LIQUIDATION EVENTS AND PAYMENT OF PREFERENCE
10.1 | Liquidation Events . |
Upon the liquidation or dissolution of the Company a Liquidation Event shall be deemed to have occurred.
10.1.1 Payment of 2002 Series A Liquidation Price .
The Company shall pay the 2002 Series A Liquidation Price to the holders of 2002 Series A Preferred Stock as soon as practicable following the occurrence of the Liquidation Event. For purposes of this Agreement, 2002 Series A Liquidation Price shall mean a payment to the holders of 2002 Series A Preferred Stock in an amount equal to the 2002 Series A Preferred Stock Purchase Price, reduced by the amounts of any dividends or other distributions paid on the 2002 Series A Preferred Stock. To the extent any residual amount exists thereafter, a payment shall be made by the Company pro rata among all holders of Ordinary Shares and all holders of 2002 Series A Preferred Stockon an as converted basis.
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10.1.2 Shareholder Approval .
The Shareholders agree to vote in favor of the payment of the 2002 Series A Liquidation Price to the holders of 2002 Series A Preferred Stock upon a Liquidation Event as well as of the payment of any residual amount to all holders of Ordinary Shares and all holders of 2002 Series A Preferred Stock on an as converted basis, if a vote of shareholders is required.
10.2 | Payment of Preference . |
Upon the request of a holder of 2002 Series A Preferred Stock and in the understanding that such holder shall continue to hold the relevant 2002 Series A Preferred Stock, the Company shall pay to such holder an amount equal to its pro rata portion of the 2002 Series A Liquidation Price in relation to all of such holders shares of 2002 Series A Preferred Stock as soon as practicable following such request.
10.2.1 Shareholder Approval .
The Shareholders agree to vote in favor of the payment of an amount equal to the 2002 Series A Liquidation Price to such holder of 2002 Series A Preferred Stock pursuant to sub-section 10.2, if a vote of shareholders is required.
SECTION 11
DIVIDENDS
11.1 | Dividends . |
Each Shareholder shall be entitled to receive dividends which may be paid from time to time, when and if dividends are paid from the profits of the Company and, if permitted under Dutch law, as a result of a sale by the Company (effected directly or indirectly through an Affiliate) of shares or assets of the Company or a subsidiary other than pursuant to an IPO, Sale or Liquidation Event. Such dividends shall be distributed in the following priority:
(i) first , to the holders of 2002 Series A Preferred Stock in an amount equal to the 2002 Series A Preferred Stock Purchase Price, reduced by any dividends or other distributions previously paid on the 2002 Series A Preferred Stock; and
(ii) second , to the extent any residual amount exists thereafter, pro rata among all holders of Ordinary Shares and all holders of 2002 Series A Preferred Stock on an as converted basis.
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11.2 | Priority of 2002 Series A Preferred Stock Dividends . |
Holders of 2002 Series A Preferred Stock shall be entitled to receive dividends provided for in this Agreement and the Articles of Association in preference to and in priority over, any dividends upon any of the Companys Ordinary Shares and each other series of preferred stock in the share capital of the Company (collectively, Junior Securities ). Unless full dividends on all outstanding shares of 2002 Series A Preferred Stock equal to the 2002 Series A Liquidation Price have been declared and paid in full, then:
(i) no dividend (other than a dividend payable solely in shares of any Junior Securities) shall be declared or paid upon, or any sum set apart for the payment of dividends upon, any shares of Junior Securities;
(ii) no other distribution shall be declared or made upon, or any sum set apart for the payment of any distribution upon, any shares of Junior Securities, other than a distribution consisting solely of Junior Securities;
(iii) no shares of Junior Securities shall be purchased, redeemed or otherwise acquired or retired for value (excluding an exchange for shares of other Junior Securities) by the Company or any of its subsidiaries; and
(iv) no monies shall be paid into or set apart or made available for a fund for the purchase, redemption or other acquisition or retirement for value of any shares of Junior Securities by the Company or its subsidiaries.
SECTION 12
[Intentionally omitted in the agreement of 27 August 2002]
SECTION 13
[Intentionally omitted in the agreement of 23 August 2007]
SECTION 14
EXIT
14.1 | Exit strategy . |
The Shareholders agree and acknowledge that it is their intention to consummate an IPO or a Sale. It is also the parties intention that, to the extent possible, the lead manager or agent for the IPO or the Sale will be a leading global investment bank.
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14.2 | Agreement to cooperate with IPO or Sale . |
If the Company decides to effect an IPO or Sale, the Shareholders shall take all such action as the Company may request to effect such IPO or Sale, including but not limited to:
(i) voting in favor of such amendments to the Articles of Association as the lead manager or agent of such IPO or Sale may reasonably request in order to effect such IPO or Sale;
(ii) complying with any requests to enter into lockup agreements (for a period up to one hundred and eighty (180) days from the effective date of the IPO) and, if so requested by the agent, to offer their Shares pro rata in proportion to the total number of Shares held by all Shareholders; and
(iii) make representations and warranties (limited as set forth in Section 15.4.c.) and to take other action, in each case as is reasonable under the circumstances in the market(s) where the Companys shares are being offered.
14.3 | Registration Rights . |
The holders of 2002 Series A Preferred Stock shall have the registration rights as set forth in the Registration Rights Agreement.
14.4 | Sale of the Company . |
A vote obtaining the approval of holders of at least a majority of the 2002 Series A Preferred Stock (or if such stock has been converted into Ordinary Shares, at least a majority of the Ordinary Shares that initially were shares of 2002 Series A Preferred Stock) may require the Company to take all such action as such Shareholders may reasonably require to effect a sale of all issued and outstanding shares of the Company, including, but not limited to, the preparation and distribution (subject to appropriate and customary non-disclosure requirements) of such financial and other information as any prospective purchaser may reasonably request.
14.5 | Drag-along rights : |
a. |
If the holders of at least a majority of the 2002 Series A Preferred Stock (the Majority Preferred Holders ) wish to sell all of their Shares, Exchange Loans (if any) or Warrants to a third party which is not an Affiliate of a holder of 2002 Series A Preferred Stock (an Acquirer ), pursuant to a bona fide written offer by the Acquirer to acquire all of the issued and outstanding Shares and Warrants, the other Shareholders ( Other Shareholders ) shall, if requested to do so by the Majority Preferred Holders, sell all of their Shares and Warrants to |
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the Acquirer at the same time as such Majority Preferred Holders propose to sell their Shares or Warrants to the Acquirer (a Drag Along Sale ), provided that: |
(i) if the Other Shareholders are required to participate in a Drag Along Sale, the consideration for the Shares and Warrants to be sold shall be allocated among the holders of 2002 Series A Preferred Stock and the Other Shareholders in the following priority:
(a) first , the holders of 2002 Series A Preferred Stock shall receive the 2002 Series A Liquidation Price in respect of their shares of 2002 Series A Preferred Stock; and
(b) second , the holders of Ordinary Shares and the holders of 2002 Series A Preferred Stock shall receive consideration based on the number of outstanding Shares owned by such holders on an as converted basis; and
(ii) the terms and conditions on which the Acquirer acquires the Shares and/or Warrants of all Shareholders are otherwise substantially identical.
b. | The Shareholders shall not be required to make any representations and warranties in connection with any sale of their Shares or Warrants pursuant to this Section 14.5 other than customary representations. |
SECTION 15
REPRESENTATIONS AND WARRANTIES
Each of the parties hereto hereby represents and warrants as of the date hereof to the others as follows (except that no party hereto which is an individual shall make the representations and warranties set forth in Section 15.1, the second sentence of Section 15.2 or Section 15.4.c):
15.1 | Organization . |
Such party is a company, foundation ( stichting ), limited liability company or limited partnership duly organized and validly existing under the laws of its jurisdiction of incorporation.
15.2 | Authority . |
Such party has the power and authority to enter into this Agreement and the other Investment Documents to which he or it is a party, and to consummate the transactions contemplated hereby and thereby. The execution of this Agreement and such other Investment Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate, foundation or limited partnership action on the part of such party.
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15.3 | Binding Agreement . |
This Agreement and the other Investment Documents to which such party is a party have been duly executed and delivered by such party and constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors rights generally.
15.4 | Requisite consents; non-violation . |
The execution and delivery of this Agreement and the other Investment Documents to which such party is a party, and the consummation by such party of the transactions contemplated hereby and thereby do not:
(a) require any material consent, authorization or other action of, or any material filing with, any Governmental Authority or any other Person other than the Declaration of No Objection ( verklaring van geen bezwaar ),
(b) violate or conflict with any provisions of such partys articles of association, limited partnership agreement or other governing documents,
(c) constitute a material default under, materially conflict with, violate, or give rise to a right of termination, cancellation or acceleration or to loss of a material benefit under, any Law, Contract, Permit or Order to which such party is or hereafter may be a party or by which his or its properties are or hereafter may be bound; or
(d) except as provided in the Investment Agreement and herein, result in any Lien on any property or assets of such party.
15.5 | Litigation . |
There is no Action pending or, to the best knowledge of such party, threatened against such party that could reasonably be expected to materially affect the transactions contemplated by this Agreement or the other Investment Documents.
15.6 | [ Intentionally omitted in the agreement of 27 August 2002 ] |
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15.7 | Additional representations and warranties relating to ownership of Old Ordinary Shares, Series A Preferred Shares and Series B Preferred Shares . |
Each of the Shareholders hereby represents and warrants to the other parties hereto that, immediately prior to the Recapitalization, it was the owner, beneficially and of record, free and clear of Liens, of the number Old Ordinary Shares and/or shares of Series A Preferred Stock and/or shares of Series B Preferred Stock set forth in Exhibit B to this Agreement and it is, as of the date hereof, the owner, beneficially and of record, free and clear of Liens, of the Ordinary Shares into which such Shares were converted, and that such Shareholder has not sold or transferred or agreed to sell or transfer any of such Shares, or any (beneficial) interest therein, to any Person.
15.8 | Additional Representations and Warranties of the Beneficial Owners . |
Each of van den Dries, van Duyn and van de Brandhof hereby represents and warrants to the other parties hereto that their respective representations and warranties as contained in the respective representations of Conder, van Duyn B.V. and Beauchamp contained herein and in all other Investment Documents are true and correct.
15.9 | Additional representations and warranties relating to the Holding Company Shareholders . |
a. | Van Duyn and van Duyn B.V. hereby jointly and severally represent and warrant to the other parties hereto that (i) van Duyn owns (indirectly) beneficially and of record, free and clear of Liens except as provided in the Articles of Association, all of the shares in the capital of van Duyn B.V. and van Duyn has not, directly or indirectly, sold or transferred, or agreed to sell or transfer, any of such shares, or any (beneficial) interest therein, to any Person, (ii) there is no option, warrant, call, subscription or other right, commitment or undertaking that directly or indirectly calls for the issuance of any shares in the capital of van Duyn B.V. and (iii) there is no agreement, commitment or understanding that relates to the voting or control of any shares in the capital of van Duyn B.V. |
b. | Van de Brandhof and Beauchamp hereby jointly and severally represent and warrant to the other parties hereto that (i) van de Brandhof owns, beneficially and of record, free and clear of Liens except as provided in the Articles of Association, all of the shares in the capital of Beauchamp and van de Brandhof has not directly or indirectly sold or transferred, or agreed to sell or transfer, any of such shares, or any (beneficial) interest therein, to any Person, (ii) there is no option, warrant, call, subscription or other right, commitment or understanding that directly or indirectly calls for the issuance of any shares in the capital of Beauchamp and (iii) there is no agreement, commitment or understanding that relates to the voting or control of any shares in the capital of Beauchamp. |
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15.10 | Additional representations and warranties of the Stichting . |
The Stichting hereby represents and warrants to the other parties hereto that (i) except as set forth in Schedule 15.10 hereto, the Stichting has not as of the date of this Agreement issued any depositary receipts for the Shares held by it, (ii) the ownership of such depositary receipts as of the date hereof is as set forth in Schedule 15.10 hereto and (iii) no options or rights to acquire such depositary receipts have been granted to any Person except as set forth in Schedule 15.10 hereto.
SECTION 16
MISCELLANEOUS
16.1 | Partial Invalidity . |
If any one or more of the provisions of this Agreement or any portion thereof shall be invalid, illegal, or unenforceable in any respect, this Agreement shall be ineffective only as to such provision and only to the extent of such invalidity, illegality or unenforceability, and such invalidity, illegality or unenforceability shall not in any way affect or impair the validity, legality and enforceability of any other provision contained herein. The parties agree that each of them shall endeavor in good faith negotiations to replace any such invalid, illegal or unenforceable provision(s) (or such portion thereof) with such valid, legal and enforceable provision(s) the economic effect of which is as close as possible to that of the invalid, illegal or unenforceable provision(s).
16.2 | Conflict with Articles of Association . |
To the fullest extent permitted by applicable law, if there shall be any conflict between any provision of this Agreement and any provision of the Articles of Association, the provisions of this Agreement shall govern and supersede the applicable provision of the Articles of Association.
16.3 | No third party beneficiary . |
Nothing herein is intended or shall be deemed to grant any right or remedy to any Person that is not party to this Agreement.
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16.4 | Arbitration . |
Any dispute or controversy arising under or in connection with this Agreement shall be resolved by arbitration conducted in Geneva, Switzerland in accordance with the UNCITRAL rules then in effect. The arbitral body shall be comprised of three (3) arbitrators. The arbitrators shall have the right to select one (1) arbitrator and the claimant and respondent parties shall each have the right to select (1) arbitrator. The language of the arbitration proceedings shall be English. The parties expressly authorize the arbitral tribunal to take any steps as it deems appropriate to conduct and complete the arbitration as expeditiously as possible.
16.5 | Assignment . |
This Agreement and all the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the Shareholders holding a majority or more of the issued and outstanding Shares, except as otherwise permitted hereunder.
16.6 | Termination . |
This Agreement shall automatically terminate and be of no further force or effect upon the earliest to occur of:
(a) consummation of an IPO;
(b) consummation of a Sale;
(c) the entering into by Shareholders holding at least a majority or more of the issued and outstanding Shares, upon the proposal of a meeting of the holders of 2002 Series A Preferred Stock, of an agreement terminating this Agreement; or
(d) upon the dissolution or liquidation of the Company.
16.7 | Amendment; Waiver . |
This Agreement may be amended only by a written instrument signed by the Company and Shareholders owning at least a majority of the Shares; provided, however, that this Agreement may only be amended upon the proposal of a meeting of the holders of 2002 Series A Preferred Stock. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative.
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16.8 | Amendment and Restatement of Second Amended and Restated Shareholders Agreement . |
This Agreement amends, supercedes and restates in its entirety the Second Amended and Restated Shareholders Agreement.
16.9 | Applicable law . |
THE LAWS OF THE NETHERLANDS SHALL GOVERN THE INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT.
16.10 | Public announcements . |
The parties shall consult with each other before issuing any press release or otherwise making any public statement with respect to this Agreement. Subject to mandatory requirements of applicable law, no party shall issue any press release or make any such public statement without the prior written consent of the Company and a majority in interest of the Shareholders, which shall not be unreasonably withheld, and shall, in any event, consult with the other parties concerning the text of any such public statement which the party issuing such statement may be required to make by mandatory requirements of applicable law.
16.11 | Expenses . |
Except as provided in the immediately following sentence, each party hereto shall bear its own expenses incurred in connection with the negotiation, execution and delivery of this Agreement and the other Investment Documents. The Company agrees to pay to the attorneys retained by the holders of a majority of the shares of 2002 Series A Preferred Stock all reasonable fees and expenses in connection with the negotiation, execution and delivery of this Agreement.
16.12 | Notices . |
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing, in English, and will be deemed to have been delivered (a) upon receipt, when delivered personally; (b) upon receipt, when sent by facsimile, provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party; or (c) five (5) business days after deposit with an internationally recognized delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be as set forth on Schedule 16.12 .
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16.13 | Confidentiality . |
a. | Each party hereto will hold, and will use its best efforts to cause its Affiliates and Partners, and their respective representatives to hold, in strict confidence from any Person (other than any such Affiliate, Partner or representative), (unless (a) compelled to disclose by judicial or administrative process (including, without limitation, in connection with obtaining the necessary approvals of this Agreement and the transactions contemplated hereby of governmental or regulatory authorities) or by other requirements of law or (b) disclosed in an action or proceeding brought by a party hereto in pursuit of its rights or in the exercise of its remedies hereunder) all documents and information concerning the other parties hereto or any of its Affiliates or Partners furnished to it by such other party or such other partys representatives in connection with this Agreement or the transactions contemplated hereby, except to the extent that such documents or information can be shown to have been (i) previously known by the party receiving such documents or information, (ii) in the public domain (either prior to or after the furnishing of such documents or information hereunder) through no fault of such receiving party or (iii) later acquired by the receiving party from another source if the receiving party is not aware that such source is under an obligation to another party hereto to keep such documents and information confidential. In the event the transactions contemplated hereby are not consummated, upon the request of a party, the other party hereto will, and will cause its Affiliates and Partners and their respective representatives to, promptly redeliver or cause to be redelivered all copies of documents and information furnished by the other party in connection with this Agreement or the transactions contemplated hereby and destroy or cause to be destroyed all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based on documents and information furnished by the other party or its representatives. |
b. | The parties hereto shall, subject to mandatory requirements of law and of applicable stock exchange rules and to the provisions of article 10.7 of the Investment Agreement, keep confidential and not disclose to any Person, any confidential information relating to the Company; provided, however, that confidential information relating to the Company may be disclosed by a Shareholder to its Affiliates or Partners if such Affiliates or Partners agree to be bound by the terms set forth in this Section 16.13, and each Shareholder shall be liable to the Company for any breach by its Affiliates or Partners of this Section 16.13. |
InterXion Holding N.V.; Fifth Amended and Restated Shareholders Agreement
24 December 2009
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EXECUTION COPY
16.14 | Integration . |
The Investment Documents, to the extent that any party hereto is also a party thereto or bound thereby, contain the entire understanding of the parties with respect to their subject matter and supersede all prior agreements and understandings between the parties with respect to that subject matter. Each party to this Agreement acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation or warranty, other than those set out in the Agreement, made by or on behalf of any other party to this Agreement. Save in respect of statements made fraudulently, the parties waive all rights and remedies in respect of pre-contractual statements.
16.15 | Descriptive headings . |
The Section headings and other headings contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
16.16 | Counterparts . |
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both Parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature page were an original thereof.
16.17 | Company not a party to certain provisions . |
Anything contained in this Agreement to the contrary notwithstanding, the Company is not a party to Sections 1 through 3 and 5.1 of this Agreement and shall have no rights or obligations under such provisions. Accordingly, the provisions of such Sections may be amended by a written instrument signed by all other parties hereto without any necessity for consent to such amendment by the Company.
InterXion Holding N.V.; Fifth Amended and Restated Shareholders Agreement
24 December 2009
45/51
EXECUTION COPY
[SIGNATURE PAGE FOLLOWS]
InterXion Holding N.V.; Fifth Amended and Restated Shareholders Agreement
24 December 2009
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above.
INTERXION HOLDING N.V. | ||
By: | ||
Name: | ||
Title: |
InterXion Holding N.V.; Fifth Amended and Restated Shareholders Agreement
24 December 2009
47/51
EXECUTION COPY
Lamont Finance N.V. | ||
By: | ||
Name: | ||
Title: | ||
Chianna Investments N.V. | ||
By: | ||
Name: | ||
Title: | ||
Capital C-Ventures | ||
By: | ||
Name: | ||
Title: | ||
Cobepa (Nederland) NV | ||
By: | ||
Name: | ||
Title: | ||
M.J.J. Boussard | ||
By: | ||
Name: | ||
Title: | ||
A.R.D. Jamieson | ||
By: | ||
Name: | ||
Title: |
InterXion Holding N.V.; Fifth Amended and Restated Shareholders Agreement
24 December 2009
48/51
EXECUTION COPY
Beauchamp Beheer B.V. | ||
By: | ||
Name: | ||
Title: | ||
E.A. van den Brandhof | ||
By: | ||
Name: | ||
Title: | ||
J. Loeber | ||
By: | ||
Name: | ||
Title: | ||
Stichting Administratiekantoor Management Interxion | ||
By: | ||
Name: | ||
Title: |
InterXion Holding N.V.; Fifth Amended and Restated Shareholders Agreement
24 December 2009
49/51
EXECUTION COPY
Aman Ventures | ||
By: | ||
Name: | ||
Title: | ||
B.A. Foy | ||
By: | ||
Name: | ||
Title: | ||
J.J. Camman | ||
By: | ||
Name: | ||
Title: | ||
Fleet Growth Resources III, INC | ||
By: | ||
Name: | ||
Title: | ||
Fleet Equity Partners VII, LP | ||
By: | ||
Name: | ||
Title: |
InterXion Holding N.V.; Fifth Amended and Restated Shareholders Agreement
24 December 2009
50/51
EXECUTION COPY
Kennedy Plaza Partners II, LLC | ||
By: | ||
Name: | ||
Title: | ||
Chisholm Partners IV, LP | ||
By: | ||
Name: | ||
Title: | ||
_____________ | ||
By: | ||
Name: | ||
Title: | ||
_____________ | ||
By: | ||
Name: | ||
Title: | ||
_____________ | ||
By: | ||
Name: | ||
Title: |
InterXion Holding N.V.; Fifth Amended and Restated Shareholders Agreement
24 December 2009
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Exhibit 10.17
|
VAN DOORNE N.V. |
TB/SH/60009143
DEED OF PLEDGE OF SHARES
IN: | INTERXION OPERATIONAL B.V. |
BY: | INTERXION HOLDING N.V. |
TO: | BARCLAYS BANK PLC |
Today, the fifteenth day of June two thousand and ten, appears before me, Daan ter Braak, civil-law notary, practising in Amsterdam:
1. | Eline Maria Christina Broekhof, born in Geldrop on the seventh day of August nineteen hundred and eighty-three, with office address at Jachthavenweg 121,1081 KM Amsterdam, the Netherlands, acting as proxy of, and pursuant to a power of attorney, authorised in writing by: |
a. | INTERXION HOLDING N.V., a public company with limited liability (naamloze vennootschap) incorporated under the laws of the Netherlands, having its corporate seat in Amsterdam, the Netherlands and its registered office at Tupolevlaan 24,1119 NX Schiphol-Rijk, the Netherlands, registered with the Commercial Register under file number: 33301892 (the Pledgor); |
b. | INTERXION OPERATIONAL B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat in Amsterdam, the Netherlands and its registered office at Tupolevlaan 24, 1119 NX, Schiphol-Rijk, the Netherlands, registered with the Commercial Register under file number: 34389232 (the Company); and |
2. | Ralph Joseph Wilhelm Mulkens, born in Geleen on the nineteenth day of March nineteen hundred and seventy-seven, with office address at Jachthavenweg 121,1081 KM Amsterdam, the Netherlands, acting as proxy of, and pursuant to a power of attorney, authorised in writing by: BARCLAYS BANK PLC, a public limited company registered in England |
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and Wales with company number 1026167 and having its office at 1 Churchill Place, London, E14 5HP, United Kingdom, acting (i) in its capacity of Security Trustee for and on behalf of the Secured Parties under the Intercreditor Agreement and (ii) in its capacity of creditor of the Parallel Obligations, as defined below (the Pledgee ).
HEREBY AGREE AS FOLLOWS:
1 | DEFINITIONS AND INTERPRETATION |
1.1 | Interpretation |
Capitalised terms not otherwise defined herein shall have the meaning given to them in the Intercreditor Agreement.
1.2 | Definitions |
In addition, in this Deed, unless the context otherwise requires:
Debt Documents has the meaning given thereto in the Intercreditor Agreement;
Debtor has the meaning given thereto in the Intercreditor Agreement;
Dividends means all dividends, other distributions and payments that become payable and/or accrue on or in respect of any of the Shares, whether payable in cash, by means of stock dividend or in kind and whether on the account of the distribution of profits, reserves, the repurchase of Shares, the redemption of Shares or otherwise;
Encumbrance means any mortgage, pledge, lien ( retentierecht ), right of usufruct, seizure, attachment or other encumbrance of any kind whatsoever, whether actual or contingent, conditional or otherwise;
Enforcement Event means any Event of Default which also constitutes a default ( verzuim ) in the payment of any amount due under the Secured Obligations;
Event of Default has the meaning given thereto in the Intercreditor Agreement;
Future Shares means any shares in the capital of the Company that are acquired by the Pledgor following execution of this Deed;
Intercreditor Agreement means the intercreditor agreement dated the twelfth day of February two thousand and ten (as amended, supplemented, restated or replaced from time to time) between, inter alia, Barclays Bank PLC as Revolving Agent, The Bank of New York Mellon as Original Senior Secured Trustee, the Revolving Lenders, InterXion Holding N.V. as the Company, certain companies as Original Debtors, Barclays Bank PLC as Security Trustee and others;
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Liabilities has the meaning given thereto in the Intercreditor Agreement;
Parallel Obligations means the Parallel Debt as described in Clause 16.2 of the Intercreditor Agreement, to the extent they constitute obligations for the payment of money ( vorderingen tot voldoening van een geldsom );
Pledge means the security created or purported to be created by this Deed and/or any supplemental deed executed pursuant to Clause 2.2.3;
Present Shares means all of the issued shares in the capital of the Company held by the Pledgor on the date of this Deed, consisting of one hundred and eighty (180) shares, each share with a par value of one hundred euro (EUR 100), numbered 1 up to and including 180;
Principal Obligations means all the Liabilities and all other present and future obligations (other than the Parallel Obligations) at any time due, owing or incurred by each Debtor and by each other grantor of Transaction
Security to any Secured Party under the Debt Documents for the payment of money ( vorderingen tot voldoening van een geldsom ), both actual and contingent and whether incurred solely or jointly and as principal or surety or in any other capacity;
Rights means the Dividends, all present and future rights and claims of the Pledgor to acquire any shares in the capital of the Company and all other present and future rights and claims of the Pledgor arising out of or in connection with the Shares, other than the Voting Rights and the rights of holders of depository receipts referred to in Clause 3.2;
Secured Obligations means (i) the Parallel Obligations and (ii) the Principal Obligations that are secured by this Pledge pursuant to Clause 2.4;
Secured Parties has the meaning given thereto in the Intercreditor Agreement;
Security Assets means the Shares and the Rights collectively;
Shares means the Present Shares and the Future Shares collectively;
Transaction Security has the meaning given thereto in the Intercreditor Agreement; and
Voting Rights means the voting rights attaching to the Shares.
1.3 | References |
In this Deed:
1.3.1 |
references to any Debt Document shall be construed as references to such document as presently in force and as amended, modified, supplemented, novated, restated or replaced from time to time, including (i) any increase or reduction in any amount made |
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available thereunder, (ii) any alteration of or addition to the purpose for which any amount made available thereunder may be used, (iii) any credit facility provided in substitution of or in addition to the facilities originally made available thereunder, (iv) any rescheduling of the indebtedness incurred thereunder, (v) any substitution, retirement or accession of any party to the Debt Documents or (vi) a combination of the above; |
1.3.3 | unless the context otherwise requires, words denoting the singular shall include the plural and vice versa; |
1.3.4 | references to any party include that partys successors and permitted transferees and assignees; |
1.3.5 | references to statutory provisions shall be construed as references to those provisions as replaced, amended or re-enacted from time to time; |
1.3.6 | references to Security Assets include, where the context so requires, references to all or any of the constituent parts thereof; |
1.3.7 | an Event of Default or an Enforcement Event is continuing if it has not been remedied or waived; and |
1.4 | Debt Document |
This Deed constitutes a Debt Document.
1.5 | No unlawful financial assistance |
No obligations shall be included in the definition of Secured Obligations to the extent that, if included, the Pledge or any part thereof would constitute a violation of the prohibition on financial assistance as contained in Section 2:98c or 2:207c of the Dutch Civil Code (the Prohibition ) and this Deed is only legally binding on the Pledgor to the extent it will not be in violation of the Prohibition and all provisions of this Deed will be construed accordingly.
2 | PLEDGE |
2.1 | Agreement to pledge |
The Pledgor hereby agrees and undertakes with the Pledgee to grant a right of pledge over the Security Assets as security for the Secured Obligations.
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2.2 | Pledge |
As security for the performance of the Secured Obligations, the Pledgor hereby:
2.2.1 | pledges to the Pledgee the Present Shares and the Rights pertaining thereto; |
2.2.2 | pledges to the Pledgee in advance ( bij voorbaat ) the Future Shares and the Rights pertaining thereto; and |
2.2.3 | irrevocably undertakes, to the extent the pledge in advance pursuant to Clause 2.2.2 is not effective, to pledge to the Pledgee any Future Shares and the Rights pertaining thereto immediately upon the acquisition of such Future Shares by the Pledgor by execution of a supplemental deed in the same form as this Deed. |
2.3 | Acceptance by the Pledgee |
The Pledgee hereby accepts the Pledge created by this Deed, where appropriate in advance ( bij voorbaat ).
2.4 | Principal Obligations as Secured Obligations |
If at the time of execution of this Deed or at any time thereafter it is not possible to validly secure all or any Parallel Obligations by means of this Pledge, the corresponding Principal Obligations shall be Secured Obligations.
3 | VOTING RIGHTS AND RIGHTS |
3.1 | Voting Rights |
The Pledgor and the Pledgee hereby stipulate in accordance with Section 2:198(3) of the Dutch Civil Code that the Voting Rights shall vest in ( toekomen aan ) the Pledgee subject to the fulfillment of the conditions precedent ( opschortende voorwaarden ) that (i) an Event of Default has occurred and (ii) the Pledgee has given written notice to the Pledgor and the Company that an Event of Default has occurred and the Voting Rights vest in the Pledgee.
3.2 | Rights of holders of depository receipts |
As long as the Voting Rights shall not vest in the Pledgee, the Pledgee shall not have the rights of holders of depository receipts. It is understood that when the Voting Rights shall vest in the Pledgee, the Pledgor shall have the rights of holders of depository receipts by operation of law. To the extent possible under Dutch law, the Pledgor waives these rights in advance and the Pledgee accepts such waiver in advance.
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3.3 | Rights |
The Pledgee is entitled to collect, receive and exercise the Rights that are pledged pursuant to this Deed, provided that the Pledgee hereby grants the Pledgor permission (toestemming in accordance with Section 3:246(4) of the Dutch Civil Code to collect, receive and exercise the Rights. The Pledgee is entitled to revoke this permission upon the occurrence of an Event of Default which is continuing or upon the occurrence of an Enforcement Event which is continuing.
4 | REPRESENTATIONS AND WARRANTIES |
4.1 | The Pledgor hereby represents and warrants to the Pledgee that: |
4.1.1 | the Shares are duly authorised and validly issued, are fully paid up and constitute the entire issued share capital of the Company; |
4.1.2 | the Pledgor has acquired the Present Shares by placement at the deed of incorporation of the Company, executed on the eighth day of April two thousand and ten before B.J. Kuck, civil-law notary practising in Amsterdam; |
4.1.3 | the Pledgor is the sole legal and beneficial owner of the Security Assets, has full title thereto and is entitled (beschikkingsbevoegd) to pledge the same to the Pledgee; |
4.1.4 | this Pledge constitutes a first priority right of pledge ( pandrecht eerste in rang ) of the Security Assets; |
4.1.6 | no depository receipts ( certificaten van aandelen ) have been issued in respect of the Shares; |
4.1.7 | the Pledgor has not entered into any agreements or arrangements, other than as may be included in the articles of association of the Company, which restrict in any way the exercise by the Pledgee of the Voting Rights or its other rights under this Pledge; and |
4.1.8 | the general meeting of shareholders of the Company has approved this Pledge and the granting of the Voting Rights to the Pledgee by resolution adopted on the twenty-eighth day of May two thousand and ten, |
which representations and warranties, to the extent they relate to Future Shares and the Rights pertaining thereto, shall be deemed to be given on each date such Future Shares are acquired by the Pledgor.
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5 | UNDERTAKINGS |
5.1 | The Pledgor hereby undertakes to the Pledgee: |
5.1.1 | at the Pledgees first demand, to execute and deliver all such agreements and documents and to do all such acts and things the Pledgee may reasonably deem necessary to create, perfect, protect and/or enforce the rights of the Pledgee created or intended to be created hereby; |
5.1.2 | to promptly notify the Pledgee of any attachment ( beslag ) of the Security Assets and to promptly notify the person making any such attachment or any receiver in bankruptcy ( curator ) or any administrator in (preliminary) suspension of payment ( bewindvoerder ) of the existence of the Pledge; |
5.1.3 | other than in the ordinary course of business, not to release, settle or subordinate any Rights without the Pledgees prior written consent; |
5.1.4 | other than as expressly permitted under the Debt Documents, not to sell, agree to sell or otherwise dispose of the Security Assets and not to create or grant or permit to subsist any Encumbrance on the Security Assets other than this Pledge; |
5.1.5 | other than as expressly permitted under the Debt Documents, not to cooperate with the issue or granting of any (rights to acquire) shares in the capital of the Company or of depository receipts issued for such shares; and |
5.1.6 | other than as expressly permitted under the Debt Documents, without the prior written approval of the Pledgee, not to exercise the Voting Rights in favour of a resolution (i) for an amendment of the articles of association of the Company which would affect the rights of the Pledgee under this Deed, (ii) to dissolve or liquidate the Company, (iii) to apply for the Companys bankruptcy or (preliminary) suspension of payments, (iv) for a conversion ( omzetting ), legal merger ( juridische fusie ) or legal division (juridische splitsing) of the Company, (v) to issue shares or rights to acquire shares in the capital of the Company or (vi) to distribute any Dividends, unless such distribution is expressly permitted under any of the other Debt Documents. |
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6 | ENFORCEMENT OF SECURITY - APPLICATION OF PROCEEDS |
6.1 | Default |
Any failure to satisfy the Secured Obligations when due shall constitute a default (verzuim) in the performance of the Secured Obligations within the meaning of Section 6:81 of the Dutch Civil Code, without any demand (sommatie) or notice of default (ingebrekestelling) being sent or required.
6.2 | Enforcement |
On or after the occurrence of an Enforcement Event which is continuing, the Pledgee shall be entitled to enforce the Pledge and to take recourse against the proceeds thereof.
6.3 | No requirement to claim from other person |
To the fullest extent possible under applicable law, the Pledgor waives any right it may have of first requiring the Pledgee to proceed against or claim payment from any Debtor or any other person or to enforce any other rights or security before enforcing the Pledge as set forth in Section 3:234 of the Dutch Civil Code.
6.4 | No notice required |
The Pledgee is not obliged to give notice to the Pledgor, any Debtor or any other person of any intended or actual sale of the Security Assets as provided for in Sections 3:249 and 3:252 of the Dutch Civil Code.
6.5 | No sale in different manner |
The Pledgor is not entitled to request the court to determine that the Security Assets be sold in a different manner than as set forth in Section 3:250 of the Dutch Civil Code.
6.6 | Application |
Any amount received or recovered by the Pledgee under this Deed shall be applied by the Pledgee in accordance with the terms of the Intercreditor Agreement, subject to the mandatory provisions of Dutch law.
7 | CONTINUING SECURITY |
7.1 | Continuing security |
The Pledge and the other rights of the Pledgee under this Deed shall, to the maximum extent possible under Dutch law, not be adversely affected by (i) any compromise with or discharge granted to any Debtor or any other person or (ii) any invalidity, illegality, unenforceability or discharge by operation of law of the liability or obligations of any Debtor or any other person or any security granted in connection with the Secured Obligations.
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7.2 | Discharge conditional |
Where any discharge of the Secured Obligations or any arrangement is made in whole or in part on the faith of any payment, security or other disposition which is void, avoided or otherwise set aside or must be restored on insolvency, liquidation or otherwise, the Pledge and the liability and obligations of the Pledgor under this Deed shall continue as if such discharge or arrangement had not occurred.
8 | POWER OF ATTORNEY |
8.1 | Power of attorney |
The Pledgor, for the benefit of the Pledgee (in het belang van de gevolmachtigde), hereby grants an irrevocable power of attorney to the Pledgee (the Power of Attorney ), with full right of substitution, to execute all documents and to do all things on its behalf and/or in the name of the Pledgor as the Pledgee or any substitute shall reasonably deem necessary to give the Pledgee the full benefit of the Pledge and the other rights purported to be granted to the Pledgee under this Deed (including, without limitation the execution of supplemental deeds under Clause 2.2.3). The Power of Attorney shall extend to the exercise of ancillary rights (nevenrechten) to the Security Assets and to documents and acts to which the Pledgee itself is the counterparty (Selbsteintritt).
8.2 | Use of Power of Attorney |
The Pledgee will not use the Power of Attorney unless and until (i) the occurrence of an Enforcement Event which is continuing or (ii) the Pledgor has failed, after notice of the Pledgee, to comply with its obligations under Clause 2.2.3 or Clause 5.1.1 .
9 | MISCELLANEOUS |
9.1 | Rescission |
To the fullest extent permitted by Dutch law, the Pledgor hereby waives its rights to rescind or to seek to rescind (ontbinden) this Deed or to avoid or to seek to avoid (vernietigen) the legal acts (rechtshandelingen) performed under or pursuant to this Deed. The Pledgee accepts this waiver.
9.2 | Invalidity |
Should any provision of this Deed be or become invalid, void or unenforceable, all remaining provisions and terms hereof shall remain in full force and effect and the parties hereto will negotiate in good faith to replace the invalid, void or unenforceable provision with a valid and enforceable provision that reflects as nearly as possible the intention of the parties as referred in the provision thus replaced.
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9.3 | Liability |
The Pledgee shall not be liable for any damages resulting from the reduction of value of the Security Assets, the sale of the Security Assets or the exercise or failure to exercise any of its rights hereunder, save for gross negligence (grove nalatigheid) or wilful misconduct (opzef).
9.4 | No implied waivers |
A failure to exercise or a delay in exercising any right of the Pledgee hereunder shall not operate as a waiver or constitute a forfeiture (rechtsverwerking) thereof.
10 | ASSIGNMENT AND TRANSFER |
10.1 | The Pledgor may not assign and/or transfer all or part of its rights, obligations and/or the legal relationship under this Deed, without the prior written consent of the Pledgee. |
10.2 | The Pledgee may assign and/or transfer to any party to which or to whom the Pledgee is permitted to do so under the Debt Documents, all or part of its rights, obligations and/or the legal relationship under this Deed by way of an assignment of claims (cessie), transfer of obligations (schuldoverneming) or transfer of contract (contractoverneming) and the Pledgor hereby irrevocably gives its approval and cooperates in advance with such transfer of obligations or contract in accordance with Sections 6:156 and 6:159 of the Dutch Civil Code. |
11 | NOTICES |
All notices to the parties hereto to be made in connection with this Deed, shall be made in accordance with the notice provisions of the Intercreditor Agreement.
12 | TERMINATION AND RELEASE |
12.1 | Termination |
The Pledgee is entitled by way of a written notice to the Pledgor (i) to terminate (opzeggen) the Pledge in whole or in part in accordance with Section 3:81 (2) of the Dutch Civil Code and (ii) to release the Pledge in respect of all or part of the Security Assets and/or the Secured Obligations. If a waiver (afstand van recht) by the Pledgee is required, to give effect to such a release, such release shall be deemed to include such waiver, and such waiver is hereby accepted by the Pledgor in advance.
12.2 | Release |
Subject and without prejudice to Clause 7.2, once the Pledgee is satisfied that the Secured Obligations have been unconditionally and irrevocably paid and discharged in full and that all Debt Documents (other than the Security
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Documents) have been unconditionally and irrevocably terminated, the Pledgee will, following a written request of the Pledgor, terminate and release the Pledge and do all such further acts and things as the Pledgor may reasonably request in relation to the termination of the Pledge.
13 | THE COMPANY |
13.1 | The Company hereby: |
13.1.1 | acknowledges, where appropriate in advance, the rights of pledge created over the Security Assets; |
13.1.2 | acknowledges that it has received notice of the rights of pledge created over the Rights; and |
13.1.3 | undertakes to register the rights of pledge over the Shares in the Companys shareholders register and to provide the Pledgee with a copy of such registration as soon as practically possible. |
14 | APPLICABLE LAW AND JURISDICTION |
14.1 | Applicable law |
This Deed is governed by and shall be construed in accordance with Dutch law
14.2 | Jurisdiction |
The Pledgor hereby irrevocably submits to the jurisdiction of the competent court in Amsterdam, the Netherlands in connection with any disputes arising under this Deed, without prejudice to the right of the Pledgee to take proceedings in any other competent court in the Netherlands or any other jurisdiction, whether concurrency or not.
CIVIL-LAW NOTARY
The parties to this Deed are aware that the undersigned civil-law notary works with Van Doorne N.V., the firm that has advised the Pledgee in this transaction. With reference to the Code of Conduct (Verordening beroeps- en gedragsregels) established by the Royal Notarial Professional Organisation (Koninklijke Notariële Beroepsorganisatie), the parties hereby explicitly consent to the undersigned civil-law notary executing this Deed.
Final statement
The originals or copies of the powers of attorney given to the said individuals and a copy of the resolution of the general meeting of shareholders of the Company as mentioned in Clause 4 will be attached to this deed.
I, civil-law notary, stated and explained the substance of this Deed and pointed out the consequences of the contents of this Deed to the said individuals, who are known to me, civil-law notary. The said individuals then declared that they had noted the contents of this Deed and that they agreed therewith. Subsequentiy, this Deed was executed in
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Amsterdam, and was, immediately after it had been read aloud in part, signed by the said individuals and by me, civil-law notary, on the date first above written.
w.s. the persons appearing and the civil-law notary.
ISSUED FOR CERTIFIED COPY. | ||||
15 June 2010. | ||||
|
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Exhibit 10.18
Confidential material has been omitted and filed separately with the Commission
Loan Agreement | ||
between | ||
Alpine Finanz Immobilien AG | Lender | |
Sägereisstrasse 25 | ||
8152 Glattbrugg
and |
||
InterXion (Schweiz) AG | Borrower | |
Sägereistrasse 29 | ||
8152 Glattbrugg
and |
||
Interxion Holding N.V. | Joint and Several Debtor | |
Tupolevlaan 22-24 | ||
1119 NX Schiphol-Rijk | ||
Netherlands |
The Lender, Borrower and Joint and Several Debtor are herein referred to jointly as the Parties or individually each as Party .
Page 1 of 12
Table of contents
1. PREAMBLE |
4 | |||
2. CONDITIONS PRECEDENT |
4 | |||
3. LOAN |
5 | |||
4. PURPOSE |
5 | |||
5. CONDITIONS FOR EXECUTION OF THE AGREEMENT |
5 | |||
6. EXECUTION OF THE AGREEMENT |
5 | |||
7. INTEREST |
5 | |||
7.1 Interest rate |
5 | |||
7.2 Due date |
5 | |||
7.3 Default interest |
6 | |||
8. REDEMPTION |
6 | |||
9. PAYMENTS |
6 | |||
10. CONFIRMATION AND GUARANTEES |
6 | |||
10.1 Confirmation and guarantees of the Lender |
6 | |||
10.2 Confirmation and guarantees of the Borrower |
7 | |||
11. TERMINATION |
7 | |||
12. JOINT AND SEVERAL LIABILTY AND SURETYSHIP |
8 | |||
12.1 Joint and several liability |
8 | |||
12.2 Replacement of rent guarantee |
8 | |||
13. CLOSING CONDITIONS |
8 | |||
13.1 Notifications, deadlines |
8 | |||
13.2 Amendments to contract |
9 | |||
13.3 Assignment, transfer |
9 | |||
13.4 Partial invalidity |
9 | |||
13.5 Abandonment |
9 | |||
13.6 Costs |
9 | |||
13.7 Place of jurisdiction and applicable law |
10 |
Page 2 of 12
List of annexes
Annex 6 | Declaration of Offsetting | |
Annex 8 | List of loan redemption instalments | |
Annex B1 | Annex to Zurich I | |
Annex B2 | Annex to Zurich II |
Page 3 of 12
1. | PREAMBLE |
A. | There is a rental agreement in place between the Lender and Borrower concerning a property in Sägereistrasse 29 in 8152 Glattbrugg; the Parties refer to this agreement as Zurich II ( Rental Agreement Zurich II ). |
B. | The Lender and Borrower intend to rescind Rental Agreement Zurich II under certain conditions and to allocate part of the area covered by this Agreement to another rental agreement in place between the Lender and Borrower, which the Parties refer to as Zurich I ( Rental Agreement Zurich I ). For this purpose the Lender and Borrower intend to agree an annex to Rental Agreement Zurich I in the form of Annex B1 (Annex to Zurich I) and an annex to Rental Agreement Zurich II in the form of Annex B2 (Annex to Zurich II) . |
C. | Pursuant to Annex to Zurich I and Annex to Zurich II, the Borrower shall be obliged to pay to the Lender a one-off payment of *** ( One-off Payment ) in return for the rescission of the rental agreement Zurich II, whereby this amount shall be simultaneously given by the Lender to the Borrower by way of a loan. |
D. | To this end, the Parties herewith agree as follows ( Agreement ): |
2. | CONDITIONS PRECEDENT |
This Agreement shall only be binding provided that the cumulative approval of the following executive bodies is granted (conditions precedent):
a) | approval of the Supervisory Board of the Lender, |
b) | approval of the Supervisory Board of the Borrower, |
c) | approval of the Management Board of the Joint and Several Debtor, |
Page 4 of 12
d) | approval of the Lender of the Joint and Several Debtor under the Revolving Credit Facility of EUR 135 million dated 4 September 2008. |
3. | LOAN |
Subject to the fulfilment of the conditions for the execution of the Agreement set out in section 5 below, the Lender herewith grants the Borrower an unsecured loan of *** CHF 7,850,000 (the Loan ) under reservation of the conditions set out in section 12.
4. | PURPOSE |
The Borrower shall use the Loan exclusively for the purpose of the One-off Payment.
5. | CONDITIONS FOR EXECUTION OF THE AGREEMENT |
The obligation of the Parties to execute this Agreement pursuant to the conditions set out in section 6 below shall be subject to the condition of the signing of Annex to Zurich I and Annex to Zurich II by the Parties.
6. | EXECUTION OF THE AGREEMENT |
Upon fulfilment of the conditions for the execution of the Agreement set out in section 5 above, the Lender shall pay the Loan to the Borrower by way of the issue of a Declaration of Offsetting pursuant to Annex 6 .
7. | INTEREST |
7.1 | Interest rate |
After execution of this Agreement pursuant to section 6 above, the Borrower shall subject the amount of the loan to interest at a rate of 0.5% p.a.
7.2 | Due date |
The accrued interest is to be paid out upon payment of the individual loan redemption payments pursuant to section 9 below.
Page 5 of 12
7.3 | Default interest |
In addition to the amount of interest agreed in subsection 7.1 above, default interest shall be due on late payments at a rate of 5% p.a.; no reminder notice shall be required.
8. | REDEMPTION |
The redemption of the loan shall be in 11 instalments pursuant to the list of loan redemption instalments in Annex 8, incl. the total amount of accrued interest for each instalment up to the due date.
9. | PAYMENTS |
Payments made by the Borrower to the Lender under this Agreement are to be made to the account specified by the Lender. The account must be specified at least two days before the due date for the payment.
10. | CONFIRMATION AND GUARANTEES |
10.1 | Confirmation and guarantees of the Lender |
The Lender herewith confirms and guarantees that:
a) | it is a properly incorporated public limited company under Swiss law and that it is entitled to hold its assets and conduct its business transactions and that there are no internal resolutions or plans and no ordinances, procedures or petitions that could lead to the dissolution of the company or changes to its legal structure or similar events; |
b) | the completion, signing and execution of this Agreement do not constitute an infringement of the provisions of the law, statutory provisions or any other contractual conditions; |
c) | upon the signing of Annex to Zurich II and the execution of this Agreement pursuant to section 6 above, all obligations of the Borrower under Rental Agreement Zurich II shall be deemed as having been fulfilled and no further obligations shall exist under this Rental Agreement Zurich II. |
Page 6 of 12
10.2 | Confirmation and guarantees of the Borrower |
The Borrower herewith confirms and guarantees that:
a) | it is a properly incorporated public limited company under Swiss law and that it is entitled to hold its assets and conduct its business transactions and that there are no internal resolutions or plans and no ordinances, procedures or petitions that could lead to the dissolution of the company or changes to its legal structure or similar events; |
b) | the completion, signing and execution of this Agreement does not constitute an infringement of the provisions of the law, statutory provisions or any other contractual conditions. |
11. | TERMINATION |
The Lender shall be entitled to terminate the Loan with immediate effect and demand the immediate repayment of the amount of the Loan (in full or parts thereof) together will all accrued interest if:
a) | the Borrower fails to make payment of an amount due under this Agreement by the due date and if this is not paid within 10 working days of being notified of this fact by the Lender; |
b) | the Borrower is insolvent, has discontinued payments, declares his inability to make payment or enters into negotiations with its creditors due to financial difficulties concerning debt settlement, if the Borrower shows capital losses in the sense of Article 725 para. 1 of Swiss Law of Obligations [Obligationenrecht, OR] (half of share capital and legally prescribed reserves no longer covered) and if this is not overcome by subordination or if the Borrower submits an application for insolvency or a petition for stay of bankruptcy (or is obliged to do so) or if such proceedings are opened at a court with jurisdiction; |
c) | the Borrower subjects himself to voluntary bankruptcy proceedings. |
Page 7 of 12
12. | JOINT AND SEVERAL LIABILITY AND GUARANTEE |
12.1 | Joint and several liability |
The Joint and Several Debtor herewith declares that he is jointly and severally liable for the Loan plus interest towards the Lender pursuant to Article 143 para. 1 of Swiss Law of Obligations [Obligationenrecht, OR] .
12.2 | Replacement of rent guarantee |
Immediately upon execution of this Agreement pursuant to section 6 above, the Lender and Borrower shall make their best efforts to ensure that the current rent guarantee issued by ABN AMRO in favour of the Lender for the Rental Agreement Zurich II in an amount of CHF 690,000 shall be replaced by a corresponding bank guarantee in the same amount to cover the obligations of the Borrower under this Agreement.
13. | CLOSING CONDITIONS |
13.1 | Notifications, deadlines |
All notifications required in connection with this Agreement shall be sent by registered letter to the following addresses:
If notification is to the Lender:
InterXion (Schweiz) AG
Anthony Foy
Sägereistrasse 29
8152 Glattbrugg
If notification is to the Borrower:
Alpine Finanz Immobilien AG
Reto Graf
Sägereistrasse 25
8152 Glattbrugg
The Parties can change their postal addresses for notifications at any time, whereby notification of such changes must be sent pursuant to this subsection 13.1.
Page 8 of 12
The deadlines specified in this Agreement shall be deemed as having been met if the notification subject to the deadline has been submitted to the post office before 24.00 hours of the final day of the deadline (date, time of postmark).
13.2 | Amendments to contract |
All amendments and supplements to this Agreement shall only be valid if submitted in writing and signed by all Parties. The abandonment of this requirement for written form is only possible in writing.
13.3 | Assignment, transfer |
Unless otherwise specified in this Agreement, the assignment of this Agreement to a third party and/or the transfer of individual claims and/or rights under this Agreement to third parties by any of the Parties to this Agreement shall require the prior written consent of all Parties.
13.4 | Partial invalidity |
In the event that one or more than one of the conditions contained herein are or should become fully or partially invalid, ineffective or otherwise unenforceable, this shall not affect the validity and effectiveness of the other conditions contained herein. The Parties shall be obliged to make their best efforts to cooperate in order to replace any such invalid and/or ineffective condition with the valid and effective condition that comes closest to fulfilling the originally intended commercial and economic purpose.
Q13.5 | Abandonment |
In the event that one of the Parties to this Agreement fails to enforce any of the conditions herein, this shall not be interpreted as abandonment of rights and shall in no way influence the validity of this Agreement.
13.6 | Costs |
All costs incurred (incl. legal fees) as a result of the drawing up, negotiation, completion and execution of this Agreement shall be borne by the Party incurring such costs.
Page 9 of 12
13.7 | Place of jurisdiction and applicable law |
All parts of this Agreement shall be subject to Swiss substantive law.
The Parties herewith agree that all disputes between the Parties in connection with the application, execution or interpretation of this Agreement shall be non-exclusively subject to the jurisdiction of the Commercial Court of the canton of Zurich with appeals at the Swiss Federal Supreme Court in Lausanne. However, if the value in dispute is insufficient for applications to the Commercial Court of the canton of Zurich, the other courts with jurisdiction over the area Zurich I shall have (non-exclusive) jurisdiction.
Signatures
Alpine Finanz Immobilien AG
Glattbrugg, 13.3.09 |
||||
Date/place |
InterXion (Schweiz) AG
13.03.09 |
||||
Date/place |
Interxion Holding N.V.
16.3.09 |
||||
Date/place |
Page 10 of 12
Annex 6
Declaration of Offsetting
ALPINE FINANZ IMMOBILIEN AG
InterXion (Schweiz) AG
Sägereistrasse 29
8152 Glattbrugg
Interxion Holding N.V.
Tupolevlaan 22-24
1193 NX Schiphol-Rijk
Netherlands
Glattbrugg, | 13 March 2009 | |
Tel. direct: | +41 44 809 50 07 | |
Email: | stuckl@alpinefinanz.ch |
Re: Execution of the Loan Agreement / Declaration of Offsetting
Dear Sir/Madam,
This is a Declaration of Offsetting pursuant to section 6 of the Loan Agreement dated 13 March 2009 completed between you, Interxion Holding N.V. and ourselves (hereinafter Agreement ).
In execution of the Agreement pursuant to section 6, we herewith declare the offsetting of your claim to the payment of the Loan of *** against the One-off Payment due to us (pursuant to definition in the Agreement) and herewith confirm that the One-off Payment (pursuant to definition in the Agreement) has thus been paid in full and that the loan shall be redeemed pursuant to the conditions of the Agreement.
Yours faithfully,
ALPINE FINANZ IMMOBILIEN AG
Roger Stuckl |
Reto Graf |
CH-8152 GLATTBRUGG |
SÄGEREISTRASSE 25 | TEL: +41 44 809 50 00 | FAX +41 44 809 50 01 | |||
INTERNET: www.alpinefinanz.com | E-MAIL: info@alpinefinanz.ch | |||||
VAT ID no.: 361 400 |
Page 11 of 12
Annex 8
List of loan redemption instalments *** (Note: All numbers in table below have been redacted)
Period |
Days |
Principal b/f (CHF) |
Repayment |
Principal c/f
|
Interest
|
Total to be
|
Payment date |
|||||||||
From |
To |
|||||||||||||||
01 Jan 09 | 08 Jan 09 | 8 | ||||||||||||||
09 Jan 09 | 08 Apr 09 | 90 | ||||||||||||||
09 Apr 09 | 08 Jul 09 | 91 | ||||||||||||||
09 Jul 09 | 08 Oct 09 | 92 | ||||||||||||||
09 Oct 09 | 08 Jan 10 | 92 | ||||||||||||||
09 Jan 10 | 08 Apr 10 | 90 | ||||||||||||||
09 Apr 10 | 08 Jul 10 | 91 | ||||||||||||||
09 Jul 10 | 08 Oct 10 | 92 | ||||||||||||||
09 Oct 10 | 08 Jan 11 | 92 | ||||||||||||||
09 Jan 11 | 08 Apr 11 | 90 | ||||||||||||||
09 Apr 11 | 08 Jul 11 | 91 | ||||||||||||||
Interest rate |
0.50% | |
Principal |
7,850,000.00 | |
Instalments |
11 |
Page 12 of 12
Exhibit 10.19
SHAREHOLDERS AGREEMENT
Dated as of , 2011
INTERXION HOLDING N.V.
and
CHIANNA INVESTMENT N.V.
and
LAMONT FINANCE N.V.
and
BAKER COMMUNICATIONS FUND II, L.P.
TABLE OF CONTENTS
Contents |
Page | |||||
ARTICLE I DEFINITIONS | 2 | |||||
Section 1.1 |
Definitions | 2 | ||||
Section 1.2 |
Construction | 3 | ||||
ARTICLE II CORPORATE GOVERNANCE | 3 | |||||
Section 2.1 |
Board of Directors | 3 | ||||
ARTICLE III GENERAL PROVISIONS | 5 | |||||
Section 3.1 |
Notices | 5 | ||||
Section 3.2 |
Amendment; Waiver | 7 | ||||
Section 3.3 |
Further Assurances | 7 | ||||
Section 3.4 |
Assignment | 7 | ||||
Section 3.5 |
Third Parties | 7 | ||||
Section 3.6 |
Governing Law | 7 | ||||
Section 3.7 |
Jurisdiction | 7 | ||||
Section 3.8 |
Specific Performance | 7 | ||||
Section 3.9 |
Entire Agreement | 8 | ||||
Section 3.10 |
Severability | 8 | ||||
Section 3.11 |
Table of Contents, Headings and Captions | 8 | ||||
Section 3.12 |
Counterparts | 8 | ||||
Section 3.13 |
No Recourse | 8 |
i
This Shareholders Agreement (the Agreement ) is entered into on this day of , 2011 by and among INTERXION HOLDING N.V. , a limited liability company ( naamloze vennootschap ) organized under the laws of The Netherlands (the Company ), and LAMONT FINANCE N.V. , a company organized under the laws of the Netherlands Antilles ( Baker I ), CHIANNA INVESTMENT N.V. , a company organized under the laws of the Netherlands Antilles ( Baker II ), and BAKER COMMUNICATIONS FUND II, L.P. , a limited partnership organized under the laws of Delaware, U.S.A. ( Baker III , together with Baker I and Baker II, Baker ).
W I T N E S S E T H
Whereas , the Company consummated an initial public offering of Ordinary Shares and listing on the New York Stock Exchange ( IPO ) on the date hereof (the Closing Date ); and
Whereas , the Company and Baker wish to provide for certain corporate governance matters.
Now Therefore , in consideration of the premises, mutual agreements, covenants and representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Capitalized terms used herein shall have the following meanings:
Affiliate of any Person means any Person that directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this definition control (inclusive its correlative meanings, controlled by and under common control with) shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
Articles means the Companys Articles of Association, as may be amended from time to time in accordance with their terms.
Baker has the meaning set forth in the Preamble.
Baker I has the meaning set forth in the Preamble.
Baker II has the meaning set forth in the Preamble.
Baker III has the meaning set forth in the Preamble.
Baker Partners means the direct and indirect partners of Baker I, Baker II or Baker III.
Business Day shall mean any day except a Saturday, a Sunday or any day on which banking institutions in Amsterdam, The Netherlands are required or authorized by law or other governmental action to be closed.
Board shall mean the board of directors of the Company.
2
Bylaws shall mean the bylaws of the Company.
Closing Date shall have the meaning set forth in the Recitals.
Company shall have the meaning set forth in the Preamble.
Director shall have the meaning set forth in Section 2.1(a).
Exchange Act shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated pursuant thereto.
Independent Directors means directors satisfying the criteria for independence, as defined by the listed company rules of the NYSE.
IPO shall have the meaning set forth in the Recitals.
NYSE means the New York Stock Exchange.
Ordinary Shares shall mean ordinary shares of the Company, nominal value 0.02 euro per share.
Person shall mean any individual, partnership, corporation, unincorporated organization or association, limited liability company, trust or other natural person or legal entity.
Registration Rights Agreement means the registration rights agreement, by and among the Company and Baker, dated as of the date hereof.
Rule 144 means Rule 144 promulgated under the U.S. Securities Act of 1933, as amended.
Rule 144 Affiliate means an affiliate of the Company as defined in Rule 144.
SEC means the U.S. Securities and Exchange Commission.
Section 1.2 Construction
Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine and neuter forms and the singular form of words shall include the plural and vice versa. All references to Articles and Sections refer to articles and sections of this Agreement. Whenever the words include, includes or including are used in this Agreement, they shall be deemed to be followed by the words without limitation (except to the extent the context otherwise provides). This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
ARTICLE II
CORPORATE GOVERNANCE
Section 2.1 Board of Directors
(a) | Effective as of the Closing Date, the Board shall be comprised of a maximum of seven members (each, a Director ), of whom four shall be designees of Baker. |
(b) | At or prior to the Closing Date, the Company shall use its reasonable best efforts to ensure that each Director shall become subject to the Bylaws. |
(c) |
Following the Closing Date, Baker shall have the right, but not the obligation, to nominate to the Board a number of designees equal to: (i) four Directors, so long as Baker beneficially owns, directly or indirectly, more than 25% of the then outstanding |
3
Ordinary Shares; provided that at least two of the Directors nominated by Baker shall be Independent Directors if then required under the rules of the NYSE; provided further that one of the Directors may be the Chairman of the Board, in accordance with Section 2.1(d); (ii) three Directors, in the event that Baker beneficially owns, directly or indirectly, more than 15%, but less than or equal to 25%, of the then outstanding Ordinary Shares; provided that at least one Director nominated by Baker shall be an Independent Director if then required under the rules of the NYSE; (iii) two Directors, in the event that Baker beneficially owns, directly or indirectly, more than 10%, but less than or equal to 15%, of the then outstanding Ordinary Shares; and (iv) one Director, in the event that Baker beneficially owns, directly or indirectly, at least 5%, but less than or equal to 10%, of the then outstanding Ordinary Shares. |
(d) | Following the Closing Date, so long as Baker beneficially owns, directly or indirectly, more than 25% of the then outstanding Ordinary Shares, Baker shall have the right, but not the obligation, to nominate the Chairman of the Board. |
(e) | Following the Closing Date, so long as Baker beneficially owns, directly or indirectly, more than 15% of the then outstanding Ordinary Shares, at least one of the Directors designated by Baker shall be appointed to each of the Boards standing committees; provided that at any time when the listing requirements of the NYSE so require, such Directors shall meet any independence or other requirements. |
(f) | In the event that the right of Baker to designate persons to serve as Director pursuant to this Section 2.1 should decrease in accordance with Section 2.1(c), one or more of the Directors designated by Baker shall resign immediately or Baker shall take all action necessary to remove such designee. |
(g) | Baker may request, in accordance with Section 25.2 of the Articles, that a General Meeting of the Shareholders be convened for the purpose of removing any Director designated by Baker. Any replacement nominee may only be nominated by Baker. |
(h) | In the event that a vacancy is created at any time by the death, disability, retirement or resignation of any Director designated pursuant to this Section 2.1, the Company shall cause the vacancy created thereby to be filled by a new designee of Baker and the Company hereby agrees to take, at any time and from time to time, all reasonably practicable actions to accomplish the same. |
(i) | In the event of a change in the number of Directors on the Board, Baker shall have the right to nominate to the Board a number of designees proportional to the rights described above in Section 2.1(c). |
(j) | The Company agrees to include in the slate of nominees recommended by the Board the persons designated pursuant to this Section 2.1 and to use their best efforts to cause the election of each such designees to the Board, including nominating such individuals to be elected as Directors as provided herein. The Company shall ensure and procure that each Director appointed to the Board after the date of this agreement shall become subject to the Bylaws. |
4
(k) | From and after the Closing date, so long as Baker beneficially owns, directly or indirectly, more than 5% of the then outstanding Ordinary Shares, the Company shall, within a reasonable time before each filing of any proxy materials related to the election of directors or amendments or supplements thereto with the SEC, furnish to Baker copies of such documents proposed to be filed, which documents shall be subject to the review and comment of Baker. |
Section 2.2 Procedures for Transfer of Ordinary Shares held by Baker.
(a) | The Company covenants and agrees that it will use its commercially reasonable efforts to cooperate, as promptly as practicable, with, and direct and instruct its transfer agent and registrar to cooperate with, process and records on its transfer books, as promptly as practicable, any proposed transfer of Ordinary Shares by Baker, including through a distribution of Ordinary Shares by Baker to the Baker Partners, so long as the transfer does not violate the securities laws of the United States. |
(b) | Subject to Section 2.2(c) below, the Company will issue and cause its counsel to issue, as promptly as practicable, instruction letters to the Companys transfer agent and registrar authorizing and directing the removal of any restrictive transfer legends or other restrictions on transfer in connection with any transfer to a Person (including a Baker Partner) that is not and has not during the three months preceding the transfer been a Rule 144 Affiliate and any transfer by Baker or any Baker Partner made in reliance on and compliance with Rule 144. |
(c) | In addition, the Company agrees that it will not take the position that a Baker Partner is, or was during the three months preceding any transfer of Ordinary Shares, a Rule 144 Affiliate solely by virtue of one or more of the following: (i) such Baker Partners ownership of limited partnership interests in Baker, (ii) the existence of, or such Baker Partners receipt of any benefit from, this Agreement or the Registration Rights Agreement, or (iii) such Baker Partners exercise of any rights arising solely from or in connection with beneficial ownership of Ordinary Shares held by Baker on behalf of a Baker Partner; unless, in each case (i) through (iii), there has been a change or changes in relevant facts or relevant law (including applicable statutes, rules, regulations, no-action letters or interpretations thereof by any court, agency or other governmental authority, including the SEC) and the Company has received an opinion of counsel to the effect that, as a result of such change, such Baker Partner is an affiliate (as defined in Rule 144) of the Company. |
ARTICLE III
GENERAL PROVISIONS
Section 3.1 Notices
(a) | Except as expressly set forth to the contrary in this Agreement; all notices, requests or consents provided for or required to be given hereunder shall be in writing and shall be deemed to be duly given if personally delivered, telecopied and confirmed, or mailed by certified mail, return receipt requested, or nationally recognized overnight delivery service with proof of receipt maintained, at the following addresses (or any other address that any such party may designate by written notice to the other parties): |
(i) | if to Baker: |
Baker Capital Corp.
540 Madison Avenue
New York, NY 10022
Telephone: +1 212 848 2000
Fax: +1 212 486 0660
5
with a copy (which shall not constitute notice) to:
Gibson Dunn & Crutcher
200 Park Avenue
New York, NY 10166
Telephone: +1 212 351 3918
Fax: +1 212 351 5217
Attention: Edward D. Sopher
(ii) | if to the Company: |
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Phone: +31 20 880 7600
Fax: +31 20 880 7601
Attention: Jaap Camman
with a copy (which shall not constitute notice) to:
Linklaters LLP
1345 Avenue of the Americas
New York, NY 10105
Phone: +1 212 903 9000
Fax: + 1 212 903 9100
Attention: Jeffrey C. Cohen
(b) | Any such notice shall, if delivered personally, be deemed received upon delivery; shall, if delivered by telecopy, be deemed received on the first Business Day following confirmation; shall, if delivered by nationally recognized overnight delivery service, be deemed received the first Business Day after being sent; and shall, if delivered by mail, be deemed received upon the earlier of actual receipt thereof or five (5) Business Days after the date of deposit in the United States mail. |
(c) | Whenever any notice is required to be given by Law or this Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. |
6
Section 3.2 Amendment; Waiver
This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by each of the parties hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and executed by the party so waiving. The waiver by any party hereto of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach.
Section 3.3 Further Assurances
The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof.
Section 3.4 Assignment
This Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns. The rights of Baker hereunder will be exercisable by any transferee of Ordinary Shares by Baker I, Baker II or Baker III that is an Affiliate of the transferor and managed by Baker Capital Corp. or its successor. Except as specifically provided herein, this Agreement may not be assigned without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null and void.
Section 3.5 Third Parties
This Agreement does not create any rights, claims or benefits inuring to any person that is not a party hereto nor create or establish any third party beneficiary hereto.
Section 3.6 Governing Law
This Agreement shall be governed by and construed in accordance with, the laws of the State of New York.
Section 3.7 Jurisdiction
In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each of the parties hereto unconditionally accepts the non-exclusive jurisdiction and venue of the courts of the State of New York in New York County or the United States District Court for the Southern District of New York, and the appellate courts to which orders and judgments thereof may be appealed. In any such judicial proceeding, the parties hereto agree that in addition to any method for the service of process permitted or required by such courts, to the fullest extent permitted by Law, service of process may be made by delivery provided pursuant to the directions in Section 3.1. EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR RELATING TO THE COMPANY OR ITS OPERATIONS.
Section 3.8 Specific Performance
Each party hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the other parties hereto would be irreparably harmed and could not be made whole by monetary damages. Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to specific performance of this Agreement without the posting of bond.
7
Section 3.9 Entire Agreement
This Agreement, sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein. This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
Section 3.10 Severability
If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
Section 3.11 Table of Contents, Headings and Captions
The table of contents, headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
Section 3.12 Counterparts
This Agreement and any amendment hereto may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement (or amendment, as applicable).
Section 3.13 No Recourse
This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, shareholder, agent, attorney or representative of any party hereto shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby, provided that this agreement may be enforced against anyone who is party hereto.
8
In witness whereof , the parties have executed this Agreement on the date first written above.
INTERXION HOLDING N.V. | ||
By: | ||
Name: Title: |
||
LAMONT FINANCE N.V. | ||
By: | ||
Name: Title: |
||
CHIANNA INVESTMENTS N.V. | ||
By: | ||
Name: Title: |
||
BAKER COMMUNICATIONS FUND II, L.P. | ||
By: | ||
Name: Title: |
9
Exhibit 21.1
Subsidiaries of InterXion Holding N.V.
Name of Subsidiary |
Jurisdiction |
|
InterXion HeadQuarters B.V. |
The Netherlands | |
InterXion Nederland B.V. |
The Netherlands | |
InterXion Trademarks B.V. |
The Netherlands | |
InterXion Österreich GmbH |
Austria | |
InterXion Belgium N.V. |
Belgium | |
InterXion Denmark ApS |
Denmark | |
InterXion France SAS |
France | |
InterXion Deutschland GmbH |
Germany | |
InterXion Ireland Ltd |
Ireland | |
InterXion Telecom SRL |
Italy | |
InterXion España SA |
Spain | |
InterXion Sverige AB |
Sweden | |
InterXion (Schweiz) AG |
Switzerland | |
InterXion Carrier Hotel Ltd. |
United Kingdom | |
InterXion Real Estate Holding B.V. |
The Netherlands | |
InterXion Real Estate I B.V. |
The Netherlands | |
Centennium Detachering B.V. |
The Netherlands | |
InterXion Consultancy Services B.V. |
The Netherlands | |
InterXion Telecom B.V. |
The Netherlands | |
InterXion Trading B.V. |
The Netherlands | |
InterXion B.V. |
The Netherlands | |
InterXion Europe Ltd. |
United Kingdom | |
InterXion Telecom Ltd. |
United Kingdom |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Management of InterXion Holding N.V.:
We consent to the use of our report included herein and to the reference to our firm under the heading Experts in the prospectus.
/s/ KPMG ACCOUNTANTS N.V.
Amstelveen, the Netherlands
12 January 2011
1
Exhibit 23.3
International Data Corporation, Inc.
5 Speen Street
Framingham, MA 01701
Re: Consent to Use of Data
January 12, 2011
Dear Sir or Madam:
International Data Corporation (IDC) grants InterXion Holding N.V. (InterXion) permission to make public statements, including in filings with the United States Securities and Exchange Commission that are consistent with the following:
1. | International Data Corporation, or IDC, projects the market for carrier-neutral colocation data center services in the United Kingdom, France, Germany and The Netherlands to grow from 922 million in 2009 to 2.245 billion in 2014, a compound annual growth rate of 19%. |
2. | According to IDC, as of March 2009, in-house data centers represent 88% of capacity in Europe. |
3. | According to IDC, the market for IT cloud services is expected to grow from $16.5 billion in 2009 to $55.5 billion in 2014, representing a 27.4% compound annual growth rate. |
4. | IDC projects the market for carrier-neutral colocation data center services in the United Kingdom, France, Germany and The Netherlands to grow from 922 million in 2009 to 2.245 billion in 2014, a compound annual growth rate of 19%. |
IDC consents to the use of the data set forth above in the Registration Statement on Form F-1 and related prospectus of InterXion and to the reference in the prospectus to IDCs name in connection therewith.
International Data Corporation | ||
By: |
/s/ K. Henry | |
Name: |
K. Henry |
|
Title: |
Senior Vice President |
|
Date: |
12 th January 2011 |
Exhibit 23.4
Rule 438 Consent
In accordance with Rule 438 under the Securities Act of 1933, as amended, the undersigned hereby consents to being named as a prospective director of InterXion Holding N.V. (InterXion) in the registration statement on Form F-1 filed by InterXion with the Securities and Exchange Commission on or about January 11, 2011.
/s/ Jean F.H.P. Mandeville |
||
Name: |
Jean F.H.P. Mandeville | |
Date: |
January 8, 2011 |