|
|
399 Park Avenue, 18th Floor
New York, New York 10022
(212) 547-2600 |
|
|
Robert W. Downes
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
(212) 558-4000
|
|
Large accelerated filer
o
|
|
Accelerated filer
o
|
|
Non-accelerated filer
ý
(Do not check if a
smaller
reporting company)
|
|
Smaller reporting company
o
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Title of Securities Being Registered
|
Proposed Maximum Aggregate Offering Price
(1)(2)
|
Amount of Registration Fee
(3)
|
Common Stock, $0.01 par value per share
|
$875,748,000
|
$88,187.82
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(1)
|
This Registration Statement relates to an indeterminate amount of shares of common stock, par value $0.01 per share, of NorthStar Realty Europe Corp., or NorthStar Europe, that will be distributed pursuant to a spin-off transaction to the holders of common stock, par value $0.01 per share, of NorthStar Realty Finance Corp.
|
(2)
|
Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(f)(2) of the Securities Act of 1933, based on the estimated book value of the common stock of NorthStar Europe at the latest practicable date prior to the filing of the Registration Statement, which has been computed based on estimated balances for the European Real Estate Business (as defined herein) to be contributed to NorthStar Europe, in each case as of June 30, 2015.
|
(3)
|
$133,354
was previously paid with the initial filing of our Registration Statement on Form S-11 on July 2, 2015. Accordingly, no additional amount is being paid herewith upon filing of this Amendment.
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Page
|
•
|
risks inherent in a spin-off, including those related to the capital resources required to protect against business risks, legal risks and risks associated with the accounting treatment of a spin-off transaction;
|
•
|
risks associated with operating as an independent public company and loss of certain benefits associated with being owned as part of a larger company;
|
•
|
our rapid growth and relatively limited experience investing in Europe;
|
•
|
the ability of NSAM to scale its operations in Europe to effectively manage our growth;
|
•
|
our ability to realize the anticipated benefits of the
European Spin-off
;
|
•
|
our ability to qualify and remain qualified as a REIT;
|
•
|
access to debt and equity capital and our liquidity;
|
•
|
our use of leverage and our ability to comply with the terms of our borrowing arrangements;
|
•
|
our ability to obtain mortgage financing on our real estate portfolio on favorable terms or at all;
|
•
|
the effect of economic conditions, particularly in Europe, on the valuation of our investments and on the tenants of the real property that we own;
|
•
|
the unknown impact of the potential default and/or exit of one or more countries within the European Union;
|
•
|
our ability to acquire attractive investment opportunities and the impact of competition for attractive investment opportunities;
|
•
|
our performance pursuant to a long-term management contract with NSAM as our manager, including our reliance on NSAM and its affiliates and sub-advisors/joint venture partners in providing management services to us, the payment of substantial base and potential incentive fees to our manager, the allocation of investments by our manager among us and our manager’s and its affiliates’ other managed companies and strategic vehicles and various conflicts of interest in our relationship with NSAM;
|
•
|
the effectiveness of our portfolio management techniques and strategies, including our reliance on third parties and the potential loss and/or liability arising as a result of our relationships with such third parties;
|
•
|
the impact of adverse conditions affecting a specific property type in which we have investments, such as office properties;
|
•
|
tenant defaults or bankruptcy;
|
•
|
illiquidity of properties in our portfolio;
|
•
|
our ability to realize current and expected return over the life of our investments;
|
•
|
any failure in our due diligence to identify all relevant facts in our underwriting process or otherwise;
|
•
|
the impact of credit rating downgrades;
|
•
|
our ability to manage our costs in line with our expectations and the impact on cash available for distribution, or CAD, and net operating income of our properties, or NOI;
|
•
|
environmental and regulatory requirements, compliance costs and liabilities related to owning and operating properties in our portfolio and to our business in general;
|
•
|
effect of regulatory actions, litigation and contractual claims against us and our affiliates, including the potential settlement and litigation of such claims;
|
•
|
changes in European, international and domestic laws or regulations governing various aspects of our business;
|
•
|
future changes in local tax law that may have an adverse impact on the cash flow and value of our investments;
|
•
|
our ability to effectively structure our investments in a tax efficient manner, including for local tax purposes;
|
•
|
the impact that a rise in future interest rates may have on our floating rate financing;
|
•
|
potential devaluation of the Euro relative to the U.S. dollar due to quantitative easing and/or other factors which could cause the U.S. dollar value of our investments to decline;
|
•
|
general foreign exchange risk associated with properties located in European countries located outside of the Eurozone, including the United Kingdom and Sweden;
|
•
|
the loss of our exemption from the definition of an “investment company” under the Investment Company Act of 1940, as amended, or the Investment Company Act;
|
•
|
competition for qualified personnel and NSAM’s ability to retain key personnel to manage us effectively;
|
•
|
the impact of damage to our brand and reputation resulting from internal or external causes;
|
•
|
the lack of historical financial statements for properties we may acquire in compliance with U.S. Securities and Exchange Commission, or SEC, requirements and U.S. generally accepted accounting principles, or U.S. GAAP, as well as the lack of familiarity of our tenants and third party service providers with such requirements and principles;
|
•
|
failure to maintain effective internal controls and disclosure controls and procedures;
|
•
|
the historical combined financial information included in this prospectus not providing an accurate indication of our performance in the future or reflecting what our financial position, results of operations or cash flows would have been had we operated as an independent public company during the periods presented; and
|
•
|
our status as an emerging growth company.
|
•
|
attractive positioning as a European
-focused
equity REIT with access to a lower cost of capital and capability to execute complex, cross border European transactions;
|
•
|
European
-focused
equity REIT with substantial growth prospects as financial and other institutions deleverage and wind-down their portfolios in Europe;
|
•
|
ability to benefit from opportunities in the European markets; and
|
•
|
opportunity to increase the aggregate value of NorthStar Europe and NorthStar Realty in order to allow each company to issue equity at a lower cost of capital in connection with acquisitions, joint ventures and partnerships on more favorable terms.
|
•
|
historically low interest rates;
|
•
|
historically wide spreads between capitalization yields and interest rates;
|
•
|
the European Central Bank’s quantitative easing program;
|
•
|
depreciation of foreign currencies, primarily the Euro;
|
•
|
declining unemployment rates;
|
•
|
relatively low oil prices;
|
•
|
increased investor and consumer confidence in a sustained European recovery; and
|
•
|
the apparent stabilization of European sovereign debt and reversal of the recent upward trend in debt/GDP across the Eurozone.
|
|
|
|
Portfolio by Geographic Location
|
|
Total portfolio, at cost
|
$2.6 billion
|
|
|
|
Number of properties
|
52
|
|
||
Number of countries
|
9
|
|
||
Total square meters
|
520,323
|
|
||
Weighted average occupancy
|
93
|
%
|
||
Weighted average remaining lease term
|
6.0 years
|
|
||
In-place rental income related to:
(1)
|
|
|||
Office properties
|
94
|
%
|
||
Other
|
6
|
%
|
||
|
|
•
|
the effect of adverse economic conditions in European, U.S. and global financial markets on the commercial real estate industry;
|
•
|
our dependence on NSAM as our manager, including our reliance on NSAM’s affiliates, sub-advisors, joint venture partners and third parties, to achieve our investment objectives, grow our business and make distributions to our stockholders;
|
•
|
NSAM failing to effectively perform its obligations under various agreements with us, including our management agreement;
|
•
|
our agreements with NSAM and NorthStar Realty not reflecting terms that would have resulted from arm’s-length negotiations among unaffiliated third parties;
|
•
|
the payment of substantial base and potential incentive fees to NSAM may cause NSAM to make decisions that are not in our best interests;
|
•
|
the allocation of investments by NSAM among us and NSAM’s other managed companies and strategic vehicles and certain other activities of NSAM may create various conflicts of interest in our relationship with NSAM;
|
•
|
the concentration of our investments in a specific property, property type or region;
|
•
|
the impact of adverse conditions effecting a specific property type in which we have investments, such as office properties;
|
•
|
political, economic, market, reputational, operational, legal, regulatory and other risks inherent in conducting business internationally;
|
•
|
the relative illiquidity of real estate investments;
|
•
|
the ability of our tenants to successfully operate their businesses;
|
•
|
regulatory compliance costs and liabilities related to owning and operating properties in our portfolio;
|
•
|
our access to financing sources on attractive terms, if at all;
|
•
|
our potential use of leverage;
|
•
|
the impact that a rise in future interest rates may have on our floating rate financing;
|
•
|
our use of short-term borrowings;
|
•
|
the effect of our hedging strategy against interest rate and currency exposure and our ability to align our hedging instruments and the investments being hedged;
|
•
|
the loss of key personnel if they terminate their employment with NSAM;
|
•
|
our dependence on information systems and failures of such systems and our ability to implement effective information and cyber security policies, procedures and capabilities;
|
•
|
unknown impact of the potential default and/or exit of one or more countries within the European Union;
|
•
|
costs associated with future growth through acquisitions of properties or other companies and our ability to integrate the properties or companies we acquire into our business and operations;
|
•
|
our ability to change our investment strategy and distribution policy;
|
•
|
our use of non-GAAP financial measures as indicators of our operating performance;
|
•
|
provisions of our organizational documents and Maryland law limiting certain business combinations or changes in control;
|
•
|
substantial European, U.S. and global regulation, numerous contractual obligations and extensive internal policies and our failure to comply with these matters;
|
•
|
our ability to qualify and remain qualified as a REIT for federal income tax purposes;
|
•
|
if NorthStar Realty fails to qualify as a REIT in its 2015 taxable year, we would be prevented from electing to qualify as a REIT and if so, would be required to pay income taxes at corporate rates and penalty taxes;
|
•
|
REIT distribution requirements could adversely affect our liquidity and may force us to borrow funds or sell properties during unfavorable market conditions;
|
•
|
the
European Spin-off
not having the benefits we anticipate or not enjoying all the benefits that we have prior to the
European Spin-off
;
|
•
|
the aggregate post-Distribution value of our Common Stock and NorthStar Realty’s common stock not equaling or exceeding the pre-Distribution value of NorthStar Realty’s common stock;
|
•
|
our ability to implement our business strategy;
|
•
|
the absence of a non-volatile, active trading market for our Common Stock;
|
•
|
satisfaction of the requirements of the Sarbanes-Oxley Act and the effectiveness of our internal control over financial reporting;
|
•
|
the risk that we might fail to maintain our exclusion from the definition of an “investment company” under the Investment Company Act of 1940, as amended, or the Investment Company Act; and
|
•
|
our status as an emerging growth company.
|
|
|
Acquisition
|
|
|
|
|
|
|
|
|
|
Ownership
|
|
||
|
|
Date
|
|
Primary Location(s)
|
|
Primary Description
|
|
Cost
|
|
Properties
|
|
Interest
|
|
||
NorthStar Europe Predecessor
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
U.K. Complex
|
|
Sept-14
|
|
Woking, U.K.
|
|
Multi-tenant office
|
|
$
|
100
|
|
|
1
|
|
93%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
New European Investments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
SEB Portfolio
|
|
April-15
|
|
U.K., France, Germany
|
|
Multi-tenant office
|
|
1,325
|
|
|
11
|
|
95%
|
(2)
|
|
Internos Portfolio
|
|
April-15
|
|
Germany, France, Portugal
|
|
Office/Hotel/Industrial/Retail
|
|
225
|
|
|
12
|
|
100%
|
(3)
|
|
IVG Portfolio
|
|
April-15
|
|
U.K., France, Germany
|
|
Multi-tenant office
|
|
212
|
|
|
15
|
|
100%
|
(3)
|
|
Deka Portfolio
|
|
April-15
|
|
Germany
|
|
Multi-tenant office
|
|
99
|
|
|
10
|
|
100%
|
(3)
|
|
Trianon Tower
|
|
July-15
|
|
Frankfurt, Germany
|
|
Multi-tenant office
|
|
621
|
|
|
3
|
|
95%
|
(2)
|
|
Total
|
|
|
|
|
|
|
|
$
|
2,582
|
|
|
52
|
|
|
|
(1)
|
The financial statements for NorthStar Predecessor include an allocation of certain costs and expenses from activities related to the launch of our European Real Estate Business.
|
(2)
|
We are entitled to 100% of net income (loss) based on the allocation formula, as set forth in the governing documents.
|
(3)
|
In the near term, we expect to enter into a joint venture arrangement with a third party for an approximate 5% ownership interest in all of the Deka Portfolio, $97 million of the Internos Portfolio and $24 million of the IVG Portfolio.
|
|
|
Six Months Ended June 30, 2015
|
||||||||||||||
|
|
NorthStar Europe Predecessor
(1)
|
|
Pro Forma Adjustments
(2)
|
|
Other
|
|
Pro Forma
(3)
|
||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Rental and escalation income
|
|
$
|
4,753
|
|
|
$
|
73,816
|
|
|
$
|
—
|
|
|
$
|
78,569
|
|
Other revenues
|
|
1
|
|
|
1,965
|
|
|
—
|
|
|
1,966
|
|
||||
Total revenues
|
|
4,754
|
|
|
75,781
|
|
|
—
|
|
|
80,535
|
|
||||
Expenses
|
|
|
|
|
|
|
|
|
||||||||
Management fee, related party
|
|
—
|
|
|
—
|
|
|
7,000
|
|
(4)
|
7,000
|
|
||||
Operating expenses
|
|
1,770
|
|
|
14,927
|
|
|
—
|
|
|
16,697
|
|
||||
Interest expense
|
|
1,523
|
|
|
16,674
|
|
|
10,907
|
|
(5)
|
29,104
|
|
||||
Equity-based compensation expense
|
|
—
|
|
|
—
|
|
|
3,707
|
|
(8)
|
3,707
|
|
||||
Other general and administrative expenses
|
|
1,358
|
|
|
—
|
|
|
—
|
|
|
1,358
|
|
||||
Depreciation and amortization
|
|
1,814
|
|
|
37,030
|
|
|
—
|
|
|
38,844
|
|
||||
Other expenses
|
|
—
|
|
|
3,756
|
|
|
—
|
|
|
3,756
|
|
||||
Total expenses
|
|
6,465
|
|
|
72,387
|
|
|
21,614
|
|
|
100,466
|
|
||||
Other income (loss)
|
|
|
|
|
|
|
|
|
||||||||
Unrealized gain (loss) on investments and other
|
|
41
|
|
|
—
|
|
|
—
|
|
|
41
|
|
||||
Realized gain (loss) on investments and other
|
|
(14
|
)
|
|
—
|
|
|
—
|
|
|
(14
|
)
|
||||
Income (loss) before income tax benefit (expense)
|
|
(1,684
|
)
|
|
3,394
|
|
|
(21,614
|
)
|
|
(19,904
|
)
|
||||
Income tax benefit (expense)
(2)(vii)
|
|
107
|
|
|
(287
|
)
|
|
1,864
|
|
|
1,684
|
|
||||
Net income (loss)
|
|
(1,577
|
)
|
|
3,107
|
|
|
(19,750
|
)
|
|
(18,220
|
)
|
||||
Net (income) loss attributable to non-controlling interests
|
|
21
|
|
|
—
|
|
|
118
|
|
(9)
|
139
|
|
||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
(1,556
|
)
|
|
$
|
3,107
|
|
|
$
|
(19,632
|
)
|
|
$
|
(18,081
|
)
|
Earnings (loss) per share:
|
|
|
|
|
|
|
|
|
||||||||
Basic
|
|
|
|
|
|
|
|
$
|
(0.33
|
)
|
||||||
Diluted
|
|
|
|
|
|
|
|
$
|
(0.33
|
)
|
||||||
Weighted average number of shares:
(6)
|
|
|
|
|
|
|
|
|
||||||||
Basic
|
|
|
|
|
|
|
|
55,147,328
|
|
|||||||
Diluted
|
|
|
|
|
|
|
|
55,507,470
|
|
|
|
Year ended December 31, 2014
|
||||||||||||||
|
|
NorthStar Europe Predecessor
(1)
|
|
Pro Forma Adjustments
(2)
|
|
Other
|
|
Pro Forma
(3)
|
||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Rental and escalation income
|
|
$
|
9,884
|
|
|
$
|
163,822
|
|
|
$
|
—
|
|
|
$
|
173,706
|
|
Other revenues
|
|
1,329
|
|
|
6,806
|
|
|
—
|
|
|
8,135
|
|
||||
Total revenues
|
|
11,213
|
|
|
170,628
|
|
|
—
|
|
|
181,841
|
|
||||
Expenses
|
|
|
|
|
|
|
|
|
||||||||
Management fee, related party
|
|
—
|
|
|
—
|
|
|
14,000
|
|
(4)
|
14,000
|
|
||||
Operating expenses
|
|
4,294
|
|
|
31,488
|
|
|
—
|
|
|
35,782
|
|
||||
Transaction costs
|
|
4,198
|
|
|
—
|
|
|
(4,198
|
)
|
(7)
|
—
|
|
||||
Interest expense
|
|
3,651
|
|
|
31,724
|
|
|
21,446
|
|
(5)
|
56,821
|
|
||||
Equity-based compensation expense
|
|
—
|
|
|
—
|
|
|
4,977
|
|
(8)
|
4,977
|
|
||||
Other general and administrative expenses
|
|
5,883
|
|
|
—
|
|
|
—
|
|
|
5,883
|
|
||||
Depreciation and amortization
|
|
3,382
|
|
|
83,312
|
|
|
394
|
|
|
87,088
|
|
||||
Other expenses
|
|
—
|
|
|
7,717
|
|
|
—
|
|
|
7,717
|
|
||||
Total expenses
|
|
21,408
|
|
|
154,241
|
|
|
36,619
|
|
|
212,268
|
|
||||
Other income (loss)
|
|
|
|
|
|
|
|
|
|
|||||||
Unrealized gain (loss) on investments and other
|
|
1,900
|
|
|
—
|
|
|
—
|
|
|
1,900
|
|
||||
Income (loss) before income tax benefit (expense)
|
|
(8,295
|
)
|
|
16,387
|
|
|
(36,619
|
)
|
|
(28,527
|
)
|
||||
Income tax benefit (expense)
(2)(vii)
|
|
—
|
|
|
(1,386
|
)
|
|
3,800
|
|
|
2,414
|
|
||||
Net income (loss)
|
|
(8,295
|
)
|
|
15,001
|
|
|
(32,819
|
)
|
|
(26,113
|
)
|
||||
Net (income) loss attributable to non-controlling interests
|
|
276
|
|
|
—
|
|
|
455
|
|
(9)
|
731
|
|
||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
(8,019
|
)
|
|
$
|
15,001
|
|
|
$
|
(32,364
|
)
|
|
$
|
(25,382
|
)
|
Earnings (loss) per share:
|
|
|
|
|
|
|
|
|
||||||||
Basic
|
|
|
|
|
|
|
|
$
|
(0.78
|
)
|
||||||
Diluted
|
|
|
|
|
|
|
|
$
|
(0.78
|
)
|
||||||
Weighted average number of shares:
(6)
|
|
|
|
|
|
|
|
|
||||||||
Basic
|
|
|
|
|
|
|
|
32,678,628
|
|
|||||||
Diluted
|
|
|
|
|
|
|
|
32,998,409
|
|
|
|
NorthStar Europe Predecessor
|
|
Pro Forma Adjustments
(10)
|
|
Other
|
|
Pro Forma
(3)
|
||||||||
Assets
|
|
|
|
|
|
|
|
|
||||||||
Cash
|
|
$
|
3,265
|
|
|
$
|
14,662
|
|
|
$
|
250,000
|
|
(12)
|
$
|
267,927
|
|
Restricted cash
|
|
6,106
|
|
|
—
|
|
|
—
|
|
|
6,106
|
|
||||
Operating real estate, net
|
|
54,985
|
|
|
2,156,907
|
|
|
—
|
|
|
2,211,892
|
|
||||
Receivables
|
|
1,031
|
|
|
—
|
|
|
—
|
|
|
1,031
|
|
||||
Unbilled rent receivable, net
|
|
694
|
|
|
—
|
|
|
—
|
|
|
694
|
|
||||
Derivative assets, at fair value
|
|
1,134
|
|
|
30,315
|
|
|
—
|
|
|
31,449
|
|
||||
Deferred costs and intangible assets, net
|
|
35,232
|
|
|
225,112
|
|
|
9,014
|
|
(11)
|
269,358
|
|
||||
Other assets
|
|
2,245
|
|
|
572
|
|
|
—
|
|
|
2,817
|
|
||||
Total assets
|
|
$
|
104,692
|
|
|
$
|
2,427,568
|
|
|
$
|
259,014
|
|
|
$
|
2,791,274
|
|
|
|
|
|
|
|
|
|
|
||||||||
Liabilities
|
|
|
|
|
|
|
|
|
||||||||
Mortgage and other notes payable
|
|
$
|
78,585
|
|
|
$
|
1,439,869
|
|
|
$
|
—
|
|
|
$
|
1,518,454
|
|
Senior notes
|
|
—
|
|
|
—
|
|
|
340,000
|
|
(11)
|
340,000
|
|
||||
Accounts payable and accrued expenses
|
|
824
|
|
|
—
|
|
|
—
|
|
|
824
|
|
||||
Other liabilities
|
|
2,706
|
|
|
42,150
|
|
|
—
|
|
|
44,856
|
|
||||
Total liabilities
|
|
82,115
|
|
|
1,482,019
|
|
|
340,000
|
|
|
1,904,134
|
|
||||
Equity
|
|
|
|
|
|
|
|
|
||||||||
Equity
|
|
21,439
|
|
|
943,972
|
|
|
(80,986
|
)
|
(11)(12)(13)
|
884,425
|
|
||||
Allocation to non-controlling interests
|
|
—
|
|
|
—
|
|
|
(8,677
|
)
|
(9)
|
(8,677
|
)
|
||||
NorthStar Europe equity
|
|
21,439
|
|
|
943,972
|
|
|
(89,663
|
)
|
|
875,748
|
|
||||
Non-controlling interests
|
|
1,138
|
|
|
1,577
|
|
|
8,677
|
|
(9)
|
11,392
|
|
||||
Total equity
|
|
22,577
|
|
|
945,549
|
|
|
(80,986
|
)
|
|
887,140
|
|
||||
Total liabilities and equity
|
|
$
|
104,692
|
|
|
$
|
2,427,568
|
|
|
$
|
259,014
|
|
|
$
|
2,791,274
|
|
(1)
|
The year ended December 31, 2014 includes the Prior Owner Period from January 1, 2014 through September 15, 2014 and NorthStar Owner Period from September 16, 2014 through December 31, 2014. The six months ended June 30, 2015 represents the NorthStar Owner Period.
NorthStar Predecessor includes allocation of general and administrative expenses, including operating expenses such as corporate overhead, based on the expectation that NorthStar Europe and NorthStar Realty’s general and administrative expenses would represent approximately 20% of the aggregate general and administrative expenses of NorthStar Europe, NorthStar Realty and NSAM after the Distribution, as described herein in “Corporate Governance and Management — Management Agreement.”
|
(2)
|
The following summarizes
adjustments related to our New European Investments for the six months ended June 30, 2015 and year ended December 31, 2014 (dollars in thousands):
|
|
|
Six Months Ended June 30, 2015
|
|||||||||||||||||||||||
|
|
SEB Portfolio
|
|
Internos Portfolio
|
|
IVG Portfolio
|
|
||||||||||||||||||
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
||||||||||||
Revenues
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Rental and escalation income
|
|
$
|
39,906
|
|
|
$
|
260
|
|
(ii)
|
$
|
9,118
|
|
|
$
|
(304
|
)
|
(ii)
|
$
|
4,970
|
|
|
$
|
127
|
|
(ii)
|
Other revenue
|
|
—
|
|
|
—
|
|
|
828
|
|
|
—
|
|
|
726
|
|
|
|
|
|||||||
Total revenues
|
|
39,906
|
|
|
260
|
|
|
9,946
|
|
|
(304
|
)
|
|
5,696
|
|
|
127
|
|
|
||||||
Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Operating expenses
(iv)(v)
|
|
5,564
|
|
|
719
|
|
|
1,811
|
|
|
(210
|
)
|
|
2,127
|
|
|
(169
|
)
|
|
||||||
Interest expense
(iii)
|
|
—
|
|
|
9,506
|
|
|
—
|
|
|
1,752
|
|
|
—
|
|
|
1,728
|
|
|
||||||
Depreciation and amortization
(vi)
|
|
—
|
|
|
18,990
|
|
|
—
|
|
|
4,021
|
|
|
—
|
|
|
2,698
|
|
|
||||||
Other expenses
(v)
|
|
—
|
|
|
2,132
|
|
|
—
|
|
|
478
|
|
|
—
|
|
|
274
|
|
|
||||||
Total expenses
|
|
5,564
|
|
|
31,347
|
|
|
1,811
|
|
|
6,041
|
|
|
2,127
|
|
|
4,531
|
|
|
||||||
Income (loss) before income tax benefit (expense)
|
|
34,342
|
|
|
(31,087
|
)
|
|
8,135
|
|
|
(6,345
|
)
|
|
3,569
|
|
|
(4,404
|
)
|
|
||||||
Income tax benefit (expense)
(vii)
|
|
—
|
|
|
(275
|
)
|
|
—
|
|
|
(151
|
)
|
|
|
|
71
|
|
|
|||||||
Net income (loss)
|
|
34,342
|
|
|
(31,362
|
)
|
|
8,135
|
|
|
(6,496
|
)
|
|
3,569
|
|
|
(4,333
|
)
|
|
||||||
Net (income) loss attributable to non-controlling interests
(viii)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
||||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
34,342
|
|
|
$
|
(31,362
|
)
|
|
$
|
8,135
|
|
|
$
|
(6,496
|
)
|
|
$
|
3,569
|
|
|
$
|
(4,333
|
)
|
|
|
|
Six Months Ended June 30, 2015 (continued)
|
||||||||||||||
|
|
Trianon Tower
|
|
Other Pro Forma Adjustments
(ix)
|
|
|
||||||||||
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
|
Total
|
|||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Rental and escalation income
|
|
$
|
18,486
|
|
|
$
|
(1,221
|
)
|
(ii)
|
$
|
2,473
|
|
|
$
|
73,815
|
|
Other revenue
|
|
—
|
|
|
—
|
|
|
411
|
|
|
1,965
|
|
||||
Total revenues
|
|
18,486
|
|
|
(1,221
|
)
|
|
2,884
|
|
|
75,780
|
|
||||
Expenses
|
|
|
|
|
|
|
|
|
||||||||
Operating expenses
(v)
|
|
5,173
|
|
|
(759
|
)
|
|
670
|
|
|
14,926
|
|
||||
Interest expense
(iii)
|
|
—
|
|
|
2,826
|
|
|
862
|
|
|
16,674
|
|
||||
Depreciation and amortization
(vi)
|
|
—
|
|
|
9,981
|
|
|
1,341
|
|
|
37,031
|
|
||||
Other expenses
(v)
|
|
—
|
|
|
724
|
|
|
148
|
|
|
3,756
|
|
||||
Total expenses
|
|
5,173
|
|
|
12,772
|
|
|
3,021
|
|
|
72,387
|
|
||||
Income (loss) before income tax benefit (expense)
|
|
13,313
|
|
|
(13,993
|
)
|
|
(137
|
)
|
|
3,393
|
|
||||
Income tax benefit (expense)
(vii)
|
|
—
|
|
|
58
|
|
|
12
|
|
|
(285
|
)
|
||||
Net income (loss)
|
|
13,313
|
|
|
(13,935
|
)
|
|
(125
|
)
|
|
3,108
|
|
||||
Net (income) loss attributable to non-controlling interests
(viii)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
13,313
|
|
|
$
|
(13,935
|
)
|
|
$
|
(125
|
)
|
|
$
|
3,108
|
|
|
|
Year Ended December 31, 2014
|
|||||||||||||||||||||||
|
|
SEB Portfolio
|
|
Internos Portfolio
|
|
IVG Portfolio
|
|
||||||||||||||||||
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
||||||||||||
Revenues
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Rental and escalation income
|
|
$
|
86,117
|
|
|
$
|
520
|
|
(ii)
|
$
|
21,894
|
|
|
$
|
(607
|
)
|
(ii)
|
$
|
12,889
|
|
|
$
|
254
|
|
(ii)
|
Other revenue
|
|
—
|
|
|
—
|
|
|
3,065
|
|
|
—
|
|
|
2,685
|
|
|
|
|
|||||||
Total revenues
|
|
86,117
|
|
|
520
|
|
|
24,959
|
|
|
(607
|
)
|
|
15,574
|
|
|
254
|
|
|
||||||
Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Operating expenses
(iv)(v)
|
|
8,400
|
|
|
597
|
|
|
3,114
|
|
|
(290
|
)
|
|
5,536
|
|
|
—
|
|
|
||||||
Interest expense
(iii)
|
|
—
|
|
|
17,388
|
|
|
—
|
|
|
3,504
|
|
|
—
|
|
|
3,456
|
|
|
||||||
Depreciation and amortization
(vi)
|
|
—
|
|
|
45,600
|
|
|
—
|
|
|
8,041
|
|
|
—
|
|
|
5,395
|
|
|
||||||
Other expenses
(v)
|
|
—
|
|
|
4,264
|
|
|
—
|
|
|
958
|
|
|
—
|
|
|
598
|
|
|
||||||
Total expenses
|
|
8,400
|
|
|
67,849
|
|
|
3,114
|
|
|
12,213
|
|
|
5,536
|
|
|
9,449
|
|
|
||||||
Income (loss) before income tax benefit (expense)
|
|
77,717
|
|
|
(67,329
|
)
|
|
21,845
|
|
|
(12,820
|
)
|
|
10,038
|
|
|
(9,195
|
)
|
|
||||||
Income tax benefit (expense)
(vii)
|
|
—
|
|
|
(879
|
)
|
|
—
|
|
|
(764
|
)
|
|
—
|
|
|
(71
|
)
|
|
||||||
Net income (loss)
|
|
77,717
|
|
|
(68,208
|
)
|
|
21,845
|
|
|
(13,584
|
)
|
|
10,038
|
|
|
(9,266
|
)
|
|
||||||
Net (income) loss attributable to non-controlling interests
(viii)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
||||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
77,717
|
|
|
$
|
(68,208
|
)
|
|
$
|
21,845
|
|
|
$
|
(13,584
|
)
|
|
$
|
10,038
|
|
|
$
|
(9,266
|
)
|
|
|
|
Year Ended December 31, 2014 (continued)
|
||||||||||||||
|
|
Trianon Tower
|
|
Other Pro Forma Adjustments
(ix)
|
|
|
||||||||||
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
|
Total
|
|||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Rental and escalation income
|
|
$
|
40,741
|
|
|
$
|
(2,906
|
)
|
(ii)
|
$
|
4,920
|
|
|
$
|
163,822
|
|
Other revenue
|
|
—
|
|
|
—
|
|
|
1,056
|
|
|
6,806
|
|
||||
Total revenues
|
|
40,741
|
|
|
(2,906
|
)
|
|
5,976
|
|
|
170,628
|
|
||||
Expenses
|
|
|
|
|
|
|
|
|
||||||||
Operating expenses
(v)
|
|
13,981
|
|
|
(1,721
|
)
|
|
1,871
|
|
|
31,488
|
|
||||
Interest expense
(iii)
|
|
—
|
|
|
5,652
|
|
|
1,724
|
|
|
31,724
|
|
||||
Depreciation and amortization
(vi)
|
|
—
|
|
|
21,594
|
|
|
2,682
|
|
|
83,312
|
|
||||
Other expenses
(v)
|
|
—
|
|
|
1,653
|
|
|
244
|
|
|
7,717
|
|
||||
Total expenses
|
|
13,981
|
|
|
27,178
|
|
|
6,521
|
|
|
154,241
|
|
||||
Income (loss) before income tax benefit (expense)
|
|
26,760
|
|
|
(30,084
|
)
|
|
(545
|
)
|
|
16,387
|
|
||||
Income tax benefit (expense)
(vii)
|
|
—
|
|
|
281
|
|
|
46
|
|
|
(1,387
|
)
|
||||
Net income (loss)
|
|
26,760
|
|
|
(29,803
|
)
|
|
(499
|
)
|
|
15,000
|
|
||||
Net (income) loss attributable to non-controlling interests
(viii)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
26,760
|
|
|
$
|
(29,803
|
)
|
|
$
|
(499
|
)
|
|
$
|
15,000
|
|
(i)
|
Represents audited financial statements of revenues and certain expenses for the year ended December 31, 2014 and unaudited financial statements of revenues and certain expenses for the six months ended June 30, 2015. The SEB Portfolio, the Internos Portfolio and the IVG Portfolio were acquired in April 2015 and the Trianon Tower was acquired in July 2015.
|
(ii)
|
Represents an adjustment to reflect amortization of above and below market leases.
|
(iii)
|
Represents interest expense for new borrowings at the contractual rate and includes amortization of deferred financing costs. The
estimated amortization period of deferred financing costs ranges from seven to 45 years. In addition, certain of the borrowings related to our Current European Portfolio are subject to interest rate caps. Refer to “Business
—
Our Properties” for further discussion of the
terms of the borrowings and interest rate caps
associated with our Current European Portfolio.
|
(iv)
|
Represents an adjustment for third
-
party property management and other fees for the SEB Portfolio.
|
(v)
|
Represents an adjustment and reclassification of third-party asset management and other fees to other expense based on amounts expected to be incurred.
|
(vi)
|
Represents depreciation and amortization expense based on a preliminary purchase price allocation for our New European Investments. The purchase price allocation is a preliminary estimate and may be adjusted within one year of the acquisition in accordance with U.S. GAAP. The depreciation and amortization periods range from one to 40 years.
|
(vii)
|
Our Current European Portfolio is owned in various foreign jurisdictions which have different tax laws and rates.
We estimate our effective tax rate to be approximately
8.5%
on a blended
basis
.
This effective tax rate may not represent our effective tax rate subsequent to the European Spin-off.
|
(viii)
|
We are entitled to 100% of net income (loss) based on the allocation formula, as set forth in the governing documents.
In addition, in the near term, we expect to enter into a joint venture arrangement with a third party for an approximate 5% ownership interest in all of the Deka Portfolio, $97 million of the Internos Portfolio and $24 million of the IVG Portfolio.
|
(ix)
|
Represents adjustments related to the Deka Portfolio acquired in April 2015.
|
(3)
|
The functional currency of NorthStar Europe is U.S. dollars and the functional currency of the properties comprising our European Real Estate Business is the local currency where the property is located, predominately the Euro. As such, the operations are translated to U.S. dollar using the average exchange rate during the respective period. Additionally, assets and liabilities of properties denominated in a foreign currency are translated to the U.S. dollar using the currency exchange rate at the end of the period presented. Our New European Investments presented in the unaudited pro forma combined balance sheet are translated using the currency exchange rate as of June 30, 2015. The pro forma adjustments do not include foreign currency forward contracts with a notional amount of $119.3 million and maturities ranging from August 2015 to May 2017 expected to be assumed as part of the Distribution.
|
(4)
|
Represents
an
adjustment to reflect
the base asset management fee to NSAM
in accordance with the management agreemen
t,
the terms of which are described in “Corporate Governance and Management—Our Manager—Management Agreement” of this prospectus. The current base management fee of $14 million annually is based on our Current European Portfolio and does not include any adjustment related to the NSAM incentive fee.
|
(5)
|
Represents
an
adjustment to reflect interest expense (including amortization of related deferred financing costs) related to NorthStar Europe’s issuance of $340 million of 4.625% Senior Notes due December 2016, or the Senior Notes, in July 2015 of $
10.9
million and $21.8 million for the six months ended June 30, 2015 and the year ended December 31, 2014, respectively. The year ended December 31, 2014 also includes
an
adjustment to reflect interest expense (including amortization of related deferred financing costs) related to NorthStar Europe Predecessor of $(0.4) million during the Prior Owner Period.
|
(6)
|
Weighted average shares used to compute basic and diluted earnings per share
, or EPS,
represents the number of weighted average shares of our Common Stock
and holders of limited partnership interests, or LTIP Units, as applicable,
assumed to be outstanding based on a distribution ratio of one share of our Common Stock
and LTIP Units for every six shares
of NorthStar Realty common stock
and LTIP Units
. The actual number of our basic and diluted shares outstanding will not be known until the Distribution.
Excludes the effect of exchangeable senior notes, shares under a forward sale agreement, restricted shares and RSUs outstanding that were not dilutive for the periods presented. These instruments could potentially impact diluted EPS in future periods.
|
(7)
|
Represents an adjustment to remove transaction costs related to the acquisition of the U.K. Complex. In addition, the pro forma statements of operations do not include transaction costs related to the acquisition of our Current European Portfolio of $97.4 million for the six months ended June 30, 2015 and $9.5 million for the year ended December 31, 2014.
Transaction costs
include legal, accounting, tax and other professional services t
hat are non-recurring in nature and therefore
are not included as part of the pro forma combined statements of operations.
|
(8)
|
Represents
adjustments for equity-based compensation expense related to various equity-based awards granted by NorthStar Realty that will be entitled to one award of NorthStar Europe for every six awards of NorthStar Realty (refer to “Executive Compensation—Outstanding NorthStar Realty Awards”).
|
(9)
|
Represents an adjustment on the pro forma combined balance sheet to establish non-controlling interests related to the holders of LTIP Units in the operating partnership of NorthStar Realty, or NorthStar Realty OP, structured as profits interests, that will be entitled to one common unit in our operating partnership, NorthStar Realty Europe Limited Partnership, or our Operating Partnership, for every six LTIP Units in NorthStar Realty OP. Additionally, the combined statements of operations includes an allocation for net income (loss) attributable to such non-controlling interests. The LTIP Unit holders’ interest in NorthStar OP was approximately 1% for the periods presented. In addition, the year ended December 31, 2014 includes a pro forma adjustment related to the non-controlling interest holder in NorthStar Europe Predecessor during the Prior Owner Period.
|
(10)
|
The following summarizes
adjustments related to our New European Investments for the unaudited pro forma combined balance sheet as of June 30, 2015 (dollars in thousands):
|
|
As of June 30, 2015
(i)(ii)
|
||||||||||||||||||||||
|
SEB Portfolio
|
|
Internos Portfolio
|
|
IVG Portfolio
|
|
Deka Portfolio
|
|
Trianon Tower
|
|
Total
|
||||||||||||
Assets
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Cash
|
$
|
3,831
|
|
|
$
|
—
|
|
|
$
|
10,831
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
14,662
|
|
Operating real estate, net
(iii)
|
1,131,061
|
|
|
190,327
|
|
|
185,315
|
|
|
84,623
|
|
|
565,581
|
|
|
2,156,907
|
|
||||||
Derivative assets, at fair value
|
8,015
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
22,300
|
|
|
30,315
|
|
||||||
Deferred costs and intangible assets, net
|
135,522
|
|
|
18,534
|
|
|
13,371
|
|
|
7,246
|
|
|
50,439
|
|
|
225,112
|
|
||||||
Other assets
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
572
|
|
|
572
|
|
||||||
Total assets
|
$
|
1,278,429
|
|
|
$
|
208,861
|
|
|
$
|
209,517
|
|
|
$
|
91,869
|
|
|
$
|
638,892
|
|
|
$
|
2,427,568
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Mortgage and other notes payable
|
$
|
826,459
|
|
|
$
|
101,315
|
|
|
$
|
94,066
|
|
|
$
|
51,914
|
|
|
$
|
366,115
|
|
|
$
|
1,439,869
|
|
Other liabilities
|
24,063
|
|
|
525
|
|
|
3,384
|
|
|
—
|
|
|
14,178
|
|
|
42,150
|
|
||||||
Total liabilities
|
850,522
|
|
|
101,840
|
|
|
97,450
|
|
|
51,914
|
|
|
380,293
|
|
|
1,482,019
|
|
||||||
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
NorthStar Europe equity
|
427,794
|
|
|
107,021
|
|
|
112,067
|
|
|
39,955
|
|
|
257,135
|
|
|
943,972
|
|
||||||
Non-controlling interests
(iv)
|
113
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,464
|
|
|
1,577
|
|
||||||
Total equity
|
427,907
|
|
|
107,021
|
|
|
112,067
|
|
|
39,955
|
|
|
258,599
|
|
|
945,549
|
|
||||||
Total liabilities and equity
|
$
|
1,278,429
|
|
|
$
|
208,861
|
|
|
$
|
209,517
|
|
|
$
|
91,869
|
|
|
$
|
638,892
|
|
|
$
|
2,427,568
|
|
(i)
|
Represents the preliminary purchase price allocation for each of the properties that comprise our New European Investments. The purchase price allocation is a preliminary estimate and may be adjusted within one year of the acquisition in accordance with U.S. GAAP. The purchase price of each portfolio represents the fair value of the assets acquired and liabilities assumed. The pro forma balance sheet includes an adjustment for transaction costs.
|
(ii)
|
Our New European Investments are predominantly denominated in Euro and GBP. The initial purchase price allocation is translated based on the exchange rate to the U.S. dollar as of June 30, 2015.
|
(iii)
|
Includes
four properties
of $
18
million classified as held-for-sal
e.
|
(iv)
|
In the near term, we expect to enter into a joint venture arrangement with a third party for an approximate 5% ownership interest in all of the Deka Portfolio, $97 million of the Internos Portfolio and $24 million of the IVG Portfolio.
|
(11)
|
Represents
an
adjustment to reflect NorthStar Europe’s issuance of the Senior Notes, including related deferred financing costs. We loaned the net proceeds from the issuance of the Senior Notes to subsidiaries of NorthStar Realty, which used such amounts for general corporate purposes, including, among other things, the funding of acquisitions, including the Trianon Tower and the repayment of NorthStar Realty’s borrowings. The terms of the loan are materially the same as those of the Senior Notes and
are deemed to be
repaid upon NorthStar Realty’s contribution to us of our European Real Estate Business. We may elect, upon satisfaction of certain conditions, to settle all or part of the principal amount of the Senior Notes in our Common Stock in lieu of cash. Refer to “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Recent Developments” for further discussion.
|
(12)
|
Represents the estimated initial capitalization of NorthStar Europe upon completion of the Distribution and excludes cash held in our Current European Portfolio. The initial capitalization is described in the contribution agreement, discussed in “Certain Relationships and Related Party Transactions—Relationship Between NorthStar Realty and Us After the Distribution—Contribution Agreement.”
|
(13)
|
Includes a capital contribution for transaction costs related to the European Spin-off paid by NorthStar Realty on our behalf of approximately $2 million incurred through June 30, 2015. Transaction costs include legal, accounting, tax and other professional services and start-up costs and are factually supportable because such amounts are based on reliable, documented evidence such as invoices for costs incurred to date. We expect total transaction costs to be approximately $10 million based on estimates from third parties for additional costs expected to be incurred until the European Spin-off. Transaction costs are non-recurring in nature and are therefore not included in the unaudited pro forma combined statement of operations. Rather, transaction costs represent a capital contribution and reduction of equity as a result of the expense with a net effect to equity of zero.
|
Q:
|
What is the Distribution?
|
A:
|
The Distribution is the method by which NorthStar Realty will separate the business of the Company from NorthStar Realty’s other businesses, creating two separate publicly-traded companies. In the Distribution, NorthStar Realty will distribute to its common stockholders all of the shares of our Common Stock that it owns. Following the Distribution, we will be a separate company from NorthStar Realty and NorthStar Realty will not retain any ownership interest in us. The number of shares of NorthStar Realty common stock you own will not change as a result of the Distribution
, although, in connection with, and immediately following, the Distribution, NorthStar Realty expects to effect the NRF Reverse Stock Split. This means that, after giving effect to the NRF Reverse Stock Split and the Distribution, holders of NorthStar Realty common stock will own one share of NorthStar Realty common stock for every two shares of NorthStar Realty common stock owned prior to the NRF Reverse Stock Split and Distribution.
|
Q:
|
What is being distributed in the Distribution?
|
A:
|
We estimate approximately 63.0 million
shares of our Common Stock will be distributed in the Distribution, based upon the
377.9 million
shares of NorthStar Realty common stock expected to be outstanding on the record date
(based on the total shares outstanding on September 30, 2015 plus additional shares expected to be issued pursuant to NorthStar Realty’s forward sale agreement prior to the record date)
. The shares of our Common Stock to be distributed by NorthStar Realty will constitute all of the issued and outstanding shares of our Common Stock immediately after the Distribution. The actual number of shares of our Common Stock to be issued in the Distribution will be determined as of the record date. For more information on the shares being distributed in the Distribution, refer to “Shares Eligible for Future Sale” and “Description of Capital Stock — Common Stock.”
|
Q:
|
What will I receive in the Distribution?
|
A:
|
Holders of NorthStar Realty common stock will receive a distribution of one share of our Common Stock for every
six shares
of NorthStar Realty common stock held by them on the record date.
In connection with, and immediately following, the Distribution, NorthStar Realty expects to effect the NRF Reverse Stock Split.
As a result of the Distribution, your proportionate interest in NorthStar Realty will not change and, on a fully diluted basis, you will own the same percentage of common stock and voting power in NorthStar Europe as you did in NorthStar Realty on the record date, except as a result of the receipt of cash in lieu of fractional shares. For a more detailed description, refer to “The Distribution.”
|
Q:
|
What is the record date for the Distribution?
|
A:
|
Record ownership will be determined as of the close of business, Eastern Time, on
October 22
, 2015, which we refer to as the record date. The person in whose name shares of NorthStar Realty common stock are registered at the close of business on the record date is the person to whom shares of our Common Stock will be issued in the Distribution. Refer to “The Distribution — Listing and Trading of Our Common Stock” for additional information.
|
Q:
|
When will the Distribution occur?
|
A:
|
We expect that shares of our Common Stock will be distributed by our transfer agent in its capacity as the distribution agent, on behalf of NorthStar Realty, effective at 11:59 p.m. Eastern Time on
October 31
, 2015, which we refer to as the Distribution date.
|
Q:
|
What will the relationship between NorthStar Realty and us be following the Distribution?
|
A:
|
Following the Distribution, we will be a separate public company and NorthStar Realty will have no continuing ownership interest in us. In connection with the Distribution, we and NorthStar Realty will enter into a separation agreement and will enter into several other agreements for the purpose of accomplishing the distribution of shares of our Common Stock to NorthStar Realty’s common stockholders. These agreements will govern our relationship with NorthStar Realty subsequent to the Distribution and will also provide that all liabilities and obligations attributable to periods prior to the Distribution will remain with NorthStar Realty except for the liabilities for which NorthStar Realty agrees to contribute cash to the Company to enable the Company to pay such liabilities. The separation agreement provides that we and NorthStar Realty agree to provide each other with appropriate indemnities with respect to liabilities arising out of the businesses being transferred to us by NorthStar Realty.
|
Q:
|
What do I have to do to participate in the Distribution?
|
A:
|
No action is required on your part. Stockholders of NorthStar Realty on the record date for the Distribution are not required to pay any cash or deliver any other consideration, including any shares of NorthStar Realty common stock, for the shares of our Common Stock distributable to them in the Distribution.
|
Q:
|
If I sell shares of NorthStar Realty common stock that I own after the date of this prospectus but before the Distribution, am I still entitled to receive shares of NorthStar Europe Common Stock distributable with respect to the shares of NorthStar Realty common stock I sold?
|
A:
|
Beginning on or shortly before the record date and continuing up to and including the date of the Distribution, it is expected that there will be two markets in NorthStar Realty common stock: a “regular-way” market and an “ex-distribution” market. Shares of NorthStar Realty common stock that trade on the “regular-way” market will trade with an entitlement to our Common Stock distributed pursuant to the
European Spin-off
. Shares of NorthStar Realty common stock that trade on the “ex-distribution” market will trade without an entitlement to our Common Stock distributed pursuant to the
European Spin-off
. Therefore, if you sell shares of NorthStar Realty common stock in the “regular-way” market after the record date but before the Distribution, you will be selling your right to receive our Common Stock in the Distribution. If you sell shares of NorthStar Realty common stock in the “ex-distribution” market before the Distribution, you will receive the shares of our Common Stock that you are entitled to receive pursuant to your ownership as of the record date of NorthStar Realty common stock.
|
Q:
|
How will fractional shares be treated in the Distribution?
|
A:
|
If you would be entitled to receive a fractional share of our Common Stock in the Distribution, you will instead receive a cash payment. Refer to “The Distribution — General” for an explanation of how the cash payments will be determined.
|
Q:
|
How will NorthStar Realty distribute shares of NorthStar Europe Common Stock to me?
|
A:
|
Holders of shares of NorthStar Realty’s common stock on the record date will receive shares of our Common Stock in book-entry form. Refer to “The Distribution — General” for a more detailed explanation.
|
Q:
|
What is the reason for the Distribution?
|
A:
|
The NorthStar Realty Board believes that investors and analysts will regard NorthStar Europe’s focused strategy of investing in European commercial real estate more favorably as a separate company than as part of the existing portfolio and strategy of NorthStar Realty and thus place a greater value on NorthStar Europe as a separate public company. In the event that the
European Spin-off
does not have this and other expected benefits, the costs associated with the transaction, including an expected increase in general and administrative expenses, could have a negative effect on the financial condition and ability to make distributions to the stockholders of each company.
|
Q:
|
Will I be taxed on the shares of NorthStar Europe Common Stock that I receive in the Distribution?
|
A:
|
Yes. The Distribution will be in the form of a taxable special distribution to NorthStar Realty common stockholders. An amount equal to the fair market value of our Common Stock received by you will be treated as a taxable dividend to the
|
Q:
|
Does NorthStar Europe intend to pay cash distributions?
|
A:
|
We intend to make distributions to holders of our Common Stock on a quarterly basis. Evaluation of our distribution policy will be solely at the discretion of our board of directors and will be based on factors including, but not limited to, CAD, NOI, new investments, capital requirements and other factors our board of directors deems relevant and in accordance with applicable law. For additional information, refer to “Distribution Policy.”
|
Q:
|
How will NorthStar Europe Common Stock trade?
|
A:
|
There is not currently a public market for our Common Stock. We expect to list our Common Stock on the NYSE under the symbol “NRE.” Beginning shortly before, and continuing up to and including, the date of the Distribution, we expect that there will be a “when-issued” trading market in our Common Stock. The “when-issued” market will be a trading market for the shares of our Common Stock that will be distributed to holders of shares of NorthStar Realty common stock on the Distribution date. If you owned shares of NorthStar Realty common stock at the record date you will be entitled to shares of our Common Stock distributed pursuant to the Distribution. You may trade this entitlement to shares of our Common Stock, without the shares of NorthStar Realty common stock you own, on the “when-issued” market. On the first trading day following the Distribution date, “when-issued” trading with respect to our Common Stock will end and “regular-way” trading will begin.
|
Q:
|
Will the Distribution affect the trading price of my NorthStar Realty common stock?
|
A:
|
Yes. After the distribution of our Common Stock, the trading price of NorthStar Realty common stock is expected to be lower than the trading price of the NorthStar Realty common stock immediately prior to the Distribution. Moreover, until the market has evaluated the operations of NorthStar Realty without the operations of NorthStar Europe, the trading price of NorthStar Realty common stock may fluctuate as a result of the Distribution. NorthStar Realty believes the separation of NorthStar Europe from NorthStar Realty offers its stockholders the greatest long-term value. However, the combined trading prices of NorthStar Realty common stock and our Common Stock after the Distribution may be lower than the trading price of NorthStar Realty common stock prior to the Distribution. Refer to “Risk Factors” beginning on page
18
.
|
Q:
|
Do I have appraisal rights?
|
A:
|
No. Holders of NorthStar Realty common stock are not entitled to appraisal rights in connection with the Distribution.
|
Q:
|
Is stockholder approval required for the Distribution?
|
A:
|
No. Stockholder approval is not required for the Distribution. Subsequent to final approval by the NorthStar Realty Board and regulatory approval, NorthStar Realty will distribute its ownership interest in NorthStar Europe to its existing stockholders as of the record date.
|
Q:
|
Can the NorthStar Realty Board decide to cancel the Distribution?
|
A:
|
Yes. The occurrence of the Distribution will be subject to certain conditions, including the final approval of the NorthStar Realty Board. The NorthStar Realty Board may, in its sole and absolute discretion, determine to impose or waive conditions to the Distribution or abandon the Distribution. If the NorthStar Realty Board decides to cancel the Distribution or
|
Q:
|
Who is the transfer agent for NorthStar Europe Common Stock?
|
A:
|
American Stock Transfer & Trust Company, LLC
|
Q:
|
Where can I get more information?
|
A:
|
If you have questions relating to the mechanics of the Distribution of shares of our Common Stock, you should contact the distribution agent:
|
•
|
investment objectives, strategy and criteria;
|
•
|
cash requirements and amount of funds available;
|
•
|
effect of the investment on the diversification of the portfolio, including by geography, size of investment, type of investment and risk of investment;
|
•
|
leverage policy and the availability of financing for the investment by each entity;
|
•
|
anticipated cash flow of the investment to be acquired;
|
•
|
income tax effects of the purchase;
|
•
|
the size of the investment;
|
•
|
cost of capital;
|
•
|
risk return profiles;
|
•
|
targeted distribution rates;
|
•
|
anticipated future pipeline of suitable investments;
|
•
|
the expected holding period of the investment and the remaining term of the NSAM managed company, if applicable;
|
•
|
affiliate and/or related party considerations; and
|
•
|
whether a strategic vehicle has received a special allocation (as defined in the investment allocation policy).
|
•
|
governmental laws, rules and policies including laws relating to the foreign ownership of real property or mortgages and laws relating to the ability of foreign persons or corporations to remove profits earned from activities within the country to the person’s or corporation’s country of origin;
|
•
|
translation and transaction risks related to fluctuations in foreign currency exchange rates;
|
•
|
adverse market conditions caused by inflation, deflation or other changes in national or local political and economic conditions;
|
•
|
challenges of complying with a wide variety of foreign laws, including corporate governance, operations, taxes and litigation;
|
•
|
changes in relative interest rates;
|
•
|
changes in the availability, cost and terms of borrowings resulting from varying national economic policies;
|
•
|
changes in real estate and other tax rates, the tax treatment of transaction structures and other changes in operating expenses in a particular country where we have an investment;
|
•
|
our REIT tax status not being respected under foreign laws, in which case any income or gains from foreign sources would likely be subject to foreign taxes, withholding taxes, transfer taxes and value added taxes;
|
•
|
lack of uniform accounting standards (including availability of information in accordance with U.S. GAAP);
|
•
|
changes in land use and zoning laws;
|
•
|
more stringent environmental laws or changes in such laws;
|
•
|
changes in the social stability or other political, economic or diplomatic developments in or affecting a country where we have an investment;
|
•
|
changes in applicable laws and regulations in the United States that affect foreign operations; and
|
•
|
legal and logistical barriers to enforcing our contractual rights in other countries, including insolvency regimes, landlord/tenant rights and ability to take possession of collateral.
|
•
|
our joint venture partner in an investment could become insolvent or bankrupt;
|
•
|
fraud or other misconduct by our joint venture partners;
|
•
|
we may share decision-making authority with our joint venture partner regarding certain major decisions affecting the ownership of the joint venture and the joint venture property, such as the sale of the property or the making of additional capital contributions for the benefit of the property, which may prevent us from taking actions that are opposed by our joint venture partner;
|
•
|
such joint venture partner may at any time have economic or business interests or goals that are or that become in conflict with our business interests or goals, including for example the operation of the properties owned by such joint venture;
|
•
|
such joint venture partner may be in a position to take action contrary to our instructions or requests or contrary to our policies or objectives; and
|
•
|
the terms of our joint ventures could restrict our ability to sell or transfer our interest to a third party when we desire on advantageous terms, which could result in reduced liquidity.
|
•
|
cancelled any reference in the French commercial code, with respect to the variation of the rent of a renewed or revised lease, to the
indice national trimestriel mesurant le coût de la construction
, or the Construction Cost Index, and replaced it with the Commercial Rents Index and the Retail Rental Index;
|
•
|
removed the possibility to contractually remove the right of the tenant to terminate the lease at the end of every three-year period, with the exception of leases for premises to be used exclusively as office space; and
|
•
|
made it mandatory for the property owner to incur certain charges.
|
•
|
require us to dedicate a large portion of our cash flow to pay principal and interest on our borrowings, which would reduce the availability of cash flow to fund working capital, capital expenditures and other business activities;
|
•
|
require us to maintain minimum unrestricted cash;
|
•
|
increase our vulnerability to general adverse economic and industry conditions;
|
•
|
require us to post additional reserves and other additional collateral to support our financing arrangements, which could reduce our liquidity and limit our ability to leverage our investments;
|
•
|
subject us to maintaining various debt, operating income, net worth, cash flow and other covenants and financial ratios;
|
•
|
limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;
|
•
|
restrict our operating policies and ability to make strategic acquisitions, dispositions or pursue business opportunities;
|
•
|
require us to maintain a borrowing base of assets;
|
•
|
place us at a competitive disadvantage compared to our competitors that have fewer borrowings;
|
•
|
put us in a position that necessitates raising equity capital at a time that is unfavorable to us and dilutive to our stockholders;
|
•
|
limit our ability to borrow additional funds (even when necessary to maintain adequate liquidity), dispose of investments or make distributions to stockholders; and
|
•
|
increase our cost of capital.
|
•
|
interest rate and/or currency hedging can be expensive, particularly during periods of rising and volatile interest rates;
|
•
|
available interest rate and/or currency hedging may not correspond directly with the risk for which protection is sought;
|
•
|
the duration of the hedge may not match the duration of the related liability or investment;
|
•
|
our hedging opportunities may be limited by the treatment of income from hedging transactions under the rules determining REIT qualification;
|
•
|
the credit quality of the party owing money on the hedge may be downgraded to such an extent that it impairs our ability to sell or assign our side of the hedging transaction;
|
•
|
the counterparties with which we trade may cease making markets and quoting prices in such instruments, which may render us unable to enter into an offsetting transaction with respect to an open position;
|
•
|
the party owing money in the hedging transaction may default on its obligation to pay; and
|
•
|
we may purchase a hedge that turns out not to be necessary,
i.e.
, a hedge that is out of the money.
|
•
|
“business combination”
provisions that, subject to limitations, prohibit certain business combinations between an “interested stockholder” (defined generally as any person who beneficially owns 10% or more of the voting power of our outstanding shares of voting stock or an affiliate or associate of the corporation who, at any time within the two-year period immediately prior to the date in question, was the beneficial owner of 10% or more of the voting power of the then outstanding stock of the corporation) or an affiliate of any interested stockholder and us for five years after the most recent date on which the stockholder becomes an interested stockholder, and thereafter imposes two super-majority stockholder voting requirements on these combinations; and
|
•
|
“control share”
provisions that provide that holders of “control shares” of our company (defined as voting shares of stock that, if aggregated with all other shares of stock owned or controlled by the acquirer or in respect of which the acquirer is able to exercise or direct the exercise of voting power (except solely by virtue of a revocable proxy), would entitle the acquirer to exercise one of three increasing ranges of voting power in electing directors) acquired in a “control share acquisition” (defined as the direct or indirect acquisition of issued and outstanding “control shares,” subject to certain exceptions) have no voting rights except to the extent approved by stockholders by the affirmative vote of at least two-thirds of all of the votes entitled to be cast on the matter, excluding all interested shares.
|
•
|
we would not be allowed a deduction for dividends paid to stockholders in computing our taxable income and would be subject to U.S. federal income tax at regular corporate rates;
|
•
|
we could be subject to the U.S. federal alternative minimum tax and possibly increased state and local taxes; and
|
•
|
unless we are entitled to relief under certain U.S. federal income tax laws, we could not re-elect REIT status until the fifth calendar year after the year in which we failed to qualify as a REIT.
|
•
|
attractive positioning as a European
-focused
equity REIT with access to a lower cost of capital and capability to execute complex, cross border European transactions;
|
•
|
European
-focused
equity REIT with substantial growth prospects as financial and other institutions deleverage and wind-down their portfolios in Europe;
|
•
|
ability to benefit from opportunities in the European markets; and
|
•
|
opportunity to increase the aggregate value of NorthStar Europe and NorthStar Realty in order to allow each company to issue equity at a lower cost of capital in connection with acquisitions, joint ventures and partnerships on more favorable terms.
|
•
|
financial institutions;
|
•
|
insurance companies;
|
•
|
broker-dealers;
|
•
|
regulated investment companies;
|
•
|
foreign sovereigns and their controlled entities;
|
•
|
partnerships and trusts;
|
•
|
persons who will hold NorthStar Realty common stock on behalf of other persons as nominees;
|
•
|
persons who received NorthStar Realty common stock through the exercise of employee stock options or otherwise as compensation;
|
•
|
persons who will hold NorthStar Realty common stock as part of a “straddle,” “hedge,” “conversion transaction,” “synthetic security” or other integrated investment; and
|
•
|
except to the extent discussed below, tax-exempt organizations and foreign investors.
|
•
|
a citizen or resident of the United States;
|
•
|
a corporation (including an entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any of its states, or the District of Columbia;
|
•
|
an estate whose income is subject to U.S. federal income taxation regardless of its source; or
|
•
|
a trust if: (i) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust; or (ii) it has a valid election in place to be treated as a U.S. person.
|
•
|
the SEC declaring effective our registration statement and no stop order suspending the effectiveness of the registration statement in effect and no proceedings for such purpose pending before or threatened by the SEC;
|
•
|
the transaction agreements relating to the Distribution having been duly executed and delivered by the parties;
|
•
|
no order, injunction or decree issued by any court of competent jurisdiction or other legal restraint or prohibition preventing consummation of the Distribution or any of the related transactions in effect;
|
•
|
the receipt by us of an opinion from Hunton & Williams LLP to the effect that, beginning with our taxable year ending December 31, 2015, we will be organized in conformity with the requirements for qualification as a REIT under the Code and our proposed method of operation will enable us to satisfy the requirements for qualification and taxation as a REIT under the U.S. federal income tax laws for the year ending December 31, 2015 and subsequent taxable years; and
|
•
|
no event or development having occurred or existing that, in the judgment of the NorthStar Realty Board, in its sole discretion, makes it inadvisable to effect the Distribution and other related transactions.
|
•
|
historically low interest rates, with three-month Euribor falling below zero in April 2015 ((0.
4
)% in
October
2015 compared to 5.1% in October 2008);
|
•
|
historically wide spreads between capitalization yields and interest rates;
|
•
|
the European Central Bank’s quantitative easing program, with a commitment to purchase €1.1 trillion in assets over a period of nineteen months beginning in the first quarter of 2015;
|
•
|
depreciation of foreign currencies, primarily the Euro;
|
•
|
declining unemployment rates;
|
•
|
relatively low oil prices;
|
•
|
increased investor and consumer confidence in a sustained European recovery; and
|
•
|
the apparent stabilization of European sovereign debt and reversal of the recent upward trend in debt/GDP across the Eurozone.
|
Property Capital Values - 1990’s Cycle vs. Current
|
|
U.K. Property Capital Values
|
|
|
|
Yield Spreads Above Long-Term Average Rates
(1)
|
|
(1)
|
As of September 28, 2015. Source: Jones Lang LaSalle IP, Inc, European property yield data © 2015.
|
•
|
New Opportunity for Investors –
We will be the only diversified European real estate company listed in the United States. We therefore believe we are creating a new opportunity for investors to gain pan-European real estate exposure through one vehicle, with the advantage of the accessibility and liquidity associated with the U.S. capital markets.
|
•
|
Access to Lower Cost of Capital –
As a separate public company, we expect to have lower cost of capital. NSAM has a proven track record of accessing the capital markets on behalf of NorthStar Realty and its other managed companies and we believe that our experience should enable us to structure and finance investments efficiently. We believe NSAM’s experience, together with its affiliates, will provide us access to a wide range of secured and unsecured debt and public and private equity capital sources to grow and fund our business.
|
•
|
Diversified Investment Strategy –
We have a diversified investment strategy, with flexibility to invest in a variety of property types and jurisdictions. This strategy gives our investors the opportunity to gain European exposure through a single investment. In addition, our strategy allows us to take advantage of portfolio sales that appear undervalued that competitors, most of whom are restricted to specific regions or property types in Europe, are unable to pursue.
|
•
|
High-Quality Portfolio in Key Markets –
We have already begun to execute our strategy through our initial acquisitions of high-quality office buildings in many of the major cities across Europe, tapping a large and liquid market that we believe has significant potential for long-term growth.
|
•
|
Experienced Management Team –
Our management team and experienced investment professionals are on the ground in Europe and have the ability to execute on complex, cross-border transactions. We believe our business will continue to benefit from the knowledge and industry contacts that these seasoned executives have gained through their accomplished careers while investing in numerous real estate cycles. We believe the accumulated experience of our senior management team, together with other resources at NSAM, will allow us to identify opportunities and deploy capital across a broad spectrum of potential investments fluidly in response to changes in the investment environment.
|
•
|
Real Estate Investment and Asset Management Experience –
Our asset manager, NSAM, has developed a reputation as a leading, diversified commercial real estate investment and asset management team because of its strong performance record in managing approximately $25 billion in commercial real estate investments as of June 30, 2015, adjusted for acquisitions and commitments to purchase real estate through August 5, 2015. Prior to its spin-off from NorthStar Realty
, or the NSAM Spin-off,
NSAM historically focused in the United States and more recently NSAM has started managing assets in Europe, and as a result of its third party arrangements, we also benefit from the strength of our local partners in Europe. We believe that we can leverage that extensive real estate experience and the depth and thoroughness of the associated asset management skills to structure and manage our investments prudently and efficiently.
|
•
|
Public Company Reporting and REIT Experience –
NorthStar Realty has operated as a REIT and its common stock has traded on the NYSE under the symbol “NRF” since October 2004. NSAM has also operated as a public company traded on the NYSE under the symbol “NSAM” since July 2014. Our management team is skilled in public company reporting and compliance with the requirements of the Sarbanes-Oxley Act, including internal control certifications, stock exchange regulations and investor relations and is experienced in complying with the requirements under the Code to obtain REIT status and to maintain the ability to be taxed as a REIT for U.S. federal income tax purposes.
|
|
|
|
Portfolio by Geographic Location
|
|
Total portfolio, at cost
|
$2.6 billion
|
|
|
|
Number of properties
|
52
|
|
||
Number of countries
|
9
|
|
||
Total square meters
|
520,323
|
|
||
Weighted average occupancy
|
93
|
%
|
||
Weighted average remaining lease term
|
6.0 years
|
|
||
In-place rental income related to:
(1)
|
|
|||
Office properties
|
94
|
%
|
||
Other
|
6
|
%
|
||
|
|
Location Country, City
|
|
Number of Buildings
|
|
Estimated Amount
(1)(2)
|
|
Type
(6)
|
|
Square Meters
(9)(10)
|
|
Occupancy
|
|
Average Annual In-Place Rental Income
per Square Meter
(2)(10)
|
|
Borrowings
(2)(3)
|
|
|||||||
Belgium
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Brussels
|
|
4
|
|
$
|
67,796
|
|
|
Office
|
|
23,602
|
|
|
77%
|
|
$
|
210
|
|
|
$
|
5,172
|
|
|
U.K.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
London - Portman Square
(7)(12)
|
|
1
|
|
279,461
|
|
|
Office
|
|
10,447
|
|
|
100%
|
|
1,155
|
|
|
191,550
|
|
(4)
|
|||
London (Other)
(7)
|
|
2
|
|
202,503
|
|
|
Office
|
|
13,378
|
|
|
100%
|
|
806
|
|
|
162,058
|
|
|
|||
Scotland
|
|
2
|
|
20,485
|
|
|
Office
|
|
6,086
|
|
|
100%
|
|
366
|
|
|
10,785
|
|
|
|||
Woking (U.K. Complex)
(7)(8)
|
|
1
|
|
97,452
|
|
|
Office
|
|
20,743
|
|
|
100%
|
|
343
|
|
|
78,585
|
|
|
|||
Other (England)
|
|
3
|
|
31,603
|
|
|
Office
|
|
7,267
|
|
|
92%
|
|
368
|
|
|
19,429
|
|
|
|||
Subtotal UK
|
|
9
|
|
631,504
|
|
|
|
|
57,921
|
|
|
99%
|
|
604
|
|
|
462,407
|
|
|
|||
France
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Paris
|
|
6
|
|
389,815
|
|
|
Office/Industrial
|
|
95,424
|
|
|
93%
|
|
230
|
|
|
243,484
|
|
|
|||
Germany
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Baden-Württemberg
|
|
1
|
|
6,581
|
|
|
Office
|
|
2,070
|
|
|
100%
|
|
179
|
|
|
2,851
|
|
|
|||
Bavaria
|
|
1
|
|
6,216
|
|
|
Office
|
|
12,166
|
|
|
75%
|
|
119
|
|
|
3,328
|
|
|
|||
Berlin
|
|
3
|
|
90,310
|
|
|
Hotel/Office
|
|
30,539
|
|
|
100%
|
|
185
|
|
|
51,497
|
|
|
|||
Bremen
|
|
1
|
|
2,072
|
|
|
Office/Residential
|
|
2,192
|
|
|
97%
|
|
107
|
|
|
853
|
|
|
|||
Frankfurt - Trianon Tower
(12)
|
|
3
|
|
621,293
|
|
|
Office/Residential
|
|
68,657
|
|
|
98%
|
|
490
|
|
|
366,115
|
|
|
|||
Hesse (Frankfurt Other)
|
|
1
|
|
22,425
|
|
|
Office/Residential
|
|
6,832
|
|
|
73%
|
|
231
|
|
|
11,569
|
|
|
|||
Hamburg
|
|
2
|
|
118,610
|
|
|
Office
|
|
34,253
|
|
|
86%
|
|
203
|
|
|
88,838
|
|
|
|||
North-Rhine Westphalia
|
|
9
|
|
85,069
|
|
|
Office/Retail
|
|
45,753
|
|
|
88%
|
|
149
|
|
|
47,498
|
|
|
|||
Schleswig-Holstein
|
|
2
|
|
6,947
|
|
|
Office/Retail
|
|
7,558
|
|
|
51%
|
|
147
|
|
|
2,456
|
|
|
|||
Subtotal Germany
|
|
23
|
|
959,523
|
|
|
|
|
210,020
|
|
|
90%
|
|
287
|
|
|
575,005
|
|
|
|||
Italy
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Milan
|
|
2
|
|
165,313
|
|
|
Office
|
|
30,924
|
|
|
95%
|
|
398
|
|
|
68,468
|
|
|
|||
Netherlands
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Amsterdam
|
|
1
|
|
103,710
|
|
|
Office
|
|
22,983
|
|
|
100%
|
|
309
|
|
|
41,404
|
|
|
|||
Rotterdam
|
|
1
|
|
168,319
|
|
|
Office
|
|
37,816
|
|
|
98%
|
|
310
|
|
|
95,767
|
|
|
|||
Other
|
|
2
|
|
10,238
|
|
|
Office
|
|
12,448
|
|
|
92%
|
|
235
|
|
|
5,944
|
|
|
|||
Subtotal Netherlands
|
|
4
|
|
282,267
|
|
|
|
|
73,247
|
|
|
98%
|
|
298
|
|
|
143,115
|
|
|
|||
Portugal
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Albufeira
|
|
1
|
|
16,819
|
|
|
Retail
|
|
11,150
|
|
|
93%
|
|
157
|
|
|
—
|
|
|
|||
Lisbon
|
|
1
|
|
13,650
|
|
|
Office
|
|
4,325
|
|
|
86%
|
|
245
|
|
|
—
|
|
|
|||
Subtotal Portugal
|
|
2
|
|
30,469
|
|
|
|
|
15,475
|
|
|
91%
|
|
181
|
|
|
—
|
|
|
|||
Spain
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Madrid
|
|
1
|
|
8,775
|
|
|
Office
|
|
4,025
|
|
|
100%
|
|
177
|
|
|
—
|
|
|
|||
Sweden
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Gothenburg
|
|
1
|
|
44,998
|
|
|
Office
|
|
9,685
|
|
|
94%
|
|
241
|
|
|
20,803
|
|
|
|||
Grand Total
(11)
|
|
52
|
|
$
|
2,580,460
|
|
(5)
|
|
|
520,323
|
|
|
93%
|
|
$
|
315
|
|
|
$
|
1,518,454
|
|
|
(1)
|
Allocation to individual properties is based on a preliminary estimate of purchase price allocation and subject to change and includes transaction costs, deferred financing costs, derivatives and other assets assumed.
|
(2)
|
Amounts are translated using the exchange rate as of June 30, 2015 for all properties.
|
(3)
|
The following table presents borrowings for our Current European Portfolio as of June 30, 2015, adjusted for an acquisition through
October 8, 2015
(dollars in thousands):
|
|
|
Final
|
|
Contractual
|
|
Principal
|
|
||
|
|
Maturity
|
|
Interest Rate
|
|
Amount
|
|
||
Mortgage and other notes payable
(i)
|
|
|
|
|
|
|
|
||
U.K. Complex
|
|
Dec-19
|
|
(ii)
|
|
$
|
78,585
|
|
|
Internos Portfolio
(iii)
|
|
Apr-20
|
|
(iii)
|
|
101,315
|
|
(v)
|
|
IVG Portfolio
(iii)
|
|
Apr-20
|
|
(iii)
|
|
94,066
|
|
(v)
|
|
Deka Portfolio
(iii)
|
|
Apr-20
|
|
(iii)
|
|
51,914
|
|
(v)
|
|
SEB Portfolio
|
|
Apr-22
|
|
(iv)
|
|
708,858
|
|
(v)(vi)
|
|
SEB Portfolio - Preferred
|
|
Apr-60
|
|
3.00%
(vii)
|
|
117,601
|
|
(vi)(viii)
|
|
Trianon Tower
|
|
Jul-23
|
|
(ix)
|
|
366,115
|
|
|
|
Total mortgage and other notes payable
|
|
|
|
|
|
$
|
1,518,454
|
|
|
(i)
|
All borrowings are non-recourse to NorthStar Europe and are interest-only through maturity, subject to compliance with covenants of the respective borrowing.
|
(ii)
|
Comprised of $63.8 million principal amount of floating rate borrowings at GBP LIBOR plus 2.0%, with a related $63.8 million notional value interest rate cap at 2.0% and $14.7 million fixed rate borrowings at 8.0%.
|
(iii)
|
Represents a cross-collateralized borrowing between the Internos Portfolio, IVG Portfolio and Deka Portfolio. Comprised of $206.3 million principal amount of floating rate borrowings at EURIBOR plus 2.7%, with a related $206.3 million notional value interest rate cap at 2.0% and $41.0 million floating rate borrowing at GBP LIBOR plus 2.7%, with a related $41.0 million notional value interest rate cap at 2.0%.
|
(iv)
|
Comprised of $393.2 million principal amount of floating rate borrowing at EURIBOR plus 1.8%, with a related $393.2 million notional value interest rate cap at 0.5%, $298.3 million of floating rate borrowing at GBP LIBOR plus 1.8%, with a related $298.3 million notional value interest rate cap at 2.0% and $17.4 million floating rate borrowing at STIBOR plus 1.8%.
|
(v)
|
Prepayment provisions include a fee based on principal amount ranging from .75% to 1.5% through April 2018 for the Internos Portfolio, IVG Portfolio and Deka Portfolio borrowing and .5% to 2.0% through April 2019 for the SEB Portfolio borrowing.
|
(vi)
|
Includes financing related to Portman Square (refer to footnote 4).
|
(vii)
|
Contractual interest rate is 3% per annum through May 2019, increases to EURIBOR plus 12% through May 2022 and then increases to EURIBOR plus 15% through final maturity.
|
(viii)
|
The Company has the ability to prepay the principal amount in part or in full through May 2019. Any prepayment prior to such date is subject to the payment of the unpaid coupon on outstanding principal amount through May 2019.
|
(ix)
|
Comprised of $366.1 million principal amount of floating rate borrowing at EURIBOR plus 1.45%, with a related $366.1 million notional value interest rate cap at 0.5%.
|
(4)
|
The borrowing for Portman Square is part of the borrowing for the SEB Portfolio and is comprised of a $166.7 million mortgage note and a $24.9 million allocation of the preferred note. Refer to footnote 3 for the key terms of such borrowings.
|
(5)
|
The estimated fair value of the portfolio is $2.6 billion translated to U.S. dollars using the exchange rate at June 30, 2015.
|
(6)
|
Classification based on predominant property type but may include other types of properties.
|
(7)
|
Certain properties are subject to ground leases.
|
(8)
|
Represents the property owned by NorthStar Predecessor.
|
(9)
|
Excludes parking spaces.
|
(10)
|
The tenant, DekaBank Deutsche Girozentrale in the Trianon Tower, is material to our Current European Portfolio as it contributes 13% of annual in-place rental income. No tenant in our Current European Portfolio occupies greater than 10% of total square meters.
|
(11)
|
Includes
four properties classified as
held-for-sale with an estimated amount of $
18 million
.
|
(12)
|
The following tables present information regarding significant properties in our Current European Portfolio (dollars in thousands):
|
Significant tenants:
|
|
Industry
|
|
Square Meters
|
|
Percentage of Square Meters
|
|
In-Place Rental Income
|
|
Percentage of In-Place Rental Income
|
|
Lease Maturity Date
(iv)
|
||
Portman Square
(i)(iii)
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Cushman & Wakefield LLP
|
|
Insurance and real estate
|
|
5,150
|
|
49%
|
|
$
|
5,265
|
|
|
44%
|
|
June-25
|
Invesco UK Limited
|
|
Finance and law
|
|
2,043
|
|
20%
|
|
3,205
|
|
|
27%
|
|
May-23
|
|
Quintain Estates & Development PLC
|
|
Insurance and real estate
|
|
1,280
|
|
12%
|
|
1,733
|
|
|
14%
|
|
Feb-24
|
|
Regus (London Portman Square) Limited
|
|
Consulting and other professional services
|
|
1,056
|
|
10%
|
|
958
|
|
|
8%
|
|
Sept-20
|
|
Total
|
|
|
|
9,529
|
|
91%
|
|
$
|
11,161
|
|
|
93%
|
|
|
Trianon Tower
(ii)(iii)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DekaBank Deutsche Girozentrale
|
|
Finance and law
|
|
35,036
|
|
51%
|
|
$
|
20,217
|
|
|
61%
|
|
Jun-24
|
Deutsche Bundesbank
|
|
Public institutions and non-governmental organizations (NGOs)
|
|
10,659
|
|
16%
|
|
4,544
|
|
|
14%
|
|
March-25
|
|
Linklaters LLP
|
|
Finance and law
|
|
10,082
|
|
15%
|
|
4,491
|
|
|
14%
|
|
Dec-15
|
|
Total
|
|
|
|
55,777
|
|
82%
|
|
$
|
29,252
|
|
|
89%
|
|
|
(i)
|
The terms of the leases of the office and retail premises at Portman Square House range from eight to 20 years. Tenants are generally responsible for the maintenance and repair of their premises, as well as the cost of structural works and repair to common areas performed by the landlord. Tenants are responsible for the cost of insurance, as well as operating expenses and taxes with respect to their premises.
|
(ii)
|
The terms of the leases of the office and restaurant premises at Trianon Tower range from four to 18 years, while the terms of the residential leases are 25 years (subject to certain exceptions). Although the specific terms vary by lease, the tenants are generally responsible for the maintenance and repair of their premises and the landlord is responsible for carrying out any structural works. Costs of repair to the common areas of the building are borne by the tenants, though typically subject to a cap. Under the residential leases, the landlord is generally responsible for repair of the premises, structure and common areas,
|
(iii)
|
We expect to renovate and improve the properties in the ordinary course of business, including a planned approximately €15 million for the Trianon Tower, of which €6 million will be contributed by a tenant and the remainder will be funded through a capital expenditure escrow reserve. With respect to Portman Square, approximately £0.8 million of capital improvements are planned, which we expect to fund with cash on hand.
|
(iv)
|
Lease maturity date reflects the expiration date per the leases and does not assume renewal, extension or termination options. Both DekaBank Deutsche Girozentrale and Deutsche Bundesbank have one five-year extension option. No other tenants have extension options.
|
Year
|
|
Occupied Square Meters
|
|
In-Place Rental Income
|
|
Percentage of In-Place Rental Income
|
|
Number of Tenants
|
|||
2015
|
|
51,108
|
|
|
$
|
8,633
|
|
|
6%
|
|
26
|
2016
|
|
31,030
|
|
|
9,690
|
|
|
6%
|
|
31
|
|
2017
|
|
24,637
|
|
|
5,362
|
|
|
4%
|
|
32
|
|
2018
|
|
20,307
|
|
|
4,313
|
|
|
3%
|
|
27
|
|
2019
|
|
95,673
|
|
|
31,462
|
|
|
21%
|
|
27
|
|
2020
|
|
41,280
|
|
|
16,962
|
|
|
11%
|
|
17
|
|
2021
|
|
79,279
|
|
|
18,738
|
|
|
12%
|
|
31
|
|
2022
|
|
5,162
|
|
|
983
|
|
|
1%
|
|
7
|
|
2023
|
|
8,450
|
|
|
5,453
|
|
|
4%
|
|
15
|
|
2024
|
|
58,960
|
|
|
31,245
|
|
|
21%
|
|
17
|
|
Thereafter
|
|
57,245
|
|
|
17,446
|
|
|
10%
|
|
23
|
|
Other
(1)
|
|
8,535
|
|
|
1,163
|
|
|
1%
|
|
147
|
|
Total
|
|
481,666
|
|
|
$
|
151,450
|
|
|
100%
|
|
400
|
Industry
|
|
In-Place Rental Income
|
|
Percentage of In-Place Rental Income
|
|
Number of Tenants
|
||
Finance and law
|
|
$
|
70,565
|
|
|
47%
|
|
67
|
Technology and IT services
|
|
21,013
|
|
|
14%
|
|
46
|
|
Insurance and real estate
|
|
18,859
|
|
|
12%
|
|
20
|
|
Public institutions and non-profit government organizations
|
|
12,618
|
|
|
8%
|
|
23
|
|
Consulting and other professional services
|
|
3,343
|
|
|
2%
|
|
14
|
|
Hotel and restaurant
|
|
5,351
|
|
|
4%
|
|
19
|
|
Construction/logistics
|
|
5,997
|
|
|
4%
|
|
7
|
|
Fashion and consumer goods
|
|
3,666
|
|
|
2%
|
|
33
|
|
Media and public relations
|
|
2,202
|
|
|
1%
|
|
15
|
|
Private person
|
|
883
|
|
|
1%
|
|
115
|
|
Medical and pharmaceuticals
|
|
185
|
|
|
–
|
|
4
|
|
Other
|
|
6,768
|
|
|
5%
|
|
37
|
|
Total
|
|
$
|
151,450
|
|
|
100%
|
|
400
|
•
|
regulate the ability of foreign persons or corporations to remove profits earned from activities within the country to the person’s or corporation’s country of origin;
|
•
|
regulate use of derivative instruments and our ability to hedge our risks related to fluctuations in interest rates and exchange rates.
|
•
|
have more than $1 billion in annual revenue in a fiscal year;
|
•
|
issue more than $1 billion of non-convertible debt during the preceding three-year period; or
|
•
|
become a “large accelerated filer” as defined in Exchange Act Rule 12b-2, which would occur after: (i) we have filed at least one annual report pursuant to the Exchange Act; (ii) we have been an SEC-reporting company for at least 12 months; and (iii) the market value of our Common Stock that is held by non-affiliates exceeds $700 million as of the last business day of our most recently completed second fiscal quarter.
|
•
|
Prior Owner Period
- The U.K. Complex and an allocation of certain costs and expenses related to the launch of our European Real Estate Business for periods prior to September 16, 2014, which is the date NorthStar Realty acquired the U.K. Complex; and
|
•
|
NorthStar Owner Period
- The U.K. Complex and business activities related to our European Real Estate Business for periods from and subsequent to September 16, 2014.
|
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||||||||||
|
|
Six Months Ended June 30,
|
|
Period from September 16 to December 31,
|
|
Period from January 1 to September 15,
|
|
Year Ended
|
||||||||||||
|
|
2015
|
|
2014
|
|
2014
|
|
2014
|
|
2013
|
||||||||||
Operating Data:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Rental and escalation income
|
|
$
|
4,753
|
|
|
$
|
5,181
|
|
|
$
|
2,722
|
|
|
$
|
7,162
|
|
|
$
|
9,869
|
|
Total expenses
|
|
6,465
|
|
|
10,180
|
|
|
7,839
|
|
|
13,569
|
|
|
12,163
|
|
|||||
Net income (loss)
|
|
(1,577
|
)
|
|
(2,663
|
)
|
|
(5,288
|
)
|
|
(3,007
|
)
|
|
1,633
|
|
|||||
Net income (loss) attributable to NorthStar Europe Predecessor
|
|
(1,556
|
)
|
|
(2,663
|
)
|
|
(5,012
|
)
|
|
(3,007
|
)
|
|
1,633
|
|
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||||||
|
|
June 30,
|
|
December 31,
|
|
December 31,
|
||||||
|
|
2015
|
|
2014
|
|
2013
|
||||||
Balance Sheet Data:
|
|
|
|
|
|
|
||||||
Cash
|
|
$
|
3,265
|
|
|
$
|
1,552
|
|
|
$
|
1,350
|
|
Mortgage notes payable
|
|
78,585
|
|
|
77,660
|
|
|
47,895
|
|
|||
Total assets
|
|
104,692
|
|
|
102,826
|
|
|
90,951
|
|
|||
Total liabilities
|
|
82,115
|
|
|
81,947
|
|
|
67,367
|
|
|||
Total equity
|
|
22,577
|
|
|
20,879
|
|
|
23,584
|
|
|
|
Acquisition
|
|
|
|
|
|
|
|
|
|
Ownership
|
|
||
|
|
Date
|
|
Primary Location(s)
|
|
Primary Description
|
|
Cost
|
|
Properties
|
|
Interest
|
|
||
NorthStar Europe Predecessor
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
U.K. Complex
|
|
Sept-14
|
|
Woking, U.K.
|
|
Multi-tenant office
|
|
$
|
100
|
|
|
1
|
|
93%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
New European Investments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
SEB Portfolio
|
|
April-15
|
|
U.K., France, Germany
|
|
Multi-tenant office
|
|
1,325
|
|
|
11
|
|
95%
|
(2)
|
|
Internos Portfolio
|
|
April-15
|
|
Germany, France, Portugal
|
|
Office/Hotel/Industrial/Retail
|
|
225
|
|
|
12
|
|
100%
|
(3)
|
|
IVG Portfolio
|
|
April-15
|
|
U.K., France, Germany
|
|
Multi-tenant office
|
|
212
|
|
|
15
|
|
100%
|
(3)
|
|
Deka Portfolio
|
|
April-15
|
|
Germany
|
|
Multi-tenant office
|
|
99
|
|
|
10
|
|
100%
|
(3)
|
|
Trianon Tower
|
|
July-15
|
|
Frankfurt, Germany
|
|
Multi-tenant office
|
|
621
|
|
|
3
|
|
95%
|
(2)
|
|
Total
|
|
|
|
|
|
|
|
$
|
2,582
|
|
|
52
|
|
|
|
(1)
|
The financial statements for NorthStar Predecessor include an allocation of certain costs and expenses from activities related to the launch of our European Real Estate Business.
|
(2)
|
We are entitled to 100% of net income (loss) based on the allocation formula, as set forth in the governing documents.
|
(3)
|
In the near term, we expect to enter into a joint venture arrangement with a third party for an approximate 5% ownership interest in all of the Deka Portfolio, $97 million of the Internos Portfolio and $24 million of the IVG Portfolio.
|
|
|
Six Months Ended June 30, 2015
|
||||||||||||||
|
|
NorthStar Europe Predecessor
(1)
|
|
Pro Forma Adjustments
(2)
|
|
Other
|
|
Pro Forma
(3)
|
||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Rental and escalation income
|
|
$
|
4,753
|
|
|
$
|
73,816
|
|
|
$
|
—
|
|
|
$
|
78,569
|
|
Other revenues
|
|
1
|
|
|
1,965
|
|
|
—
|
|
|
1,966
|
|
||||
Total revenues
|
|
4,754
|
|
|
75,781
|
|
|
—
|
|
|
80,535
|
|
||||
Expenses
|
|
|
|
|
|
|
|
|
||||||||
Management fee, related party
|
|
—
|
|
|
—
|
|
|
7,000
|
|
(4)
|
7,000
|
|
||||
Operating expenses
|
|
1,770
|
|
|
14,927
|
|
|
—
|
|
|
16,697
|
|
||||
Interest expense
|
|
1,523
|
|
|
16,674
|
|
|
10,907
|
|
(5)
|
29,104
|
|
||||
Equity-based compensation expense
|
|
—
|
|
|
—
|
|
|
3,707
|
|
(8)
|
3,707
|
|
||||
Other general and administrative expenses
|
|
1,358
|
|
|
—
|
|
|
—
|
|
|
1,358
|
|
||||
Depreciation and amortization
|
|
1,814
|
|
|
37,030
|
|
|
—
|
|
|
38,844
|
|
||||
Other expenses
|
|
—
|
|
|
3,756
|
|
|
—
|
|
|
3,756
|
|
||||
Total expenses
|
|
6,465
|
|
|
72,387
|
|
|
21,614
|
|
|
100,466
|
|
||||
Other income (loss)
|
|
|
|
|
|
|
|
|
||||||||
Unrealized gain (loss) on investments and other
|
|
41
|
|
|
—
|
|
|
—
|
|
|
41
|
|
||||
Realized gain (loss) on investments and other
|
|
(14
|
)
|
|
—
|
|
|
—
|
|
|
(14
|
)
|
||||
Income (loss) before income tax benefit (expense)
|
|
(1,684
|
)
|
|
3,394
|
|
|
(21,614
|
)
|
|
(19,904
|
)
|
||||
Income tax benefit (expense)
(2)(vii)
|
|
107
|
|
|
(287
|
)
|
|
1,864
|
|
|
1,684
|
|
||||
Net income (loss)
|
|
(1,577
|
)
|
|
3,107
|
|
|
(19,750
|
)
|
|
(18,220
|
)
|
||||
Net (income) loss attributable to non-controlling interests
|
|
21
|
|
|
—
|
|
|
118
|
|
(9)
|
139
|
|
||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
(1,556
|
)
|
|
$
|
3,107
|
|
|
$
|
(19,632
|
)
|
|
$
|
(18,081
|
)
|
Earnings (loss) per share:
|
|
|
|
|
|
|
|
|
||||||||
Basic
|
|
|
|
|
|
|
|
$
|
(0.33
|
)
|
||||||
Diluted
|
|
|
|
|
|
|
|
$
|
(0.33
|
)
|
||||||
Weighted average number of shares:
(6)
|
|
|
|
|
|
|
|
|
||||||||
Basic
|
|
|
|
|
|
|
|
55,147,328
|
|
|||||||
Diluted
|
|
|
|
|
|
|
|
55,507,470
|
|
|
|
Year ended December 31, 2014
|
||||||||||||||
|
|
NorthStar Europe Predecessor
(1)
|
|
Pro Forma Adjustments
(2)
|
|
Other
|
|
Pro Forma
(3)
|
||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Rental and escalation income
|
|
$
|
9,884
|
|
|
$
|
163,822
|
|
|
$
|
—
|
|
|
$
|
173,706
|
|
Other revenues
|
|
1,329
|
|
|
6,806
|
|
|
—
|
|
|
8,135
|
|
||||
Total revenues
|
|
11,213
|
|
|
170,628
|
|
|
—
|
|
|
181,841
|
|
||||
Expenses
|
|
|
|
|
|
|
|
|
||||||||
Management fee, related party
|
|
—
|
|
|
—
|
|
|
14,000
|
|
(4)
|
14,000
|
|
||||
Operating expenses
|
|
4,294
|
|
|
31,488
|
|
|
—
|
|
|
35,782
|
|
||||
Transaction costs
|
|
4,198
|
|
|
—
|
|
|
(4,198
|
)
|
(7)
|
—
|
|
||||
Interest expense
|
|
3,651
|
|
|
31,724
|
|
|
21,446
|
|
(5)
|
56,821
|
|
||||
Equity-based compensation expense
|
|
—
|
|
|
—
|
|
|
4,977
|
|
(8)
|
4,977
|
|
||||
Other general and administrative expenses
|
|
5,883
|
|
|
—
|
|
|
—
|
|
|
5,883
|
|
||||
Depreciation and amortization
|
|
3,382
|
|
|
83,312
|
|
|
394
|
|
|
87,088
|
|
||||
Other expenses
|
|
—
|
|
|
7,717
|
|
|
—
|
|
|
7,717
|
|
||||
Total expenses
|
|
21,408
|
|
|
154,241
|
|
|
36,619
|
|
|
212,268
|
|
||||
Other income (loss)
|
|
|
|
|
|
|
|
|
||||||||
Unrealized gain (loss) on investments and other
|
|
1,900
|
|
|
—
|
|
|
—
|
|
|
1,900
|
|
||||
Income (loss) before income tax benefit (expense)
|
|
(8,295
|
)
|
|
16,387
|
|
|
(36,619
|
)
|
|
(28,527
|
)
|
||||
Income tax benefit (expense)
(2)(vii)
|
|
—
|
|
|
(1,386
|
)
|
|
3,800
|
|
|
2,414
|
|
||||
Net income (loss)
|
|
(8,295
|
)
|
|
15,001
|
|
|
(32,819
|
)
|
|
(26,113
|
)
|
||||
Net (income) loss attributable to non-controlling interests
|
|
276
|
|
|
—
|
|
|
455
|
|
(9)
|
731
|
|
||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
(8,019
|
)
|
|
$
|
15,001
|
|
|
$
|
(32,364
|
)
|
|
$
|
(25,382
|
)
|
Earnings (loss) per share:
|
|
|
|
|
|
|
|
|
||||||||
Basic
|
|
|
|
|
|
|
|
$
|
(0.78
|
)
|
||||||
Diluted
|
|
|
|
|
|
|
|
$
|
(0.78
|
)
|
||||||
Weighted average number of shares:
(6)
|
|
|
|
|
|
|
|
|
||||||||
Basic
|
|
|
|
|
|
|
|
32,678,628
|
|
|||||||
Diluted
|
|
|
|
|
|
|
|
32,998,409
|
|
|
|
NorthStar Europe Predecessor
|
|
Pro Forma Adjustments
(10)
|
|
Other
|
|
Pro Forma
(3)
|
||||||||
Assets
|
|
|
|
|
|
|
|
|
||||||||
Cash
|
|
$
|
3,265
|
|
|
$
|
14,662
|
|
|
$
|
250,000
|
|
(12)
|
$
|
267,927
|
|
Restricted cash
|
|
6,106
|
|
|
—
|
|
|
—
|
|
|
6,106
|
|
||||
Operating real estate, net
|
|
54,985
|
|
|
2,156,907
|
|
|
—
|
|
|
2,211,892
|
|
||||
Receivables
|
|
1,031
|
|
|
—
|
|
|
—
|
|
|
1,031
|
|
||||
Unbilled rent receivable, net
|
|
694
|
|
|
—
|
|
|
—
|
|
|
694
|
|
||||
Derivative assets, at fair value
|
|
1,134
|
|
|
30,315
|
|
|
—
|
|
|
31,449
|
|
||||
Deferred costs and intangible assets, net
|
|
35,232
|
|
|
225,112
|
|
|
9,014
|
|
(11)
|
269,358
|
|
||||
Other assets
|
|
2,245
|
|
|
572
|
|
|
—
|
|
|
2,817
|
|
||||
Total assets
|
|
$
|
104,692
|
|
|
$
|
2,427,568
|
|
|
$
|
259,014
|
|
|
$
|
2,791,274
|
|
|
|
|
|
|
|
|
|
|
||||||||
Liabilities
|
|
|
|
|
|
|
|
|
||||||||
Mortgage and other notes payable
|
|
$
|
78,585
|
|
|
$
|
1,439,869
|
|
|
$
|
—
|
|
|
$
|
1,518,454
|
|
Senior notes
|
|
—
|
|
|
—
|
|
|
340,000
|
|
(11)
|
340,000
|
|
||||
Accounts payable and accrued expenses
|
|
824
|
|
|
—
|
|
|
—
|
|
|
824
|
|
||||
Other liabilities
|
|
2,706
|
|
|
42,150
|
|
|
—
|
|
|
44,856
|
|
||||
Total liabilities
|
|
82,115
|
|
|
1,482,019
|
|
|
340,000
|
|
|
1,904,134
|
|
||||
Equity
|
|
|
|
|
|
|
|
|
|
|||||||
Equity
|
|
21,439
|
|
|
943,972
|
|
|
(80,986
|
)
|
(11)(12)(13)
|
884,425
|
|
||||
Allocation to non-controlling interests
|
|
—
|
|
|
—
|
|
|
(8,677
|
)
|
(9)
|
(8,677
|
)
|
||||
NorthStar Europe equity
|
|
21,439
|
|
|
943,972
|
|
|
(89,663
|
)
|
|
875,748
|
|
||||
Non-controlling interests
|
|
1,138
|
|
|
1,577
|
|
|
8,677
|
|
(9)
|
11,392
|
|
||||
Total equity
|
|
22,577
|
|
|
945,549
|
|
|
(80,986
|
)
|
|
887,140
|
|
||||
Total liabilities and equity
|
|
$
|
104,692
|
|
|
$
|
2,427,568
|
|
|
$
|
259,014
|
|
|
$
|
2,791,274
|
|
(1)
|
The year ended December 31, 2014 includes the Prior Owner Period from January 1, 2014 through September 15, 2014 and NorthStar Owner Period from September 16, 2014 through December 31, 2014. The six months ended June 30, 2015 represents the NorthStar Owner Period.
NorthStar Predecessor includes allocation of general and administrative expenses, including operating expenses such as corporate overhead, based on the expectation that NorthStar Europe and NorthStar Realty’s general and administrative expenses would represent approximately 20% of the aggregate general and administrative expenses of NorthStar Europe, NorthStar Realty and NSAM after the Distribution, as described herein in “Corporate Governance and Management — Management Agreement.”
|
(2)
|
The following summarizes
adjustments related to our New European Investments for the six months ended June 30, 2015 and year ended December 31, 2014 (dollars in thousands):
|
|
|
Six Months Ended June 30, 2015
|
|||||||||||||||||||||||
|
|
SEB Portfolio
|
|
Internos Portfolio
|
|
IVG Portfolio
|
|
||||||||||||||||||
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
||||||||||||
Revenues
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Rental and escalation income
|
|
$
|
39,906
|
|
|
$
|
260
|
|
(ii)
|
$
|
9,118
|
|
|
$
|
(304
|
)
|
(ii)
|
$
|
4,970
|
|
|
$
|
127
|
|
(ii)
|
Other revenue
|
|
—
|
|
|
—
|
|
|
828
|
|
|
—
|
|
|
726
|
|
|
|
|
|||||||
Total revenues
|
|
39,906
|
|
|
260
|
|
|
9,946
|
|
|
(304
|
)
|
|
5,696
|
|
|
127
|
|
|
||||||
Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Operating expenses
(iv)(v)
|
|
5,564
|
|
|
719
|
|
|
1,811
|
|
|
(210
|
)
|
|
2,127
|
|
|
(169
|
)
|
|
||||||
Interest expense
(iii)
|
|
—
|
|
|
9,506
|
|
|
—
|
|
|
1,752
|
|
|
—
|
|
|
1,728
|
|
|
||||||
Depreciation and amortization
(vi)
|
|
—
|
|
|
18,990
|
|
|
—
|
|
|
4,021
|
|
|
—
|
|
|
2,698
|
|
|
||||||
Other expenses
(v)
|
|
—
|
|
|
2,132
|
|
|
—
|
|
|
478
|
|
|
—
|
|
|
274
|
|
|
||||||
Total expenses
|
|
5,564
|
|
|
31,347
|
|
|
1,811
|
|
|
6,041
|
|
|
2,127
|
|
|
4,531
|
|
|
||||||
Income (loss) before income tax benefit (expense)
|
|
34,342
|
|
|
(31,087
|
)
|
|
8,135
|
|
|
(6,345
|
)
|
|
3,569
|
|
|
(4,404
|
)
|
|
||||||
Income tax benefit (expense)
(vii)
|
|
—
|
|
|
(275
|
)
|
|
—
|
|
|
(151
|
)
|
|
|
|
71
|
|
|
|||||||
Net income (loss)
|
|
34,342
|
|
|
(31,362
|
)
|
|
8,135
|
|
|
(6,496
|
)
|
|
3,569
|
|
|
(4,333
|
)
|
|
||||||
Net (income) loss attributable to non-controlling interests
(viii)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
||||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
34,342
|
|
|
$
|
(31,362
|
)
|
|
$
|
8,135
|
|
|
$
|
(6,496
|
)
|
|
$
|
3,569
|
|
|
$
|
(4,333
|
)
|
|
|
|
Six Months Ended June 30, 2015 (continued)
|
||||||||||||||
|
|
Trianon Tower
|
|
Other Pro Forma Adjustments
(ix)
|
|
|
||||||||||
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
|
Total
|
|||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Rental and escalation income
|
|
$
|
18,486
|
|
|
$
|
(1,221
|
)
|
(ii)
|
$
|
2,473
|
|
|
$
|
73,815
|
|
Other revenue
|
|
—
|
|
|
—
|
|
|
411
|
|
|
1,965
|
|
||||
Total revenues
|
|
18,486
|
|
|
(1,221
|
)
|
|
2,884
|
|
|
75,780
|
|
||||
Expenses
|
|
|
|
|
|
|
|
|
||||||||
Operating expenses
(v)
|
|
5,173
|
|
|
(759
|
)
|
|
670
|
|
|
14,926
|
|
||||
Interest expense
(iii)
|
|
—
|
|
|
2,826
|
|
|
862
|
|
|
16,674
|
|
||||
Depreciation and amortization
(vi)
|
|
—
|
|
|
9,981
|
|
|
1,341
|
|
|
37,031
|
|
||||
Other expenses
(v)
|
|
—
|
|
|
724
|
|
|
148
|
|
|
3,756
|
|
||||
Total expenses
|
|
5,173
|
|
|
12,772
|
|
|
3,021
|
|
|
72,387
|
|
||||
Income (loss) before income tax benefit (expense)
|
|
13,313
|
|
|
(13,993
|
)
|
|
(137
|
)
|
|
3,393
|
|
||||
Income tax benefit (expense)
(vii)
|
|
—
|
|
|
58
|
|
|
12
|
|
|
(285
|
)
|
||||
Net income (loss)
|
|
13,313
|
|
|
(13,935
|
)
|
|
(125
|
)
|
|
3,108
|
|
||||
Net (income) loss attributable to non-controlling interests
(viii)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
13,313
|
|
|
$
|
(13,935
|
)
|
|
$
|
(125
|
)
|
|
$
|
3,108
|
|
|
|
Year Ended December 31, 2014
|
|||||||||||||||||||||||
|
|
SEB Portfolio
|
|
Internos Portfolio
|
|
IVG Portfolio
|
|
||||||||||||||||||
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
||||||||||||
Revenues
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Rental and escalation income
|
|
$
|
86,117
|
|
|
$
|
520
|
|
(ii)
|
$
|
21,894
|
|
|
$
|
(607
|
)
|
(ii)
|
$
|
12,889
|
|
|
$
|
254
|
|
(ii)
|
Other revenue
|
|
—
|
|
|
—
|
|
|
3,065
|
|
|
—
|
|
|
2,685
|
|
|
|
|
|||||||
Total revenues
|
|
86,117
|
|
|
520
|
|
|
24,959
|
|
|
(607
|
)
|
|
15,574
|
|
|
254
|
|
|
||||||
Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Operating expenses
(iv)(v)
|
|
8,400
|
|
|
597
|
|
|
3,114
|
|
|
(290
|
)
|
|
5,536
|
|
|
—
|
|
|
||||||
Interest expense
(iii)
|
|
—
|
|
|
17,388
|
|
|
—
|
|
|
3,504
|
|
|
—
|
|
|
3,456
|
|
|
||||||
Depreciation and amortization
(vi)
|
|
—
|
|
|
45,600
|
|
|
—
|
|
|
8,041
|
|
|
—
|
|
|
5,395
|
|
|
||||||
Other expenses
(v)
|
|
—
|
|
|
4,264
|
|
|
—
|
|
|
958
|
|
|
—
|
|
|
598
|
|
|
||||||
Total expenses
|
|
8,400
|
|
|
67,849
|
|
|
3,114
|
|
|
12,213
|
|
|
5,536
|
|
|
9,449
|
|
|
||||||
Income (loss) before income tax benefit (expense)
|
|
77,717
|
|
|
(67,329
|
)
|
|
21,845
|
|
|
(12,820
|
)
|
|
10,038
|
|
|
(9,195
|
)
|
|
||||||
Income tax benefit (expense)
(vii)
|
|
—
|
|
|
(879
|
)
|
|
—
|
|
|
(764
|
)
|
|
—
|
|
|
(71
|
)
|
|
||||||
Net income (loss)
|
|
77,717
|
|
|
(68,208
|
)
|
|
21,845
|
|
|
(13,584
|
)
|
|
10,038
|
|
|
(9,266
|
)
|
|
||||||
Net (income) loss attributable to non-controlling interests
(viii)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
||||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
77,717
|
|
|
$
|
(68,208
|
)
|
|
$
|
21,845
|
|
|
$
|
(13,584
|
)
|
|
$
|
10,038
|
|
|
$
|
(9,266
|
)
|
|
|
|
Year Ended December 31, 2014 (continued)
|
||||||||||||||
|
|
Trianon Tower
|
|
Other Pro Forma Adjustments
(ix)
|
|
|
||||||||||
|
|
Historical
(i)
|
|
Pro Forma Adjustments
|
|
|
Total
|
|||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Rental and escalation income
|
|
$
|
40,741
|
|
|
$
|
(2,906
|
)
|
(ii)
|
$
|
4,920
|
|
|
$
|
163,822
|
|
Other revenue
|
|
—
|
|
|
—
|
|
|
1,056
|
|
|
6,806
|
|
||||
Total revenues
|
|
40,741
|
|
|
(2,906
|
)
|
|
5,976
|
|
|
170,628
|
|
||||
Expenses
|
|
|
|
|
|
|
|
|
||||||||
Operating expenses
(v)
|
|
13,981
|
|
|
(1,721
|
)
|
|
1,871
|
|
|
31,488
|
|
||||
Interest expense
(iii)
|
|
—
|
|
|
5,652
|
|
|
1,724
|
|
|
31,724
|
|
||||
Depreciation and amortization
(vi)
|
|
—
|
|
|
21,594
|
|
|
2,682
|
|
|
83,312
|
|
||||
Other expenses
(v)
|
|
—
|
|
|
1,653
|
|
|
244
|
|
|
7,717
|
|
||||
Total expenses
|
|
13,981
|
|
|
27,178
|
|
|
6,521
|
|
|
154,241
|
|
||||
Income (loss) before income tax benefit (expense)
|
|
26,760
|
|
|
(30,084
|
)
|
|
(545
|
)
|
|
16,387
|
|
||||
Income tax benefit (expense)
(vii)
|
|
—
|
|
|
281
|
|
|
46
|
|
|
(1,387
|
)
|
||||
Net income (loss)
|
|
26,760
|
|
|
(29,803
|
)
|
|
(499
|
)
|
|
15,000
|
|
||||
Net (income) loss attributable to non-controlling interests
(viii)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Net income (loss) attributable to NorthStar Europe
|
|
$
|
26,760
|
|
|
$
|
(29,803
|
)
|
|
$
|
(499
|
)
|
|
$
|
15,000
|
|
(i)
|
Represents audited financial statements of revenues and certain expenses for the year ended December 31, 2014 and unaudited financial statements of revenues and certain expenses for the six months ended June 30, 2015. The SEB Portfolio, the Internos Portfolio and the IVG Portfolio were acquired in April 2015 and the Trianon Tower was acquired in July 2015.
|
(ii)
|
Represents an adjustment to reflect amortization of above and below market leases.
|
(iii)
|
Represents interest expense for new borrowings at the contractual rate and includes amortization of deferred financing costs.
The estimated amortization period of deferred financing costs ranges from seven to 45 years. In addition, certain of the borrowings related to our Current European Portfolio are subject to interest rate caps. Refer to “Business—Our Properties” for further discussion of the terms of the borrowings and interest rate caps associated with our Current European Portfolio.
|
(iv)
|
Represents an adjustment for third-party property management and other fees for the SEB Portfolio.
|
(v)
|
Represents an adjustment and reclassification of third-party asset management and other fees to other expense based on amounts expected to be incurred.
|
(vi)
|
Represents depreciation and amortization expense based on a preliminary purchase price allocation for our New European Investments. The purchase price allocation is a preliminary estimate and may be adjusted within one year of the acquisition in accordance with U.S. GAAP. The depreciation and amortization periods range from one to 40 years.
|
(vii)
|
Our Current European Portfolio is owned in various foreign jurisdictions which have different tax laws and rates. We estimate our effective tax rate to be approximately 8.5% on a blended basis. This effective tax rate may not represent our effective tax rate subsequent to the European Spin-off.
|
(viii)
|
We are entitled to 100% of net income (loss) based on the allocation formula, as set forth in the governing documents.
In addition, in the near term, we expect to enter into a joint venture arrangement with a third party for an approximate 5% ownership interest in all of the Deka Portfolio, $97 million of the Internos Portfolio and $24 million of the IVG Portfolio.
|
(ix)
|
Represents adjustments related to the Deka Portfolio acquired in April 2015.
|
(3)
|
The functional currency of NorthStar Europe is U.S. dollars and the functional currency of the properties comprising our European Real Estate Business is the local currency where the property is located, predominately the Euro. As such, the operations are translated to U.S. dollar using the average exchange rate during the respective period. Additionally, assets and liabilities of properties denominated in a foreign currency are translated to the U.S. dollar using the currency exchange rate at the end of the period presented. Our New European Investments presented in the unaudited pro forma combined balance sheet are translated using the currency exchange rate as of June 30, 2015. The pro forma adjustments do not include foreign currency forward contracts with a notional amount of $119.3 million and maturities ranging from August 2015 to May 2017 expected to be assumed as part of the Distribution.
|
(4)
|
Represents
an
adjustment to reflect
the base asset management fee to NSAM
in accordance with the management agreemen
t
, the terms of which are described in “Corporate Governance and Management—Our Manager—Management Agreement” of this prospectus. The current base management fee of $14 million annually is based on our Current European Portfolio and does not include any adjustment related to the NSAM incentive fee.
|
(5)
|
Represents
an
adjustment to reflect interest expense (including amortization of related deferred financing costs) related to NorthStar Europe’s issuance of $340 million of 4.625% Senior Notes due December 2016, or the Senior Notes, in July 2015 of $
10.9
million and $21.8 million for the six months ended June 30, 2015 and the year ended December 31, 2014, respectively. The year ended December 31, 2014 also includes
an
adjustment to reflect interest expense (including amortization of related deferred financing costs) related to NorthStar Europe Predecessor of $(0.4) million during the Prior Owner Period.
|
(6)
|
Weighted average shares used to compute basic and diluted EPS represents the number of weighted average shares of our Common Stock and LTIP Units, as applicable, assumed to be outstanding based on a distribution ratio of one share of our Common Stock and LTIP Units for every six shares of NorthStar Realty common stock and LTIP Units. The actual number of our basic and diluted shares outstanding will not be known until the Distribution. Excludes the effect of exchangeable senior notes, shares under a forward sale agreement, restricted shares and RSUs outstanding that were not dilutive for the periods presented. These instruments could potentially impact diluted EPS in future periods.
|
(7)
|
Represents an adjustment to remove transaction costs related to the acquisition of the U.K. Complex. In addition, the pro forma statements of operations do not include transaction costs related to the acquisition of our Current European Portfolio of $97.4 million for the six months ended June 30, 2015 and $9.5 million for the year ended December 31, 2014. Transaction costs include legal, accounting, tax and other professional services that are non-recurring in nature and therefore are not included as part of the pro forma combined statements of operations.
|
(8)
|
Represents adjustments for equity-based compensation expense related to various equity-based awards granted by NorthStar Realty that will be entitled to one award of NorthStar Europe for every six awards of NorthStar Realty (refer to “Executive Compensation—Outstanding NorthStar Realty Awards”).
|
(9)
|
Represents an adjustment on the pro forma combined balance sheet to establish non-controlling interests related to the holders of LTIP Units in NorthStar Realty OP, structured as profits interests, that will be entitled to one common unit in our Operating Partnership for every six LTIP Units in NorthStar Realty OP. Additionally, the combined statements of operations includes an allocation for net income (loss) attributable to such non-controlling interests. The LTIP Unit holders’ interest in NorthStar OP was approximately 1% for the periods presented. In addition, the year ended December 31, 2014 includes a pro forma adjustment related to the non-controlling interest holder in NorthStar Europe Predecessor during the Prior Owner Period.
|
(10)
|
The following summarizes
adjustments related to our New European Investments for the unaudited pro forma combined balance sheet as of June 30, 2015 (dollars in thousands):
|
|
As of June 30, 2015
(i)(ii)
|
||||||||||||||||||||||
|
SEB Portfolio
|
|
Internos Portfolio
|
|
IVG Portfolio
|
|
Deka Portfolio
|
|
Trianon Tower
|
|
Total
|
||||||||||||
Assets
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Cash
|
$
|
3,831
|
|
|
$
|
—
|
|
|
$
|
10,831
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
14,662
|
|
Operating real estate, net
(iii)
|
1,131,061
|
|
|
190,327
|
|
|
185,315
|
|
|
84,623
|
|
|
565,581
|
|
|
2,156,907
|
|
||||||
Derivative assets, at fair value
|
8,015
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
22,300
|
|
|
30,315
|
|
||||||
Deferred costs and intangible assets, net
|
135,522
|
|
|
18,534
|
|
|
13,371
|
|
|
7,246
|
|
|
50,439
|
|
|
225,112
|
|
||||||
Other assets
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
572
|
|
|
572
|
|
||||||
Total assets
|
$
|
1,278,429
|
|
|
$
|
208,861
|
|
|
$
|
209,517
|
|
|
$
|
91,869
|
|
|
$
|
638,892
|
|
|
$
|
2,427,568
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Mortgage and other notes payable
|
$
|
826,459
|
|
|
$
|
101,315
|
|
|
$
|
94,066
|
|
|
$
|
51,914
|
|
|
$
|
366,115
|
|
|
$
|
1,439,869
|
|
Other liabilities
|
24,063
|
|
|
525
|
|
|
3,384
|
|
|
—
|
|
|
14,178
|
|
|
42,150
|
|
||||||
Total liabilities
|
850,522
|
|
|
101,840
|
|
|
97,450
|
|
|
51,914
|
|
|
380,293
|
|
|
1,482,019
|
|
||||||
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
NorthStar Europe equity
|
427,794
|
|
|
107,021
|
|
|
112,067
|
|
|
39,955
|
|
|
257,135
|
|
|
943,972
|
|
||||||
Non-controlling interests
(iv)
|
113
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,464
|
|
|
1,577
|
|
||||||
Total equity
|
427,907
|
|
|
107,021
|
|
|
112,067
|
|
|
39,955
|
|
|
258,599
|
|
|
945,549
|
|
||||||
Total liabilities and equity
|
$
|
1,278,429
|
|
|
$
|
208,861
|
|
|
$
|
209,517
|
|
|
$
|
91,869
|
|
|
$
|
638,892
|
|
|
$
|
2,427,568
|
|
(i)
|
Represents the preliminary purchase price allocation for each of the properties that comprise our New European Investments. The purchase price allocation is a preliminary estimate and may be adjusted within one year of the acquisition in accordance with U.S. GAAP. The purchase price of each portfolio represents the fair value of the assets acquired and liabilities assumed. The pro forma balance sheet includes an adjustment for transaction costs.
|
(ii)
|
Our New European Investments are predominantly denominated in Euro and GBP. The initial purchase price allocation is translated based on the exchange rate to the U.S. dollar as of June 30, 2015.
|
(iii)
|
Includes
four properties
of $
18
million classified as held-for-sal
e.
|
(iv)
|
In the near term, we expect to enter into a joint venture arrangement with a third party for an approximate 5% ownership interest in all of the Deka Portfolio, $97 million of the Internos Portfolio and $24 million of the IVG Portfolio.
|
(11)
|
Represents
an
adjustment to reflect NorthStar Europe’s issuance of the Senior Notes, including related deferred financing costs. We loaned the net proceeds from the issuance of the Senior Notes to subsidiaries of NorthStar Realty, which used such amounts for general corporate purposes, including, among other things, the funding of acquisitions, including the Trianon Tower and the repayment of NorthStar Realty’s borrowings. The terms of the loan are materially the same as those of the Senior Notes and
are deemed to be
repaid upon NorthStar Realty’s contribution to us of our European Real Estate Business. We may elect, upon satisfaction of certain conditions, to settle all or part of the principal amount of the Senior Notes in our Common Stock in lieu of cash. Refer to “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Recent Developments” for further discussion.
|
(12)
|
Represents the estimated initial capitalization of NorthStar Europe upon completion of the Distribution and excludes cash held in our Current European Portfolio. The initial capitalization is described in the contribution agreement, discussed in “Certain Relationships and Related Party Transactions—Relationship Between NorthStar Realty and Us After the Distribution—Contribution Agreement.”
|
(13)
|
Includes a capital contribution for transaction costs related to the European Spin-off paid by NorthStar Realty on our behalf of approximately $2 million incurred through June 30, 2015. Transaction costs include legal, accounting, tax and other professional services and start-up costs and are factually supportable because such amounts are based on reliable, documented evidence such as invoices for costs incurred to date. We expect total transaction costs to be approximately $10 million based on estimates from third parties for additional costs expected to be incurred until the European Spin-off. Transaction costs are non-recurring in nature and are therefore not included in the unaudited pro forma combined statement of operations. Rather, transaction costs represent a capital contribution and reduction of equity as a result of the expense with a net effect to equity of zero.
|
|
|
NorthStar Europe Predecessor
|
|
Pro Forma Prior to the Distribution
|
|
As Adjusted
|
||||||
Liabilities
|
|
$
|
82,115
|
|
|
$
|
1,822,019
|
|
|
$
|
1,904,134
|
|
Equity
|
|
|
|
|
|
|
||||||
NorthStar Europe equity
|
|
21,439
|
|
|
854,309
|
|
|
875,748
|
|
|||
Non-controlling interests
|
|
1,138
|
|
|
10,254
|
|
|
11,392
|
|
|||
Total equity
|
|
22,577
|
|
|
864,563
|
|
|
887,140
|
|
|||
Total liabilities and equity
|
|
$
|
104,692
|
|
|
$
|
2,686,582
|
|
|
$
|
2,791,274
|
|
(a)
|
Quoted prices for similar assets or liabilities in active markets.
|
(b)
|
Quoted prices for identical or similar assets or liabilities in non-active markets.
|
(c)
|
Pricing models whose inputs are observable for substantially the full term of the asset or liability.
|
(d)
|
Pricing models whose inputs are derived principally from or corroborated by observable market data for substantially the full term of the asset or liability.
|
•
|
Prior Owner Period
- The U.K. Complex and an allocation of certain costs and expenses related to the launch of our European Real Estate Business for periods prior to September 16, 2014, which is the date NorthStar Realty acquired the U.K. Complex; and
|
•
|
NorthStar Owner Period
- The U.K. Complex and business activities related to our European Real Estate Business for periods subsequent to September 16, 2014.
|
•
|
the combined financial information of the NorthStar Europe Predecessor does not include our New European Investments; and
|
•
|
the combined statements of operations of the NorthStar Europe Predecessor includes an allocation of certain costs and expenses incurred by NorthStar Realty on behalf of the NorthStar Europe Predecessor, which although based on certain assumptions and estimates believed to be reasonable may differ from actual results.
|
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
|
|
|
|
|||||||
|
|
Six Months Ended June 30,
|
|
Increase (Decrease)
|
|||||||||||
|
|
2015
|
|
2014
|
|
Amount
|
|
%
|
|||||||
Revenues
|
|
|
|
|
|
|
|
|
|||||||
Rental and escalation income
|
|
$
|
4,753
|
|
|
$
|
5,181
|
|
|
$
|
(428
|
)
|
|
(8.26
|
)%
|
Other revenues
|
|
1
|
|
|
925
|
|
|
(924
|
)
|
|
(99.89
|
)%
|
|||
Total revenues
|
|
4,754
|
|
|
6,106
|
|
|
(1,352
|
)
|
|
(22.14
|
)%
|
|||
Expenses
|
|
|
|
|
|
|
|
|
|||||||
Operating expenses
|
|
1,770
|
|
|
2,212
|
|
|
(442
|
)
|
|
(19.98
|
)%
|
|||
Interest expense
|
|
1,523
|
|
|
2,453
|
|
|
(930
|
)
|
|
(37.91
|
)%
|
|||
General and administrative expenses
|
|
1,358
|
|
|
3,922
|
|
|
(2,564
|
)
|
|
(65.37
|
)%
|
|||
Depreciation and amortization
|
|
1,814
|
|
|
1,593
|
|
|
221
|
|
|
13.87
|
%
|
|||
Total expenses
|
|
6,465
|
|
|
10,180
|
|
|
(3,715
|
)
|
|
(36.49
|
)%
|
|||
Other income (loss)
|
|
|
|
|
|
|
|
|
|||||||
Unrealized gain (loss)
|
|
41
|
|
|
1,414
|
|
|
(1,373
|
)
|
|
(97.10
|
)%
|
|||
Realized gain (loss)
|
|
(14
|
)
|
|
—
|
|
|
(14
|
)
|
|
—
|
%
|
|||
Income (loss) before income tax benefit (expense)
|
|
(1,684
|
)
|
|
(2,660
|
)
|
|
976
|
|
|
(36.69
|
)%
|
|||
Income tax benefit (expense)
|
|
107
|
|
|
(3
|
)
|
|
110
|
|
|
(3,666.67
|
)%
|
|||
Net income (loss)
|
|
$
|
(1,577
|
)
|
|
$
|
(2,663
|
)
|
|
$
|
1,086
|
|
|
(40.78
|
)%
|
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
|
Increase (Decrease)
|
|||||||||||||
|
|
Period from September 16, 2014 to December 31, 2014
|
|
Period from January 1, 2014 to September 15, 2014
|
|
Year Ended 2013
|
|
Amount
|
|
%
|
|||||||||
Revenues
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Rental and escalation income
|
|
$
|
2,722
|
|
|
$
|
7,162
|
|
|
$
|
9,869
|
|
|
$
|
15
|
|
|
0.15
|
%
|
Other revenues
|
|
39
|
|
|
1,290
|
|
|
1,129
|
|
|
200
|
|
|
17.71
|
%
|
||||
Total revenues
|
|
2,761
|
|
|
8,452
|
|
|
10,998
|
|
|
215
|
|
|
1.95
|
%
|
||||
Expenses
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Operating expenses
|
|
1,181
|
|
|
3,113
|
|
|
4,002
|
|
|
292
|
|
|
7.30
|
%
|
||||
Transaction costs
|
|
4,198
|
|
|
—
|
|
|
—
|
|
|
4,198
|
|
|
—
|
%
|
||||
Interest expense
|
|
165
|
|
|
3,486
|
|
|
4,666
|
|
|
(1,015
|
)
|
|
(21.75
|
)%
|
||||
General and administrative expenses
|
|
1,207
|
|
|
4,676
|
|
|
340
|
|
|
5,543
|
|
|
1,630.29
|
%
|
||||
Depreciation and amortization
|
|
1,088
|
|
|
2,294
|
|
|
3,155
|
|
|
227
|
|
|
7.19
|
%
|
||||
Total expenses
|
|
7,839
|
|
|
13,569
|
|
|
12,163
|
|
|
9,245
|
|
|
76.01
|
%
|
||||
Other income (loss)
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Unrealized gain (loss)
|
|
(210
|
)
|
|
2,110
|
|
|
2,798
|
|
|
(898
|
)
|
|
(32.09
|
)%
|
||||
Net income (loss)
|
|
$
|
(5,288
|
)
|
|
$
|
(3,007
|
)
|
|
$
|
1,633
|
|
|
$
|
(9,928
|
)
|
|
(607.96
|
)%
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||||||||||
|
|
|
|
|
Period From
|
|
Period From
|
|
|
||||||||||
|
|
|
|
|
September 16,
|
|
January 1,
|
|
|
||||||||||
|
Six Months
|
|
2014 to
|
|
2014 to
|
|
Year Ended
|
||||||||||||
|
Ended June 30,
|
|
December 31,
|
|
September 15,
|
|
December 31,
|
||||||||||||
Cash flow provided by (used in):
|
2015
|
|
2014
|
|
2014
|
|
2014
|
|
2013
|
||||||||||
Operating activities
|
$
|
1,265
|
|
|
$
|
2,554
|
|
|
$
|
(6,728
|
)
|
|
$
|
(2,681
|
)
|
|
$
|
7,245
|
|
Investing activities
|
(338
|
)
|
|
(2,020
|
)
|
|
(89,645
|
)
|
|
(2,307
|
)
|
|
(7,263
|
)
|
|||||
Financing activities
|
746
|
|
|
(348
|
)
|
|
100,608
|
|
|
(46
|
)
|
|
(656
|
)
|
|||||
Effect of foreign currency translation on cash
|
40
|
|
|
(10
|
)
|
|
(2,683
|
)
|
|
3,722
|
|
|
545
|
|
|||||
Net increase (decrease) in cash
|
$
|
1,713
|
|
|
$
|
176
|
|
|
$
|
1,552
|
|
|
$
|
(1,312
|
)
|
|
$
|
(129
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments Due by Period
|
||||||||||||||||||
|
|
Total
(1)
|
|
Less than 1 year
|
|
1-3 years
|
|
3-5 years
|
|
More than 5 years
|
||||||||||
NorthStar Europe Predecessor
(2)
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Mortgage and other note payable
|
|
$
|
77,660
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
77,660
|
|
|
$
|
—
|
|
Estimated interest payments
(3)
|
|
13,664
|
|
|
2,763
|
|
|
5,526
|
|
|
5,375
|
|
|
—
|
|
|||||
Subtotal
|
|
91,324
|
|
|
2,763
|
|
|
5,526
|
|
|
83,035
|
|
|
—
|
|
|||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Pro Forma Contractual Obligations
(4)
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Mortgage and other notes payable
|
|
1,439,869
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,439,869
|
|
|||||
Senior Notes
|
|
340,000
|
|
|
—
|
|
|
340,000
|
|
|
—
|
|
|
—
|
|
|||||
Estimated interest payments
(3)
|
|
345,372
|
|
|
29,898
|
|
|
59,796
|
|
|
59,796
|
|
|
195,882
|
|
|||||
Subtotal
|
|
2,125,241
|
|
|
29,898
|
|
|
399,796
|
|
|
59,796
|
|
|
1,635,751
|
|
|||||
Total
|
|
$
|
2,216,565
|
|
|
$
|
32,661
|
|
|
$
|
405,322
|
|
|
$
|
142,831
|
|
|
$
|
1,635,751
|
|
(1)
|
Amounts denominated in foreign currencies are translated to the U.S. dollar using the currency exchange rate at the end of the period presented for the U.K. Complex and the exchange rate as of the respective acquisition or commitment date for our New European Investments included in the Pro Forma Contractual Obligations.
|
(2)
|
Excludes immaterial amounts related to an operating ground lease.
|
(3)
|
Applicable LIBOR benchmark plus the respective spread and foreign currency exchange rate as of June 30, 2015 was used to estimate payments for our floating-rate liabilities.
|
(4)
|
Represents pro forma contractual obligations related to our New European Investments and the Senior Notes. Refer to “Unaudited Pro Forma Financial Information” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Recent Developments” for further discussion of our pro forma borrowings.
|
Name
|
|
Age
|
|
Position
|
David T. Hamamoto
|
|
55
|
|
Chairman
|
Albert Tylis
|
|
41
|
|
Director Nominee
|
Mario Chisholm
|
|
32
|
|
Independent Director Nominee
|
Judith A. Hannaway
|
|
63
|
|
Independent Director Nominee
|
Oscar Junquera
|
|
61
|
|
Independent Director Nominee
|
Wesley D. Minami
|
|
58
|
|
Independent Director Nominee
|
Charles W. Schoenherr
|
|
55
|
|
Independent Director Nominee
|
Name
|
|
Age
|
|
Position
|
Mahbod Nia
|
|
39
|
|
Chief Executive Officer
|
Debra A. Hess
|
|
51
|
|
Interim Chief Financial Officer
(1)
|
Trevor K. Ross
|
|
37
|
|
General Counsel and Secretary
|
•
|
serving
as our investment and financial advisor and obtain certain market research and economic and statistical data in connection with our investments and investment objectives and policies;
|
•
|
subject to the investment objectives and limitations set forth in our charter and the investment guidelines approved by our board of directors: (i) locating, analyzing and selecting potential investments; (ii) structuring and negotiating the terms and conditions of approved investments; and (iii) acquiring approved investments on our behalf;
|
•
|
overseeing the due diligence process related to prospective investments;
|
•
|
conducting a thorough due diligence process for prospective investments;
|
•
|
preparing reports regarding prospective investments which include recommendations and supporting documentation necessary for our board of directors to evaluate the proposed investments;
|
•
|
obtaining reports (which may be prepared by NSAM or its affiliates), where appropriate, concerning the value of proposed investments; and
|
•
|
negotiating and executing approved investments and other transactions.
|
•
|
investigating, selecting and, on our behalf, engaging and conducting business with such persons as NSAM deems necessary to the proper performance of its obligations under our management agreement, including but not limited to consultants, accountants, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, developers, construction companies and any and all persons acting in any other capacity deemed by NSAM necessary or desirable for the performance of any of the services under our management agreement;
|
•
|
monitoring applicable markets and obtaining reports (which may be prepared by NSAM or its affiliates) where appropriate, concerning the value of our investments;
|
•
|
monitoring and evaluating the performance of our investments, providing daily management services to us and performing and supervising the various management and operational functions related to our investments;
|
•
|
formulating and overseeing the implementation of strategies for the administration, promotion, management, operation, maintenance, improvement, financing and refinancing, marketing, leasing and disposition of investments on an overall portfolio basis;
|
•
|
coordinating and managing relationships between any joint venture partners and us; and
|
•
|
providing financial and operational planning services and investment portfolio management functions.
|
•
|
managing and performing the various administrative functions necessary for our day-to-day operations;
|
•
|
from time-to-time, or at any time reasonably requested by our board of directors, reporting to our directors on NSAM’s performance of services to us under the management agreement;
|
•
|
coordinating with our independent accountants and auditors to prepare and deliver to the company’s audit committee an annual report covering NSAM’s compliance with certain aspects of the management agreement;
|
•
|
providing or arranging for administrative services, legal services, office space, office furnishings, personnel and other overhead items necessary and incidental to our business and operations;
|
•
|
providing financial and operational planning services and portfolio management functions;
|
•
|
maintaining accounting data and any other information concerning our activities as shall be required to prepare and to file all periodic financial reports and returns required to be filed with the SEC and any other regulatory agency, including annual financial statements;
|
•
|
maintaining all of our appropriate books and records;
|
•
|
overseeing tax and compliance services and risk management services and coordinating with appropriate third parties, including independent accountants and other consultants, on related tax matters;
|
•
|
supervising the performance of such ministerial and administrative functions as may be necessary in connection with our daily operations;
|
•
|
providing us with all necessary cash management services;
|
•
|
managing and coordinating with the transfer agent the process of making distributions and payments to stockholders;
|
•
|
consulting with our officers and board of directors and assisting in evaluating and obtaining adequate insurance coverage based upon risk management determinations;
|
•
|
providing our officers and board of directors with timely updates related to the overall regulatory environment affecting the company, as well as managing compliance with regulatory matters;
|
•
|
consulting with our officers and board of directors relating to the corporate governance structure and appropriate policies and procedures related thereto; and
|
•
|
overseeing all reporting, recordkeeping, internal controls and similar matters in a manner to allow us to comply with applicable law.
|
•
|
managing communications with our stockholders, including answering phone calls, preparing and sending written and electronic reports and other communications; and
|
•
|
establishing technology infrastructure to assist in providing stockholder support and services.
|
•
|
identifying and evaluating potential financing and refinancing sources, engaging a third party broker if necessary;
|
•
|
negotiating terms of, arrange and execute financing agreements;
|
•
|
managing relationships between the company and its lenders; and
|
•
|
monitoring and overseeing the service of our debt facilities and other financings.
|
•
|
consulting with our board of directors and providing assistance with the evaluation and approval of potential asset disposition, sales or liquidity transactions; and
|
•
|
structuring and negotiating the terms and conditions of transactions pursuant to which our investments may be sold.
|
Name
|
|
Age
|
|
Position
|
David T. Hamamoto
|
|
55
|
|
Executive Chairman
|
Albert Tylis
|
|
41
|
|
Chief Executive Officer and President
|
Daniel R. Gilbert
|
|
45
|
|
Chief Investment and Operating Officer of NorthStar Asset Management Group, Ltd, NSAM’s wholly owned subsidiary
|
Debra A. Hess
|
|
51
|
|
Chief Financial Officer
|
Ronald J. Lieberman
|
|
45
|
|
Executive Vice President, General Counsel and Secretary
|
(i)
|
an annual base management fee equal to the sum of:
|
(a)
|
$14 million; and
|
(b)
|
an additional annual base management fee equal to 1.5% per annum of the sum of:
|
(1)
|
any equity we issue in exchange or conversion of exchangeable or stock-settleable notes;
|
(2)
|
any other issuances of common equity, preferred equity or other forms of equity, including but not limited to LTIP Units in our Operating Partnership (excluding units issued to us and equity-based compensation, but including issuances related to an acquisition, investment, joint venture or partnership); and
|
(3)
|
cumulative CAD, if any, in excess of cumulative distributions paid on common stock, LTIP Units or other equity awards beginning the first full calendar quarter after completion of the Distribution; and
|
(ii)
|
an incentive fee equal to:
|
(a)
|
the product of: (a) 15% and (b) CAD before such incentive fee, divided by the weighted average shares outstanding for the calendar quarter, of any amount in excess of $
0.300
per share and up to $
0.360
per share; plus
|
(b)
|
the product of: (a) 25% and (b) CAD before such incentive fee, divided by the weighted average shares outstanding for the calendar quarter, of any amount in excess of $
0.360
per share;
|
(c)
|
multiplied by the weighted average shares outstanding for the calendar quarter,
|
•
|
NSAM engages in any material act of fraud, misappropriation of funds or embezzlement against us or any of our subsidiaries;
|
•
|
NSAM’s breach, in bad faith, of any provision of the management agreement or gross negligence that has a “material adverse effect” on us, in each case, if the effects of such breach in bad faith or gross negligence cannot be reversed, or such effects are not reversed within a period of 60 days (or 90 days if NSAM takes steps to reverse such effects within 30 days of the written notice);
|
•
|
there is a commencement of any proceeding relating to NSAM’s bankruptcy or insolvency, including an order for relief in an involuntary bankruptcy case or NSAM authorizing or filing a voluntary bankruptcy petition that is not dismissed in 60 days;
|
•
|
there is a determination by a court of competent jurisdiction in a non-appealable binding order, or by the IRS in a closing agreement made under Section 7121 of the Code, that a provision of the management agreement caused or will cause us to fail to satisfy a requirement for qualification as a REIT and, within 60 days of such determination, NSAM has not agreed to amend or modify the management agreement in a manner that would allow us to qualify as a REIT, unless our board of directors determines that qualification as a REIT is no longer necessary or desirable; or
|
•
|
NSAM’s dissolution.
|
Name
|
|
Position
|
Mahbod Nia
|
|
Chief Executive Officer
|
Debra A. Hess
|
|
Interim Chief Financial Officer
(1)
|
Trevor K. Ross
|
|
General Counsel and Secretary
|
•
|
Holders of shares of NorthStar Realty common stock subject to outstanding equity awards will receive one share of our Common Stock in the European Spin-off for each six shares of NorthStar Realty common stock and holders of LTIP Units in NorthStar Realty OP, or NorthStar Realty LTIP Units, will receive one common unit in our Operating Partnership for each six NorthStar Realty LTIP Units in connection with the European Spin-off, all of which generally will remain subject to the same vesting and other terms that applied prior to the European Spin-off, subject to the other adjustments described herein;
|
•
|
Other equity-based awards relating to NorthStar Realty common stock or LTIP Units, including restricted stock units and awards under the NSAM Incentive Plan, will be adjusted to also relate to one share of our Common Stock or LTIP Unit in our Operating Partnership for each six shares of NorthStar Realty common stock or NorthStar Realty LTIP Units, but otherwise generally will remain subject to the same vesting and other terms that applied prior to the European Spin-off, subject to the other adjustments described herein;
|
•
|
Performance-based vesting conditions based on total stockholder return of NorthStar Realty or NorthStar Realty and NSAM will be adjusted to refer to combined total stockholder return of NorthStar Realty and us or NorthStar Realty, NSAM and us, respectively, with respect to periods after the European Spin-off; and
|
•
|
All references to a change of control or similar term in outstanding awards, which refers to a change of control of either NorthStar Realty or NSAM, will be adjusted, to the extent such awards relate to our Common Stock or common
|
•
|
the equity awards granted to the executive pursuant to the NRF Incentive Plan and the NSAM Incentive Plan that were scheduled to vest based solely on continued employment through a future date will vest in full; and
|
•
|
with respect to the restricted stock units granted pursuant to the NRF Incentive Plan and the NSAM Incentive Plan that were subject to performance-based vesting criteria, the number of restricted stock units that will vest, if any, will continue to be determined at the end of the applicable performance period but the number of restricted stock units earned will be pro-rated based on the number of days that the executive was employed during such performance period and will not be subject to continued employment through the end of the such performance period.
|
•
|
the equity awards granted pursuant to the NRF Incentive Plan and the NSAM Incentive Plan that were scheduled to vest based solely on continued employment through a future date will vest in full to the extent they relate to our Common Stock or common units in our Operating Partnership; and
|
•
|
with respect to the restricted stock units granted pursuant to the NRF Incentive Plan and the NSAM Incentive Plan that were subject to performance-based vesting criteria, the number of restricted stock units that will vest, to the extent they relate to our Common Stock, will be equal to the greater of: (i) a pro-rated portion of such restricted stock units based on the percentage of the applicable performance period that elapsed from the first day of such period through the date of the change of control; or (ii) the number of restricted stock units that would have been earned if the stock price of our Common Stock, the common stock of NorthStar Realty and, if applicable, the common stock
|
•
|
the SEC declaring effective our registration statement and no stop order suspending the effectiveness of the registration statement in effect and no proceedings for such purpose pending before or threatened by the SEC;
|
•
|
the transaction agreements relating to the Distribution having been duly executed and delivered by the parties;
|
•
|
no order, injunction or decree issued by any court of competent jurisdiction or other legal restraint or prohibition preventing consummation of the Distribution or any of the related transactions in effect;
|
•
|
the receipt by us of an opinion from Hunton & Williams LLP to the effect that, beginning with our taxable year ending December 31, 2015, we will be organized in conformity with the requirements for qualification as a REIT under the Code and our proposed method of operation will enable us to satisfy the requirements for qualification and taxation as a REIT under the U.S. federal income tax laws for our taxable year ending December 31, 2015 and subsequent taxable years; and
|
•
|
no event or development having occurred or existing that, in the judgment of the NorthStar Realty Board, in its sole discretion, makes it inadvisable to effect the Distribution and other related transactions.
|
•
|
no investment shall be made which would cause us to fail to qualify as a REIT; and
|
•
|
no investment shall be made which would cause us to be regulated as an investment company.
|
•
|
each director and director nominee;
|
•
|
each of our named executive officers;
|
•
|
each person or group of affiliated persons that is the beneficial owner of 5% or more of our Common Stock; and
|
•
|
all of our directors, director nominees and executive officers as a group.
|
|
|
Amount and Nature of
Beneficial Ownership
(1)
|
||||
Name and Address of Beneficial Owner
|
|
Number
|
|
Percentage
|
||
Principal Stockholders:
|
|
|
|
|
||
The Vanguard Group
|
|
6,837,105
|
|
(2)
|
11.2
|
%
|
Directors, Director Nominees and Executive Officers:
(3)
|
|
|
|
|
||
David T. Hamamoto
|
|
196,676
|
|
(4)
|
*
|
|
Albert Tylis
|
|
37,772
|
|
(5)
|
*
|
|
Mario Chisholm
|
|
—
|
|
(6)
|
*
|
|
Judith A. Hannaway
|
|
7,841
|
|
(6) (7)
|
*
|
|
Oscar Junquera
|
|
4,927
|
|
(6)
|
*
|
|
Wesley D. Minami
|
|
10,143
|
|
(6) (8)
|
*
|
|
Charles W. Schoenherr
|
|
3,614
|
|
(6) (9)
|
*
|
|
Mahbod Nia
|
|
1,189
|
|
(10)
|
*
|
|
Debra A. Hess
|
|
14,788
|
|
(11)
|
*
|
|
Trevor K. Ross
|
|
—
|
|
(12)
|
*
|
|
All directors and executive officers as a group
|
|
276,950
|
|
|
*
|
|
(1)
|
Each listed person’s beneficial ownership includes: all shares of our Common Stock and vested common units in our Operating Partnership over which the person has or shares direct or indirect voting or dispositive control and all other shares of our Common Stock over which the person has the right to acquire direct or indirect voting or dispositive control within 60 days. Unless otherwise described in a footnote below, each person has sole voting and dispositive control over the securities beneficially owned.
|
(2)
|
Based on information included in the Schedule 13G/A filed by The Vanguard Group, or the Vanguard Group, on June 10, 2015, or the Vanguard 13G, relating to its beneficial ownership of NorthStar Realty common stock. According to the Vanguard 13G, Vanguard Group beneficially owns an aggregate of 41,022,634 shares of NorthStar Realty common stock and has sole voting power, sole dispositive power and shared dispositive power over 187,999, 40,863,209 and 159,425, respectively, of such shares of common stock. The principal business address of Vanguard Group is 100 Vanguard Blvd., Malvern, PA 19355.
|
(3)
|
The address of each of the directors and executive officers is 399 Park Avenue, 18th Floor, New York, NY 10022.
|
(4)
|
Includes: (i) 11,492 restricted shares of our Common Stock to be distributed with respect to equity awards granted by NorthStar Realty prior to the European Spin-off that have not yet vested; (ii) 90,398 vested common units to be distributed with respect to vested NorthStar Realty LTIP Units in connection with the European Spin-off; (iii) 1,087 shares of our Common Stock held by DTH Investment Holdings LLC, of which Mr. Hamamoto is the managing member; and (iv) 41,666 shares of our Common Stock held by The David T. Hamamoto GRAT I-2014-NRF, a grantor trust for the benefit of Mr. Hamamoto's children and of which Mr. Hamamoto is the trustee. Excludes: (i) 81,839 unvested common units in our Operating Partnership to be distributed with respect to unvested NorthStar Realty LTIP Units in connection with the European Spin-off; and (ii) 116,011 shares of our Common Stock subject to RSUs previously issued by NorthStar Realty, which will only be issued if and to the extent future performance conditions are met.
|
(5)
|
Includes 37,772 vested common units in our Operating Partnership to be distributed with respect to vested NorthStar Realty LTIP Units in connection with the European Spin-off. Excludes: (i) 54,560 unvested common units in our Operating Partnership to be distributed with respect to unvested NorthStar Realty LTIP Units in connection with the European Spin-off; and (ii) 77,341 shares of our Common Stock subject to RSUs previously issued by NorthStar Realty, which will only be issued if and to the extent future performance conditions are met.
|
(6)
|
Excludes an equity award of $200,000 to be issued to each of our non-management directors upon their election to our board of directors on the first trading day following the Distribution date. The equity award is expected to be issued based on the closing trading price of our Common Stock on the first day of trading following the Distribution date.
|
(7)
|
Includes 2,384 vested common units in our Operating Partnership to be distributed with respect to vested NorthStar Realty LTIP Units in connection with the European Spin-off.
|
(8)
|
Includes 2,384 vested common units in our Operating Partnership to be distributed with respect to vested NorthStar Realty LTIP Units in connection with the European Spin-off.
|
(9)
|
Includes 2,781 vested common units in our Operating Partnership to be distributed with respect to vested NorthStar Realty LTIP Units in connection with the European Spin-off. Excludes 794 unvested common units in our Operating Partnership to be distributed with respect to unvested NorthStar Realty LTIP Units in connection with the European Spin-off.
|
(10)
|
Includes 991 restricted shares of our Common Stock to be distributed with respect to equity awards granted by NorthStar Realty prior to the European Spin-off that have not yet vested.
|
(11)
|
Includes: (i) 1,702 restricted shares of our Common Stock to be distributed with respect to equity awards granted by NorthStar Realty prior to the European Spin-off that have not yet vested; and (ii) 12,428 vested common units in our Operating Partnership to be distributed with respect to vested NorthStar Realty LTIP Units in connection with the European Spin-off. Excludes: (i) 16,274 unvested common units in our Operating Partnership to be distributed with respect to unvested NorthStar Realty LTIP Units in connection with the European Spin-off; and (ii) 18,503 shares of our Common Stock subject to RSUs previously issued by NorthStar Realty, which will only be issued if and to the extent future performance conditions are met.
|
(12)
|
Excludes 1,773 unvested common units in our Operating Partnership to be distributed with respect to unvested NorthStar Realty LTIP Units in connection with the European Spin-off.
|
•
|
one percent of the number of shares of our Common Stock then outstanding; or
|
•
|
the average weekly trading volume of our Common Stock on the stock exchange on which our Common Stock will be listed, which we expect to be the NYSE, during the four calendar weeks preceding the filing of a notice of Form 144 with respect to such sale.
|
•
|
any person who beneficially owns, directly or indirectly, 10% or more of the voting power of the corporation’s outstanding voting stock; or
|
•
|
an affiliate or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then outstanding voting stock of the corporation.
|
•
|
80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation; and
|
•
|
two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or held by an affiliate or associate of the interested stockholder.
|
•
|
one-tenth or more but less than one-third;
|
•
|
one-third or more but less than a majority; or
|
•
|
a majority or more of all voting power.
|
•
|
a classified board;
|
•
|
a two-thirds vote requirement for removing a director;
|
•
|
a requirement that the number of directors be fixed only by vote of the directors;
|
•
|
a requirement that a vacancy on the board be filled only by the remaining directors and for the remainder of the full term of the class of directors in which the vacancy occurred; and
|
•
|
a majority requirement for the calling of a stockholder-requested special meeting of stockholders.
|
•
|
insurance companies;
|
•
|
tax-exempt organizations (except to the extent discussed in “— Taxation of Tax-Exempt Stockholders” below);
|
•
|
financial institutions or broker-dealers;
|
•
|
non-U.S. individuals and foreign corporations (except to the extent discussed in “— Taxation of Non-U.S. Stockholders” below);
|
•
|
U.S. expatriates;
|
•
|
persons who mark-to-market our securities;
|
•
|
subchapter S corporations;
|
•
|
U.S. stockholders (as defined below) whose functional currency is not the U.S. dollar;
|
•
|
regulated investment companies or REITs;
|
•
|
trusts and estates;
|
•
|
holders who receive our Common Stock through the exercise of employee stock options or otherwise as compensation;
|
•
|
persons holding our Common Stock as part of a “straddle,” “hedge,” “conversion transaction,” “synthetic security” or other integrated investment;
|
•
|
persons subject to the alternative minimum tax provisions of the Code;
|
•
|
persons holding our securities through a partnership or similar pass-through entity; and
|
•
|
persons holding a 10% or more (by vote or value) beneficial interest in our stock.
|
•
|
We will pay U.S. federal income tax on any taxable income, including undistributed net capital gain, that we do not distribute to stockholders during, or within a specified time period after, the calendar year in which the income is earned.
|
•
|
We may be subject to the “alternative minimum tax” on any items of tax preference, including any deductions of net operating losses.
|
•
|
We will pay income tax at the highest corporate rate on:
|
•
|
net income from the sale or other disposition of property acquired through foreclosure or after a default on a lease of the property, or foreclosure property, that we hold primarily for sale to customers in the ordinary course of business, and
|
•
|
other non-qualifying income from foreclosure property.
|
•
|
We will pay a 100% tax on net income from sales or other dispositions of property, other than foreclosure property, that we hold primarily for sale to customers in the ordinary course of business.
|
•
|
If we fail to satisfy one or both of the 75% gross income test or the 95% gross income test, as described below under “— Requirements for Qualification — Gross Income Tests,” and nonetheless continue to qualify as a REIT because we meet other requirements, we will pay a 100% tax on the gross income attributable to the greater of the amount by which we fail the 75% gross income test or the 95% gross income test, in either case, multiplied by a fraction intended to reflect our profitability.
|
•
|
If we fail to distribute during a calendar year at least the sum of: (i) 85% of our REIT ordinary income for the year; (ii) 95% of our REIT capital gain net income for the year; and (iii) any undistributed taxable income required to be distributed from earlier periods, we will pay a 4% nondeductible excise tax on the excess of the required distribution over the amount we actually distributed.
|
•
|
We may elect to retain and pay income tax on our net long-term capital gain. In that case, a U.S. stockholder would be taxed on its proportionate share of our undistributed long-term capital gain (to the extent that we made a timely designation of such gain to the stockholders) and would receive a credit or refund for its proportionate share of the tax we paid.
|
•
|
We will be subject to a 100% excise tax on transactions with a TRS that are not conducted on an arm’s-length basis.
|
•
|
In the event of a failure of any of the asset tests, other than a de minimis failure of the 5% asset test or the 10% vote or value test, as described below under “— Requirements for Qualification — Asset Tests,” as long as the failure was due to reasonable cause and not to willful neglect, we file a description of each asset that caused such failure with the IRS, and we dispose of such assets or otherwise comply with the asset tests within six months after the last day of the quarter in which we identify such failure, we will pay a tax equal to the greater of $50,000 or the highest U.S. federal income tax rate then applicable to U.S. corporations (currently 35%) on the net income from the nonqualifying assets during the period in which we failed to satisfy the asset tests.
|
•
|
In the event we fail to satisfy one or more requirements for REIT qualification, other than the gross income tests and the asset tests, and such failure is due to reasonable cause and not to willful neglect, we will be required to pay a penalty of $50,000 for each such failure.
|
•
|
If we acquire any asset from a C corporation, or a corporation that generally is subject to full corporate-level tax, in a merger or other transaction in which we acquire a basis in the asset that is determined by reference either to the C corporation’s basis in the asset or to another asset, we will pay tax at the highest regular corporate rate applicable if we recognize gain on the sale or disposition of the asset during the ten-year period after we acquire the asset provided no election is made for the transaction to be taxable on a current basis. The amount of gain on which we will pay tax is the lesser of:
|
•
|
the amount of gain that we recognize at the time of the sale or disposition, and
|
•
|
the amount of gain that we would have recognized if we had sold the asset at the time we acquired it.
|
•
|
We may be required to pay monetary penalties to the IRS in certain circumstances, including if we fail to meet record-keeping requirements intended to monitor our compliance with rules relating to the composition of a REIT’s stockholders, as described below in “— Requirements for Qualification — Recordkeeping Requirements.”
|
•
|
The earnings of our lower-tier entities that are subchapter C corporations, including TRSs, will be subject to federal corporate income tax.
|
1.
|
It is managed by one or more directors or trustees.
|
2.
|
Its beneficial ownership is evidenced by transferable shares, or by transferable certificates of beneficial interest.
|
3.
|
It would be taxable as a domestic corporation, but for the REIT provisions of the U.S. federal income tax laws.
|
4.
|
It is neither a financial institution nor an insurance company subject to special provisions of the U.S. federal income tax laws.
|
5.
|
At least 100 persons are beneficial owners of its shares or ownership certificates.
|
6.
|
Not more than 50% in value of its outstanding shares or ownership certificates is owned, directly or indirectly, by five or fewer individuals, which the Code defines to include certain entities, during the last half of any taxable year.
|
7.
|
It elects to be a REIT, or has made such election for a previous taxable year, and satisfies all relevant filing and other administrative requirements established by the IRS that must be met to elect and maintain REIT status.
|
8.
|
It meets certain other qualification tests, described below, regarding the nature of its income and assets and the amount of its distributions to stockholders.
|
9.
|
It uses a calendar year for U.S. federal income tax purposes and complies with the recordkeeping requirements of the U.S. federal income tax laws.
|
•
|
rents from real property;
|
•
|
interest on debt secured by mortgages on real property or on interests in real property;
|
•
|
dividends or other distributions on, and gain from the sale of, shares in other REITs;
|
•
|
gain from the sale of real estate assets;
|
•
|
income derived from a REMIC in proportion to the real estate assets held by the REMIC, unless at least 95% of the REMIC’s assets are real estate assets, in which case all of the income derived from the REMIC; and
|
•
|
income derived from the temporary investment in stock and debt investments purchased with the proceeds from the issuance of our stock or a public offering of our debt with a maturity date of at least five years and that we receive during the one-year period beginning on the date on which we received such new capital.
|
•
|
First, the rent must not be based, in whole or in part, on the income or profits of any person. However, an amount received or accrued generally will not be excluded from rents from real property solely by reason of being based on fixed percentages of receipts or sales.
|
•
|
Second, rents we receive from a “related party tenant” will not qualify as rents from real property in satisfying the gross income tests unless the tenant is a TRS, and either: (i) at least 90% of the property is leased to unrelated tenants and the rent paid by the TRS is substantially comparable to the rent paid by the unrelated tenants for comparable space; or (ii) the TRS leases a qualified lodging facility or qualified health care property and engages an eligible independent contractor (as defined above in “— Taxable REIT Subsidiaries”) to operate such facility or property on its behalf. A tenant is a related party tenant if the REIT, or an actual or constructive owner of 10% or more of the REIT, actually or constructively owns 10% or more of the tenant.
|
•
|
Third, if rent attributable to personal property leased in connection with a lease of real property is 15% or less of the total rent received under the lease, then the rent attributable to personal property will qualify as rents from real property. However, if the 15% threshold is exceeded, the rent attributable to personal property will not qualify as rents from real property.
|
•
|
Fourth, we generally must not operate or manage our real property or furnish or render services to our tenants, other than through an “independent contractor” who is adequately compensated and from whom we do not derive revenue. However, we may provide services directly to tenants if the services are “usually or customarily rendered” in connection with the rental of space for occupancy only and are not considered to be provided for the tenants’ convenience. In addition, we may provide a minimal amount of “noncustomary” services to the tenants of a property, other than through an independent contractor, as long as our income from the services (valued at not less than 150% of our direct cost of performing such services) does not exceed 1% of our income from the related property. Furthermore, we may own up to 100% of the stock of a TRS which may provide customary and noncustomary services to our tenants without tainting our rental income for the related properties. See “— Taxable REIT Subsidiaries.”
|
•
|
an amount that is based on a fixed percentage or percentages of receipts or sales; and
|
•
|
an amount that is based on the income or profits of a debtor, as long as the debtor derives substantially all of its income from the real property securing the debt from leasing substantially all of its interest in the property and only to the extent that the amounts received by the debtor would be qualifying “rents from real property” if received directly by a REIT.
|
•
|
the REIT has held the property for not less than two years;
|
•
|
the aggregate expenditures made by the REIT, or any partner of the REIT, during the two-year period preceding the date of the sale that are includable in the basis of the property do not exceed 30% of the selling price of the property; either: (i) during the year in question, the REIT did not make more than seven sales of property other than foreclosure property or sales to which Section 1033 of the Code applies; (ii) the aggregate adjusted bases of all such properties sold by the REIT during the year did not exceed 10% of the aggregate bases of all of the assets of the REIT at the beginning of the year; or (iii) the aggregate fair market value of all such properties sold by the REIT during the year did not exceed 10% of the aggregate fair market value of all of the assets of the REIT at the beginning of the year;
|
•
|
in the case of property not acquired through foreclosure or lease termination, the REIT has held the property for at least two years for the production of rental income; and
|
•
|
if the REIT has made more than seven sales of non-foreclosure property during the taxable year, substantially all of the marketing and development expenditures with respect to the property were made through an independent contractor from whom the REIT derives no income.
|
•
|
that is acquired by a REIT as the result of the REIT having bid on such property at foreclosure or having otherwise reduced such property to ownership or possession by agreement or process of law, after there was a default or default was imminent on a lease of such property or on indebtedness that such property secured;
|
•
|
for which the related loan was acquired by the REIT at a time when the default was not imminent or anticipated; and
|
•
|
for which the REIT makes a proper election to treat the property as foreclosure property.
|
•
|
on which a lease is entered into for the property that, by its terms, will give rise to income that does not qualify for purposes of the 75% gross income test, or any amount is received or accrued, directly or indirectly, pursuant to a lease entered into on or after such day that will give rise to income that does not qualify for purposes of the 75% gross income test;
|
•
|
on which any construction takes place on the property, other than completion of a building or any other improvement, where more than 10% of the construction was completed before default became imminent; or
|
•
|
which is more than 90 days after the day on which the REIT acquired the property and the property is used in a trade or business which is conducted by the REIT, other than through an independent contractor from whom the REIT itself does not derive or receive any income.
|
•
|
our failure to meet those tests is due to reasonable cause and not to willful neglect; and
|
•
|
following such failure for any taxable year, we file a schedule of the sources of our income with the IRS.
|
•
|
cash or cash items, including certain receivables and money market funds;
|
•
|
government securities;
|
•
|
interests in real property, including leaseholds and options to acquire real property and leaseholds;
|
•
|
interests in mortgage loans secured by real property;
|
•
|
stock in other REITs;
|
•
|
investments in stock or debt instruments during the one-year period following our receipt of new capital that we raise through equity offerings or public offerings of debt with at least a five-year term; and
|
•
|
regular or residual interests in a REMIC. However, if less than 95% of the assets of a REMIC consists of assets that are qualifying real estate-related assets under the federal income tax laws, determined as if we held such assets, we will be treated as holding directly our proportionate share of the assets of such REMIC.
|
•
|
“Straight debt” securities, which is defined as a written unconditional promise to pay on demand or on a specified date a sum certain in money if: (i) the debt is not convertible, directly or indirectly, into equity; and (ii) the interest rate and interest payment dates are not contingent on profits, the borrower’s discretion, or similar factors. “Straight debt” securities do not include any securities issued by a partnership or a corporation in which we or any TRS in
|
•
|
a contingency relating to the time of payment of interest or principal, as long as either: (i) there is no change to the effective yield of the debt obligation, other than a change to the annual yield that does not exceed the greater of 0.25% or 5% of the annual yield; or (ii) neither the aggregate issue price nor the aggregate face amount of the issuer’s debt obligations held by us exceeds $1 million and no more than 12 months of unaccrued interest on the debt obligations can be required to be prepaid; and
|
•
|
a contingency relating to the time or amount of payment upon a default or prepayment of a debt obligation, as long as the contingency is consistent with customary commercial practice;
|
•
|
Any loan to an individual or an estate;
|
•
|
Any “section 467 rental agreement” other than an agreement with a related party tenant;
|
•
|
Any obligation to pay “rents from real property”;
|
•
|
Certain securities issued by governmental entities;
|
•
|
Any security issued by a REIT;
|
•
|
Any debt instrument issued by an entity treated as a partnership for federal income tax purposes in which we are a partner to the extent of our proportionate interest in the equity and debt securities of the partnership; and
|
•
|
Any debt instrument issued by an entity treated as a partnership for federal income tax purposes not described in the preceding bullet points if at least 75% of the partnership’s gross income, excluding income from prohibited transactions, is qualifying income for purposes of the 75% gross income test described above in “— Gross Income Tests.”
|
•
|
we satisfied the asset tests at the end of the preceding calendar quarter; and
|
•
|
the discrepancy between the value of our assets and the asset test requirements arose from changes in the market values of our assets and was not wholly or partly caused by the acquisition of one or more non-qualifying assets.
|
•
|
90% of our “REIT taxable income,” computed without regard to the dividends paid deduction and our net capital gain or loss and
|
•
|
90% of our after-tax net income, if any, from foreclosure property; minus
|
•
|
the sum of certain items of non-cash income.
|
•
|
85% of our REIT ordinary income for such year;
|
•
|
95% of our REIT capital gain income for such year; and
|
•
|
any undistributed taxable income from prior periods,
|
•
|
a citizen or resident of the United States;
|
•
|
a corporation (including an entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any of its states or the District of Columbia;
|
•
|
an estate whose income is subject to U.S. federal income taxation regardless of its source; or
|
•
|
any trust if: (i) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust; or (ii) it has a valid election in place to be treated as a U.S. person.
|
•
|
the percentage of our dividends that the tax-exempt trust must treat as UBTI is at least 5%;
|
•
|
we qualify as a REIT by reason of the modification of the rule requiring that no more than 50% of our stock be owned by five or fewer individuals that allows the beneficiaries of the pension trust to be treated as holding our stock in proportion to their actuarial interests in the pension trust; and
|
•
|
one pension trust owns more than 25% of the value of our stock; or
|
•
|
a group of pension trusts individually holding more than 10% of the value of our stock collectively owns more than 50% of the value of our stock.
|
•
|
is a corporation or qualifies for certain other exempt categories and, when required, demonstrates this fact; or
|
•
|
provides a taxpayer identification number, certifies as to no loss of exemption from backup withholding, and otherwise complies with the applicable requirements of the backup withholding rules.
|
•
|
is treated as a partnership under the Treasury regulations relating to entity classification, or the check-the-box regulations; and
|
•
|
is not a “publicly traded” partnership.
|
•
|
the amount of cash and the basis of any other property contributed by us to the Partnership;
|
•
|
increased by our allocable share of the Partnership’s income and our allocable share of indebtedness of the Partnership; and
|
•
|
reduced, but not below zero, by our allocable share of the Partnership’s loss and the amount of cash distributed to us, and by constructive distributions resulting from a reduction in our share of indebtedness of our Operating Partnership.
|
NorthStar Europe Predecessor Audited Combined Financial Statements
|
|
|
|
||
|
||
|
||
|
||
|
||
|
||
NorthStar Europe Predecessor Unaudited Combined Interim Financial Statements
|
|
|
|
||
|
||
|
||
|
||
|
||
SEB Portfolio
|
|
|
|
||
|
||
|
||
Trianon Tower
|
|
|
|
||
|
||
|
||
IVG Financials
|
|
|
|
||
|
||
|
||
Internos Financials
|
|
|
|
||
|
||
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||
|
December 31, 2014
|
|
December 31, 2013
|
||||
Assets
|
|
|
|
||||
Cash
|
$
|
1,552
|
|
|
$
|
1,350
|
|
Restricted cash
|
5,277
|
|
|
1,591
|
|
||
Operating real estate, net
|
54,896
|
|
|
59,201
|
|
||
Receivables
|
740
|
|
|
335
|
|
||
Unbilled rent receivable
|
264
|
|
|
560
|
|
||
Derivative assets, at fair value
|
1,080
|
|
|
—
|
|
||
Deferred costs and intangible assets, net
|
36,006
|
|
|
27,914
|
|
||
Other assets
|
3,011
|
|
|
—
|
|
||
Total assets
|
$
|
102,826
|
|
|
$
|
90,951
|
|
|
|
|
|
||||
Liabilities and Equity
|
|
|
|
||||
Mortgage notes payable
|
$
|
77,660
|
|
|
$
|
47,895
|
|
Accounts payable and accrued expenses
|
1,698
|
|
|
12,651
|
|
||
Derivative liabilities, at fair value
|
—
|
|
|
4,187
|
|
||
Other liabilities
|
2,589
|
|
|
2,634
|
|
||
Total liabilities
|
81,947
|
|
|
67,367
|
|
||
NorthStar Europe Predecessor equity
|
19,821
|
|
|
23,584
|
|
||
Non-controlling interest
|
1,058
|
|
|
—
|
|
||
Total equity
|
20,879
|
|
|
23,584
|
|
||
Total liabilities and equity
|
$
|
102,826
|
|
|
$
|
90,951
|
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||||||
|
Period from September 16, 2014 to December 31, 2014
|
|
Period from January 1 to September 15, 2014
|
|
Year Ended December 31, 2013
|
||||||
Revenues
|
|
|
|
|
|
||||||
Rental and escalation income
|
$
|
2,722
|
|
|
$
|
7,162
|
|
|
$
|
9,869
|
|
Other revenues
|
39
|
|
|
1,290
|
|
|
1,129
|
|
|||
Total revenues
|
2,761
|
|
|
8,452
|
|
|
10,998
|
|
|||
Expenses
|
|
|
|
|
|
||||||
Operating expenses
|
1,181
|
|
|
3,113
|
|
|
4,002
|
|
|||
Transaction costs
|
4,198
|
|
|
—
|
|
|
—
|
|
|||
Interest expense
|
165
|
|
|
3,486
|
|
|
4,666
|
|
|||
General and administrative expenses
|
1,207
|
|
|
4,676
|
|
|
340
|
|
|||
Depreciation and amortization
|
1,088
|
|
|
2,294
|
|
|
3,155
|
|
|||
Total expenses
|
7,839
|
|
|
13,569
|
|
|
12,163
|
|
|||
Other income (loss)
|
|
|
|
|
|
||||||
Unrealized gain (loss) on investments and other
|
(210
|
)
|
|
2,110
|
|
|
2,798
|
|
|||
Net income (loss)
|
(5,288
|
)
|
|
(3,007
|
)
|
|
1,633
|
|
|||
Net (income) loss attributable to non-controlling interest
|
276
|
|
|
—
|
|
|
—
|
|
|||
Net income (loss) attributable to the NorthStar Europe Predecessor
|
$
|
(5,012
|
)
|
|
$
|
(3,007
|
)
|
|
$
|
1,633
|
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||||||
|
Period from September 16, 2014 to December 31, 2014
|
|
Period from January 1 to September 15, 2014
|
|
Year Ended December 31, 2013
|
||||||
Net income (loss)
|
$
|
(5,288
|
)
|
|
$
|
(3,007
|
)
|
|
$
|
1,633
|
|
Other comprehensive income (loss):
|
|
|
|
|
|
||||||
Foreign currency translation adjustment
|
(4,648
|
)
|
|
(57
|
)
|
|
(981
|
)
|
|||
Total other comprehensive income (loss)
|
(9,936
|
)
|
|
(3,064
|
)
|
|
652
|
|
|||
Comprehensive income (loss)
|
|
|
|
|
|
||||||
Comprehensive (income) loss attributable to non-controlling interest
|
588
|
|
|
—
|
|
|
—
|
|
|||
Comprehensive income (loss) attributable to NorthStar Europe Predecessor
|
$
|
(9,348
|
)
|
|
$
|
(3,064
|
)
|
|
$
|
652
|
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||||||
|
Period from September 16, 2014 to December 31, 2014
|
|
Period from January 1 to September 15, 2014
|
|
Year Ended December 31, 2013
|
||||||
Cash flows from operating activities:
|
|
|
|
|
|
||||||
Net income (loss)
|
$
|
(5,288
|
)
|
|
$
|
(3,007
|
)
|
|
$
|
1,633
|
|
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities
|
|
|
|
|
|
||||||
Depreciation and amortization
|
1,088
|
|
|
2,294
|
|
|
3,155
|
|
|||
Amortization of deferred financing costs
|
18
|
|
|
—
|
|
|
—
|
|
|||
Amortization of discount on borrowing
|
—
|
|
|
846
|
|
|
1,120
|
|
|||
Unrealized (gain) loss on investments and other
|
210
|
|
|
(2,110
|
)
|
|
(2,798
|
)
|
|||
Amortization of capitalized above/below market leases
|
37
|
|
|
37
|
|
|
68
|
|
|||
Straight line rental income
|
(270
|
)
|
|
(352
|
)
|
|
(958
|
)
|
|||
Changes in operating assets and liabilities:
|
|
|
|
|
|
||||||
Restricted cash
|
(2,839
|
)
|
|
1,170
|
|
|
(116
|
)
|
|||
Receivables
|
(57
|
)
|
|
189
|
|
|
42
|
|
|||
Other assets
|
(1,726
|
)
|
|
—
|
|
|
—
|
|
|||
Accounts payable and accrued expenses
|
549
|
|
|
(1,979
|
)
|
|
4,879
|
|
|||
Other liabilities
|
1,550
|
|
|
231
|
|
|
220
|
|
|||
Net cash provided by (used in) operating activities
|
(6,728
|
)
|
|
(2,681
|
)
|
|
7,245
|
|
|||
Cash flows from investing activities:
|
|
|
|
|
|
||||||
Acquisitions of operating real estate, net
|
(89,484
|
)
|
|
—
|
|
|
—
|
|
|||
Improvements of operating real estate
|
(161
|
)
|
|
(2,307
|
)
|
|
(7,263
|
)
|
|||
Net cash (used in) investing activities
|
(89,645
|
)
|
|
(2,307
|
)
|
|
(7,263
|
)
|
|||
Cash flows from financing activities:
|
|
|
|
|
|
||||||
Borrowings from mortgage notes
|
77,660
|
|
|
481
|
|
|
—
|
|
|||
Repayment of mortgage notes
|
—
|
|
|
(527
|
)
|
|
(656
|
)
|
|||
Payment of deferred financing costs
|
(643
|
)
|
|
—
|
|
|
—
|
|
|||
Purchase of derivative instruments
|
(1,249
|
)
|
|
—
|
|
|
—
|
|
|||
Change in restricted cash
|
(2,562
|
)
|
|
—
|
|
|
—
|
|
|||
Net transactions with NorthStar Realty
|
27,400
|
|
|
—
|
|
|
—
|
|
|||
Contributions from non-controlling interest
|
2
|
|
|
—
|
|
|
—
|
|
|||
Net cash provided by (used in) financing activities
|
100,608
|
|
|
(46
|
)
|
|
(656
|
)
|
|||
Effect of foreign currency translation on cash
|
(2,683
|
)
|
|
3,722
|
|
|
545
|
|
|||
Net change in cash
|
1,552
|
|
|
(1,312
|
)
|
|
(129
|
)
|
|||
Cash - beginning of period
|
—
|
|
|
1,350
|
|
|
1,479
|
|
|||
Cash - end of period
|
$
|
1,552
|
|
|
$
|
38
|
|
|
$
|
1,350
|
|
|
|
|
|
|
|
||||||
Supplemental disclosure of cash flow information
|
|
|
|
|
|
||||||
Cash paid during the year for interest
|
$
|
2,355
|
|
|
$
|
2,286
|
|
|
$
|
3,516
|
|
1.
|
Business and Organization
|
2.
|
Summary of Significant Accounting Policies
|
Category:
|
|
Term:
|
Buildings
|
|
40 years
|
Building leasehold interests
|
|
Lesser of 40 years or remaining term of the lease
|
Land improvements
|
|
15 years
|
Tenant improvements
|
|
Lesser of the useful life or remaining term of the lease
|
Equipment
|
|
5 to 7 years
|
|
|
Intangibles Assets
|
|
Intangible Liabilities
|
||||||||
|
|
Above-market Leases
|
|
Other
(1)
|
|
Below-market Leases
|
||||||
Gross amount
|
|
$
|
1,657
|
|
|
$
|
33,231
|
|
|
$
|
(151
|
)
|
Accumulated amortization
|
|
(54
|
)
|
|
(578
|
)
|
|
18
|
|
|||
Total
|
|
$
|
1,603
|
|
|
$
|
32,653
|
|
|
$
|
(133
|
)
|
|
|
|
|
Above and
|
||||
Years Ending
|
|
Other
|
|
Below Market
|
||||
December 31:
|
|
Intangibles
(1)
|
|
Leases, Net
(1)
|
||||
2015
|
|
$
|
1,738
|
|
|
$
|
122
|
|
2016
|
|
1,344
|
|
|
119
|
|
||
2017
|
|
964
|
|
|
166
|
|
||
2018
|
|
838
|
|
|
160
|
|
||
2019
|
|
812
|
|
|
156
|
|
||
Thereafter
|
|
26,957
|
|
|
747
|
|
||
Total
|
|
$
|
32,653
|
|
|
$
|
1,470
|
|
(c)
|
Pricing models whose inputs are observable for substantially the full term of the asset or liability.
|
(d)
|
Pricing models whose inputs are derived principally from or corroborated by observable market data for substantially the full term of the asset or liability.
|
3.
|
Operating Real Estate
|
|
|
NorthStar Owner
|
|
Prior Owner
|
||||
|
|
Period
(1)
|
|
Period
(2)
|
||||
|
|
December 31,
|
|
December 31,
|
||||
|
|
2014
|
|
2013
|
||||
Building, leasehold interests and improvements
|
|
$
|
51,646
|
|
|
$
|
57,483
|
|
Tenant improvements
|
|
3,767
|
|
|
4,650
|
|
||
Subtotal
|
|
55,413
|
|
|
62,133
|
|
||
Less: Accumulated depreciation
|
|
(517
|
)
|
|
(2,932
|
)
|
||
Operating real estate, net
|
|
$
|
54,896
|
|
|
$
|
59,201
|
|
(1)
|
NorthStar Realty has a 93.25% ownership interest in the U.K. Complex.
|
(2)
|
IMW acquired the shares in Firefly Limited, a Jersey subsidiary formed as the direct owner of the U.K. Complex for £16 million. The fair value of the U.K. Complex on the IMW Acquisition Date was $79 million.
|
Assets:
|
|
|
||
Buildings, leasehold interests and improvements
|
|
$
|
48,820
|
|
Acquired intangibles
|
|
29,839
|
|
|
Total assets acquired
|
|
$
|
78,659
|
|
|
|
|
||
Liabilities:
|
|
|
||
Mortgage notes payable
|
|
$
|
44,345
|
|
Other liabilities assumed
|
|
10,235
|
|
|
Total liabilities
|
|
54,580
|
|
|
Total Company's equity
|
|
24,079
|
|
|
Total equity
|
|
24,079
|
|
|
Total liabilities and equity
|
|
$
|
78,659
|
|
4.
|
Mortgage Notes Payable
|
NorthStar Owner Period
(1)
|
Principal Amount
|
|
Contractual Interest Rate
|
|
Maturity Date
|
||
As of December 31, 2014:
|
|
|
|
|
|
||
Mortgage notes payable
|
$
|
77,660
|
|
|
LIBOR plus 3.00%
|
|
December 2019
|
|
|
|
|
|
|
||
Prior Owner Period
(2)
|
|
|
|
|
|
||
As of December 31, 2013:
|
|
|
|
|
|
||
Mortgage note payable
|
$
|
47,895
|
|
|
LIBOR plus 0.95%
|
|
April 2015
|
(1)
|
Includes a non-recourse senior mortgage and mezzanine mortgage note entered into by NorthStar Realty in December 2014 (“New Borrowing”). The New Borrowing is interest only and the contractual interest rate represents a weighted average. The mezzanine note of $14.6 million with a fixed interest rate of 8%. Amount represents a weighted average.
|
(2)
|
Represents a non-recourse senior mortgage note assumed by IMW in connection with its acquisition (“Initial Borrowing”). The Initial Borrowing was secured by the U.K. Complex and a Jersey security interest over the shares in Firefly Limited. The Initial Borrowing had quarterly principal amortization of £105,000. The Initial Borrowing was repaid in connection with the acquisition of the U.K. Complex by NorthStar Realty.
|
5.
|
Equity
|
Balance as of December 31, 2012
|
|
$
|
22,932
|
|
Net income (loss)
|
|
1,633
|
|
|
Other comprehensive income (loss)
|
|
(981
|
)
|
|
Balance as of December 31, 2013
|
|
23,584
|
|
|
|
|
|
||
Net income (loss)
|
|
(3,007
|
)
|
|
Other comprehensive income (loss)
|
|
(57
|
)
|
|
Balance as of September 15, 2014
|
|
20,520
|
|
|
|
|
|
||
Balance as of September 16, 2014
|
|
—
|
|
|
Net income (loss)
|
|
(5,288
|
)
|
|
Other comprehensive income (loss)
|
|
(4,060
|
)
|
|
Net transactions with NorthStar Realty
|
|
29,169
|
|
|
Non-controlling interest
|
|
1,058
|
|
|
Balance as of December 31, 2014
|
|
$
|
20,879
|
|
6.
|
Derivatives
|
NorthStar Owner Period
|
Number
|
|
Notional
Amount
|
|
Fair Value
Net Asset
(Liability)
|
|
Fixed LIBOR / Forward Rate
|
|
Maturity
|
||||||
As of December 31, 2014:
|
|
|
|
|
|
|
|
|
|
|
|||||
Interest rate cap
(1)
|
1
|
|
|
|
$
|
63,099
|
|
|
$
|
1,080
|
|
|
2.0%
|
|
January 2020
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Prior Owner Period
|
|
|
|
|
|
|
|
|
|
|
|||||
As of December 31, 2013:
|
|
|
|
|
|
|
|
|
|
|
|||||
Interest rate swaps
|
4
|
|
|
|
$
|
49,513
|
|
|
$
|
(4,187
|
)
|
|
6.4%
|
|
April 2015
|
(1)
|
In connection with the New Borrowing, in December 2014, the Company entered into a multi-year interest rate cap agreement.
|
7.
|
Credit Risk Concentrations
|
8.
|
Commitments and Contingencies
|
9.
|
Subsequent Events
|
|
NorthStar Owner Period
|
||||||
|
June 30, 2015
(Unaudited)
|
|
December 31, 2014
|
||||
Assets
|
|
|
|
||||
Cash
|
$
|
3,265
|
|
|
$
|
1,552
|
|
Restricted cash
|
6,106
|
|
|
5,277
|
|
||
Operating real estate, net
|
54,985
|
|
|
54,896
|
|
||
Receivables
|
1,031
|
|
|
740
|
|
||
Unbilled rent receivable
|
694
|
|
|
264
|
|
||
Derivative assets, at fair value
|
1,134
|
|
|
1,080
|
|
||
Deferred costs and intangible assets, net
|
35,232
|
|
|
36,006
|
|
||
Other assets
|
2,245
|
|
|
3,011
|
|
||
Total assets
|
$
|
104,692
|
|
|
$
|
102,826
|
|
|
|
|
|
||||
Liabilities and Equity
|
|
|
|
||||
Mortgage notes payable
|
$
|
78,585
|
|
|
$
|
77,660
|
|
Accounts payable and accrued expenses
|
824
|
|
|
1,698
|
|
||
Other liabilities
|
2,706
|
|
|
2,589
|
|
||
Total liabilities
|
82,115
|
|
|
81,947
|
|
||
NorthStar Europe Predecessor equity
|
21,439
|
|
|
19,821
|
|
||
Non-controlling interest
|
1,138
|
|
|
1,058
|
|
||
Total equity
|
22,577
|
|
|
20,879
|
|
||
Total liabilities and equity
|
$
|
104,692
|
|
|
$
|
102,826
|
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||
|
Six Months Ended June 30, 2015
|
|
Six Months Ended June 30, 2014
|
||||
Revenues
|
|
|
|
||||
Rental and escalation income
|
$
|
4,753
|
|
|
$
|
5,181
|
|
Other revenues
|
1
|
|
|
925
|
|
||
Total revenues
|
4,754
|
|
|
6,106
|
|
||
Expenses
|
|
|
|
||||
Operating expenses
|
1,770
|
|
|
2,212
|
|
||
Interest expense
|
1,523
|
|
|
2,453
|
|
||
General and administrative expenses
|
1,358
|
|
|
3,922
|
|
||
Depreciation and amortization
|
1,814
|
|
|
1,593
|
|
||
Total expenses
|
6,465
|
|
|
10,180
|
|
||
Other income (loss)
|
|
|
|
||||
Unrealized gain (loss) on investments and other
|
41
|
|
|
1,414
|
|
||
Realized gain (loss) on investments and other
|
(14
|
)
|
|
—
|
|
||
Income (loss) before income tax benefit (expense)
|
(1,684
|
)
|
|
(2,660
|
)
|
||
Income tax benefit (expense)
|
107
|
|
|
(3
|
)
|
||
Net income (loss)
|
(1,577
|
)
|
|
(2,663
|
)
|
||
Net (income) loss attributable to non-controlling interest
|
21
|
|
|
—
|
|
||
Net income (loss) attributable to the NorthStar Europe Predecessor
|
$
|
(1,556
|
)
|
|
$
|
(2,663
|
)
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||
|
Six Months Ended June 30, 2015
|
|
Six Months Ended June 30, 2014
|
||||
Net income (loss)
|
$
|
(1,577
|
)
|
|
$
|
(2,663
|
)
|
Other comprehensive income (loss):
|
|
|
|
||||
Foreign currency translation adjustment
|
289
|
|
|
483
|
|
||
Total other comprehensive income (loss)
|
(1,288
|
)
|
|
(2,180
|
)
|
||
Comprehensive income (loss)
|
|
|
|
||||
Comprehensive (income) loss attributable to non-controlling interest
|
—
|
|
|
—
|
|
||
Comprehensive income (loss) attributable to NorthStar Europe Predecessor
|
$
|
(1,288
|
)
|
|
$
|
(2,180
|
)
|
|
NorthStar Owner Period
|
|
Prior Owner Period
|
||||
|
Six Months Ended June 30, 2015
|
|
Six Months Ended June 30, 2014
|
||||
Cash flows from operating activities:
|
|
|
|
||||
Net income (loss)
|
$
|
(1,577
|
)
|
|
$
|
(2,663
|
)
|
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities
|
|
|
|
||||
Depreciation and amortization
|
1,814
|
|
|
1,593
|
|
||
Amortization of deferred financing costs
|
172
|
|
|
—
|
|
||
Amortization of discount on borrowings
|
—
|
|
|
592
|
|
||
Unrealized (gain) loss on investments and other
|
(41
|
)
|
|
(1,414
|
)
|
||
Realized (gain) loss on investments and other
|
14
|
|
|
—
|
|
||
Amortization of capitalized above/below market leases
|
115
|
|
|
43
|
|
||
Straight line rental income, net
|
(414
|
)
|
|
(262
|
)
|
||
Allocation of costs and expenses by NorthStar Realty
|
1,273
|
|
|
—
|
|
||
Changes in operating assets and liabilities:
|
|
|
|
||||
Restricted cash
|
(1,162
|
)
|
|
7
|
|
||
Receivables
|
(32
|
)
|
|
207
|
|
||
Other assets
|
752
|
|
|
—
|
|
||
Accounts payable and accrued expense
|
393
|
|
|
4,451
|
|
||
Other liabilities
|
(42
|
)
|
|
—
|
|
||
Net cash provided by operating activities
|
1,265
|
|
|
2,554
|
|
||
Cash flows from investing activities:
|
|
|
|
||||
Acquisitions of operating real estate, net
|
(94
|
)
|
|
—
|
|
||
Improvements of operating real estate
|
(684
|
)
|
|
(1,814
|
)
|
||
Deferred costs and intangible assets
|
—
|
|
|
(206
|
)
|
||
Change in restricted cash
|
440
|
|
|
—
|
|
||
Net cash (used in) investing activities
|
(338
|
)
|
|
(2,020
|
)
|
||
Cash flows from financing activities:
|
|
|
|
||||
Repayment of mortgage notes
|
—
|
|
|
(348
|
)
|
||
Payment of deferred financing costs
|
(847
|
)
|
|
—
|
|
||
Net transactions with NorthStar Realty
|
1,593
|
|
|
—
|
|
||
Net cash provided by (used in) financing activities
|
746
|
|
|
(348
|
)
|
||
Effect of foreign currency translation on cash
|
40
|
|
|
(10
|
)
|
||
Net change in cash
|
1,713
|
|
|
176
|
|
||
Cash - beginning of period
|
1,552
|
|
|
1,350
|
|
||
Cash - end of period
|
$
|
3,265
|
|
|
$
|
1,526
|
|
1.
|
Business and Organization
|
2.
|
Summary of Significant Accounting Policies
|
(a)
|
Quoted prices for similar assets or liabilities in active markets.
|
(b)
|
Quoted prices for identical or similar assets or liabilities in non-active markets.
|
(c)
|
Pricing models whose inputs are observable for substantially the full term of the asset or liability.
|
(d)
|
Pricing models whose inputs are derived principally from or corroborated by observable market data for substantially the full term of the asset or liability.
|
3.
|
Operating Real Estate
|
|
|
June 30, 2015
|
|
December 31, 2014
|
||||
Building, leasehold interests and improvements
|
|
$
|
52,566
|
|
|
$
|
51,646
|
|
Tenant improvements
|
|
3,857
|
|
|
3,767
|
|
||
Subtotal
|
|
56,423
|
|
|
55,413
|
|
||
Less: Accumulated depreciation
|
|
(1,438
|
)
|
|
(517
|
)
|
||
Operating real estate, net
(1)
|
|
$
|
54,985
|
|
|
$
|
54,896
|
|
(1)
|
NorthStar Realty has a 93.25% ownership interest in the U.K. Complex.
|
4.
|
Mortgage Notes Payable
|
|
Principal Amount
(1)
|
|
Contractual Interest Rate
|
|
Maturity Date
|
||
As of June 30, 2015:
|
|
|
|
|
|
||
Mortgage notes payable
|
$
|
78,585
|
|
|
(1)
|
|
December 2019
|
|
|
|
|
|
|
||
As of December 31, 2014:
|
|
|
|
|
|
||
Mortgage notes payable
|
$
|
77,660
|
|
|
(1)
|
|
December 2019
|
(1)
|
Includes a non-recourse senior mortgage and mezzanine mortgage note entered into by NorthStar Realty in December 2014 (“New Borrowing”). The New Borrowing is interest only and is comprised of $63.8 million principal amount of floating rate borrowing at GBP LIBOR plus 2.0% with a related $63.8 million notional interest rate cap of 2.0% and $14.7 million fixed rate borrowing at 8.0%.
|
5.
|
Equity
|
Balance as of December 31, 2013
|
|
$
|
23,584
|
|
Net income (loss)
|
|
(3,007
|
)
|
|
Other comprehensive income (loss)
|
|
(57
|
)
|
|
Balance as of September 15, 2014
|
|
20,520
|
|
|
|
|
|
||
Balance as of September 16, 2014
|
|
—
|
|
|
Net income (loss)
|
|
(5,288
|
)
|
|
Other comprehensive income (loss)
|
|
(4,060
|
)
|
|
Net transactions with NorthStar Realty
|
|
29,169
|
|
|
Non-controlling interest
|
|
1,058
|
|
|
Balance as of December 31, 2014
|
|
20,879
|
|
|
|
|
|
||
Net income (loss)
|
|
(1,577
|
)
|
|
Other comprehensive income (loss)
|
|
289
|
|
|
Net transactions with NorthStar Realty
|
|
2,906
|
|
|
Non-controlling interest
|
|
80
|
|
|
Balance as of June 30, 2015
|
|
$
|
22,577
|
|
|
Number
|
|
Notional
Amount
(1)
|
|
Fair Value
Net Asset
(Liability)
|
|
Fixed LIBOR / Forward Rate
|
|
Maturity
|
||||||
As of June 30, 2015:
|
|
|
|
|
|
|
|
|
|
|
|||||
Interest rate cap
|
1
|
|
|
|
$
|
63,850
|
|
|
$
|
1,134
|
|
|
2.00%
|
|
January 2020
|
|
|
|
|
|
|
|
|
|
|
|
|||||
As of December 31, 2014:
|
|
|
|
|
|
|
|
|
|
|
|||||
Interest rate cap
|
1
|
|
|
|
$
|
63,099
|
|
|
$
|
1,080
|
|
|
2.00%
|
|
January 2020
|
(1)
|
In connection with the New Borrowing, in December 2014, the Company entered into a multi-year interest rate cap agreement.
|
7.
|
Credit Risk Concentrations
|
8.
|
Commitments and Contingencies
|
9.
|
Subsequent Events
|
|
Six Months Ended June 30, 2015
|
|
Year Ended December 31, 2014
|
||||
|
|
||||||
Revenues
|
(Unaudited)
|
|
|
||||
Rental income
|
$
|
36,230
|
|
|
$
|
80,500
|
|
Escalation income
|
3,676
|
|
|
5,617
|
|
||
Total revenues
|
39,906
|
|
|
86,117
|
|
||
|
|
|
|
||||
Certain expenses
|
|
|
|
||||
Real estate properties - operating expenses
|
5,564
|
|
|
8,400
|
|
||
Total expenses
|
5,564
|
|
|
8,400
|
|
||
|
|
|
|
||||
Revenues in excess of certain expenses
|
$
|
34,342
|
|
|
$
|
77,717
|
|
|
Six Months Ended June 30, 2015
|
|
Year Ended December 31, 2014
|
||||
|
|
||||||
Revenues
|
(Unaudited)
|
|
|
||||
Rental and escalation income
|
$
|
18,486
|
|
|
$
|
40,741
|
|
Total revenues
|
18,486
|
|
|
40,741
|
|
||
|
|
|
|
||||
Certain expenses
|
|
|
|
||||
Real estate property - operating expenses
|
4,532
|
|
|
12,467
|
|
||
Asset management expenses
|
641
|
|
|
1,514
|
|
||
Total expenses
|
5,173
|
|
|
13,981
|
|
||
|
|
|
|
||||
Revenues in excess of certain expenses
|
$
|
13,313
|
|
|
$
|
26,760
|
|
|
Six Months Ended June 30, 2015
|
|
Year Ended December 31, 2014
|
||||
|
|
||||||
Revenues
|
(Unaudited)
|
|
|
||||
Rental income
|
$
|
4,970
|
|
|
$
|
12,889
|
|
Escalation income
|
726
|
|
|
2,685
|
|
||
Total revenues
|
5,696
|
|
|
15,574
|
|
||
|
|
|
|
||||
Certain expenses
|
|
|
|
||||
Real estate properties - operating expenses
|
2,127
|
|
|
5,536
|
|
||
Total expenses
|
2,127
|
|
|
5,536
|
|
||
|
|
|
|
||||
Revenues in excess of certain expenses
|
$
|
3,569
|
|
|
$
|
10,038
|
|
|
Six Months Ended June 30, 2015
|
|
Year Ended December 31, 2014
|
||||
|
|
||||||
Revenues
|
(Unaudited)
|
|
|
||||
Rental income
|
$
|
9,118
|
|
|
$
|
21,894
|
|
Escalation income
|
828
|
|
|
3,065
|
|
||
Total revenues
|
9,946
|
|
|
24,959
|
|
||
|
|
|
|
||||
Certain expenses
|
|
|
|
||||
Real estate properties - operating expenses
|
1,811
|
|
|
3,114
|
|
||
Total expenses
|
1,811
|
|
|
3,114
|
|
||
|
|
|
|
||||
Revenues in excess of certain expenses
|
$
|
8,135
|
|
|
$
|
21,845
|
|
Type of Fee
|
|
Amount
|
||
SEC filing fee
|
|
$
|
88,188
|
|
Accounting fees and expenses
|
|
1,691,000
|
|
|
Legal fees and expenses
|
|
1,730,000
|
|
|
Printing fees
|
|
50,000
|
|
|
Financial advisory fee
|
|
5,000,000
|
|
|
Miscellaneous
|
|
1,000,000
|
|
|
Total
|
|
$
|
9,559,188
|
|
Exhibit No.
|
Description
|
2.1
|
Form of Separation Agreement between NorthStar Realty Europe Corp. and NorthStar Realty Finance Corp.
|
3.1
|
Form of Articles of Amendment and Restatement of NorthStar Realty Europe Corp.
|
3.2
|
Bylaws of NorthStar Realty Europe Corp.
|
4.1**
|
Indenture, dated as of July 1, 2015, by and among NorthStar Realty Europe Corp., NorthStar Realty Finance Corp., NorthStar Realty Finance Limited Partnership and Wilmington Trust, National Association
|
5.1
|
Opinion of Venable LLP
|
8.1
|
Opinion of Hunton & Williams LLP
|
10.1
|
Form of Amended and Restated Agreement of Limited Partnership of NorthStar Realty Europe Limited Partnership
|
10.2
|
Form of Asset Management Agreement between NorthStar Realty Europe Corp. and an affiliate of NorthStar Asset Management Group Inc.
|
10.3
|
Form of Contribution Agreement between NorthStar Realty Europe Corp. and NorthStar Realty Finance Corp.
|
10.4**
|
Purchase Agreement, dated June 25, 2015, by and among NorthStar Realty Europe Corp., NorthStar Realty Finance Corp., NorthStar Realty Finance Limited Partnership and Deutsche Bank Securities Inc.
|
10.5**
|
Agreement, dated as of September 16, 2014, by and between Dukes Court-T (UK), LLC, as buyer, and IMW Immobilien SE, as seller
|
10.6**
|
Umbrella Agreement, dated December 22, 2014, by and among Prime Holdco C-T, S.à r.l., Prime GER Drehbahn - T S.à r.l., Prime GER Valentinskamp - T S.à r.l. and Trias Pool II A - T S.à r.l., collectively as the buyers, and SEB Investment GmbH (“SEB”), SEB Investment GmbH, Filiale di Milano, SEB Investment GmbH, French Branch SEB Investment GmbH, Altair Issy S.A.S. and Balni bvba (SPRL), collectively as the sellers
|
10.7**
|
Umbrella Sale and Purchase Agreement, dated as of February 16, 2015, between SEB Investment GmbH, SEB Investment GmbH, Filiale di Milano, SEB Investment GmbH, French Branch SEB Investment GmbH, Altair Issy S.A.S. and Balni bvba (SPRL), collectively as the sellers, and certain subsidiaries of the Company listed therein, as the buyers
|
Exhibit No.
|
Description
|
10.8
|
Master Agreement, dated as of December 19, 2014, by and among IVG Institutional Funds GmbH, PMG - Property Management GmbH, Via Bensi S.r.l., Internos Spezialfondsgesellschaft mbH and WestInvest Gesellschaft für Investmentfonds mbH, collectively as the sellers, and the several purchasers identified therein, as amended on February 12, 2015, March 27, 2015, April 17, 2015 and June 1, 2015
|
10.9**
|
Share Sale and Purchase Agreement, dated June 11 and 12, 2015, by and among Madison Trianon S.à r.l. and MSEOF Trianon S.à r.l., collectively as the sellers, and the several purchasers identified therein
|
10.10
|
Amendment and Restatement Agreement, dated as of July 1, 2015, by and among Prime Holdco C-T, S.à r.l., the borrowers and guarantors identified therein, AAREAL Bank AG, as the agent, arranger and original lender, and the other parties identified therein
|
10.11
|
Common Terms and Facilities Agreement, dated as of April 6, 2015, by and among Trias Holdco C-T S.à r.l., GE Real Estate Loans Limited, as the arranger, and the other parties identified therein
|
10.12
|
Amendment and Restatement Agreement, dated as of July 20, 2015, to the Loan Agreement of September 25, 2014, between Geschäftshaus am Gendarmenmarkt GmbH, as borrower, and Landesbank Hessen-Thüringen Girozentrale, as lender
|
10.13
†
|
Form of NorthStar Realty Europe Corp. 2015 Omnibus Stock Incentive Plan
|
10.14
†
|
Form of Indemnification Agreement between NorthStar Realty Europe Corp. and each of its directors and executive officers
|
21.1
|
Subsidiaries of the Registrant
|
23.1
|
Consent of Venable LLP (included in Exhibit 5.1)
|
23.2
|
Consent of Hunton & Williams LLP (included in Exhibit 8.1)
|
23.3
|
Consent of Marcum LLP
|
23.4
|
Consent of PricewaterhouseCoopers, Société coopérative
|
23.5
|
Consent of Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft
|
23.6
|
Consent of PricewaterhouseCoopers, Société coopérative
|
23.7
|
Consent of PricewaterhouseCoopers, Société coopérative
|
24.1**
|
Power of Attorney (included on signature page)
|
99.1
|
Consent of Albert Tylis
|
99.2
|
Consent of Mario Chisholm
|
99.3
|
Consent of Judith A. Hannaway
|
99.4
|
Consent of Oscar Junquera
|
99.5
|
Consent of Wesley D. Minami
|
99.6
|
Consent of Charles W. Schoenherr
|
**
|
Previously filed.
|
†
|
Denotes a management contract or compensatory plan or arrangement.
|
NORTHSTAR REALTY EUROPE CORP.
|
|
|
|
By:
|
/s/ Mahbod Nia
|
|
Chief Executive Officer
(Principal Executive Officer)
|
Name
|
Title
|
Date
|
/s/ Mahbod Nia
|
Chief Executive Officer
(Principal Executive Officer)
|
October 9, 2015
|
Mahbod Nia
|
||
|
|
|
/s/ Debra A. Hess
|
Interim Chief Financial Officer (Principal Financial and Accounting Officer)
|
October 9, 2015
|
Debra A. Hess
|
||
|
|
|
*
|
Director
|
October 9, 2015
|
David T. Hamamoto
|
||
|
|
|
By: /s/ Ronald J. Lieberman
|
Ronald J. Lieberman
|
* As Attorney-in-fact for the person indicated.
|
|
|
Page
|
ARTICLE I
|
Definitions
|
1
|
ARTICLE II
|
The Separation
|
11
|
Section 2.01
|
Separation Transactions
|
11
|
Section 2.02
|
Transfer of Assets; Assumption of Liabilities
|
11
|
Section 2.03
|
Termination of Agreements
|
12
|
Section 2.04
|
Transfer of Agreements; Consent
|
12
|
Section 2.05
|
Certain Licenses and Permits
|
13
|
Section 2.06
|
Disclaimer of Representations and Warranties
|
13
|
Section 2.07
|
Removal of Certain Guarantees; Releases from Liabilities
|
13
|
Section 2.08
|
Inadvertent or Incorrect Transfers or Omissions of Assets or Liabilities
|
15
|
Section 2.09
|
Reimbursement
|
15
|
ARTICLE III
|
Actions Pending the Distribution
|
16
|
Section 3.01
|
Actions Prior to the Distribution
|
16
|
Section 3.02
|
Conditions Precedent to Consummation of the Distribution
|
16
|
ARTICLE IV
|
The Distribution
|
18
|
Section 4.01
|
The Distribution
|
18
|
Section 4.02
|
Sole Discretion of NRF
|
18
|
ARTICLE V
|
Mutual Releases; Pending, Threatened and Unasserted Claims; Indemnification
|
19
|
Section 5.01
|
Release of Pre-Closing Claims
|
19
|
Section 5.02
|
Pending, Threatened and Unasserted Claims
|
21
|
Section 5.03
|
Indemnification by NRE
|
21
|
Section 5.04
|
Indemnification by NRF
|
21
|
Section 5.05
|
Indemnification of Third Party Claims
|
22
|
Section 5.06
|
Indemnification Obligations Net of Insurance Proceeds and Other Amounts
|
22
|
Section 5.07
|
Indemnification Obligations Net of Taxes
|
23
|
Section 5.08
|
Indemnification Payments to Protected REIT.
|
23
|
Section 5.09
|
Procedures for Indemnification of Third Party Claims
|
23
|
Section 5.10
|
Additional Matters
|
25
|
Section 5.11
|
Remedies Cumulative
|
25
|
Section 5.12
|
Conflict with Section 9.03
|
25
|
Section 5.13
|
Survival of Indemnities
|
26
|
ARTICLE VI
|
Exchange of Information; Confidentiality
|
26
|
Section 6.01
|
Agreement for Exchange of Information; Archives
|
26
|
Section 6.02
|
Ownership of Information
|
27
|
Section 6.03
|
Compensation for Providing Information
|
27
|
Section 6.04
|
Limitations on Liability
|
27
|
Section 6.05
|
Other Agreements Providing for Exchange of Information
|
27
|
Section 6.06
|
Production of Witnesses; Records; Cooperation
|
27
|
Section 6.07
|
Confidentiality
|
28
|
Section 6.08
|
Protective Arrangements
|
29
|
ARTICLE VII
|
The NorthStar Name
|
29
|
Section 7.01
|
The NorthStar Name
|
29
|
ARTICLE VIII
|
Dispute Resolution
|
29
|
Section 8.01
|
Disputes
|
29
|
Section 8.02
|
Escalation; Mediation
|
30
|
Section 8.03
|
Court Actions
|
30
|
ARTICLE IX
|
Further Assurances and Additional Covenants
|
31
|
Section 9.01
|
Further Assurances
|
31
|
Section 9.02
|
Insurance Matters
|
32
|
Section 9.03
|
Tax Matters
|
32
|
Section 9.04
|
NRF Equity Awards
|
36
|
ARTICLE X
|
Termination
|
37
|
Section 10.01
|
Termination
|
37
|
Section 10.02
|
Effect of Termination
|
37
|
ARTICLE XI
|
Miscellaneous
|
37
|
Section 11.01
|
Counterparts; Entire Agreement; Corporate Power
|
37
|
Section 11.02
|
Governing Law
|
38
|
Section 11.03
|
Assignability
|
38
|
Section 11.04
|
Successors and Assigns
|
38
|
Section 11.05
|
Third Party Beneficiaries
|
38
|
Section 11.06
|
Notices
|
39
|
Section 11.07
|
Severability
|
39
|
Section 11.08
|
Publicity
|
39
|
Section 11.09
|
Expenses
|
40
|
Section 11.10
|
Headings
|
40
|
Section 11.11
|
Survival of Covenants
|
40
|
Section 11.12
|
Waivers of Default
|
40
|
Section 11.13
|
Specific Performance
|
40
|
Section 11.14
|
Amendments
|
40
|
Section 11.15
|
Interpretation
|
40
|
Section 11.16
|
Jurisdiction; Service of Process
|
41
|
Section 11.17
|
Waiver of Jury Trial
|
41
|
|
|
|
SCHEDULE I
|
SEPARATION TRANSACTIONS
|
|
|
NORTHSTAR REALTY EUROPE CORP.
|
||
|
|
By
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
NORTHSTAR REALTY FINANCE CORP.
|
||
|
|
By
|
|
|
|
|
Name:
|
|
|
|
Title:
|
1.
|
NRF contributes its 5.1% ownership interest in Trias Holdings-T(US), LLC and its 5.1% ownership interest in Prime Holdings-T(US), LLC to NRF Operating Partnership pursuant to the contribution agreement included in Annex II to the Contribution Agreement.
|
2.
|
NRF Operating Partnership contributes (i) all of its rights, title, and interest in Trias Holdings-T(US), LLC, Prime Holdings-T(US), LLC, Symbol Holdings-T(US), LLC and Dukes Court-T(UK), LLC, and (ii) $250 million in cash to NRE Operating Partnership in exchange for a number of partnership common units in NRE Operating Partnership calculated pursuant to the contribution agreement included in Annex II to the Contribution Agreement.
|
3.
|
NRF Operating Partnership distributes partnership common units of NRE Operating Partnership, pro rata, to NRF and holders of certain equity interests in NRF Operating Partnership based on their percentage ownership in NRF Operating Partnership.
|
4.
|
NRF contributes all of the outstanding common units of the NRE Operating Partnership that it owns to NRE in exchange for such number of shares of NRE common stock equal to one share of NRE common stock for every six shares of NRF common stock that will be outstanding as of 5:01 PM on October 22, 2015, minus the number of shares of NRE owned by NRF prior to such issuance.
|
5.
|
NRF distributes one share of NRE common stock, par value $0.01 per share, for every six shares of NRF common stock held by the Record Holders (as defined in the Separation Agreement).
|
ATTEST:
|
|
NORTHSTAR REALTY EUROPE CORP.
|
|
|
|
|
|
|
|
|
|
________________________________
|
|
By:
|
_____________________________(SEAL)
|
Name: Trevor K. Ross
|
|
|
Name: Mahbod Nia
|
Title: General Counsel and Secretary
|
|
|
Title: Chief Executive Officer and President
|
|
HUNTON & WILLIAMS LLP
RIVERFRONT PLAZA, EAST TOWER
951 EAST BYRD STREET RICHMOND, VIRGINIA 23219-4074
TEL 804 • 788 • 8200
FAX 804 • 788 • 8218 |
|
|
October 9, 2015
|
1.
|
the Registration Statement and the prospectus (the “Prospectus”) filed as part of the Registration Statement;
|
2.
|
the Company’s Articles of Incorporation, filed with the Maryland Department of Assessment and Taxation on June 18, 2015 and the Articles of Amendment and Restatement (the “Amended Articles”), in the form attached as an exhibit to the Registration Statement;
|
3.
|
the Agreement of Limited Partnership of NorthStar Realty Europe Limited Partnership, a Delaware limited partnership (the “Operating Partnership”) and the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (the “Amended and
|
4.
|
the Management Agreement, by and between the Company and NorthStar Asset Management Group, Inc. (the “Management Agreement”), in the form attached as an exhibit to the Registration Statement;
|
5.
|
the Separation Agreement, by and between the Company and NRF, in the form attached as an exhibit to the Registration Statement; and
|
6.
|
such other documents as we have deemed necessary or appropriate for purposes of this opinion.
|
1.
|
each of the documents referred to above
has been duly authorized, executed, and delivered; is authentic, if an original, or is accurate, if a copy; and has not been amended;
|
2.
|
the Amended Articles, the Amended and Restated Partnership Agreement, the Management Agreement, and the Separation Agreement will be executed, delivered, adopted and filed, as applicable, in a form that is substantially similar to the forms filed as exhibits to the Registration Statement;
|
3.
|
during its short taxable year beginning immediately prior to the Distribution and ending December 31, 2015, and future taxable years, the Company will operate in a manner that will make the factual representations contained in a certificate, dated the date hereof and executed by a duly appointed officer of the Company (the “Company Officer’s Certificate”), true for such years;
|
4.
|
during its taxable year ending December 31, 2015, NRF will operate in a manner that will make the factual representations contained in a certificate, dated the date hereof and executed by a duly appointed officer of NRF (the “NRF Officer’s Certificate”), true for such year;
|
5.
|
during its short taxable year ending December 31, 2015, NRF RED REIT Corp. (“RED REIT”) will operate in a manner that will make the factual representations contained in a certificate, dated the date hereof and executed by a duly appointed officer of RED REIT (the “RED REIT Officer’s Certificate” and together with the Company Officer’s Certificate and the NRF Officer’s Certificate, the “Officer’s Certificates”), true for such year;
|
6.
|
the Company will not make any amendments to its organizational documents after the date of this opinion that would affect its qualification as a REIT for any taxable year
|
7.
|
NRF will not make any amendments to its organizational documents after the date of this opinion that would affect its qualification as a REIT for any taxable year ending on or before December 31, 2015;
|
8.
|
RED REIT will not make any amendments to its organizational documents after the date of this opinion that would affect its qualification as a REIT for its short taxable year ending on December 31, 2015; and
|
9.
|
no action will be taken by the Company, NRF, RED REIT or the Operating Partnership after the date hereof that would have the effect of altering the facts upon which the opinions set forth below are based.
|
(a)
|
commencing with its short taxable year beginning immediately prior the Distribution and ending December 31, 2015, the Company will be organized in conformity with the requirements for qualification and taxation as a REIT pursuant to sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”), and the Company’s intended method of operation will enable it to qualify as a REIT for its short taxable year ending December 31, 2015, and thereafter; and
|
(b)
|
the descriptions of law and the legal conclusions contained in the Prospectus under the captions “The Distribution—Material U.S. Federal Income Tax Consequences of the Distribution” and “Federal Income Tax Consequences of Our Status as a REIT” are correct in all material respects.
|
|
|
Page
|
|
ARTICLE I
|
DEFINED TERMS
|
2
|
|
ARTICLE II
|
ORGANIZATIONAL MATTERS
|
21
|
|
Section 2.1
|
Organization
|
21
|
|
Section 2.2
|
Withdrawal of Initial Limited Partner
|
21
|
|
Section 2.3
|
Name
|
22
|
|
Section 2.4
|
Registered Office and Agent; Principal Office
|
22
|
|
Section 2.5
|
Power of Attorney
|
22
|
|
Section 2.6
|
Term
|
23
|
|
Section 2.7
|
Partnership Interests are Securities
|
24
|
|
ARTICLE III
|
PURPOSE
|
24
|
|
Section 3.1
|
Purpose and Business
|
24
|
|
Section 3.2
|
Powers
|
24
|
|
Section 3.3
|
Partnership Only for Partnership Purposes
|
25
|
|
Section 3.4
|
Representations and Warranties by the Parties
|
27
|
|
ARTICLE IV
|
CAPITAL CONTRIBUTIONS
|
27
|
|
Section 4.1
|
Capital Contributions of the Partners
|
27
|
|
Section 4.2
|
Issuances of Additional Partnership Interests
|
27
|
|
Section 4.3
|
Additional Funds and Capital Contributions
|
29
|
|
Section 4.4
|
Stock Incentive Plan
|
30
|
|
Section 4.5
|
LTIP Units
|
31
|
|
Section 4.6
|
No Interest; No Return
|
33
|
|
Section 4.7
|
Conversion or Redemption of Preferred Shares
|
34
|
|
Section 4.8
|
Conversion or Redemption of Junior Shares
|
34
|
|
Section 4.9
|
Conversion of LTIP Units
|
34
|
|
Section 4.10
|
Other Contribution Provisions
|
37
|
|
Section 4.11
|
Not Publicly Traded
|
37
|
|
Section 4.12
|
Restricted Units
|
38
|
|
ARTICLE V
|
DISTRIBUTIONS
|
38
|
|
Section 5.1
|
Requirement and Characterization of Distributions
|
38
|
|
Section 5.2
|
Distributions in Kind
|
38
|
|
Section 5.3
|
Amounts Withheld
|
38
|
|
Section 5.4
|
Distributions Upon Liquidation
|
39
|
|
Section 5.5
|
Distributions to Reflect Issuance of Additional Partnership Units
|
39
|
|
Section 5.6
|
Restricted Distributions
|
39
|
|
ARTICLE VI
|
ALLOCATIONS
|
39
|
|
Section 6.1
|
Timing and Amount of Allocations of Net Income and Net Loss
|
39
|
|
Section 6.2
|
General Allocations
|
39
|
|
Section 6.3
|
Additional Allocation Provisions
|
41
|
|
Section 6.4
|
Tax Allocations
|
46
|
|
ARTICLE VII
|
MANAGEMENT AND OPERATIONS OF BUSINESS
|
46
|
|
Section 7.1
|
Management
|
47
|
|
Section 7.2
|
Certificate of Limited Partnership
|
50
|
|
Section 7.3
|
Restrictions on General Partner’s Authority
|
50
|
|
Section 7.4
|
Reimbursement of the General Partner
|
53
|
|
Section 7.5
|
Outside Activities of the General Partner and the Company
|
53
|
|
Section 7.6
|
Contracts with Affiliates
|
53
|
|
Section 7.7
|
Indemnification
|
54
|
|
Section 7.8
|
Liability of the General Partner
|
56
|
|
Section 7.9
|
Other Matters Concerning the General Partner
|
57
|
|
Section 7.10
|
Title to Partnership Assets
|
58
|
|
Section 7.11
|
Reliance by Third Parties
|
58
|
|
ARTICLE VIII
|
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
|
59
|
|
Section 8.1
|
Limitation of Liability
|
59
|
|
Section 8.2
|
Management of Business
|
59
|
|
Section 8.3
|
Outside Activities of Limited Partners
|
59
|
|
Section 8.4
|
Return of Capital
|
60
|
|
Section 8.5
|
Rights of Limited Partners Relating to the Partnership
|
60
|
|
Section 8.6
|
Redemption Rights of Limited Partners
|
61
|
|
ARTICLE IX
|
BOOKS, RECORDS, ACCOUNTING AND REPORTS
|
65
|
|
Section 9.1
|
Records and Accounting
|
65
|
|
Section 9.2
|
Partnership Year
|
65
|
|
Section 9.3
|
Reports
|
65
|
|
ARTICLE X
|
TAX MATTERS
|
66
|
|
Section 10.1
|
Preparation of Tax Returns
|
66
|
|
Section 10.2
|
Tax Elections
|
66
|
|
Section 10.3
|
Tax Matters Partner
|
67
|
|
Section 10.4
|
Withholding
|
68
|
|
Section 10.5
|
Organizational Expenses
|
69
|
|
ARTICLE XI
|
TRANSFERS AND WITHDRAWALS
|
69
|
|
Section 11.1
|
Transfer
|
69
|
|
Section 11.2
|
Transfer of the General Partner Interest and the Company’s Limited Partner Interest; Extraordinary Transactions
|
70
|
|
Section 11.3
|
Limited Partners’ Rights to Transfer
|
71
|
|
Section 11.4
|
Substituted Limited Partners
|
73
|
|
Section 11.5
|
Assignees
|
73
|
|
Section 11.6
|
General Provisions
|
74
|
|
ARTICLE XII
|
ADMISSION OF PARTNERS
|
76
|
|
Section 12.1
|
Admission of Successor General Partner
|
76
|
|
Section 12.2
|
Admission of Additional Limited Partners
|
76
|
|
Section 12.3
|
Amendment of Agreement and Certificate of Limited Partnership
|
77
|
|
Section 12.4
|
Admission of Limited Partners
|
77
|
|
Section 12.5
|
Limit on Number of Partners
|
77
|
|
ARTICLE XIII
|
DISSOLUTION, LIQUIDATION AND TERMINATION
|
77
|
|
Section 13.1
|
Dissolution
|
77
|
|
Section 13.2
|
Winding Up
|
78
|
|
Section 13.3
|
Deemed Distribution and Recontribution
|
80
|
|
Section 13.4
|
Rights of Limited Partners
|
80
|
|
Section 13.5
|
Notice of Dissolution
|
80
|
|
Section 13.6
|
Cancellation of Certificate of Limited Partnership
|
80
|
|
Section 13.7
|
Reasonable Time for Winding-Up
|
81
|
|
ARTICLE XIV
|
PROCEDURES FOR ACTIONS AND CONSENTS OF PARTNERS; AMENDMENTS; MEETINGS
|
81
|
|
Section 14.1
|
Procedures for Actions and Consents of Partners
|
81
|
|
Section 14.2
|
Amendments
|
81
|
|
Section 14.3
|
Meetings of the Partners
|
81
|
|
Section 14.4
|
Voting Rights of LTIP Units
|
82
|
|
ARTICLE XV
|
GENERAL PROVISIONS
|
83
|
|
Section 15.1
|
Addresses and Notice
|
83
|
|
Section 15.2
|
Titles and Captions
|
83
|
|
Section 15.3
|
Pronouns and Plurals
|
83
|
|
Section 15.4
|
Further Action
|
83
|
|
Section 15.5
|
Binding Effect
|
83
|
|
Section 15.6
|
Waiver
|
83
|
|
Section 15.7
|
Counterparts
|
84
|
|
Section 15.8
|
Applicable Law
|
84
|
|
Section 15.9
|
Entire Agreement
|
84
|
|
Section 15.10
|
Invalidity of Provisions
|
84
|
|
Section 15.11
|
Limitation to Preserve REIT Status
|
84
|
|
Section 15.12
|
No Partition
|
85
|
|
Section 15.13
|
No Third-Party Rights Created Hereby
|
85
|
|
Section 15.14
|
No Rights as Stockholders
|
86
|
|
ARTICLE XVI
|
SERIES SN PREFERRED UNITS
|
86
|
|
Section 16.1
|
Number
|
86
|
|
Section 16.2
|
Distributions
|
86
|
|
Section 16.3
|
Liquidation Preference
|
86
|
|
Section 16.4
|
Redemption of the Series SN Preferred Units
|
87
|
|
Section 16.5
|
Redemption at Option of Company upon a Change of Control
|
88
|
|
Section 16.6
|
Ranking
|
89
|
|
Section 16.7
|
Voting
|
90
|
|
Section 16.8
|
Restrictions on Ownership and Transfer
|
90
|
|
Section 16.9
|
General
|
90
|
|
EXHIBIT A
|
PARTNERS AND PARTNERSHIP UNITS
|
A-1
|
EXHIBIT B
|
NOTICE OF REDEMPTION
|
B-1
|
EXHIBIT C
|
NOTICE OF ELECTION BY PARTNER TO CONVERT LTIP UNITS INTO PARTNERSHIP COMMON UNITS
|
C-1
|
EXHIBIT D
|
NOTICE OF ELECTION BY PARTNERSHIP TO FORCE CONVERSION OF LTIP UNITS INTO PARTNERSHIP COMMON UNITS
|
D-1
|
1.
|
First, to the General Partner until the cumulative Net Income allocated to the General Partner under this
|
2.
|
Thereafter, to the holders of Common Units and LTIP Units in accordance with their respective Percentage Interests.
|
1.
|
First, to the holders of Common Units and LTIP Units with positive balances in their Economic Capital Accounts in accordance with their respective Percentage Interests until their Economic Capital Accounts Balances are reduced to zero; and
|
2.
|
Thereafter to the General Partner.
|
GENERAL PARTNER:
|
|
|
|
NORTHSTAR REALTY EUROPE CORP.
|
|
a Maryland corporation
|
|
|
|
By:
|
|
Name:
|
Trevor K. Ross
|
Title:
|
General Counsel
|
LIMITED PARTNER:
|
|
|
|
NORTHSTAR REALTY EUROPE CORP.
|
|
a Maryland corporation
|
|
|
|
By:
|
|
Name:
|
Ronald J. Lieberman
|
Title:
|
Executive Vice President and General Counsel
|
INITIAL LIMITED PARTNER:
|
|
|
|
NORTHSTAR REALTY FINANCE LIMITED PARTNERSHIP, a Delaware limited partnership
|
|
|
|
By:
|
|
Name:
|
Ronald J. Lieberman
|
Title:
|
Executive Vice President and General Counsel
|
Name and Address of Partners
|
|
Partnership Units (Type and Amount)
|
General Partner
:
|
|
|
|
|
|
NORTHSTAR REALTY EUROPE CORP.
399 Park Avenue, 18th Fl.
New York, NY 10022
|
|
N/A
|
|
|
|
|
|
|
Limited Partners:
|
|
|
|
|
|
NORTHSTAR REALTY EUROPE CORP.
399 Park Avenue, 18th Fl.
New York, NY 10022
|
|
_________ Partnership Common Units
|
|
|
|
Various—On file with General Partner
|
|
_________ Partnership Common Units
|
|
|
|
|
|
|
LTIP Unit Holders:
|
|
|
|
|
|
Various Holders—On file with General Partner
|
|
_________ LTIP Units
|
|
|
|
|
|
|
Unit Holder:
|
|
|
|
|
|
NORTHSTAR REALTY EUROPE CORP.
399 Park Avenue, 18th Fl.
New York, NY 10022
|
|
340,000 Series SN Preferred Units
|
|
|
|
Name of Holder:
|
|
|
(Please Print: Exact Name as Registered with Partnership)
|
|
|
Number of LTIP Units to be Converted:
|
|
|
|
Date of this Notice:
|
|
|
(Signature of Holder: Sign Exact Name as Registered with Partnership
|
|
|
(Street Address)
|
|
|
|
(City)
|
(State)
|
(Zip Code)
|
Signature Guaranteed by:
|
|
Name of Holder:
|
|
|
(Please Print: Exact Name as Registered with Partnership)
|
|
|
Number of LTIP Units to be Converted:
|
|
|
|
Date of this Notice:
|
|
If to NRE:
|
NorthStar Realty Europe Corp.
|
|
399 Park Avenue
|
|
18
th
Floor
|
|
New York, New York 10022
|
|
Attention: General Counsel
|
If to Asset Manager:
|
NSAM J-NRE Ltd
|
|
c/o NSAM Luxembourg S.à r.l.
|
|
6ème étage, 6A route de Trèves
|
|
L-2633 Senningerberg
|
|
Grand-Duchy of Luxembourg
|
|
Attention: General Counsel
|
|
NORTHSTAR REALTY EUROPE CORP.
|
||
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
NSAM J-NRE LTD
|
||
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
(i)
|
investment objectives, strategy and criteria;
|
(ii)
|
cash requirements;
|
(iii)
|
effect of the investment on the diversification of the portfolio, including by geography, size of investment, type of investment and risk of investment;
|
(iv)
|
leverage policy and the availability of financing for the investment by each entity;
|
(v)
|
anticipated cash flow of the asset to be acquired;
|
(vi)
|
income tax effects of the purchase;
|
(vii)
|
the size of the investment;
|
(viii)
|
the amount of funds available;
|
(ix)
|
cost of capital;
|
(x)
|
risk return profiles;
|
(xi)
|
targeted distribution rates;
|
(xii)
|
anticipated future pipeline of suitable investments;
|
(xiii)
|
the expected holding period of the investment and the remaining term of the Managed Entity, or itself, if applicable;
|
(xiv)
|
affiliate and/or related party considerations; and
|
(xv)
|
whether a Strategic Vehicle has received a Special Allocation (as defined below).
|
NORTHSTAR REALTY EUROPE CORP.
|
|
|
|
Name:
|
|
Title:
|
|
|
|
NORTHSTAR REALTY FINANCE CORP.
|
|
|
|
Name:
|
|
Title:
|
|
|
1.
|
NRF contributes its 5.1% ownership interest in Trias Holdings-T(US), LLC and its 5.1% ownership interest in Prime Holdings-T(US), LLC to NRF Operating Partnership pursuant to the contribution agreement included in Annex II to the Contribution Agreement.
|
2.
|
NRF Operating Partnership contributes (i) all of its rights, title, and interest in Trias Holdings-T(US), LLC, Prime Holdings-T(US), LLC, Symbol Holdings-T(US), LLC and Dukes Court-T(UK), LLC, and (ii) $250 million in cash, to NRE Operating Partnership in exchange for a number of partnership common units in NRE Operating Partnership calculated pursuant to the contribution agreement included in Annex II to the Contribution Agreement.
|
3.
|
NRF Operating Partnership distributes partnership common units of NRE Operating Partnership, pro rata, to NRF and holders of certain equity interests in NRF Operating Partnership based on their percentage ownership in NRF Operating Partnership.
|
4.
|
NRF contributes all of the outstanding common units of the NRE Operating Partnership that it owns to NRE in exchange for such number of shares of NRE common stock equal to one share of NRE common stock for every six shares of NRF common stock that will be outstanding as of 5:01 PM on October 22, 2015, minus the number of shares of NRE owned by NRF prior to such issuance.
|
5.
|
NRF distributes one share of NRE common stock, par value $0.01 per share, for every six shares of NRF common stock held by the Record Holders (as defined in the Separation Agreement).
|
(1)
|
Mr. Wolfram H. Krüger,
|
(1.1)
|
IVG Institutional Funds GmbH
with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt am Main, registered in the commercial register of Frankfurt am Main under number HR B 91062, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) “EuroWest“
|
(1.2)
|
PMG - Property Management GmbH
with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt, registered in the commercial register of the local court Frankfurt am Main under number HRB 96246
|
(1.3)
|
Via Bensi S.r.l.
a limited liability company incorporated under the laws of Italy with registered office at via Olmetto 17, Milan Italy
|
(2)
|
a) Mr. Nils Lütthans,
|
(3)
|
a) Mr. Victor Stoltenburg,
|
(4)
|
Mr. Dr. David Elshorst,
|
(4.1)
|
Trias Holdco C – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies’ register under registration number B 192.534), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.2)
|
Trias GER Immermannstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.539), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.3)
|
Trias GER Munsterstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.544), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.4)
|
Trias GER Rather Strasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.630), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.5)
|
Trias GER Ludwigstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.548), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.6)
|
Trias GER Kaygasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.561), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.7)
|
Trias GER Bottrop – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.563), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.8)
|
Trias GER Holzwickede – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.569), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.9)
|
Trias GER Munster – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.568), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.10)
|
Trias GER Werl – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.577), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.11)
|
Trias GER Cuxhaven – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.578), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.12)
|
Trias GER Kirchheide – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.579), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.13)
|
Trias GER Uhlandstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.581), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.14)
|
Trias GER Stuttgart – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.583), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.15)
|
Trias GER Bunte Kuh – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.584), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.16)
|
Trias GER Pferdemarkt – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.585), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.17)
|
Trias GER Munich Airport – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.586), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.18)
|
Trias GER Ibis Berlin – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.597), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.19)
|
Trias GER IC Berlin – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.631), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.20)
|
Trias GER Parexel – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.593), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.21)
|
Trias PRT Office 123-T, LDA,
a private limited company incorporated under the law of Portugal (registered in the Portuguese Commercial Register under registration number 513.330.470), with a share capital of EUR 12,500, having its registered office at Rua Ivens no. 42, 1st floor, 1200-023 Lisbon,
|
(4.22)
|
Trias PRT Albufeira-T, LDA,
a private limited company incorporated under the law of Portugal (registered in the Portuguese Commercial Register under registration number 513.330.453), with a share capital of EUR 12,500, having its registered office at Rua Ivens no. 42, 1st floor, 1200-023 Lisbon,
|
-
|
“
Exhibit
” refers to direct appendices to this Master Agreement.
|
-
|
“
Schedule
” refers to appendices that legally form part of this Master Agreement but are physically attached to the Reference Deeds.
|
-
|
“
Annex
” refers to appendices of agreements contained in the Reference Deeds and the German APA.
|
Table of Contents
|
||
Contents
|
Page
|
|
1
|
RECITALS
|
10
|
2
|
DEFINITIONS
|
10
|
3
|
INDIVIDUAL PURCHASE AGREEMENTS, PURCHASE OBJECTS, RELATION OF MASTER AGREEMENT AND INDIVIDUAL PURCHASE AGREEMENTS, LIABILITY, COLLECTIVE DESIGNATIONS
|
14
|
4
|
PURCHASE PRICE, DOWN PAYMENT, MATURITY OF PURCHASE PRICE
|
17
|
5
|
TRANSFER DATE
|
21
|
6
|
SPECIFIC TRANSFER PROVISIONS ON LEASES
|
23
|
7
|
SPECIFIC TRANSFER PROVISIONS ON INSURANCE AND ONGOING LITIGATION
|
25
|
8
|
MANAGEMENT OF PURCHASE OBJECTS UNTIL TRANSFER DATE
|
26
|
9
|
MATERIAL ADVERSE CHANGE
|
28
|
10
|
GENERAL PROVISIONS ON SELLERS’ WARRANTIES
|
31
|
11
|
SPECIFIC SELLERS’ WARRANTIES
|
35
|
12
|
INTENTIONALLY BLANK
|
37
|
13
|
LONG STOP DATES, RESCISSION RIGHTS
|
37
|
14
|
COSTS, LAND TRANSFER TAX, STAMP DUTIES
|
40
|
15
|
POWERS OF ATTORNEY TO PURCHASER 1, PROCESS AGENT, NOTICES
|
40
|
16
|
MERGER CONTROL FILING
|
43
|
17
|
FINAL PROVISIONS
|
44
|
1
|
RECITALS
|
(A)
|
The Sellers are the owners of the assets set out and defined in
Exhibit F
. These assets, as specifically indicated in
Exhibit F
for each asset, consist either of real property (each a “
Property
” and together the “
Properties
”) or shares or interests in the legal entity owning such Property (each a “
PropCo
” and together the “
PropCos
”).
|
(B)
|
The Sellers wish to dispose of and the Purchasers wish to acquire the Properties or the PropCos, respectively, in each case as described in
Exhibit F
(each a “
Purchase Object
” and together the “
Purchase Objects
”).
|
(C)
|
It is understood that the Sellers act for the account of different regulated German special funds set up in the form of
Spezial-AIF
or
Spezial-Sondervermögen
, as applicable (jointly the “
Funds
” and each a “
Fund
”) which have to be administered in accordance with the German Capital Investment Act (
Kapitalanlagegesetzbuch
– “
KAGB
“).
|
(D)
|
Accordingly, it is understood that the Sellers are under binding regulatory restrictions. In consequence, each Seller will only assume obligations and liabilities relating to the Purchase Objects it sells and that there shall not be any joint and several liability (
gesamtschuldnerische Haftung
) between Sellers.
|
2
|
DEFINITIONS
|
2.1
|
The definitions listed in this Master Agreement have, to the extent they are used in this Master Agreement, the following agreed meaning:
|
3
|
INDIVIDUAL PURCHASE AGREEMENTS, PURCHASE OBJECTS, RELATION OF MASTER AGREEMENT AND INDIVIDUAL PURCHASE AGREEMENTS, LIABILITY, COLLECTIVE DESIGNATIONS
|
3.1
|
The IVG Seller 1, the INTERNOS Seller and the Deka Seller and the Purchaser 2, the Purchaser 3, the Purchaser 4, the Purchaser 5, the Purchaser 6, the Purchaser 7, the Purchaser 8, the Purchaser 9, the Purchaser 10, the Purchaser 11, the Purchaser 12, the Purchaser 13, the Purchaser 14, the Purchaser 15, the Purchaser 16, the Purchaser 17, the Purchaser 18, the Purchaser 19, the Purchaser 20, hereby conclude an asset purchase agreement over the Properties located in Germany (the “
German APA
”) as attached in
Exhibit G
.
|
3.2
|
The Parties, as set out below, have already conditionally concluded, in the form and language and under the governing law required in the respective jurisdictions of the relevant Properties and PropCos (“
Local Law
”), further asset purchase agreements and share purchase agreements (the “
Original IPAs
”).
|
3.2.1
|
The Seller IVG Seller 1 and the Purchaser 1 hereby conclude an asset framework purchase agreement over a Property located in Belgium (the “
Belgian Montoyer-FPA
”) as attached in
Schedule II-A
of the Reference Deed INT.
|
3.2.2
|
The Seller INTERNOS Seller and the Purchaser 1 hereby conclude an asset framework purchase agreement over a Property located in Belgium (the “
Belgian Souverain-FPA
”) as attached in
Schedule II-B
of the Reference Deed INT.
|
3.2.3
|
The Sellers IVG Seller 1 and IVG Seller 2 and the Purchaser 1 hereby conclude a share framework purchase agreement over the Belgian PropCo (the “
Belgian S-FPA
”) as attached in
Schedule III
of the Reference Deed INT.
|
3.2.4
|
The Seller INTERNOS Seller and the Purchaser 1 hereby conclude an asset purchase agreement over Properties located in the Netherlands (the “
Dutch APA
”) as attached in
Schedule IV
of the Reference Deed INT.
|
3.2.5
|
The Sellers IVG Seller 1 and INTERNOS Seller and the Purchaser 1 hereby conclude an asset purchase agreement over Properties located in England and Wales (the “
English APA
”) as attached in
Schedule V
of the Reference Deed INT.
|
3.2.6
|
The Seller INTERNOS Seller and the Purchaser 1 hereby conclude an asset purchase agreement over a Property located in France (the “
French APA
”) as attached in
Schedule VI
of the Reference Deed INT.
|
3.2.7
|
The Seller IVG Seller 1 and the Purchaser 1 hereby conclude a share purchase agreement over the French PropCo 20 Rue Joubert, a
société par actions simplifiée à capital variable
, with registered office in Paris (8th arrondissement), 32 rue des Mathurins (the “
French Joubert SPA
”) as attached in
Schedule VII-A
of the Reference Deed INT.
|
3.2.8
|
The Seller IVG Seller 1 and the Purchaser 1 hereby conclude a share purchase agreement over the French PropCo 121 Rue d’Alésia, a
société par actions simplifiée à capital variable
, with registered office in Paris (8th arrondissement), 32 rue des Mathurins (the “
French Alésia SPA
”) as attached in
Schedule VII-B
of the Reference Deed INT.
|
3.2.9
|
The Seller IVG Seller 1 and the Purchaser 1 hereby conclude a share purchase agreement over the French PropCo 58 Avenue Marceau, a
société par actions simplifiée à capital variable
, with registered office in Paris (8th arrondissement), 32 rue des Mathurins (the “
French Marceau SPA
”) as attached in
Schedule VII-C
of the Reference Deed INT.
|
3.2.10
|
The Seller IVG Seller 3 and the Purchaser 1 hereby conclude an asset purchase agreement over the Property located in Italy (the “
Italian APA
”) as attached in
Schedule VIII
of the Reference Deed INT.
|
3.2.11
|
The Seller INTERNOS Seller, the Purchaser 21 and the Purchaser 22 hereby conclude an asset purchase agreement over Properties located in Portugal (the “
Portuguese APA
”) as attached in
Schedule IX
of the Reference Deed INT.
|
3.2.12
|
The Sellers IVG Seller 1 and INTERNOS Seller and the Purchaser 1 hereby conclude an asset purchase agreement over Properties located in Scotland (the “
Scottish APA
”) as attached in
Schedule X
of the Reference Deed INT.
|
3.2.13
|
The Seller IVG Seller 1 and the Purchaser 1 hereby conclude an asset purchase agreement over Property located in Spain (the “
Spanish APA
”) as attached in
Schedule XI
of the Reference Deed INT.
|
3.3
|
The purchase agreements set out in clauses 3.1 and 3.2 are jointly referred to as the “
IPAs
” and each individually as an “
IPA
”.
|
3.4
|
The assets sold under the IPAs – real property and/or shares, respectively, in each case with legal constituents (
gesetzlichen Bestandteilen
), inventory (
Zubehör
) and other items as specifically defined and designated in the IPA – are jointly referred to as the “
Purchase Objects
” and each individually as a “
Purchase Object
”.
|
3.5
|
In relation to the IPAs set out in clause 3.2 the following applies:
|
3.5.1
|
The Original IPAs have each been concluded and the IPAs are each concluded under the condition precedent that this Master Agreement is notarised.
|
3.5.2
|
Where the Original IPAs are not in the English language, the Parties hereby agree that the English language versions of the IPAs as attached in
Schedules II-A, II-B and VI
are correct English translations of the Original IPAs.
|
3.5.3
|
The Notary has instructed the Parties that he is not qualified to advise on documents not governed by German law and accordingly assumes no responsibility for their content, validity and legality. He has, therefore, advised the Parties about the resulting risks, and, therefore to seek independent advice by advisors qualified to advise on Local Law. Nevertheless the persons appearing insisted on the immediate notarisation.
|
3.5.4
|
The rights and obligations of the Parties under the IPAs and the Original IPAs do exist only once, not twice, and the fulfilment of an obligation under an IPA effects the automatic fulfilment of the corresponding obligation pursuant to the Original IPA for the very same Purchase Object, and
vice-versa
.
|
3.6
|
Where there are contradictory discrepancies between this Master Agreement and an IPA (as opposed to discrepancies of a nature only clarifying, individualising or transforming into Local Law concepts or provisions of this Master Agreement), the provisions of this Master Agreement shall prevail and the Parties undertake to amend the IPA and the Original IPA accordingly to fully correspond to this Master Agreement (unless such amendment is not possible or legal under Local Law – in which case the IPA shall prevail). The same applies for the instructions to the Notary in which case the instructions given by the Parties in the Master Agreement prevail.
|
3.7
|
In case of one or several or all IPAs or Original IPAs subsequently becoming invalid due to legal reasons, all parties undertake to use their best efforts to eliminate the legal reasons for the invalidity subject to the terms and conditions of the IPAs, Original IPAs and this Master Agreement.
|
3.8
|
The Parties hereby agree that this Master Agreement, the IPAs and the Original IPAs shall only constitute a legal unity (
rechtliche Einheit
) for the purpose of entering into the aforementioned agreements on the date of this Master Agreement, and otherwise shall not constitute a legal unity (
rechtliche Einheit
). However, the IPA for a certain Purchase Object and the Original IPA for the same Purchase Object are legally dependent upon each other. In consequence:
|
3.8.1
|
the IPA and Original IPA for one Purchase Object may subsequently suffer different fates than the IPAs and Original IPAs for other Purchase Objects, e.g. in case of invalidity, execution or consummation obstacles and rescissions.
|
3.8.2
|
the IPAs, Original IPAs and this Master Agreement do not require notarial form (
notarielle Beurkundung
) in respect of, but not limited to:
|
(i)
|
any amendment or variation to, or waiver of, this Master Agreement, the IPAs and the Original IPAs; and
|
(ii)
|
the exercise of any rights under this Master Agreement or any IPA or Original IPA,
|
3.8.3
|
Should an IPA be or become entirely invalid, void or rescindable (
rückabwickelbar
), the Original IPA for the very same Purchase Object shall be invalid, void or rescindable as well, and
vice-versa
.
|
3.8.4
|
Should this Master Agreement be or become entirely invalid, void or rescindable, all IPAs and Original IPAs shall be invalid, void or rescindable as well.
|
3.9
|
Collective designations are used in this Master Agreement for ease of reference. The following applies to the use of the collective designations in this Master Agreement:
|
3.9.1
|
Whenever this Master Agreement refers to the Sellers or a Seller and, accordingly, to the Purchasers or a Purchaser, this always refers with regard to each Purchase Object, to the respective Seller and Purchaser of that Purchase Object.
|
3.9.2
|
Whenever this Master Agreement refers to the Purchase Objects or a Purchase Object, the corresponding provision applies separately to each individual Purchase Object.
|
3.10
|
The Purchasers are jointly and severally (
gesamtschuldnerisch
) obliged and liable for the performance of the obligations of each Purchaser under this Master Agreement and the IPAs.
|
3.11
|
The Sellers are not jointly and severally (
gesamtschuldnerisch
) obliged and liable under this Master Agreement and/or the IPAs.
|
4
|
PURCHASE PRICE, DOWN PAYMENT, MATURITY OF PURCHASE PRICE
|
4.1
|
The aggregated purchase price for all Purchase Objects under all IPAs (the “
Total Purchase Price
”) is
|
4.2
|
All Purchase Prices are net amounts and do not contain any value added tax, turnover tax (
Umsatzsteuer
) or comparable tax under the relevant Local Law. The relevant VAT regime under Local Law is reflected in the IPAs, where necessary.
|
4.3
|
NorthStar Reality Finance Corp. has on behalf of all Purchasers deposited prior to the notarisation of this Master Agreement to an escrow account established by the Notary a partial amount of five per cent of each Purchase Price (each a "
Down Payment
"), i.e. in aggregate an amount of five per cent of the Total Purchase Price (the “
Total Down Payment
”). The allocation of the Down Payments to the Purchase Objects is summarised in
Exhibit F
. Receipt of the Total Down Payment is hereby confirmed by the Notary.
|
4.4
|
The Notary will collect the following additional confirmations:
|
4.4.1
|
for each IPA (except the German APA) separately, confirmation in writing of the Parties that the further conditions precedent for the validity (
Wirksamkeitsvoraussetzungen
) of the respective IPA have been fulfilled corresponding to the template attached as
Schedule 4.4.1
(each a “
IPA CP Confirmation
”); and
|
4.4.2
|
for each Purchase Object separately, confirmation in writing of the Parties that the conditions precedent for the maturity of the Purchase Price (
Kaufpreisfälligkeitsvoraussetzungen
) for the respective Purchase Object (“
Purchase Price Maturity CPs
”) under the respective IPA, save for any excluded completion items set out in an IPA, have been fulfilled, corresponding to the template attached as
Schedule 4.4.2
(each a “
Purchase Price CP Confirmation
”). This does not apply for the Properties subject to the German APA, where the Notary does not need to rely on a confirmation of the Parties but is himself able to determine fulfilment of the respective Purchase Price Maturity CPs; and
|
4.4.3
|
for the Cuxhaven Purchase Object, the confirmation by the Deka Seller and the Purchaser 11 that the Maturity Notice can be sent; and
|
4.4.4
|
the Parties have confirmed or the Sellers have proven to him that the Merger Control Clearance Event according to clause 16.1 has occurred.
|
4.5
|
The Notary will notify the Parties, each such notification a “
Maturity Notice
”, as follows, unless the Notary has been instructed in writing otherwise by the Parties pursuant to clauses 9.6 and 9.9 or by either Parties pursuant to clause 9.3.1:
|
4.5.1
|
on 13 February 2015 about all IPA CP Confirmations and Purchase Price CP Confirmations he has received by 12 February 2015, 24.00 hrs. (midnight) Central European Time (the “
February Maturity Notice
”);
|
4.5.2
|
on 17 March 2015 about all further IPA CP Confirmations and Purchase Price CP Confirmations he has received since 13 February 2015 and by 16 March 2015, 24.00 hrs. (midnight) Central European Time (the “
March Maturity Notice
”);
|
4.5.3
|
on 16 April 2015 about all further IPA CP Confirmations and Purchase Price CP Confirmations he has received since 17 March 2015 and by 15 April 2015, 24.00 hrs. (midnight) Central European Time (the “
April Maturity Notice
”);
|
4.5.4
|
on 14 May 2015 about all further IPA CP Confirmations and Purchase Price CP Confirmations he has received since 16 April 2015 and by 13 May 2015, 24.00 hrs. (midnight) Central European Time (the “
May Maturity Notice
”);
|
4.5.5
|
at any time after 14 May 2015 about all further IPA CP Confirmations and Purchase Price CP Confirmations he receives, on a Purchase Object by Purchase Object basis for all Purchase Objects in relation to which the Notary has not received any rescission pursuant to clause 13.9.1 by one of the Parties;
|
4.6
|
The Purchase Prices will be due and payable in tranches on the following Dates (the "
Maturity Dates
"):
|
4.6.1
|
on 27 February 2015 (the “
February Maturity Date
”) for all Purchase Objects included in the February Maturity Notice;
|
4.6.2
|
on 31 March 2015 (the “
March Maturity Date
”) for all Purchase Objects included in the March Maturity Notice;
|
4.6.3
|
on 30 April 2015 (the “
April Maturity Date
”) for all Purchase Objects included in the April Maturity Notice;
|
4.6.4
|
on 29 May 2015 (the “
May Maturity Date
”) for all Purchase Objects included in the May Maturity Notice;
|
4.6.5
|
ten Business Days after any further Maturity Notice.
|
4.7
|
At each Maturity Date, the following payments are due:
|
4.7.1
|
The Notary shall release the Down Payments allocated to the Purchase Objects for which the Purchase Prices fall due at such Maturity Date to the respective Seller’s accounts set out in clause 4.8, unless the Notary has been instructed otherwise by the Parties pursuant to clauses 10.16 and 13.6. The Parties hereby irrevocably instruct the Notary to disburse the Down Payments accordingly. For the avoidance of doubt the adjustment of the Purchase Price pursuant to clause 4.13 shall have no effect on the Down Payments to be released by the Notary pursuant to clause 4.7.1.
|
4.7.2
|
The Purchasers are obliged to pay the Remaining Purchase Prices in accordance with the provisions of the relevant IPAs.
|
4.8
|
All payments to the Sellers must be made to their accounts designated in
Exhibit H
, unless stipulated differently under the relevant IPA.
|
4.9
|
A payment of the Remaining Purchase Price by the Purchaser is not already considered effected for the Purposes of this Master Agreement when the funds have been transferred but only once it has been fully, irrevocably and without reservations credited on the correct account of the Sellers (or as otherwise stipulated under the relevant IPA). The date of receipt of payment in accordance with clauses 4.7.2 to and including 4.9 is referred to as the “
Payment Date
” (provided that the Purchaser has not in any way interfered with the payment to be made by the Notary in accordance with clause 4.7.1; otherwise any delay in payment of the Down Payment shall be deemed to be a delay in the payment of the Remaining Purchase Price for the purposes of this Master Agreement).
|
4.10
|
All payments should – either in the reference of such payment or in a separate communication accompanying such payment – clearly designate in relation to which debt and Purchase Object they are made, it being understood that a reference to the City and the Street of the relevant Property shall be sufficient designation.
|
4.10.1
|
first, on due but outstanding contractual penalty claims;
|
4.10.2
|
secondly, on due but outstanding damage claims;
|
4.10.3
|
thirdly, on due but outstanding indemnity claims;
|
4.10.4
|
fourthly, on due but outstanding interest;
|
4.10.5
|
fifthly, on due but outstanding Purchase Price payment claims;
|
4.11
|
Every Maturity Notice constitutes a preceding event in the meaning of sec. 286, para. 2, no. 2 BGB. Accordingly, the Purchasers are automatically in payment default if and when they fail to make payment of the Purchase Price on the relevant Maturity Date, i.e. no further reminder or deadline is required.
|
4.12
|
The Purchasers submit to immediate enforcement (
Unterwerfung unter die sofortige Zwangsvollstreckung
) under this Document in their entire assets as follows:
|
4.12.1
|
The Purchasers submit to enforcement in the amount of the Remaining Purchase Prices and any default interest. Merely in light of the requirement of specification under the law on enforcement, and without establishing or limiting any claim under substantive law, default interest is deemed to be owed since 1 March 2015.
|
4.12.2
|
The Notary is irrevocably instructed to issue to the Sellers an enforceable official copy (
vollstreckbare Ausfertigung)
of this Document if the Sellers so request in writing and confirm in writing that any Remaining Purchase Price due has not been paid, however, in no case prior to the first Maturity Date. The Notary is irrevocably instructed to immediately inform the Purchaser in writing of the issuance of the enforceable official copy.
|
4.13
|
The Parties assume that on the February Maturity Date the largest part of the Total Purchase Price will be due and payable and that by the April Maturity Date the Total Purchase Price will have fallen due in its entirety. The Purchaser has assumed as the basis for its discounted cash flow valuation that all of the Total Purchase Price will become due and payable on the February Maturity Date. The Parties thus agree that, should – regardless of the reason – less than the Total Purchase Price actually become due and payable on the February Maturity Date, those Purchase Prices not payable on the February Maturity Date shall be adjusted as follows:
|
4.13.1
|
each individual Purchase Price due and payable on the March Maturity Date shall be reduced by an amount equal to one twelfth of the aggregate annual net rent minus non recoverable Ancillary Costs as listed for the respective Property in the list specified in clause 11.5.1.
|
4.13.2
|
each individual Purchase Price due and payable on the April Maturity Date shall be reduced by an amount equal to two twelfths of the aggregated annual net rent minus non recoverable Ancillary Costs as listed for the respective Property in the list specified in clause 11.5.1.
|
4.13.3
|
each individual Purchase Price due and payable on the May Maturity Date shall be reduced by an amount equal to three twelfths of the aggregated annual net rent minus non recoverable Ancillary Costs as listed for the respective Property in the list specified in clause 11.5.1.
|
4.13.4
|
each individual Purchase Price due and payable after the May Maturity Date shall be reduced by three months of the aggregated net rent minus non-recoverable Ancillary Costs, plus the aggregated net rent minus non recoverable Ancillary Costs for the time as of 1 June 2015 and thereafter, determined on a
pro rata temporis
day-by-day basis, as listed for the respective Property in the list specified in clause 11.5.1.
|
5
|
TRANSFER DATE
|
5.1
|
The transfer of the respective Purchase Object will occur, separately for each Individual Purchase Object, automatically at the beginning of the Payment Date (hereinafter separately referred to as the "
Transfer Date
" for each Purchase Object).
|
5.2
|
The Parties endeavour to make the transfer of legal title (= legal ownership) coincide with the Transfer Date to the extent possible or practical under Local Law and subject to any contrary provision in the relevant IPA. For the Dutch Properties, the Dutch APA shall stipulate that the risk transfers only upon execution of the Dutch notarial transfer deeds.
|
5.3
|
The risk of incidental deterioration and coincidental demise of the Purchase Object shall pass to the Purchasers on the Transfer Date. Specific provisions are set out in the IPAs.
|
5.4
|
All obligations and property costs relating to the Purchase Objects (e.g. taxes, public charges, ancillary costs for operation of the Properties (utilities, etc.)) shall be settled between the Parties as per the Transfer Date. Where such costs cannot be specifically allocated to the time prior or post the Transfer Date, they shall be allocated on a
pro rata temporis
basis as per the Transfer Date.
|
5.5
|
In order to make the settlement of costs according to clause 5.4 more efficient, the Parties agree to settle such obligations and costs only once (and every time) they exceed an amount of EUR 5,000 net per Purchase Object in aggregate, but at least once every calendar month. Where the costs exceed such threshold amount, the Parties will settle the full amount of the costs and not just the excess (
Freigrenze, kein Freibetrag
).
|
5.6
|
The Purchasers will indemnify the Sellers against the assertion of claims for property taxes (
Grundsteuern
and their equivalents under Local Law) which accrue proportionately to the time from (and on) the Transfer Date, also to the extent that claims have been asserted against the Seller as the obligor for the year in which the Transfer Date falls.
|
5.7
|
All deeds, documents and information related to the Purchase Objects shall, to the extent that the Sellers have these items in their possession or control, be handed over to the Purchaser within two weeks after the Transfer Date, it being understood that the hand-over does not have to be centrally in one location upon closing ("physical closing"), but can take place locally in each jurisdiction. Sellers and Purchaser shall work together to agree on the details of how the handover shall be effected in due course to allow Sellers ample time to prepare. The Sellers will hand over
|
5.8
|
Where the Purchase Object is a Property and unless stipulated differently in the relevant IPA, the Sellers hereby assign to the Purchasers, who accept such assignment, all claims against contractors, architects, neighbours and other third parties in relation to the Purchase Objects with effect as per the Transfer Date. The Sellers, however, assume no liability for the existence, scope, enforceability and assignability of these assigned claims.
|
5.9
|
In the period between the date of this Master Agreement and the Transfer Date the Sellers undertake to support the Purchaser in order to secure the proper and orderly transfer of the operation and management of the Purchase Objects to the Purchasers. They will in particular (i) share information, (ii) grant the Purchasers reasonable access to the Sellers' staff currently dealing with the Property (it, however, being understood that the Sellers themselves will be occupied with preparations for the Transfer Date and no new reporting lines can be established) and (iii) grant the Purchaser access to the relevant property managers, release the property managers from confidentiality obligations vis-à-vis the Purchasers and – within the framework of the existing scope of services agreed with the property managers – instruct these to support the Purchasers.
|
6
|
SPECIFIC TRANSFER PROVISIONS ON LEASES
|
6.1
|
Where the Leases, as defined in clause 11.5.1, do not or not yet automatically transfer to the Purchaser on the Transfer Date by operation of law (for example under German law: sec. 566 BGB) the Parties:
|
6.1.1
|
shall endeavor to achieve such a transfer of Leases on the Transfer Date by contractual agreement; and
|
6.1.2
|
where such a transfer by contractual agreement cannot be achieved, e.g. because required third party consents are withheld, the Parties
inter se
(
im Innenverhältnis
) shall treat each other as if the Leases had transferred to the Purchasers on the Transfer Date.
|
6.2
|
The Sellers assign all their claims under the Leases under the condition precedent and with effect from (and on) the Transfer Date to the Purchasers. Subject to the IPA in relation to the relevant Purchase Object being rescinded or otherwise not consummated, the Purchaser hereby re-assigns these claims to the respective Seller with effect from the Business Day following such rescission, subject only to receipt of the respective Purchase Price of the relevant Purchase Object in accordance with this Master Agreement. The Sellers hereby accept such re-assignment.
|
6.3
|
The Sellers and the Purchasers will cooperate in notifying the Tenants under the Leases of the change of landlord. The Sellers shall, prior to the Transfer Date, provide the Notary with letters materially corresponding to the template attached as
Schedule 6.3
in which they confirm the sale of the Purchase Objects and the assignment of the claims under clause 6.2; the Notary is hereby instructed to release these letters to the Purchaser without undue delay after the Transfer Date, so that the Purchaser can send out these letters to the Tenants.
|
6.4
|
The Sellers shall promptly forward to the Purchasers all payments under the Leases they receive that relate to time periods from (and on) the Transfer Date and
vice versa
. In order to avoid a multitude of single payments, each Party is entitled to make payments of the aggregate amounts that have fallen due under this clause 6.4 only on every tenth Business Day of any given month.
|
6.5
|
The Purchasers will declare the rental income as their own turnover in turnover tax or value added tax returns as from the Transfer Date.
|
6.6
|
The Sellers hereby authorise the Purchasers to exercise all rights under the Leases as from the Transfer Date, including the right to terminate, amend or vary the lease agreements. The Sellers will, on the Transfer Date (but in turn (
Zug um Zug
) to receipt of the Purchase Price), provide the Purchasers with appropriate written powers of attorney in separate documents materially corresponding to the template attached in English language as
Schedule 6.6
but which will be translated into local language where appropriate.
|
6.7
|
Unless specified differently in the IPAs, the Sellers will effect the reconciliation of service charges, operating expenses and ancillary costs that are incurred by the Sellers, but charged to the Tenants (the “
Ancillary Costs
”) for all accounting periods (calendar years) that are already concluded on the Transfer Date and be entitled to any claims against Tenants and liable for any liabilities vis-à-vis Tenants resulting therefrom. This also applies if the reconciliation only takes place after the Transfer Date.
|
6.8
|
In relation to Ancillary Costs for the accounting period in which the Transfer Date falls (the “
Transfer Accounting Period
”) the Parties will closely cooperate. They will furnish each other
|
6.8.1
|
The Sellers shall no later than six weeks after such Transfer Date make available all relevant documents (e.g. invoices) that will later enable the Purchasers to settle Ancillary Costs vis-à-vis the Tenants. The Sellers shall also prepare, and the Parties shall agree upon, a settlement account for the Transfer Accounting Period (the “
Settlement Account
”).
|
6.8.2
|
The Settlement Account is to be prepared on a Property by Property basis with effect as of the Transfer Date promptly, and no later than six weeks after the respective Transfer Date.
|
6.8.3
|
The Settlement Account shall contain all advance payments collected from the Tenants in respect of Ancillary Costs of the Transfer Accounting Period up to (but excluding) the Transfer Date. From such payments the Sellers are entitled to deduct any payments actually made by the Sellers in settlement of Ancillary Costs in the Transfer Accounting Period as far as such payments do not relate to vacant parts of Properties (
Leerstandsflächen
).
|
6.8.4
|
To the extent possible, costs that are metered are to be taken into account based on interim meter readings on or about the Transfer Date. To the extent this is not possible the Sellers may in their equitable discretion (
billiges Ermessen
) according to sec. 315 BGB use adequate averages or experience values. Costs that cannot be precisely allocated to either the time prior to the Transfer Date or the time from (and including) the Transfer Date may be accounted on a
pro rata temporis
basis.
|
6.8.5
|
The Sellers are obliged to pay out to the Purchasers within ten Business Days following agreement of the Settlement Account any positive balance of the Settlement Account. Conversely, the Purchasers are obliged to pay out to the Sellers within ten Business Days following agreement of the Settlement Account any negative balance of the Settlement Account.
|
6.8.6
|
Once the payments according to clause 6.8.5 are effected, the Ancillary Costs for the Transfer Accounting Period are finally settled between the Parties
inter se
. All payments subsequently made by or owed to Tenants in relation to Ancillary Costs of the Transfer Accounting Period are exclusively for the account of the Purchasers. The Purchasers shall indemnify the Sellers against any third party claims deviating from this internal allocation.
|
6.8.7
|
In relation to Ancillary Costs of the Transfer Accounting Period the Sellers further have the obligations according to clauses 8.1.4 and 8.1.5.
|
7
|
SPECIFIC TRANSFER PROVISIONS ON INSURANCE AND ONGOING LITIGATION
|
7.1
|
The Sellers are responsible to insure the Purchase Objects in the present scope until (but excluding) the Transfer Date and pay the corresponding insurance premiums. They are entitled to terminate the insurance cover as per the Transfer Date and are not liable for insurance premiums relating to periods after the Transfer Date.
|
7.2
|
Any litigation relating to the Properties and initiated by or against the Sellers prior to the Transfer Date shall be dealt with as follows:
|
7.2.1
|
The litigation shall be continued by the Sellers at their costs, and the Purchasers shall have no obligation to participate in the court proceedings. The Purchasers shall, however, reasonably support the Sellers in case access to information in the possession of the Purchasers is required in the litigation.
|
7.2.2
|
Any obligations resulting from the outcome of the litigation shall be borne by the Sellers insofar as the factual circumstances or tenant's payments relate to the time prior to the Transfer Date, and the Sellers shall indemnify the Purchaser insofar from and against any claims brought against Purchaser on the basis of such litigation.
|
7.2.3
|
Any obligations resulting from the outcome of the litigation shall be borne by the Purchaser insofar as they relate to reclaiming payments made by the relevant litigation counterparty after the Transfer Date and actually received by the Purchaser. The Purchaser shall transfer such payments to the Sellers upon their written request and provided the Sellers show that the respective claim by the litigation counterparty has been settled by the Sellers.
|
7.2.4
|
For the avoidance of doubt, the Sellers shall be under no obligation to compensate the Purchaser for any shortfall in income (be it rent or otherwise) resulting from the outcome of litigation which the Purchaser may suffer after the Transfer Date.
|
8
|
MANAGEMENT OF PURCHASE OBJECTS UNTIL TRANSFER DATE
|
8.1
|
Until (but excluding) the Transfer Date, the Sellers undertake to manage the Properties with the diligence of a prudent real estate professional (
Sorgfalt eines ordentlichen Immobilienkaufmanns
) or – in cases where the Purchase Object is a PropCo – procure that the Properties are managed in such manner. The Sellers will, in particular, but without limitation, until the Transfer Date:
|
8.1.1
|
maintain on existing terms all existing insurance policies relating to the Properties until the Transfer Date;
|
8.1.2
|
continue to effect at their own cost any strictly required routine maintenance and repair;
|
8.1.3
|
carry out all inspections required by mandatory law, public order or insurance requirements;
|
8.1.4
|
comply with the landlord's obligations under the leases and collect rents and payments/pre-payments from tenants on Ancillary Costs;
|
8.1.15
|
pay to the relevant utility providers, service providers and other third parties all due Ancillary Costs and other costs that cannot be charged to Tenants;
|
8.1.6
|
prepare due rent reviews, unless specified otherwise in the IPAs, and claim pre-agreed or index based rent adjustments when due;
|
8.1.7
|
police any breaches of lease agreements by Tenants extra-judicially, i.e. without any obligation to commence litigation against such Tenants;
|
8.1.8
|
pay all due taxes, duties and other public charges;
|
8.1.9
|
make all due payments to financing banks and other creditors (e.g. contractors) in order to avoid recourse against or enforcement of charges secured on the Properties;
|
8.1.10
|
continue complying with all material laws, as applicable (for the avoidance of doubt this obligation does not oblige the Sellers to carry out inspections or perform upgrades that are not or not yet required by law);
|
8.1.11
|
inform the Purchaser without undue delay (in any case within five Business Days after discovery) and in writing of any deterioration of any Property, and allow the Purchaser access to the relevant Property to make his own assessment of the deterioration; and
|
8.1.12
|
inform the Purchaser without undue delay (in any case within five Business Days after discovery) and in writing about any material event (e.g. insolvency, termination of lease) with a Tenant.
|
8.2
|
Where a Purchase Object is a Property, the Sellers undertake not to conclude, amend, vary, terminate or accept to be surrendered, or negotiate or agree rent reviews, or waive any breach of, any agreements with current Tenants, new tenants, neighbours, contracts under public law or other contracts, including the granting of security, relating to the Purchase Object without the consent of the Purchaser after the notarisation of this Master Agreement and not to take any other measures (for example commence litigation) which have or could have any material effects on the condition, value, usability, earnings or similar relevant effects on the Purchase Object. The Parties agree that any measure described in the preceding sentence with a cost effect of less than EUR 10,000 in an individual case and EUR 50,000 per Property in the aggregate is deemed not to be material and Purchaser's consent is deemed to be granted. The Sellers further undertake not to dispose of, charge or encumber, except as specifically provided for or permitted under the IPAs, any Property.
|
8.2.1
|
The Purchasers may not unreasonably withhold or unduly delay their consent once requested and, in particular, shall grant such consent insofar as the conclusion of a contract or any other declaration or action is objectively appropriate in the ordinary course of business when complying with the standard of care of a prudent commercial party (
Sorgfalt eines ordentlichen Kaufmanns
).
|
8.2.2
|
Any consent requested by the Sellers and not explicitly refused within a period of ten Business Days following receipt of the Seller's request for consent shall be deemed granted.
|
8.2.3
|
No consent shall be required where immediate measures are necessary in order to (i) comply with statutory law or orders of courts or public authorities or (ii) to avert imminent danger
(Gefahr im Verzug
) for the relevant Purchase Object, it being understood that the Sellers shall inform the Purchaser of the immediate measure taken without undue delay.
|
8.3
|
The Sellers shall without undue delay provide the Purchasers with copies of all material notices received by the Sellers which relate to any of the Properties (including, without limitation, notices received from Tenants or local or municipal authorities) and which could reasonably be expected to have a material effect on the management, investment value or use of the Properties.
|
8.4
|
Where legal title to the Properties does not already pass to the Purchasers on the Transfer Date, the Sellers hereby grant power of attorney to the Purchasers as of the Transfer Date to enter into lease agreements or to amend or terminate lease agreement with effect as of the Transfer Date, provided that the effects of such agreements cannot be held against and are not binding upon the Sellers. The IPAs set out alternative mechanisms (opt out) where the mechanism in this clause 8.4 is not compatible with Local Law.
|
8.5
|
Until the Transfer Date and, to the extent required also after the Transfer Date, the Sellers and the Purchasers will co-operate and assist each other on a good faith basis in managing the Purchase Objects and complying with all statutory tax filing and payment obligations. In particular, the Sellers will furnish all available information regarding potential input turnover tax or value added tax (
Vorsteuer
) repayment obligations to the Purchaser and will amend invoices to Tenants for time periods before the Transfer Date, if required. If the Sellers do not or not in full comply with this obligation such that the Purchasers may not or not in the correct manner make any necessary VAT adjustments, the Sellers shall indemnify and hold the Purchasers harmless from any disadvantages or damages resulting from the Sellers’ non- or incomplete compliance with its obligation to make correct VAT adjustments (incl. but not limited to any interest damages).
|
8.6
|
The Sellers undertake to not agree any new rent free periods, cash allowances or cash contributions (”
Tenant Incentives
”) relating to any of the Properties after today and to settle, prior to the Transfer Date, with the relevant tenants all Tenant Incentives agreed to as of today, that are due or relate to time periods prior to the Transfer Date. The Sellers further undertake to settle with the relevant tenants all cash allowances or cash contributions agreed to as of today, that are due or relate to time periods after the Transfer Date, regardless of whether these have been disclosed in the Data Room.
|
9
|
MATERIAL ADVERSE CHANGE
|
9.1
|
The Sellers shall not be liable for any deterioration of a Property
|
(i)
|
that constitutes ordinary wear and tear which might reasonably be expected in the usual course of business of the Properties, it being understood that any wear and tear resulting from actions, or the lack of actions, not in compliance with clause 8.1 shall in no case be deemed to be ordinary wear and tear; or
|
(ii)
|
where Projected Reinstatement Costs are expected to not exceed EUR 12,500 per Property (
de minimis
)
|
9.2
|
The Sellers shall be liable for any deterioration of a Property beyond Normal Wear and Tear (“
Relevant Deterioration
”). In such case, they shall be obliged to remedy, if the Relevant Deterioration is discovered prior to or until two months after the Transfer Date in a good and workmanlike manner with materials corresponding to the market standard and the standard of the relevant Property and by a fully suitable firm such Relevant Deterioration without undue delay after the deterioration is discovered (i.e. also prior to the Transfer Date) up to the following maximum:
|
(i)
|
Projected Reinstatement Costs of up to EUR 100,000; and
|
(ii)
|
an expected duration for the full completion of the reinstatement works, including, to the extent applicable, planning the necessary measures, tendering and commissioning contractors, obtaining required planning and other permissions and execution of the works (together the “
Projected Reinstatement Time
”) of up to four months as of the date the deterioration is discovered.
|
9.3
|
Where a deterioration exceeds the maximum set out in clause 9.2 (i) or (ii) (a “
Material Deterioration
”) the Sellers may, at their discretion, elect to:
|
9.3.1
|
either fully remediate such Material Deterioration at their own cost in which case either Party may and to instruct the Notary not to issue a Maturity Notice for the relevant Property until such reinstatement is concluded; or
|
9.3.2
|
instead of remediating the Material Deterioration,
|
(i)
|
transfer the Purchase Object to the Purchasers in its then current condition; and
|
(ii)
|
fully assign/transfer any insurance claims and proceeds payable based on the Material Deterioration to the Purchasers; and
|
(iii)
|
compensate the Purchasers for the actual reinstatement costs plus loss of income from the Property related to the Material Deterioration, it being understood that insurance proceeds actually received by the Purchaser as a result of the assignment/transfer of clause 9.3.2(ii) shall be deducted from such compensation. For the avoidance of doubt, the Purchaser shall receive cost compensation in excess of the Projected Reinstatement Costs only if the general layout and technical construction of the building is not materially altered (which, for the avoidance of doubt, the Purchaser shall be free to do at its discretion), unless this is a result of binding legal requirements applicable to the remediation works, as compared to the
status quo ante
, in which case the Purchaser shall
|
9.4
|
Where Projected Reinstatement Costs exceed 30% of the Purchase Price of the affected Property, or Projected Reinstatement Time exceeds eight months after the discovery of the deterioration, either of the Parties shall be entitled to rescind in writing the IPA and the Original IPA of the affected Purchase Object with ten Business Days notice. In this case, the Seller has no further remediation or compensation obligation in relation to such Property.
|
9.5
|
All further claims of the Purchasers against the Sellers based on a deterioration of a Purchase Object are excluded to the full extent permissible under statutory law.
|
9.6
|
In case the Parties cannot agree on the Projected Reinstatement Costs or the Projected Reinstatement Time, these circumstances shall be determined for them by a jointly selected and appointed expert arbitrator (
Schiedsgutachter
). If the Parties cannot agree on an expert arbitrator such expert arbitrator will at the request of either Party be bindingly designated by the president of the Chamber of Commerce (or equivalent under Local Law, as designated in the IPAs) competent for the location of the affected Property. The costs of the expert arbitrator are split according to secs. 91 seq. ZPO, i.e. pro rata based on the deviation between the positions of the Parties, as notified to the expert arbitrator in advance, and the expert arbitrators findings. The expert arbitrator is asked to also decide on the costs in his determination.
|
9.7
|
If the circumstances set out in clauses 9.7.1 and 9.7.2 are cumulatively fulfilled between the date of this Master Agreement and the Transfer Date for the relevant Purchase Object this shall constitute a material adverse change in relation to Leases (“
Lease MAC
”):
|
9.7.1
|
One of the following events occurs:
|
(i)
|
a Tenant extraordinarily terminates a Lease (i.e. not by exercising a regular termination or break right) unless such termination is apparently unjustified (
offensichtlich unbegründet
); or
|
(ii)
|
insolvency (
Insolvenz
), bankruptcy, administration, receivership or comparable proceedings are commenced or issued over the Tenant of a Lease or its assets or the opening is rejected due to a lack of assets; or
|
(iii)
|
the Sanofi Lease for the Marly-la-Ville Property is terminated by the Tenant, not renewed, or otherwise not continued, in particular as a result of an exercise by
|
9.7.2
|
the rental income affected by one of the events set out in clause 9.7.1 exceeds 30% of the relevant Property’s total rent.
|
9.8
|
In case a Lease MAC occurs:
|
9.8.1
|
the Sellers shall inform the Purchaser and the Notary without undue delay (in any case within five Business Days after discovery) and
|
9.8.2
|
the Sellers shall grant the Purchaser immediate access to the relevant Tenant with the aim to – in close cooperation with the Sellers – (i) persuade the Tenant to remain in the Property and continue the Lease at unchanged conditions or (ii) as a fall-back position, negotiate a remaining of the Tenant in the Property at reasonably amended conditions (the “
Tenant Negotiations
”), it being understood, however, that such negotiations shall not take longer than 30 June 2015.
|
9.9
|
The Sellers and the Purchasers shall instruct the Notary not to send out a Maturity Notice for the duration of the Tenant Negotiations for the relevant Purchase Object until the Parties have informed the Notary in writing of the end of the Tenant Negotiations.
|
9.10
|
Upon conclusion of the Tenant Negotiations and taking into account their result the Sellers and the Purchaser shall negotiate in good faith a reasonable adjustment of the Purchase Price for the relevant Purchase Object.
|
9.11
|
Should the Sellers and the Purchaser not be able to agree on an adjustment of the Purchase Price such adjustment shall be bindingly determined for them by a jointly selected valuer as expert arbitrator (
Schiedsgutachter
) taking into due account the initially agreed Purchase Price, the remaining Lease term and the Lease MAC.
|
9.12
|
The valuer shall be one of Colliers, JLL, CBRE, Knight Frank or Cushman who shall carry out the valuation according to the RICS Red Book standards. The costs of the valuer shall be split according to secs. 91 seq. ZPO, i.e. pro rata based on the deviation between the positions of the Parties, as notified to the valuer in advance, and the valuer's findings. The valuer shall be asked to also decide on the costs in his determination.
|
9.13
|
If, following the final determination of the Purchase Price reduction by the valuer under clause 9.12, the Sellers taking into account their regulatory environment conclude that such reduction is inacceptable to them, they are entitled to rescind the relevant IPA.
|
10
|
GENERAL PROVISIONS ON SELLERS’ WARRANTIES
|
10.1
|
To the extent not specifically and explicitly set out in clause 11 or the IPAs and Original IPAs, the Sellers assume no guarantees, representations or warranties whatsoever in relation to the Purchase Objects, neither for defects in substance (
Sachmängel
) nor for legal defects (
Rechtsmängel
).
|
10.2
|
The Properties are accordingly purchased in their current "as is" condition (
wie sie stehen und liegen
).
|
10.3
|
The Parties agree that the guarantees of the Sellers contained in this Master Agreement or the IPAs and Original IPAs (the “
Guarantees
”) are such by way of an independent promise of guarantee according to sec. 311 para. 1 BGB (
selbständiges Garantieversprechen
) and do not constitute guarantees of quality (
Beschaffenheitsgarantien
) pursuant to secs. 443, 444 BGB.
|
10.4
|
All Guarantees are given only at the Date of this Master Agreement, unless otherwise stipulated herein.
|
10.5
|
With regard to Guarantees that are knowledge qualified (“the Sellers are not aware …”), Sellers shall only be liable in case of any of fraud, or positive knowledge, or grossly negligent lack of knowledge (
grob fahrlässige Unkenntnis
) of the Sellers.
|
10.6
|
Any limitation or exclusion of liability contained in this Master Agreement or the IPAs and Original IPAs does not apply to:
|
10.6.1
|
claims for damages resulting from fraud, injury to life, physical integrity or health of persons if the Sellers are responsible (
hat zu vertreten
) for the violation of a duty, or
|
10.6.2
|
any other damages which have their basis in an intentional (
vorsätzlich
) or grossly negligent (
grob fahrlässig
) violation of a duty.
|
10.7
|
If and to the extent that a Guarantee of the Seller has been agreed, the Seller owes the accuracy and correctness of the Guarantee.
|
10.8
|
Except for fraud and claims in relation to clause 11.2, 11.3.1, 11.3.2 sentence 1, 11.3.4 sentence 1, and corporate or property title Guarantees under IPAs (the “
Title Guarantees
”), knowledge or grossly negligent lack of knowledge of a defect in substance or a legal defect which could, in each case, be deducted from the information in the Data Room excludes claims of the Purchasers. In clauses 11.3.1 sentence 1 and 11.3.4 sentence one the respective guarantee shall not be considered a Title Guarantee if the relevant encumbrance has a less than significant impact on the value or usability of the relevant Property (for the avoidance of doubt "significant" shall include,
inter alia
, all land charges (
Grundschulden
) and mortgages, tenant servitudes (
Mieterdienstbarkeiten
), usufructs (
Nießbräuche
) and heritable building rights (
Erbbaurechte
), but shall exclude minor servitudes or easements such as standard rights of way or cable rights not materially impeding the usability of the Property).
|
10.9
|
If any Guarantee of the Sellers is completely or partially incorrect, the Sellers are required to establish the condition which would have existed if the relevant Guarantee had been accurate.
|
10.10
|
Except in relation to Title Guarantees, the damage claims according to clause 10.9 can only be raised if:
|
10.10.1
|
the damage resulting from the respective individual breach of a Guarantee exceeding a EUR 35,000
de minimis
threshold (the “
Qualified Claims
”); and
|
10.10.2
|
the Qualified Claims in aggregate exceed a EUR 300,000 threshold (so-called “basket”);
|
10.11
|
Except in relation to Title Guarantees, all aggregate damage claims raised in accordance with clauses 10.10.1 and 10.10.2 are, separately in relation to each Seller, capped at a maximum amount corresponding to four per cent of the aggregated Purchases Prices (the “
Cap
”) and, as set forth in clause 10.16, the Excess Down Payments of all Purchase Objects sold by such Seller.
|
10.12
|
The compensation for loss of profit (
entgangener Gewinn
) is explicitly excluded.
|
10.13
|
A – full or partial – rescission of or withdrawal from this Master Agreement and/or an IPA by way of compensation for damages or loss suffered as a result of a breach of a Guarantee (
sog. großer Schadensersatz
) is excluded. Rights of rescission agreed in this Master Agreement and/or an IPA remain untouched.
|
10.14
|
Any claims of the Purchasers due to a breach or violation of a Guarantee shall become statute-barred (
verjähren
) twelve months after the Transfer Date, unless otherwise provided for in this Master Agreement or an IPA. Title Guarantees shall become statute-barred in eighteen months after the Transfer Date. The Guarantee in clause 11.7 shall become statute-barred on 31 December 2016.
|
10.15
|
The Purchaser is entitled to rescind the relevant IPA in relation to a Purchase Object in case of a material breach of any of the Title Guarantees and the Guarantees in clause 11.9.
|
10.16
|
If and to the extent the Down Payment in a case of a rescission from an IPA for which the Purchaser is responsible (clause 13.6.3) exceeds the actual damages incurred by the relevant Seller and serves as a contractual penalty (the “
Excess Down Payments
”) the following provisions apply: The Excess Down Payments shall, separately in relation to each Seller, be utilised to settle any claims of the Purchasers due to a breach or violation of a Guarantee by such Seller where the claim exceeds the Cap. The Sellers and the Purchasers shall instruct in writing the Notary to disburse the respective Excess Down Payment pursuant to clause 4.3, and any interest accrued thereon, as soon as the Purchaser's claim for breach or violation of a Guarantee by such Seller is accepted by the Seller, or awarded by a court, and otherwise in accordance with clause 13.6.3. The Notary is hereby instructed to disburse the respective Down Payment according to the joint instruction by the Sellers and the Purchasers or if the prerequisites for the release of the Down Payment pursuant to clause 13.6. have been fulfilled.
|
11
|
SPECIFIC SELLERS’ WARRANTIES
|
11.1
|
The Sellers, i.e. each Seller in respect of Purchase Objects it sells, give the guarantees specifically set out in clause 11. Such Guarantees, in each case where the Purchase Object is a PropCo, apply accordingly as if the PropCo itself as owner of the respective Property had given the Guarantee.
|
11.2
|
In relation to title and circumstances of PropCos
|
11.3
|
In relation to title of Properties
|
11.3.1
|
Subject to the respective IPA, the Sellers are, and will be on the Transfer Date, the full legal owner of each Property and have the authority to sell and transfer such Property.
|
11.3.2
|
The Sellers have not allowed, consented to, requested or applied for any changes in relation to the title of the Property and its encumbrance with servitudes, easements, liens, mortgages, land charges and other charges (jointly the “
Encumbrances
”) compared to the current Encumbrances as disclosed in each IPA, and will not do so until the Transfer Date unless expressly provided for or permitted in the IPA. The Sellers are not aware of any process to change the title or the Encumbrances of the Property initiated by a third party.
|
11.3.3
|
Where applicable, the Sellers are not aware of any Encumbrances not registered or not capable of registration in the land register (
Grundbuch
) or equivalent registers.
|
11.3.4
|
The Sellers have not allowed, consented to, requested or applied for any changes in relation to public easements (
Baulasten
) or other edificial or comparable charges under public law compared to those disclosed in each IPA, and will not do so until the Transfer Date unless expressly provided for or permitted in the IPA or bindingly required under public law. The Sellers are not aware of any process to enter, amend or change such charges under public law initiated by a third party.
|
11.3.5
|
The Sellers are not aware of unpermitted encroachments from the Properties onto neighbouring properties or from neighbouring properties onto the Properties.
|
11.3.6
|
None of the Purchase Objects will, after payment of the Purchase Price and after the Transfer Date, be encumbered with any security of any kind (including, without limitation, mortgages, rent assignments, assignment of insurance claims) for any kind of loan or financing (including shareholder loans and financing), unless specifically agreed otherwise in the IPAs.
|
11.4
|
In relation to planning, zoning and public law
|
11.5
|
In relation to Leases
|
11.5.1
|
The list of lease agreements, occupational leases, agreements on use and comparable agreements under Local Law, subject to thresholds for minor leases as may be defined on a case by case basis, (jointly the “
Leases
” and each a “
Lease
”) annexed to each IPA is, a complete and accurate list of current Leases. In consequence, (i) the Leases listed exist, (ii) no Leases not listed exist in relation to the Property and (iii) the Sellers have actually received, in November 2014, the rent and Ancillary Costs stated for each of the Leases (for the avoidance of doubt, such stated amounts set out the actuals which do not necessarily fully correspond to the owed amounts).
|
11.5.2
|
The Sellers have not, and will not have at the Transfer Date, terminated any Leases.
|
11.5.3
|
No Lease has been terminated, or announced in writing to be terminated, by the respective user, tenant or lessee (jointly the “
Tenants
” and each a “
Tenant
”) as per 11 December 2014 prior to notarisation, except as disclosed in each IPA.
|
11.5.4
|
The list of arrears of rent, Ancillary Costs payments or prepayments and other payments of Tenants under the Leases (the “
Arrears
”), in each case as disclosed in each IPA and as per the date defined in such IPA, is accurate.
|
11.5.5
|
Since 1 December 2013, no Tenant has reduced the rent or consideration payable under its Lease or claimed such reduction by way of a formal or registered letter, or announced such reduction in writing for a period after the Transfer Date, except as disclosed in the relevant IPA.
|
11.5.6
|
The Sellers have not made any advance dispositions over rents relating to time periods from (and including) the Transfer Date.
|
11.5.7
|
The list of security, surety, deposit or other collateral under the Leases (the “
Rent Security
”) attached to each IPA, as per the date given in such list, accurately reflects the Rent Security the Sellers hold. For the avoidance of doubt, the Sellers are entitled to return Rent Security to Tenants following the date of this Master Agreement where so required under the Leases (i.e. when the Lease ends) but are not entitled to utilise, draw or enforce on Rent Security.
|
11.5.8
|
The Sellers are not aware of any material information relating to leases (it being understood that such information is "material" which relates to the lease's duration, the amount of rent or Ancillary Costs receivable, the expenses to be borne by the landlord (for the avoidance of doubt excluding non-recoverable Ancillary Costs), or rent free periods agreed to under the current leases), (in each case) regardless of whether they are due prior to or after the Transfer Date, which are not provided in the Data Room and (in each case) have a more than insignificant commercial or legal impact on the Lease.
|
11.5.9
|
There are no outstanding tenant incentives or payments to Tenants, regardless of whether they are due prior to or after the Transfer Date, which are not provided in the Data Room and (in each case) have a more than insignificant commercial or legal impact on the Lease.
|
11.6
|
In relation to environmental matters
|
11.7
|
In relation to litigation
|
11.8
|
In relation to tax matters
|
11.9
|
In relation to insolvency
|
11.10
|
In relation to employees
|
11.11
|
Compliance with Law
|
12
|
INTENTIONALLY BLANK
|
13
|
LONG STOP DATES, RESCISSION RIGHTS
|
13.1
|
The Sellers are entitled to rescind the relevant IPA in relation to a Purchase Object if and to the extent:
|
13.1.1
|
statutory pre-emption rights are exercised (for the avoidance of doubt, this rescission right shall not hinder or preclude the exercise of any statutory pre-emption right under Local Law); or
|
13.1.2
|
the depository agent (
Verwahrstelle
) does not grant a release of the Purchase Object from the blocking notice (
Sperrvermerk
) under the German Act for Investments (
Kapitalanlagegesetzbuch
, KAGB).
|
13.2
|
If in relation to any Purchase Object, the Notary has not issued a Maturity Notice according to clause 4.5 by 31 May 2015 (the “
Individual Long Stop Date
”) the Parties shall discuss in good faith the continuation of the transaction contemplated by the relevant IPA in relation to the affected Purchase Object(s).
|
13.3
|
In case the Purchasers are in payment default (
Verzug
) with the Remaining Purchase Price for any Purchase Object on the relevant Maturity Date in accordance with clauses 4.7.2 to and including 4.9, the Sellers may set the Purchasers, with a copy to the Notary, a written deadline (facsimile is sufficient) of at least ten Business Days. If such deadline has passed without full payment in accordance with clauses 4.7.2 to and including 4.9, the Sellers are entitled at their discretion to:
|
13.3.1
|
either rescind the relevant IPA in relation to the affected Purchase Object(s); or
|
13.3.2
|
rescind the relevant IPAs and this Master Agreement in relation to all Purchase Objects for which the Transfer Date has not yet occurred at such time.
|
13.4
|
The Purchaser shall be entitled to rescind the relevant IPA in relation to a Purchase Object if the works to remediate a Material Deterioration undertaken by the Sellers under clause 9.3.1 exceed ten months in duration after the date the Material Deterioration was discovered.
|
13.5
|
Any rescission of this Master Agreement in its entirety automatically leads to a corresponding rescission or unwinding of all IPAs and Original IPAs unless explicitly agreed differently between the Parties on a case by case basis.
|
13.6
|
In case of a rescission, the Sellers and the Purchasers shall instruct the Notary to disburse the respective Down Payment pursuant to clause 4.3 and, in each case, any interest accrued thereon, as set out in this clause 13.6.
|
13.6.1
|
the Sellers are responsible for the cause of rescission (including any case of the exercise of a pre-emption right), the Notary shall be instructed by the Parties to release the Down Payment to the Purchasers;
|
13.6.2
|
no Party is responsible for the cause of rescission, the Notary shall be instructed by the Parties to first deduct from the Down Payment any unpaid fees he is owed under clause 12 and then release the rest of the Down Payment to the Purchasers;
|
13.6.3
|
the Purchaser is responsible for the cause of rescission, in particular in case of a default in the payment of a Purchase Price, the Notary shall be instructed by the Parties to release the Down Payment to the Sellers, provided that the period of limitation of clause 10.14 of twelve months has lapsed for all Purchase Objects sold by the respective Seller and there are no claims under clause 10 by the Purchaser against the respective Seller which the Seller has not yet settled.
|
(a)
|
The respective Sellers or the respective Purchasers, respectively, (the "
Applying Party
") asked the Notary in writing to disburse the respective Down Payment to the respective Party.
|
(b)
|
Copies of the formal application for disbursement, including copies of all documents accompanying such application, have been served to the other Party not applying for such disbursement (the "
Other Party
"), accompanied by a request to comment on this application within a deadline of one month after service. Such service shall be made in accordance with the German Code of Civil Procedure. The written request to comment must contain a warning concerning the consequences to be expected if such comments are not issued within the set deadline.
|
(c)
|
The Other Party agreed in writing to the disbursement of the respective Down Payment or failed to submit an objection in writing against the disbursement, setting out the reasons for such objection, within the above deadline of one month.
|
13.7
|
In case of a rescission, the Purchasers shall:
|
13.7.1
|
re-transfer legal title of the relevant Purchase Objects to the Seller, where a transfer of title to the Purchaser has already occurred;
|
13.7.2
|
delete any priority notices (
Auflassungsvormerkungen
) or other encumbrances or charges in favour of the Purchasers or securing their acquisition of title;
|
13.7.3
|
delete or procure to be deleted any financing mortgage, land charge or other charge registered at the request of the Purchasers for the financing of the Purchase Price; and
|
13.7.4
|
re-assign to the Sellers all claims assigned to them under this Master Agreement or the IPAs Date relating to the Property or Properties affected by the rescission.
|
13.8
|
All claims of the Sellers to demand payment of the Purchase Price expire upon rescission.
|
13.9
|
Any exercise of a rescission right shall be governed by the following additional provisions:
|
13.9.1
|
The rescission must be declared in writing (per facsimile shall suffice) to the respective other Parties and to the Notary, who is hereby authorised to receive on behalf of the Parties.
|
13.9.2
|
Unless stated differently in this Master Agreement, any rescission right can only be exercised within one month following knowledge by the relevant Party of the cause to rescind.
|
13.9.3
|
The rescission shall take effect immediately upon receipt by the Notary.
|
13.9.4
|
The rescission of an IPA or this Master Agreement shall be without prejudice to any claim by one Party against the other for any antecedent breach.
|
13.10
|
Unless expressly provided herein or in an IPA, any further rescission or termination rights shall be excluded except for statutory rights under Local Law that cannot be validly excluded.
|
14
|
COSTS, LAND TRANSFER TAX, STAMP DUTIES
|
14.1
|
The costs associated with the deletion of existing Encumbrances of the Purchase Objects not assumed by the Purchasers are borne by the relevant Sellers.
|
14.2
|
The Purchasers shall bear all applicable real estate transfer taxes, stamp duties or comparable taxes or duties triggered by the sale of the Purchase Objects.
|
14.3
|
All costs and fees to be borne by a Party have to be paid by such Party promptly when falling due.
|
14.4
|
Each Party bears the fees of its own advisors and agents.
|
14.5
|
The Parties shall indemnify each other from any claims raised against them by third parties in deviation from this contractual allocation.
|
15
|
POWERS OF ATTORNEY TO PURCHASER 1, PROCESS AGENT, NOTICES
|
15.1
|
In order to facilitate the execution of this Master Agreement, the Sellers and the Notary may effect all communications under this Master Agreement or the IPAs addressed to the Purchasers, in particular serve notices to the Purchasers and make declarations vis-à-vis the Purchasers solely to the Purchaser 1 with effect for and against all Purchasers.
|
15.2
|
The Purchaser 1 in turn appoints the following as domestic process agents
(inländische Zustellungsbevollmächtigte
) for all communications, declarations and service under this Master Agreement and the IPAs:
|
15.3
|
Declarations or notices under or in connection with this Master Agreement and the IPAs shall be addressed to the following recipients:
|
15.3.1
|
For the IVG Seller 1 and the IVG Seller 2 to:
|
15.3.2
|
For the IVG Seller 3 to the sole shareholder:
|
15.3.3
|
For the INTERNOS Seller to:
|
15.3.4
|
For the Deka Seller to:
|
15.3.5
|
For all Purchasers to:
|
15.4
|
Any communication to be made under or in connection with this Master Agreement or an IPA shall be addressed as set out in clause 15.2 and 15.3 and made in writing (facsimile or email shall suffice) unless a stricter form is explicitly stipulated in this Master Agreement or an IPA.
|
16
|
MERGER CONTROL FILING
|
16.1
|
The merger established by this Master Agreement will only be implemented after the satisfaction of one of the following conditions precedent (each a “
Merger Control Clearance Event
”):
|
16.1.2
|
The Federal Cartel Office (
Bundeskartellamt
) informs the Parties within one month after submission of a complete filing that the merger does not fulfil the prerequisites for a prohibition under sec. 36 para. 1 of the German Act against Restraints on Competition (
Gesetz gegen Wettbewerbsbeschränkungen
- "
GWB
").
|
16.1.2
|
The Federal Cartel Office does not inform the Parties within one month after submission of a complete filing under sec. 40 para. 1 GWB that the Federal Cartel Office has opened the main examination proceedings.
|
16.1.3
|
The Federal Cartel Office issues an order after initiation of the main examination proceedings under sec. 40 para. 1, sentence 2 GWB that the merger is cleared without any conditions.
|
16.1.4
|
The Federal Cartel Office, after initiation of the main examination proceedings, allows (i) the four month deadline after submission of the complete filing, or (ii) the extended deadline in the case of an extension with the agreement of the involved enterprises under sec. 40 para. 2 no. 1 GWB to expire without having prohibited the merger.
|
16.2
|
The Purchasers shall file the transaction agreed under this Master Agreement with the Federal Cartel Office in their own name and in the name of the Sellers until 13 January 2015.
|
16.3
|
The Purchasers are obliged to inform the Notary and the Seller without undue delay about the occurrence of a Merger Control Clearance Event.
|
17
|
FINAL PROVISIONS
|
17.1
|
The Sellers and the Purchasers shall use reasonable efforts to obtain the other Party's prior approval on press releases and any other information to the public regarding the conclusion of this Master Agreement and the IPAs; provided that the Sellers shall not publicly announce the transaction in advance of the Purchaser without the Purchaser's consent; provided further that
|
17.1.1
|
to the extent that disclosure is necessary (also vis-à-vis third parties with which no corporate and/or employment relationship exists) to have examined the existence of claims out of or in connection with this Master Agreement;
|
17.1.2
|
vis-à-vis the auditors or auditing companies, or other advisers with a professional or equivalent voluntary obligation of secrecy, retained by the Parties;
|
17.1.3
|
vis-à-vis credit institutions financing the Properties;
|
17.1.4
|
to disclosure to the Parties' affiliates and group companies, including (without limitation) to Northstart Asset Management Group Inc. and it's affiliates, and their directors, officers, employees, partners, advisors and representatives;
|
17.1.5
|
(since the Purchaser is the subsidiary of a Real Estate Investment Trust and, as such, is subject to certain filing and reporting requirements in accordance with federal laws and regulations, including regulations promulgated by the Securities and Exchange Commission) to any public filing, disclosure, report or publication of any and all information related to this Master Agreement that may be reasonably interpreted as being required by federal law or regulation, notwithstanding any provision of this Master Agreement or the provisions of any other existing agreement between the parties hereto to the contrary.
|
17.2
|
The Sellers undertake to keep and maintain the required liquidity, or to have reliable third-party guarantees in place, to meet their obligations until all claims by the Purchaser under this Master Agreement and that IPAs shall have become statute-barred. They have forwarded according documentation to the Purchaser for review prior to the date of this Master Agreement.
|
17.3
|
The Sellers shall, at the written request by the Purchaser, and at the Purchaser's cost, take all necessary legal and factual steps to assist in procuring the following:
|
17.3.1
|
Intra-group: effect a full transfer of the contractual relationship under this Master Agreement and the relevant IPA from the Purchaser to, or the assignment or novation of the corresponding benefits and obligations to, or the nomination of, an affiliated entity of the Purchaser (“
Internal Designee
”). Affiliated entity is determined according to Secs. 15 et seq. German Stock Corporation Act (
Aktiengesetz
) accordingly and it being understood that in interpreting this German law concept the specifics of other jurisdictions shall reasonably be taken into account. A transfer under this clause would lead to a complete exchange of the contractual position on the Purchaser’s side, i.e. only the Internal Designee would from then on be entitled and obliged under this Master Agreement and the relevant IPA.
|
17.3.2
|
Extra-group: effect the transfer of legal title to a Purchase Object, or the assignment or novation of the corresponding benefits and obligations to, or the nomination of, a third party designated by the relevant Purchaser (“
Exernal Designee
”). For the avoidance of doubt, in such case the Purchaser shall remain fully obliged under this Master Agreement and the relevant IPA, and fully entitled to make all claims under this Master Agreement and the relevant IPA vis-a-vis the Sellers (no exchange of contract parties other than for transfer of title). The right to request the transfer to an External Designee (i) does not apply to Purchase Objects located in Germany and (ii) is in any case limited to a maximum number of five Purchase Objects across the entire portfolio sold under this Master Agreement.
|
17.4
|
Where a Purchase Object is being sold not by a Seller directly, but by a subsidiary of the respective Seller, the relevant Seller shall be jointly and severally liable for the fulfilment of all obligations
|
17.5
|
Cooperation with Purchaser’s audit or review: The Seller agrees, at the Purchaser’s expense (such expenses also covering reasonable internal costs of the Sellers), to reasonably cooperate with the Purchaser and the Purchaser’s representatives to facilitate the Purchaser’s evaluations and reports concerning the Property, including a one (1) year audit of the 2014 books and records of the Property and a review for any interim period, each in accordance with accounting principles generally accepted in the United States (US GAAP). In addition, without undue delay after the Transfer Date, the Seller shall execute and deliver to the Purchaser an audit representation letter if the Parties can mutually agree on the form of the letter prior to the end of the inspection period, it being understood that the Sellers in order to comply with the requirements of this clause 17.5 (i) shall not be obliged to disclose information that relates to other funds or assets that are not a Purchase Object, (ii) the Sellers will not be under any obligation to engage directly with the SEC or assume any liability vis-à-vis the SEC, (iii) the Sellers will not be obliged to provide information in a manner that is inconsistent with their established reporting and accounting principles but will endeavour to provide all reasonable requests by the Purchaser including with respect to the Purchaser's conversion of the books and records to US GAAP and (iv) the Seller will not be obliged to enter into any liability in excess of that provided for under this Master Agreement.
|
17.6
|
As a result of not exercising (including only partially) rights from this Master Agreement, the Parties do not waive such rights and the right also does not lapse; nor does a one-time or only partial exercise of a right exclude another exercising of this right or another right.
|
17.7
|
The set-off and assertion of retention rights and rights of refusal of performance against any Purchase Price is excluded.
|
17.8
|
The Purchasers may not assign their rights under this Master Agreement or the IPAs except to the extent required to obtain acquisition finance or except to an affiliated entity according to Secs. 15 et seq. German Stock Corporation Act (
Aktiengesetz
) accordingly and it being understood that in interpreting this German law concept the specifics of other jurisdictions shall reasonably be taken into account.
|
17.9
|
Amendments and supplements to this Master Agreement, including this clause 17.9, must be made in writing, unless a stricter form (e.g. notarisation) is required.
|
ú
|
that the personal data of the persons appearing will be stored at the Notary’s office by means of electronic data processing and will possibly be notified to third parties in connection with obligations of the Notary to inform third parties; the persons appearing agreed therewith;
|
ú
|
that all contractual provisions must be fully and correctly included in this deed; un-notarised agreements could be null and void and may render the entire Master Agreement invalid.
|
ú
|
he, the Notary, is unaware of the tax situation of the parties and that he did not check the tax consequences of this deed and that, if required, the parties should seek the advice of an auditor or a tax adviser before the execution of this deed;
|
ú
|
that the parties hereto are, by operation of law, jointly and severally liable with respect to the payment of all notarial fees, irrespective of any internal agreement passed in that respect.
|
17.10
|
Should one or several of the provisions of this Master Agreement be or become invalid or unenforceable, the effectiveness of the remaining provisions shall explicitly remain unaffected thereby.
|
17.11
|
This Agreement is subject to and governed by the laws of the Federal Republic of Germany and, unless imperatively subject to different laws, shall be construed and interpreted accordingly.
|
17.12
|
Insofar as there is no exclusive statutory jurisdiction, all disputes arising under or in connection with this Master Agreement shall exclusively be determined by the civil courts of Frankfurt am Main, Germany.
|
(1)
|
Mr. Wolfram H. Krüger,
|
(1.1)
|
IVG Institutional Funds GmbH
with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt am Main, registered in the commercial register of the local court of Frankfurt am Main under number HR B 91062, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) “EuroWest“
|
(1.2)
|
PMG - Property Management GmbH
with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt, registered in the commercial register of the local court Frankfurt am Main under number HRB 96246
|
(1.3)
|
Via Bensi 1/1 S.r.l.
a limited liability company incorporated under the laws of Italy with registered office at via Olmetto 17, Milan Italy
|
(2)
|
a) Mr. Nils Lütthans,
|
(3)
|
a) Mr. Victor Stoltenburg,
|
(4)
|
Mr. Markus Böhn,
|
(4.1)
|
Trias Holdco C – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies’ register under registration number B 192.534), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.2)
|
Trias GER Immermannstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.539), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.3)
|
Trias GER Munsterstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.544), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.4)
|
Trias GER Rather Strasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.630), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.5)
|
Trias GER Ludwigstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.548), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.6)
|
Trias GER Kaygasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.561), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.7)
|
Trias GER Bottrop – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.563), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.8)
|
Trias GER Holzwickede – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.569), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.9)
|
Trias GER Munster – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.568), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.10)
|
Trias GER Werl – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.577), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.11)
|
Trias GER Cuxhaven – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.578), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.12)
|
Trias GER Kirchheide – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.579), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.13)
|
Trias GER Uhlandstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.581), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.14)
|
Trias GER Stuttgart – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.583), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.15)
|
Trias GER Bunte Kuh – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.584), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.16)
|
Trias GER Pferdemarkt – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.585), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.17)
|
Trias GER Munich Airport – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.586), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.18)
|
Trias GER Ibis Berlin – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.597), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.19)
|
Trias GER IC Berlin – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.631), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.20)
|
Trias GER Parexel – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.593), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(4.21)
|
Trias PRT Office 123-T, LDA,
a private limited company incorporated under the laws of Portugal (registered in the Portuguese Commercial Register under registration number 513.330.470), with a share capital of EUR 12,500, having its registered office at Rua Ivens no. 42, 1st floor, 1200-023 Lisbon,
|
(4.22)
|
Trias PRT Albufeira-T, LDA,
a private limited company incorporated under the laws of Portugal (registered in the Portuguese Commercial Register under registration number 513.330.453), with a share capital of EUR 12,500, having its registered office at Rua Ivens no. 42, 1st floor, 1200-023 Lisbon,
|
1
|
RECITALS
|
(A)
|
A master agreement (the “
Master Agreement
”) was concluded between the Sellers and the Purchasers on 19 December 2014 (roll of deeds no. 234/2014 of notary Dr. Hinrich Thieme, Frankfurt am Main) regarding the acquisition of the Purchase Objects together with the notarial deed dated 18 December 2014, roll of deeds number 232/2014 of the Notary Dr. Hinrich Thieme in Frankfurt am Main (the “
Reference Deed INT 1
”), the notarial deed dated 15, 16, 17 December 2014, roll of deeds number 150/2014 P of the notary Dr. Gero Pfeiffer in Frankfurt am Main (the “
Reference Deed INT 2
”) and the notarial deed dated 13, 14, 15, 16 December 2014, roll of deeds number 1184/2014 S of the notary Dr. Bernhard Schütz (the “
Reference Deed INT 3
” and Reference Deed INT 1, Reference Deed INT 2 and Reference Deed INT 3 together the “
Reference Deeds INT
”) and the notarial deed dated 18 December 2014, roll of deeds number 233/2014 of the Notary Dr. Hinrich Thieme in Frankfurt am Main (the “
Reference Deed GER
” and together with Reference Deeds INT the “
Reference Deeds
”).
|
(B)
|
The Parties have established to their satisfaction that there is – contrary to the provisions in the Master Agreement – no necessity to initiate a merger control procedure under secs. 35 seq. of the Restraints on Competition Act. Therefore, the Parties would like to amend the Master Agreement accordingly and to waive Clause 4.4.4 and Clause 16 of the Master Agreement.
|
(C)
|
In addition, the Parties would like to modify the provisions on the Transfer Date, the details of the Sellers accounts and several other details.
|
2
|
DEFINITIONS
|
3
|
NO MERGER CONTROL FILING
|
4
|
DEFERRAL OF CLOSING, MATURITY OF PURCHASE PRICE
|
4.1
|
With respect to Clause 4.6.1 of the Master Agreement the Parties agree that the February Maturity Date will be postponed to the March Maturity Date.
|
4.2
|
Deviating from the stipulation in Clause 4.6.2 of the Master Agreement the March Maturity Date will now take place on 27 March 2015 (the “
New March Maturity Date
”) instead of 31 March 2015, the original March Maturity Date (for the avoidance of doubt, there will only be one March closing which takes place on the New March Maturity Date).
|
4.3
|
Against the background that the first maturity date will be postponed for all Purchase Objects of the Trias Portfolio from the February Maturity Date to the New March Maturity Date (at the earliest), no purchase price adjustment in accordance with Clause 4.13.1 of the Master Agreement will be made for all Purchase Objects in relation to which (i) all IPA CP Confirmations and (ii) all Purchase Price CP Confirmations, in each case except those set out under lit. (a) and (b) below (the “
Exempted CPs
”), have been received by the Notary by 12 February 2015, 24.00 hrs. (midnight) Central European Time.
|
(a)
|
the Sellers’ former and present depository banks’ consents to the sale of the Trias Portfolio as well as the approval of the German Federal Financial Supervisory Authority (
Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin
) to the change of the Sellers’ depository banks and the sale of the Trias Portfolio;
|
(b)
|
the full discharge of the security for the Sellers’ financing.
|
4.4
|
The Parties agree that the February Maturity Notice under Clause 4.5.1 of the Master Agreement shall be sent out by the Notary not on 13 February 2015, but shall be postponed by as much as one week and served by the Notary until 20 February 2015 at the latest. The Parties further agree that the Notary shall include in the February Maturity Notice information as to the Purchase Objects in relation to which the IPA CP Confirmations and/or the Purchase Price CP Confirmations are not fulfilled because of non-fulfilment of Exempted CPs; except for the German Properties, where the Notary can determine this, that information shall be supplied to the Notary by the Parties. For the avoidance of doubt, (i) the relevant date for the receipt by the Notary of IPA CP Confirmations and Purchase Price CP Confirmations (12 February 2015, 24.00 hrs) shall remain unaffected and (ii) the Exempted CPs shall not be waived but have to be confirmed by the Notary in a later Maturity Notice.
|
5
|
SERVED DEFERRAL NOTICES / TENANCY SCHEDULE INACCURACIES
|
5.1
|
The Deferral Notice for the Purchase Objects Marly-la-Ville and Joubert has been served. For the avoidance of doubt, the Parties agree that the Maturity Date for the Purchase Objects Marly-la-Ville and Joubert shall be 27 March 2015, unless otherwise agreed henceforth.
|
5.2
|
In relation to the Purchase Object Werl, two inaccuracies in the tenancy schedule were discovered after signing of the Master Agreement: Residential tenant Konjo Asante-Aminpong has terminated the lease in November 2014 and residential tenant Gerrit Bleß has concluded a new lease in October 2014. The Parties confirm that these occurrences are of minor impact and commercially roughly balance each other and therefore do not give rise to a breach of guarantee and/or Purchase Price adjustment.
|
6
|
CP CONFIRMATIONS
|
7
|
ACCOUNT DETAILS
|
8
|
FINAL PROVISIONS
|
8.1
|
The Parties confirm that each Party shall fulfil its obligations, in particular its co-operation obligations, under this Amendment No. 1 to the Master Agreement, the Master Agreement and the respective IPAs in a proper and timely fashion, especially where the co-operation of one Party is required to allow the other Party to liaise with third parties to further the completion of the transaction.
|
8.2
|
The Parties agree that the respective IPAs may, where necessary, be amended in accordance with this Amendment No. 1 to the Master Agreement.
|
8.3
|
Each Party shall bear the costs of its own advisers.
|
8.4
|
Unless expressly changed above, the Master Agreement remains unchanged and in full force and effect.
|
8.5
|
This Amendment No. 1 to the Master Agreement is subject to and governed by the laws of the Federal Republic of Germany and, unless imperatively subject to different laws, shall be construed and interpreted accordingly.
|
8.6
|
Insofar as there is no exclusive statutory jurisdiction, all disputes arising under or in connection with this Amendment No. 1 to the Master Agreement shall exclusively be determined by the civil courts of Frankfurt am Main, Germany.
|
(1)
|
Ms. Dr. Kim Laura Frank, born 3 August 1981
|
(1.1)
|
IVG Institutional Funds GmbH
with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt am Main, registered in the commercial register of the local court of Frankfurt am Main under number HR B 91062, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) “EuroWest“
|
(1.2)
|
PMG - Property Management GmbH
with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt, registered in the commercial register of the local court Frankfurt am Main under number HRB 96246
|
(1.3)
|
Via Bensi 1/1 S.r.l.
a limited liability company incorporated under the laws of Italy with registered office at via Olmetto 17, Milan Italy
|
(1.4)
|
INTERNOS Spezialfondsgesellschaft mbH
, with business address at Goetheplatz 4, 60311 Frankfurt am Main and its seat in Frankfurt am Main, registered in the commercial register of Frankfurt am Main under number HR B 98593, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) “ProCommerz“
|
(1.5)
|
WestInvest Gesellschaft für Investmentfonds mbH
with business address at Hans-Böckler-Straße 33, 40476 Düsseldorf and its seat in Düsseldorf, registered in the commercial register of Düsseldorf under number HR B 24304, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) “WestInvest Spezial 1“
|
(2)
|
Mr. Dr. David Elshorst, born 7 July 1968
|
(2.1)
|
Trias Holdco C – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies’ register under registration number B 192.534), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.2)
|
Trias GER Immermannstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.539), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.3)
|
Trias GER Munsterstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.544), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.4)
|
Trias GER Rather Strasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under
|
(2.5)
|
Trias GER Ludwigstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.548), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.6)
|
Trias GER Kaygasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.561), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.7)
|
Trias GER Bottrop – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.563), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.8)
|
Trias GER Holzwickede – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.569), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.9)
|
Trias GER Munster – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.568), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.10)
|
Trias GER Werl – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.577), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.11)
|
Trias GER Cuxhaven – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg
|
(2.12)
|
Trias GER Kirchheide – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.579), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.13)
|
Trias GER Uhlandstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.581), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.14)
|
Trias GER Stuttgart – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.583), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.15)
|
Trias GER Bunte Kuh – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.584), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.16)
|
Trias GER Pferdemarkt – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.585), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.17)
|
Trias GER Munich Airport – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.586), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.18)
|
Trias GER Ibis Berlin – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.597), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.19)
|
Trias GER IC Berlin – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.631), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.20)
|
Trias GER Parexel – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.593), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.21)
|
Trias PRT Office 123-T, LDA,
a private limited company incorporated under the laws of Portugal (registered in the Portuguese Commercial Register under registration number 513.330.470), with a share capital of EUR 12,500, having its registered office at Rua Ivens no. 42, 1st floor, 1200-023 Lisbon,
|
(2.22)
|
Trias PRT Albufeira-T, LDA,
a private limited company incorporated under the laws of Portugal (registered in the Portuguese Commercial Register under registration number 513.330.453), with a share capital of EUR 12,500, having its registered office at Rua Ivens no. 42, 1st floor, 1200-023 Lisbon,
|
(2.23)
|
SCI Trias FRA Marly – T,
a
société civile immobilière
(private limited company for property purposes) incorporated under the laws of the Republic of France (registered in the Paris register of commerce and companies under registration number 809 608 912 R.C.S. Paris), with a share capital of EUR 10,000, having its registered office at 4 Place de la Défense, La Défense 4, 92974 Paris La Défense CEDEX,
|
(2.24)
|
Trias OPCI,
a
société de placement à prépondérence immobilière à capital variable sous la forme SAS
incorporated under the laws of the Republic of France (registered in the Paris register of commerce and companies – registration number remaining to be ascribed), with a minimum share capital of EUR 14,663,100, having its registered office at c/o Swiss Life Reim, 13 avenue de l’Opéra, 75001 Paris,
|
(2.25)
|
Trias Pool III – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194829), with a share capital of EUR 12,500, having its registered office at 6A route de Trèves, L-2633 Senningerberg
|
(2.26)
|
Trias UK Gemini – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194339), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.27)
|
Trias UK Sherard – T, S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194345), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.28)
|
Trias UK Centrium 1 – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194350), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.29)
|
Trias UK The Building – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194373), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.30)
|
Trias UK Delta – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194335), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.31)
|
Trias UK Edinburgh – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194364), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.32)
|
Trias BEL Leopold 1 – T S.p.r.l.,
a
société privée à responsabilité limitée
(private limited liability company) incorporated under the laws of the Kingdom of Belgium (registered in the Commercial Register of Brussels register under registration number 0597.987.281), with a share capital of EUR 18,550, having its registered office at Rue Montoyer 10, 1000 Brussels,
|
(2.33)
|
Trias BEL Souverain – T S.p.r.l.,
a
société privée à responsabilité limitée
(private limited liability company) incorporated under the laws of the Kingdom of Belgium (registered in the Commercial Register of Brussels register under registration number 0597.987.776), with a share capital of EUR 18,550, having its registered office at Rue Montoyer 10, 1000 Brussels,
|
(2.34)
|
Trias Pool VII – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194.837), with a share capital of EUR 12,500, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.35)
|
Trias NLD Rijswijk – T B.V.,
a
Besloten Vennootschap
(private limited liability company) incorporated under the laws of the Kingdom of the Netherlands (registered in the Netherlands Chamber of Commerce Commercial Register under registration number 62583247), with a share capital of EUR 10,000, having its registered office at Zuidplein 156, 1077XV Amsterdam,
|
(2.36)
|
Trias NLD De Meern – T B.V.,
a
Besloten Vennootschap
(private limited liability company) incorporated under the laws of the Kingdom of the Netherlands (registered in the Netherlands Chamber of Commerce Commercial Register under registration number 62583514), with a share capital of EUR 10,000, having its registered office at Zuidplein 156, 1077XV Amsterdam,
|
(2.37)
|
Trias ITA Edificio J – T S.r.l.,
a
società a responsabilità limitata
(private limited liability company) incorporated under the laws of the Republic of Italy (registered in the Italian Business Register under registration number MI-2062572), with a share capital of EUR 10,000, having its registered office at Via Tortona 25, CAP 20144, Milan,
|
(2.38)
|
Trias ESP Leonor – T S.L.,
a
sociedad limitada
(limited partnership) incorporated under the laws of the Kingdom of Spain (registered with the Commercial Registry of Madrid, at Volume 33,123, Page M-596119), with a share capital of EUR 3,000, having its registered office at Calle Monte Esquinza 30, bajo izquierda (28010) Madrid,
|
1
|
RECITALS
|
(A)
|
A master agreement was concluded between the Sellers and the Purchasers 1 to 22 on 19 December 2014 (roll of deeds no. 234/2014 of notary Dr. Hinrich Thieme, Frankfurt am Main) ("
Original Agreement
") and an amendment no. 1 to such master agreement was concluded on 12 February 2015 (roll of deeds no. 21/2015 of notary Dr. Hinrich Thieme, Frankfurt am Main) regarding the acquisition of the Purchase Objects (collectively hereinafter the “
Master Agreement
”).
|
(B)
|
The Purchaser envisages transferring the contractual relationship under the Master Agreement and the relevant IPA in relation to certain Purchase Objects to Internal Designees as provided in clause 17.3.1 of the Original Agreement.
|
(C)
|
In relation to the German APA, the Parties agree that the circle of potential land charge beneficiaries in Clause 11 of the German APA shall be extended.
|
(D)
|
At the Purchasers’ request the Parties intend to further defer the closing of the transaction. To this end they intend to defer the New March Maturity Date and compensate certain disadvantages the Sellers would otherwise suffer as a consequence of such deferral.
|
2
|
DEFINITIONS
|
3
|
Transfer of Benefit of IPAs to PropCos
|
3.1
|
The Parties hereby agree, making reference to Clause 17.3 last paragraph of the Original Agreement, to fully transfer the contractual relationships under the Master Agreement and the relevant IPA in relation to the indicated Purchase Objects in accordance with Clause 17.3.1 of the Original Agreement from the Purchaser to Internal Designees as shown in the following table with effect as of 27 March 2015 (24.00 hours CET) ("
Effective Date
") ("
Transfers
"):
|
Property / Entity
|
Legal Designation
|
Country
|
Original Purchaser
|
Internal Designees
(new purchasers)
|
6 rue Eugène Pottier
95670 Marly-La-Ville |
Title: freehold
Property registered with the cadastral register as follows: ZD8, ZD9, ZD10, ZD11, ZD12, ZD13, ZD14, ZD150, ZD41, ZD55, ZD152, ZD77, ZD93, ZD95, ZD96, ZD97, ZD98, ZD100, ZD102 and ZD104
|
France
|
Purchaser 1
|
Purchaser 23 (SCI Trias FRA Marly – T)
|
(Gemini Building)
920 Aztec West, Almondsbury Bristol BS32 4SR |
Title No.: GR316564
Title: Freehold (Title Absolute)
Land Registry: South Gloucestershire
|
England
|
Purchaser 1
|
Purchaser 26 (Trias UK Gemini – T Sarl)
|
(Sherard Building)
The Sherard Building, Oxford Science Park, Grenoble Road, Sandford on Thames, Oxford |
Title No.: ON253512
Title: Leasehold (Title Absolute)
Land Registry: Oxfordshire: Oxford
|
Purchaser 1
|
Purchaser 27 (Trias UK Sherard – T Sarl)
|
|
(Centrium 1)
1 Centrium Business Park, Griffiths Way, St Albans AL1 2RD |
Title No.: HD473089
Title: Freehold (Title Absolute)
Land Registry: Hertfordshire: St Albans
|
Purchaser 1
|
Purchaser 28 (Trias UK Centrium 1 – T Sarl)
|
|
(The Building)
578/586 Chiswick High Road, Chiswick W4 5RP |
Title No.: NGL47571
Title: Freehold (Title Absolute)
Land Registry: Hounslow
|
Purchaser 1
|
Purchaser 29 (Trias UK The Building – T Sarl)
|
Property / Entity
|
Legal Designation
|
Country
|
Original Purchaser
|
Internal Designees
(new purchasers)
|
Delta House
46-54 West Nile Street Glasgow G1 2NP |
Title: Freehold
ALL and WHOLE the subject at 46-54 West Nile Street, Glasgow G1 2NP registered in the Land Register of Scotland under Title Number GLA161027
|
Scotland
|
Purchaser 1
|
Purchaser 30 (Trias UK Delta – T Sarl)
|
3 Lochside View
Edinburgh EH1 9DH |
Title: Freehold
ALL and WHOLE the subject at 3 Lochside View, Edinburgh EH12 9DH registered in the Land Register of Scotland under Title Number MID15927
|
Purchaser 1
|
Purchaser 31 (Trias UK Edinburgh – T Sarl)
|
|
Rue Montoyer 10
1000 Brussels |
Property registered with the land registry according to title and to a recent extract from the land registry as Brussels, 5
th
division, section E, number 371/P, with a surface of 856 m².
|
Belgium
|
Purchaser 1
|
Purchaser 32 (Trias BEL Leopold 1 – T Sarl)
|
Boulevard du Souverain 278, 280/286
1160 Brussels |
Property registered with the land registry according to title and to a recent extract from the land registry as Auderghem, 2
nd
division, section B, numbers 0319/A/2 and 0316/Z, with a surface of 3,477 m², comprising a six-floor main building at n° 280 and a two-floor annex at n° 278
|
Purchaser 1
|
Purchaser 33 (Trias BEL Souverain – T Sarl)
|
|
Laan van Hoornwijck 55 and 65
2289 DG Rijswijk |
Title: freehold
Land register: Rijswijk
Section: E
Number: 2258
|
Netherlands
|
Purchaser 1
|
Purchaser 35 (Trias NLD Rijswijk – T, BV)
|
Rijnzathe 14
3454 PV De Meern, |
Title: freehold
Land register: Oudenrijin
Section: A
Number: 3778
|
Purchaser 1
|
Purchaser 36 (Trias NLD De Meern – T BV)
|
Property / Entity
|
Legal Designation
|
Country
|
Original Purchaser
|
Internal Designees
(new purchasers)
|
Via Giovanni Bensi 1/1
20152 Milan |
Title: Freehold (indirect)
Property registered with the cadastral register under sheet 505, parcel 79 sub-parcels 1-75 and 701-717; parcel 69, sub-parcels 1-2
|
Italy
|
Purchaser 1
|
Purchaser 37 (Trias ITA Edificio J – T Srl)
|
Calle Santa Leonor 39
Madrid |
Title: Freehold
Property registered with the land registry office of Madrid, Number 17, plot 10,238, cadastral reference number 6666213VK466F00001QG
|
Spain
|
Purchaser 1
|
Purchaser 38 (Trias ESP Leonor – SL)
|
Property / Entity
|
Legal Designation
|
Country
|
Original Purchaser
|
Internal Designees
(new purchasers)
|
58 Avenue Marceau
|
a
société par actions simplifiée
à capital variable
incorporated and existing under the laws of France with a share capital currently amounting to EUR 5,100,000, having its registered office located at in Paris (75008), 32 rue des Mathurins, registered under the Paris Trade and Companies Register under number 484 237 573
|
France
|
Purchaser 1
|
Purchaser 25 (Trias Pool III – T Sarl)
|
Property / Entity
|
Legal Designation
|
Country
|
Original Purchaser
|
Internal Designees
(new purchasers)
|
20 Rue Joubert
|
a
société par actions simplifiée
à capital variable
incorporated and existing under the laws of France with a share capital currently amounting to EUR 1,035,300, having its registered office located at in Paris (75008), 32 rue des Mathurins, registered under the Paris Trade and Companies Register under number 444 549 794
|
|
Purchaser 1
|
Purchaser 24 (Trias OPCI)
|
121 Rue d’Alésia
|
a
société par actions simplifiée à capital variable
incorporated and existing under the laws of France with a share capital currently amounting to EUR 4,100,000, having its registered office located at in Paris (75008), 32 rue des Mathurins, registered under the Paris Trade and Companies Register under number 478 124 720
|
France
|
Purchaser 1
|
Purchaser 25 (Trias Pool III – T Sarl)
|
The Science Propco (Immo Science 41 BV BVBA)
|
Company having its registered office at rue Montoyer 10, 1000 Brussels, registered with the Crossroad Bank of Enterprises under registration number 0863.981.770
|
Belgium
|
Purchaser 1
|
Purchaser 34 (BvBa and Trias Pool VII – T Sarl)
|
3.2
|
The Parties confirm that the Transfers lead to a complete exchange of the contractual position on the Purchaser's side, i.e. that as of the Effective Date (i) only the respective Internal Designee is entitled and obliged under the Master Agreement and the relevant IPA, (ii) all benefits and burdens are with the respective Internal Designee and (iii) Purchaser 1 shall be absolved from any liability in connection with the Purchase Objects which are subject to the Transfers.
|
3.3
|
Details of the Transfers will, to the extent necessary, be regulated in an amendment to the relevant IPA.
|
4
|
Deferral of Closing
|
4.1
|
Secure Portfolio Maturity Date:
|
4.1.1
|
there will be no Maturity Date and no closing on 27 March 2015; and
|
4.1.2
|
the Maturity Date for the Purchase Object Cuxhaven is suspended indefinitely. Such suspension period shall continue until either of the following events: (i) the Parties agree on revised terms of purchase and a binding Maturity Date for the Purchase Object Cuxhaven, (ii) the Parties jointly resolve to definitely remove the Purchase Object Cuxhaven from the transaction or (iii) either Party, following 30 June 2015 and according to clause 13.2 of the Master Agreement, rescinds the Master Agreement and the German APA in relation to the Purchase Object Cuxhaven. In case of a rescission or removal of the Purchase Object Cuxhaven the Parties will share the costs for the registration and deletion of the priority notice.
|
4.2
|
Increased Down Payment:
|
4.2.1
|
The Notary has confirmed receipt of a further amount of
EUR 26,750,000
(in words: twenty six million seven hundred fifty thousand Euros) on behalf of the Purchasers on the escrow account established by the Notary (the “
Escrow Account
”) so that a total amount of
EUR 50,000,000
(the “
Increased Down Payment
”) stands to the credit of the Escrow Account. Each Purchase Price minus the corresponding Increased Down Payment is defined as the “Remaining Purchase Price”. The Notary is instructed to invest the Increased Down Payments at standard banking conditions.
|
4.2.2
|
The Increased Down Payment in its entirety shall be allocated to all Purchase Objects of the Secure Portfolio,
pro rated
according to their respective share of the aggregate Purchase Prices of the Secure Portfolio as set out in
Schedule 4.2.2
. Accordingly, no part of the Increased Down Payment shall be allocated to the Purchase Object Cuxhaven.
|
4.2.3
|
The Increased Down Payment is subject to the same provisions as the initial Down Payment was subject to the following provision:
|
4.3
|
Financing Confirmation:
|
4.4
|
Cost Compensation:
|
4.5
|
Scottish Transfer Tax:
|
4.6
|
Material Adverse Change:
|
4.7
|
Purchase Price Reductions:
|
4.8
|
April Rental Income:
|
5
|
POA TO ENCUMBER THE GERMAN PROPERTIES
|
5.1
|
Clause 11 of the German APA stipulates that the Purchasers 2 to 20 are entitled to encumber the German Properties with land charges in favour of credit institutions (
Kreditinstitute
) to secure their financing. The Parties agree that Clause 11 of the German APA shall be extended insofar as the Purchasers 2 to 20 shall be entitled to encumber the German Properties with certified land charges (
Einzel- oder Gesamtgrundpfandrechte mit Brief
) in favour of CBRE Loan Servicing GmbH (“
CBRE
”).
|
5.2
|
If and insofar as land charges are created in favour of CBRE, the Purchasers 2 to 20 shall use best efforts to procure that deletion consents (
Löschungsbewilligungen
) from CBRE for the respective land charges are delivered to the Notary. The Notary is hereby irrevocably instructed by the Parties as follows:
|
(a)
|
The application to the land register for registration of the land charges may only be issued accompanied by a clear instruction to the land register to send land charge certificates (
Grundschuldbriefe
) exclusively to the Notary. The Notary advised the Parties that despite such instruction the land register still may not comply with such an instruction and send the land charge certificates to a different recipient, e.g. the land charge creditor.
|
(b)
|
The Notary may not hand over to the Purchasers, the financing bank or CBRE any enforceable copies of the land charge (
vollstreckbare Ausfertigung der Grundschuldbestellungsurkunde
) or any land charge certificate he receives prior to his receipt of the corresponding release declarations or prior to the confirmation of the Purchase Price payment pursuant to Clause 9.2 of the German APA.
|
(c)
|
The Notary will keep such release declarations in escrow until
|
(i)
|
either the payment of the Purchase Price has been confirmed pursuant to Clause 9.2 of the German APA ("
Closing
") in which case he will without undue delay release the deletion consents to CBRE;
|
(ii)
|
the Sellers have notified the Notary that Closing has failed in which case the Notary shall follow the procedure set out in clause 12.2 of the German APA accordingly. If the conditions set out in clause 12.2 of the German APA are fulfilled the Notary shall without undue delay file the deletion consents to the competent land registers once the Sellers have proven or CBRE has confirmed return of any monies owed to CBRE according to clause 11.5.5 of the German APA (
Zug um Zug
).
|
5.3
|
For the avoidance of doubt clause 11.1 of the German APA is amended as follows:
|
5.4
|
For the avoidance of doubt any reference to credit institutions in the Master Agreement and the German APA shall also include CBRE Loan Servicing GmbH.
|
6
|
FINAL PROVISIONS
|
6.1
|
The Parties confirm that each Party shall fulfil its obligations, in particular its co-operation obligations, under this Amendment No. 2 to the Master Agreement, the Master Agreement and the respective IPAs in a proper and timely fashion, especially where the co-operation of one Party is required to allow the other Party to liaise with third parties to further the completion of the transaction.
|
6.2
|
The Parties agree that the respective IPAs may, where necessary, be amended in accordance with this Amendment No. 2 to the Master Agreement.
|
6.3
|
Each Party shall bear the costs of its own advisers. The Purchasers shall bear the notarisation costs connected with this Amendment No. 2 to the Master Agreement.
|
6.4
|
Unless expressly changed above, the Master Agreement remains unchanged and in full force and effect.
|
6.5
|
This Amendment No. 2 to the Master Agreement is subject to and governed by the laws of the Federal Republic of Germany and, unless imperatively subject to different laws, shall be construed and interpreted accordingly.
|
6.6
|
Insofar as there is no exclusive statutory jurisdiction, all disputes arising under or in connection with this Amendment No. 2 to the Master Agreement shall exclusively be determined by the civil courts of Frankfurt am Main, Germany.
|
•
|
that the notary has not counselled the parties as to tax questions;
|
•
|
that the notary does not advise on non-German laws. In particular, the Notary advised the persons appearing that he is not familiar with the regulations of the laws of France, United Kingdom, Belgium, Netherlands, Italy and Spain and that he does not advise the parties regarding the laws of these jurisdictions;
|
•
|
that the personal data of the persons appearing will be stored at the Notary’s office by means of electronic data processing and will possibly be notified to third parties in connection with obligations of the Notary to inform third parties; the persons appearing agreed therewith;
|
•
|
that the Parties are jointly and severally liable for any real estate transfer tax, and for the costs of notarisation of this Agreement;
|
•
|
that all contractual provisions must be fully and correctly included in this Deed; un-notarised agreements could be null and void and may render this Deed invalid. In this context, the Parties confirm once more that the information notarised herein is complete and correct.
|
(1)
|
As sellers
|
(1.1)
|
IVG Institutional Funds GmbH
with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt am Main, registered in the commercial register of the local court of Frankfurt am Main under number HR B 91062, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) “EuroWest“
|
(1.2)
|
PMG - Property Management GmbH
with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt, registered in the commercial register of the local court Frankfurt am Main under number HRB 96246
|
(1.3)
|
Via Bensi 1/1 S.r.l.
a limited liability company incorporated under the laws of Italy with registered office at via Olmetto 17, Milan Italy
|
(1.4)
|
INTERNOS Spezialfondsgesellschaft mbH
, with business address at Goetheplatz 4, 60311 Frankfurt am Main and its seat in Frankfurt am Main, registered in the commercial register of Frankfurt am Main under number HR B 98593, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) “ProCommerz“
|
(1.5)
|
WestInvest Gesellschaft für Investmentfonds mbH
with business address at Hans-Böckler-Straße 33, 40476 Düsseldorf and its seat in Düsseldorf, registered in the commercial register of Düsseldorf under number HR B 24304, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) “WestInvest Spezial 1“
|
(2)
|
As purchasers
|
(2.1)
|
Trias Holdco C – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies’ register under registration number B 192.534), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.2)
|
Trias GER Immermannstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.539), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.3)
|
Trias GER Munsterstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.544), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.4)
|
Trias GER Rather Strasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.630), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.5)
|
Trias GER Ludwigstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.548), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.6)
|
Trias GER Kaygasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.561), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.7)
|
Trias GER Bottrop – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.563), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.8)
|
Trias GER Holzwickede – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.569), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.9)
|
Trias GER Munster – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.568), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.10)
|
Trias GER Werl – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.577), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.11)
|
Trias GER Cuxhaven – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.578), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.12)
|
Trias GER Kirchheide – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.579), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.13)
|
Trias GER Uhlandstrasse – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.581), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.14)
|
Trias GER Stuttgart – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.583), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.15)
|
Trias GER Bunte Kuh – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.584), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.16)
|
Trias GER Pferdemarkt – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.585), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.17)
|
Trias GER Munich Airport – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.586), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.18)
|
Trias GER Ibis Berlin – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.597), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.19)
|
Trias GER IC Berlin – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.631), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.20)
|
Trias GER Parexel – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 192.593), with a share capital of EUR 12,500, having its registered office at L-2633, Senningerberg, 6A route de Trèves,
|
(2.21)
|
Trias PRT Office 123-T, LDA,
a private limited company incorporated under the laws of Portugal (registered in the Portuguese Commercial Register under registration number 513.330.470), with a share capital of EUR 12,500, having its registered office at Rua Ivens no. 42, 1st floor, 1200-023 Lisbon,
|
(2.22)
|
Trias PRT Albufeira-T, LDA,
a private limited company incorporated under the laws of Portugal (registered in the Portuguese Commercial Register under registration number 513.330.453), with a share capital of EUR 12,500, having its registered office at Rua Ivens no. 42, 1st floor, 1200-023 Lisbon,
|
(2.23)
|
SCI Trias FRA Marly – T,
a
société civile immobilière
(private limited company for property purposes) incorporated under the laws of the Republic of France (registered in the Paris register of commerce and companies under registration number 809 608 912 R.C.S. Paris), with a share capital of EUR 10,000, having its registered office at 4 Place de la Défense, La Défense 4, 92974 Paris La Défense CEDEX,
|
(2.24)
|
Trias OPCI,
a
société de placement à prépondérence immobilière à capital variable sous la forme SAS
incorporated under the laws of the Republic of France (registered in the Paris register of commerce and companies – registration number remaining to be ascribed), with a minimum share capital of EUR 14,663,100, having its registered office at c/o Swiss Life Reim, 13 avenue de l’Opéra, 75001 Paris,
|
(2.25)
|
Trias Pool III – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194829), with a share capital of EUR 12,500, having its registered office at 6A route de Trèves, L-2633 Senningerberg,
|
(2.26)
|
Trias UK Gemini – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194339), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.27)
|
Trias UK Sherard – T, S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194345), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.28)
|
Trias UK Centrium 1 – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194350), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.29)
|
Trias UK The Building – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194373), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.30)
|
Trias UK Delta – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194335), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.31)
|
Trias UK Edinburgh – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194364), with a share capital of GBP 15,000, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.32)
|
Trias BEL Leopold 1 – T S.p.r.l.,
a
société privée à responsabilité limitée
(private limited liability company) incorporated under the laws of the Kingdom of Belgium (registered in the Commercial Register of Brussels register under registration number 0597.987.281), with a share capital of EUR 18,550, having its registered office at Rue Montoyer 10, 1000 Brussels,
|
(2.33)
|
Trias BEL Souverain – T S.p.r.l.,
a
société privée à responsabilité limitée
(private limited liability company) incorporated under the laws of the Kingdom of Belgium (registered in the Commercial Register of Brussels register under registration number 0597.987.776), with a share capital of EUR 18,550, having its registered office at Rue Montoyer 10, 1000 Brussels,
|
(2.34)
|
Trias Pool VII – T S.à r.l.,
a
société à responsabilité limitée
(private limited liability company) incorporated under the laws of the Grand Duchy of Luxembourg (registered in the Luxembourg Trade and Companies' register under registration number B 194.837), with a share capital of EUR 12,500, having its registered office at L-2633 Senningerberg, 6A route de Trèves,
|
(2.35)
|
Trias NLD Rijswijk – T B.V.,
a
Besloten Vennootschap
(private limited liability company) incorporated under the laws of the Kingdom of the Netherlands (registered in the Netherlands Chamber of Commerce Commercial Register under registration number 62583247), with a share capital of EUR 10,000, having its registered office at Zuidplein 156, 1077XV Amsterdam,
|
(2.36)
|
Trias NLD De Meern – T B.V.,
a
Besloten Vennootschap
(private limited liability company) incorporated under the laws of the Kingdom of the Netherlands (registered in the Netherlands Chamber of Commerce Commercial Register under registration number 62583514), with a share capital of EUR 10,000, having its registered office at Zuidplein 156, 1077XV Amsterdam,
|
(2.37)
|
Trias ITA Edificio J – T S.r.l.,
a
società a responsabilità limitata
(private limited liability company) incorporated under the laws of the Republic of Italy (registered in the Italian Business Register under registration number MI-2062572), with a share capital of EUR 10,000, having its registered office at Via Tortona 25, CAP 20144, Milan,
|
(2.38)
|
Trias ESP Leonor – T S.L.,
a
sociedad limitada
(limited partnership) incorporated under the laws of the Kingdom of Spain (registered with the Commercial Registry of Madrid, at Volume 33,123, Page M-596119), with a share capital of EUR 3,000, having its registered office at Calle Monte Esquinza 30, bajo izquierda (28010) Madrid,
|
(2.39)
|
Trias Pool III – TLP S.C.A.
, a corporate partnership limited by shares incorporated and existing under the laws of Luxembourg, having its registered office at L-2633, Senningerberg, 6A route de Trèves and in the process of being registered with the Luxembourg Register of Trade and Companies,
|
1
|
RECITALS
|
(A)
|
A master agreement was concluded between the Sellers and the Purchasers 1 to 22 on 19 December 2014 (roll of deeds no. 234/2014 of notary Dr. Hinrich Thieme, Frankfurt am Main) ("
Original Agreement
"), an amendment no. 1 to such master agreement was concluded between the Sellers and the Purchasers 1 to 22 on 12 February 2015 (roll of deeds no. 21/2015 of notary Dr. Hinrich Thieme, Frankfurt am Main) and an amendment no. 2 to such master agreement was concluded between the Sellers and the Purchasers 1 to 38 on 27 March 2015 (roll of deeds no. 44/2015 of notary Dr. Hinrich Thieme, Frankfurt am Main) regarding the acquisition of the Purchase Objects (collectively hereinafter the “
Master Agreement
”).
|
(B)
|
The Purchaser envisages transferring the contractual relationship under the Master Agreement and the relevant IPA in relation to certain French Purchase Objects to Internal Designees as provided in clause 17.3.1 of the Original Agreement.
|
2
|
DEFINITIONS
|
3
|
Transfer of Benefit of IPAs to PropCos
|
3.1
|
The Parties hereby agree to fully transfer the contractual relationships under the Master Agreement and the relevant IPA in relation to the indicated two French Purchase Objects (both Share Purchases) in accordance with Clause 17.3.1 of the Original Agreement from the Former Purchasers ("
Former Purchasers
") to Internal Designees as shown in the following table with effect as of 8 April 2015 ("
Effective Date
") ("
Transfers
"):
|
Property /
Entity |
Legal
Designation |
Former
Purchasers |
Internal
Designees
(new
purchasers) |
121, Rue d'Alésia, 75014 Paris
|
a
société par actions simplifiée à capital variable
incorporated and existing under the laws of France with a share capital currently amounting to EUR 4,100,000, having its registered office located at in Paris (75008), 32 rue des Mathurins, registered under the Paris Trade and Companies Register under number 478 124 720
|
Originally:
Purchaser 1 (Trias Holdco C – T S.à r.l.)
According to Amendment No. 2:
Purchaser 25 (Trias Pool III – T S.a r.l.)
|
Purchaser 39 (Trias Pool III – TLP S.C.A.)
|
58 Avenue Marceau, 75008 Paris
|
a
société par actions simplifiée
à capital variable
incorporated and existing under the laws of France with a share capital currently amounting to EUR 5,100,000, having its registered office located at in Paris (75008), 32 rue des Mathurins, registered under the Paris Trade and Companies Register under number 484 237 573
|
Originally:
Purchaser 1 (Trias Holdco C – T S.à r.l.)
According to Amendment No. 2:
Purchaser 25 (Trias Pool III – T S.a r.l.)
|
Purchaser 39 (Trias Pool III – TLP S.C.A.)
|
3.2
|
The Parties confirm that the Transfers lead to a complete exchange of the contractual position on the Purchaser's side, i.e. that as of the Effective Date (i) only the respective Internal Designee is entitled and obliged under the Master Agreement and the relevant IPA, (ii) all benefits and burdens are with the respective Internal Designee and (iii) Former Purchasers shall be absolved from any liability in connection with the Purchase Objects which are subject to the Transfers.
|
3.3
|
The transfer of the contractual relationship under the relevant IPAs has been made further to the substitution notice sent by Purchaser 25 to the IVG Seller 1 on 2 April 2015.
|
4
|
FINAL PROVISIONS
|
4.1
|
The Parties confirm that each Party shall fulfil its obligations, in particular its co-operation obligations, under this Amendment No. 3, the Master Agreement and the respective IPAs in a proper and timely fashion, especially where the co-operation of one Party is required to allow the other Party to liaise with third parties to further the completion of the transaction.
|
4.2
|
The Parties agree that the respective IPAs may, where necessary, be amended in accordance with this Amendment No. 3.
|
4.3
|
Each Party shall bear the costs of its own advisers.
|
4.4
|
Unless expressly changed above, the Master Agreement remains unchanged and in full force and effect.
|
4.5
|
This Amendment No. 3 is subject to and governed by the laws of the Federal Republic of Germany and, unless imperatively subject to different laws, shall be construed and interpreted accordingly.
|
4.6
|
Insofar as there is no exclusive statutory jurisdiction, all disputes arising under or in connection with this Amendment No. 3 shall exclusively be determined by the civil courts of Frankfurt am Main, Germany.
|
Frankfurt, 17 April 2015
Place, date |
Frankfurt, 17 April 2015
Place, date |
/s/ Mr. Wolfram H. Krüger
Mr. Wolfram H. Krüger for and on behalf of IVG Seller 1, IVG Seller 2 and IVG Seller 3 |
/s/ Mr. Wolfram H. Krüger
Mr. Wolfram H. Krüger for and on behalf of INTERNOS Seller |
Frankfurt, 17 April 2015
Place, date |
Luxembourg, April 9th 2015
Place, date |
/s/ Mr. Wolfram H. Krüger
Mr. Wolfram H. Krüger for and on behalf of Deka Seller |
/s/ David Fallick
David Fallick for and on behalf of the Purchasers |
(1)
|
Ms. Dr. Kim Laura Frank, born 3 August 1981
|
(2)
|
Mr. Markus Böhn, born 30 July 1977
|
1
|
RECITALS
|
(A)
|
A master agreement was concluded between
inter alia
the Deka Seller and the Purchaser 11 on 19 December 2014 (roll of deeds no. 234/2014 of notary Dr. Hinrich Thieme, Frankfurt am Main) together with certain reference deeds
inter alia
the notarial reference deed dated 18 December 2014 (roll of deeds number 233/2014 of the Notary Dr. Hinrich Thieme in Frankfurt am Main) ("
Original Agreement
"), an amendment no. 1 to such master agreement was concluded between
inter alia
the Deka Seller and the Purchaser 11 on 12 February 2015 (roll of deeds no. 21/2015 of notary Dr. Hinrich Thieme, Frankfurt am Main), an amendment no. 2 to such master agreement was concluded between
inter alia
the Deka Seller and the Purchaser 11 on 27 March 2015 (roll of deeds no. 44/2015 of notary Dr. Hinrich Thieme, Frankfurt am Main) and an amendment no. 3 to such master agreement was concluded between
inter alia
the Deka Seller and the Purchaser 11 on 17 April 2015 regarding the acquisition of the Purchase Objects (collectively hereinafter the “
Master Agreement
”).
|
(B)
|
According to clause 13.2 of the Master Agreement each Party is entitled to rescind the relevant IPA in relation to any Purchase Object if the Notary has not issued a Maturity Notice by 31 May 2015 (the “
Individual Long Stop Date
”) and the Parties cannot agree on a continuation of the transaction contemplated by the relevant IPA in relation to the affected Purchase Object by 30 June 2015.
|
(C)
|
All Purchase Objects other than the property in Cuxhaven, which has been sold by Deka to Purchaser 11 under the Master Agreement in connection with section 1.3.2 of the German APA (the "
Cuxhaven Property
"), have been transferred from the Sellers to the Purchasers in accordance with clause 5.1 of the Master Agreement.
|
(D)
|
In relation to the Cuxhaven Property, the Notary has applied for a priority notice of conveyance in the relevant land register In accordance with clause 10.1 of the German APA and such priority notice has been registered in the land register on 2 April 2015. However, the confirmation by Deka Seller and Purchaser 11 according to clause 4.4.3 of the Master Agreement as well as the corresponding Maturity Notice by the Notary has not been issued, yet.
|
(E)
|
To allow an early rescission, Deka Seller and Purchaser 11 agree that (i) they shall not be obliged to discuss the continuation of the transaction contemplated by the relevant IPA in relation to the Cuxhaven Property in accordance with clause 13.2 of the Master Agreement and (ii) the Individual Long Stop Date shall be preponed to 1 June 2015.
|
2
|
DEFINITIONS
|
3
|
New Individual Long Stop Date
|
13.2
|
If in relation to any Purchase Object, the Notary has not issued a Maturity Notice according to clause 4.5 by 1 June 2015 (the “
New
Individual Long Stop Date
”), each Party is entitled to rescind the relevant IPA in relation to the affected Purchase Object(s).
|
4
|
Notary instructions
|
4.1
|
In accordance with clause 13.7.2 of the Master Agreement and clauses 10.3 2
nd
subparagraph and 12.2 of the German APA, Deka Seller and Purchaser 11 hereby instruct the Notary to delete the priority notice registered in relation to the Cuxhaven Property. Deka Seller and Purchaser 11 explicitly state that the Notary shall make use of the PoA granted under clause 12.1 of the German APA and that the prerequisites listed under clause 12.2 of the German APA shall be waived in relation to the deletion of the priority notice for the Cuxhaven Property. Therefore, the Notary shall apply for the deletion of the priority notice in favour of Purchaser 11 in relation to the Cuxhaven Property without undue delay.
|
4.2
|
Furthermore, in accordance with clause 13.7.4 of the Master Agreement Purchaser 11 hereby reassigns to Deka Seller all claims assigned to Purchaser 11 under the Master Agreement and the German APA in relation to the Cuxhaven Property.
|
5
|
FINAL PROVISIONS
|
5.1
|
Deka Seller and Purchaser 11 shall each bear the costs of its own advisers connected with this Amendment No. 4 to the Master Agreement. Purchaser 11 shall bear the costs and fees for the notarisation.
|
5.2
|
Unless expressly changed above, the Master Agreement remains unchanged and in full force and effect.
|
5.3
|
This Amendment No. 4 is subject to and governed by the laws of the Federal Republic of Germany and, unless imperatively subject to different laws, shall be construed and interpreted accordingly.
|
5.4
|
Insofar as there is no exclusive statutory jurisdiction, all disputes arising under or in connection with this Amendment No. 4 shall exclusively be determined by the civil courts of Frankfurt am Main, Germany.
|
DATED
|
1 July 2015
|
|
AMENDMENT AND RESTATEMENT AGREEMENT
relating to
a Facility Agreement dated 1 April 2015
(and incorporating certain security confirmations in connection with the Italian Facility Agreement as defined therein)
|
|
|
|
|
|
1.
|
DEFINITIONS AND INTERPRETATION
|
2
|
|
2.
|
RESTATEMENT
|
5
|
|
3.
|
REPRESENTATIONS
|
5
|
|
4.
|
ACKNOWLEDGEMENT, FURTHER ASSURANCE AND RATIFICATION
|
6
|
|
5.
|
FEES, COSTS AND EXPENSES
|
7
|
|
6.
|
MISCELLANEOUS
|
8
|
|
7.
|
LAPSE
|
8
|
|
8.
|
GOVERNING LAW AND ENFORCEMENT
|
9
|
|
SCHEDULE 1: THE OBLIGORS
|
10
|
|
|
|
Part 1: The Borrowers
|
10
|
|
|
Part 2: The Guarantors
|
10
|
|
SCHEDULE 2: CONDITIONS PRECEDENT
|
12
|
|
|
SCHEDULE 3: AMENDED FACILITY AGREEMENT
|
20
|
|
(1)
|
PRIME HOLDCO C-T, S.À R.L.
a private limited liability company (
société à responsabilité limitée
) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 6A route de Trèves, 6th Floor, L-2633 Senningerberg, Grand Duchy of Luxembourg and registered with the Luxembourg trade and companies register under number B 192946 (the
"Company"
);
|
(2)
|
THE COMPANIES
listed in part 1 of schedule 1 (The Obligors) as borrowers (the
"Borrowers"
);
|
(3)
|
THE COMPANIES
listed in part 2 of schedule 1 (The Obligors) as guarantors (the
"Guarantors"
);
|
(4)
|
AAREAL BANK AG
as mandated lead arranger (the
"Arranger"
);
|
(5)
|
AAREAL BANK AG
as lender (the
"Original Lender"
);
|
(6)
|
AAREAL BANK AG
as agent of the other Finance Parties (the
"Agent"
);
|
(7)
|
AAREAL BANK AG
as security trustee or security agent for the Secured Parties (the
"Security Agent"
);
|
(8)
|
CAPITA TRUST COMPANY LIMITED
as security trustee or security agent for the Secured Parties (the
"English Security Agent"
);
|
(9)
|
THE COMPANIES
identified in the signature pages to this agreement as "
Italian Facility Guarantors
" (the
"Italian Facility Guarantors"
); and
|
(10)
|
AAREAL BANK AG
as security trustee or security agent for the Secured Parties under and as defined in the Italian Facility Agreement (the
"IFA Security Agent"
).
|
A
|
This Amendment Agreement is supplemental to the €478,572,083 term loans facility agreement dated 1 April 2015 and made between, amongst others, (1) Prime Holdco C-T S à r.l. as Company, (2) the companies listed in part 1 of schedule 1 to it as Original Borrowers, (3) the companies listed in part 2 of schedule 1 to it as Original Guarantors, (4) Aareal Bank AG as Arranger, (5) Aareal Bank AG as Original Lender, (6) Aareal Bank AG as Agent, (7) Aareal Bank AG as the Security Agent and (8) Capita Trust Company Limited as English Security Agent (the
"Original Facility Agreement"
).
|
B
|
The Finance Parties have agreed, subject to the terms of this Amendment Agreement, to make certain amendments to the Original Facility Agreement to accommodate an increase to the Total Commitments in an amount equal to the Increased Facility Amount (as defined below).
|
C
|
The Italian Facility Guarantors enter into this Agreement for the purpose of providing certain confirmations to the IFA Security Agent and the IFA Security Agent is a party to this Agreement solely for the purpose of acknowledging those confirmations.
|
|
|
|
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
this Amendment Agreement;
|
(b)
|
each Belgian Confirmation Deed;
|
(c)
|
each English Security Document;
|
(d)
|
each French Amendment Document;
|
(e)
|
each German Security Document;
|
(f)
|
each Italian Confirmation Deed;
|
(g)
|
the Swedish Confirmation Deed; and
|
(h)
|
any other document designated as such by the Agent and the Company;
|
(a)
|
a legal mortgage entered into by the relevant Luxembourg Borrowers in respect of the English Properties and granted in favour of the English Security Agent; and
|
(b)
|
a fixed and floating charge over all of its assets entered into or to be entered into by the relevant Luxembourg Borrowers and made in favour of the Security Agent in an agreed form;
|
(a)
|
the "Amended French Property Owner Loans Agreement" providing for
|
(i)
|
a French law mortgage
(hypothèque conventionnelle)
over each French Property for an aggregate principal amount of EUR 20,300,000 to be increased with accessories of 10% to be and granted by each French Property Owner as security
|
(ii)
|
a French law governed second ranking pledge with respect to any balance receivables (
solde
) of each French Property Owner with respect to any bank account open in France in the name of a French Property Owner, granted by each French Property Owner as security for its payment obligations under the French Property Owner Loans Agreement entered into by the French Property Owners;
|
(iii)
|
a French law governed second ranking pledge with respect to present and future receivables of each French Property Owner under the Lease Documents, local Insurances and the relevant Sale and Purchase Agreement, granted by each French Property Owner as security for its payment obligations under the French Property Owner Loans Agreement entered into by the French Property Owners;
|
(iv)
|
a French law governed second ranking pledge with respect to the share in the other French Property Owner owned by the relevant French Property Owner and granted by such relevant French Property Owner as security for its payment obligations under French Property Owner Loans Agreement entered into by the French Property Owners; and
|
(v)
|
security entered into by Prime OPCI
|
(A)
|
a French law governed second ranking pledge with respect to the shares in each French Property Owner owned by Prime OPCI and granted by Prime OPCI as security for the payment obligations of each French Property Owner;
|
(B)
|
a French law governed second ranking pledge with respect to the intragroup receivables vis-à-vis each French Property Owner owned by Prime OPCI and granted by Prime OPCI as security for the payment obligations of each French Property Owner;
|
(C)
|
a French law governed second ranking pledge with respect to any balance receivables (
solde
) of Prime OPCI with respect to any bank account open in France in the name of Prime OPCI, granted by Prime OPCI as security for its guarantee obligations under the French Property Owner Loans Agreement;
|
(b)
|
an English law security assignment of the benefit of any Hedge Documents and the Insurances to the extent governed by English law;
|
(c)
|
a German law confirmation agreement for the German law security assignment agreement in respect of all rights and claims of each French Property Owner under the Sale and Purchase Agreement and in respect of their claims under the Asset Management Agreement;
|
(d)
|
second ranking securities account pledge agreement with respect to the securities account of the PPD Lender where all shares of Prime OPCI are registered;
|
(e)
|
an amended
Dailly
master security assignment agreement in accordance with sections L. 313-23 et seq. of the French
Code monétaire et financier
with respect to present and future receivables under the French Intra-Group Debt Documents and the French Intra-Group Loans made by the PPD Lender to the French Property Owners and any other present and future receivables against Prime OPCI and any French Property Owner;
|
(f)
|
all and any of the Dailly law assignment forms delivered by the PPD Lender pursuant to the master security assignment agreement referred to in paragraph (e) above; and
|
(g)
|
any other document evidencing or creating Security over any asset to secure the French Property Owner Loans Agreement designated as such by the Agent, the PPD Lender and the Company;
|
(a)
|
the amendment and confirmation agreement regarding the global assignment agreement, the security purpose agreement and the account pledge agreement between the German Borrowers and the Security Agent;
|
(b)
|
the amendment and confirmation agreement regarding the security assignment agreement regarding SPA and management receivables between various Borrowers and the Security Agent;
|
(c)
|
notifications and acknowledgements regarding duty of care agreements (if applicable);
|
(a)
|
€100,000,000; and
|
(b)
|
the maximum amount which, when aggregated with the Portfolio Loans already made, does not exceed 60% of the sum of the market values of the Portfolio Properties as set out in the Initial Valuation;
|
1.2
|
Incorporation of defined terms and construction
|
(a)
|
Unless a contrary indication appears, terms defined in, or construed for the purposes of, the Original Facility Agreement have the same meanings when used in this Amendment Agreement (unless the same are otherwise defined in this Amendment Agreement).
|
(b)
|
The principles of construction as set out in clause 1.2 (
Interpretation
) of the Original Facility Agreement shall have effect as though they were set out in full in this Amendment Agreement.
|
1.3
|
Continuing obligations
|
(a)
|
the Original Facility Agreement and all the other Finance Documents shall remain in full force and effect;
|
(b)
|
the Original Facility Agreement shall be read and construed as one document with this Amendment Agreement; and
|
(c)
|
nothing in this Amendment Agreement shall constitute a waiver or release of any right or remedy of the Finance Parties under the Finance Documents, nor otherwise prejudice any right or remedy of a Finance Party under the Original Facility Agreement or any other Finance Document.
|
2.
|
RESTATEMENT
|
3.
|
REPRESENTATIONS
|
(a)
|
Each Obligor and each Italian Facility Guarantor represents and warrants that:
|
(i)
|
the board resolutions approving the execution of the documents referred to in paragraph 1(b)
of schedule 2 (Conditions precedent) (the
"Documents"
) were duly and properly passed after compliance with all appropriate formalities and remain in full force and effect;
|
(ii)
|
the Company, each other Obligor and each Italian Facility Guarantor is authorised to execute the Documents to which it is a party; and
|
(iii)
|
the Company, each other Obligor and each Italian Facility Guarantor is authorised to make the representations and warranties as provided in clauses 3
(a)(
i) and 3(a)(ii).
|
(b)
|
Each Obligor makes the Repeating Representations and the representations set out in clause 3(a) in relation to it on the Effective Date (whether or not the Effective Date shall have occurred by such date) and on the Effective Date, by reference to the facts and circumstances existing at such dates.
|
(c)
|
Each Italian Facility Guarantor repeats the representations contained in clause 9 (
Representations of the Guarantor
) of the Italian Facility Guarantee and makes the representations set out in clause 3(a) in relation to it on the Effective Date (whether or not the Effective Date shall have occurred by such date) and on the Effective Date, by reference to the facts and circumstances existing at such dates.
|
4.
|
ACKNOWLEDGEMENT, FURTHER ASSURANCE, RATIFICATION AND CONFIRMATION OF SECURITY
|
4.1
|
Reliance
|
(a)
|
Each Obligor acknowledges that the Finance Parties have entered into this Amendment Agreement in full reliance on the representations and warranties made by it in the terms stated in clause 3 (Representations).
|
(b)
|
Each Italian Facility Guarantor acknowledges that the IFA Security Agent has entered into this Amendment Agreement in full reliance on the representations and warranties made by it in the terms stated in clause 3 (Representations).
|
4.2
|
Further assurance
|
4.3
|
Guarantee and indemnity
|
4.4
|
Confirmation of Security subject to Netherlands law
|
(a)
|
Original Facility Agreement
|
(b)
|
Italian Facility Agreement
|
4.5
|
Confirmation of Security subject to Luxembourg law
|
(a)
|
Original Facility Agreement
|
(b)
|
Italian Facility Agreement
|
4.6
|
Confirmation in respect of the Italian Facility Guarantee
|
5.
|
FEES, COSTS AND EXPENSES
|
5.1
|
Amendment fee
|
5.2
|
Costs and expenses
|
6.
|
MISCELLANEOUS
|
6.1
|
Incorporation of terms
|
6.2
|
Counterparts
|
6.3
|
Finance Document
|
6.4
|
Third party rights
|
(a)
|
Unless expressly provided to the contrary in a Finance Document a person who is not a party to this Amendment Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Amendment Agreement.
|
(b)
|
Notwithstanding any term of any Finance Document, the consent of any person who is not a party to this Amendment Agreement is not required to rescind or vary this Amendment Agreement at any time.
|
6.5
|
Instruction to the English Security Agent
|
7.
|
LAPSE
|
(a)
|
If the Effective Date does not occur on or before 13 July 2015 (unless extended by agreement between the Agent and the Obligors' Agent), this Amendment Agreement shall terminate and, subject to clause 7(b), cease to be of any effect.
|
(b)
|
Clause 5 (Fees, costs and expenses) shall continue in full force and effect notwithstanding the termination of this Amendment Agreement pursuant to clause 7(a).
|
8.
|
GOVERNING LAW AND ENFORCEMENT
|
8.1
|
Governing law
|
(a)
|
Subject to (b) and (c) below, this Amendment Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by English law.
|
(b)
|
Clause 4.4 (
Confirmation of Security subject to Netherlands law
) shall be governed by, and shall be construed in accordance with, the law of the Netherlands.
|
(c)
|
Clause 4.5 (
Confirmation of Security subject to Luxembourg law
) shall be governed by, and shall be construed in accordance with Luxembourg law.
|
8.2
|
Jurisdiction of English courts
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Amendment Agreement (including a dispute relating to the existence, validity or termination of this Amendment Agreement or any non-contractual obligation arising out of or in connection with this Amendment Agreement) (a
"Dispute"
).
|
(b)
|
The parties to this Amendment Agreement agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no such party will argue to the contrary.
|
(c)
|
This clause 8.2 is for the benefit of the Finance Parties and Secured Parties 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.
|
8.3
|
Service of process
|
Name of Borrower
|
Jurisdiction of incorporation and registration number (or equivalent, if any)
|
Prime UK Portman - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 193076)
|
Prime UK Condor - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 193151)
|
Prime GER Drehbahn - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 192950)
|
Prime GER Valentinskamp - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 192951)
|
Prime GER Dammtorwall T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 193493)
|
Prime Pool II - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194792)
|
Prime NLD Rotterdam-T B.V.
|
Netherlands
|
Prime NLD Amsterdam-T B.V.
|
Netherlands
|
Prime BEL Rue de la Loi - T SPRL (formerly known as Chrysalis Invest NV)
|
Belgium
RPM 0463.603.184
|
Prime SWE Gothenburg – T AB
|
Sweden
Swedish registration number 556589-8920
|
Name of Guarantor
|
Jurisdiction of incorporation and registration number (or equivalent, if any)
|
Prime UK Portman - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 193076)
|
Prime UK Condor - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 193151)
|
Prime GER Drehbahn - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 192950)
|
Prime GER Valentinskamp - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 192951)
|
Prime GER Dammtorwall T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 193493)
|
Prime Pool II - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194792)
|
Prime NLD Rotterdam-T B.V.
|
Netherlands
|
Prime NLD Amsterdam-T B.V.
|
Netherlands
|
Prime Pool VII -T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194803)
|
Prime Pool I - T S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 193480)
|
Prime Pool III A - T, S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194805)
|
Prime Pool III B - T, S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194815)
|
Prime Pool III C - T, S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194832)
|
Prime ITA Milan-T S.R.L.
|
Italy
(Companies' register of Milan no. 09013470969)
|
Prime Pool V - T, S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194797)
|
Prime Pool VI - T, S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194802)
|
Prime Pool IV A - T, S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194806)
|
Prime Pool IV B - T, S.à r.l.
|
Luxembourg
(R.C.S. Luxembourg B 194812)
|
Prime BEL Rue de la Loi - T SPRL (formerly known as Chrysalis Invest NV)
|
Belgium
RPM 0463.603.184
|
Prime SWE Gothenburg – T AB
|
Sweden
Swedish registration number 556589-8920
|
1.
|
Transaction Obligors
|
(a)
|
In relation to the Transaction Obligor registered in Belgium:
|
(i)
|
a copy of the constitutional documents of that Transaction Obligor or a certificate of a person authorised on behalf of that Transaction Obligor certifying that the constitutional documents previously provided to the Agent remain unamended and in full force and effect;
|
(ii)
|
a copy of a resolution of the board of managers of that Transaction Obligor:
|
(A)
|
approving the terms of, and the transactions contemplated by, the Amendment Documents to which it is a party and resolving that it execute, deliver and perform the Amendment Documents to which it is a party;
|
(B)
|
determining and motivating the reasons of that determination, that it has a corporate benefit justifying the assumption of any obligations it has pursuant to clause 18 (
Guarantee and indemnity
);
|
(C)
|
authorising a specified person or persons to execute the Amendment Documents to which it is a party on its behalf; and
|
(D)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Further Utilisation Request) to be signed and/or despatched by it under or in connection with the Amendment Documents to which it is a party;
|
(iii)
|
to the extent any change has been made from the specimen signatures previously provided to the Agent, a specimen of the signature of each person authorised on behalf of that Transaction Obligor to enter into any Finance Document or to sign or send any document or notice in connection with any Finance Document;
|
(iv)
|
a certificate of that Transaction Obligor (signed by a manager) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments
|
(v)
|
a certificate dated no more than five (5) Business Days prior to the Effective Date and issued by the competent Clerk of the Commercial Court stating that at the date of the certificate that Transaction Obligor has been registered with the Crossroads Bank of Enterprises and has neither been declared bankrupt nor filed any request for judicial composition or judicial reorganisation;
|
(vi)
|
an excerpt dated no more than five (5) Business Days prior to the Effective Date and issued by the Crossroads Databank for Enterprises in respect of that Transaction Obligor;
|
(vii)
|
a certificate of an authorised signatory of that Transaction Obligor certifying that each copy document relating to it specified in this schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Effective Date.
|
(b)
|
In relation to each Transaction Obligor registered in France:
|
(i)
|
a copy of the constitutional documents of that Transaction Obligor (ie copy of its up-to-date by-laws (
statuts
)) or a certificate of a person authorised on behalf of that Transaction Obligor certifying that the constitutional documents previously provided to the Agent remain unamended and in full force and effect;
|
(ii)
|
a copy of a resolution of the shareholders (or any other relevant corporate body) of that Transaction Obligor:
|
(A)
|
approving, when applicable, the terms of, and the transactions contemplated by, the Amendment Documents to which it is a party and resolving that it execute, deliver and perform the Amendment Documents to which it is a party;
|
(B)
|
approving, when applicable, the Secured Parties as well as any potential assignee of the pledged shares as future shareholder of that Transaction Obligor in contemplation of the possible enforcement of the pledge granted on the shares in that Transaction Obligor;
|
(C)
|
authorising a specified person or persons to execute the Amendment Documents to which it is a party on its behalf; and
|
(D)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any utilisation request under the French Property Owner Loans Agreement) to be signed and/or despatched by it under or in connection with the Amendment Documents to which it is a party;
|
(iii)
|
to the extent any change has been made from the specimen signatures previously provided to the Agent, a specimen of the signature of each person authorised by the resolution referred to in paragraph (ii);
|
(iv)
|
a certificate of that Transaction Obligor (signed by an authorised signatory of that Transaction Obligor) certifying that each copy document relating to it specified in schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Effective Date) and confirming that borrowing or guaranteeing or securing, as appropriate, the relevant French Intra-Group Loan(s) (as defined in the Amended Facility Agreement) would not cause any borrowing, guarantee, security or similar limit binding on it to be exceeded;
|
(v)
|
the original of an incorporation certificate (
extrait K-bis
) dated no more than 10 Business Days before the Effective Date;
|
(vi)
|
the original of a solvency certificate (
certificat de recherche negative de procedure collective
) dated no more than 10 Business Days before the Effective Date;
|
(vii)
|
the original of a statement of liens and registered charges (
état des privileges et nantissements
) dated no more than 10 Business Days before the Effective Date;
|
(viii)
|
a certificate of an authorised signatory of that Transaction Obligor certifying that each copy document relating to it specified in this schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Effective Date.
|
(c)
|
In relation to each Transaction Obligor incorporated in Italy:
|
(i)
|
a copy of the constitutional documents (
atto costitutivo and statuto
) of that Transaction Obligor or a certificate of a person authorised on behalf of that Transaction Obligor certifying that the constitutional documents previously provided to the Agent remain unamended and in full force and effect;
|
(ii)
|
to the extent required under the constitutional documents, a copy of a resolution of the board of directors or a written decision of the directors (and, to the extent required under the constitutional documents, of the shareholders’ meeting) of that Transaction Obligor:
|
(A)
|
approving the terms of, and the transactions contemplated by, the Amendment Documents to which it is a party and resolving that it execute, deliver and perform the Amendment Documents to which it is a party;
|
(B)
|
authorising a specified person or persons to execute the Amendment Documents to which it is a party on its behalf; and
|
(C)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any
|
(iii)
|
to the extent any change has been made from the specimen signatures previously provided to the Agent, a specimen of the signature of each person authorised by the resolution referred to in paragraph (ii);
|
(iv)
|
a certificate of that Transaction Obligor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments (as defined in the Amended Facility Agreement) would not cause any borrowing, guarantee, security or similar limit binding on that Transaction Obligor to be exceeded;
|
(v)
|
a certificate of an authorised signatory of that relevant Transaction Obligor certifying that each copy document relating to it specified in this schedule
2
is correct, complete and in full force and effect as at a date no earlier than the Effective Date;
|
(vi)
|
a registration and solvency certificate issued by the competent Italian Companies Registry (
certificato di iscrizione nella sezione ordinaria della competente Camera di Commercio con dicitura di non fallimento
).
|
(d)
|
In relation to each Transaction Obligor registered in the Grand Duchy of Luxembourg:
|
(i)
|
a copy of the constitutional documents of that Transaction Obligor (i.e a copy of its deed of incorporation (
acte de constitution
) or, if available, a copy of the consolidated articles of association or a certificate of a person authorised on behalf of that Transaction Obligor certifying that such documents previously provided to the Agent remain unamended and in full force and effect;
|
(ii)
|
a copy of a resolution of the board of managers or, as the case may be, the sole manager of that Transaction Obligor:
|
(A)
|
approving the terms of, and the transactions contemplated by, the Amendment Documents to which it is a party and resolving that it execute, deliver and perform the Amendment Documents to which it is a party;
|
(B)
|
authorising a specified person or persons to execute the Amendment Documents to which it is a party on its behalf; and
|
(C)
|
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 Amendment Documents to which it is a party;
|
(iii)
|
to the extent any change has been made from the specimen signatures previously provided to the Agent, a specimen of the signature of each person authorised by the resolution referred to in paragraph (ii);
|
(iv)
|
a certificate of an authorised signatory of the Transaction Obligor confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments (as defined in the Amended Facility Agreement) would not cause any borrowing, guarantee, security or similar limit binding on it to be exceeded;
|
(v)
|
a certificate of an authorised signatory of the Transaction Obligor confirming that it is not subject to bankruptcy (
faillite
), insolvency, voluntary or judicial liquidation (
liquidation volontaire ou judiciaire
), composition with creditors (
concordat préventif de faillite
), reprieve from payment (
sursis de paiement
), controlled management (
gestion contrôlée)
, or similar proceedings; and no application, petition, order or resolution has been made by it or, to the best of its knowledge, by any other person for the appointment of a commissaire, curateur, liquidateur or similar officer for its administration, winding-up or similar proceedings;
|
(vi)
|
an excerpt, dated no earlier than one (1) Business Day prior to the Effective Date, issued by the Luxembourg Trade and Companies Register in respect of such Luxembourg Transaction Obligor;
|
(vii)
|
a certificate of non-inscription of a judicial decision, dated no earlier than one (1) Business Day prior to the Effective Date, issued by the Luxembourg Trade and Companies Register in relation to such Luxembourg Transaction Obligor; and
|
(viii)
|
a certificate of an authorised signatory of that Transaction Obligor certifying that each copy document relating to it specified in this schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Effective Date.
|
(e)
|
In relation to each Transaction Obligor registered in the Netherlands:
|
(i)
|
a copy of the constitutional documents (including a recent extract from the Dutch trade register (
handelsregister
) relating to that Transaction Obligor) of that Transaction Obligor or a certificate of a person authorised on behalf of that Transaction Obligor certifying that the constitutional documents previously provided to the Agent remain unamended and in full force and effect;
|
(ii)
|
a copy of a resolution of the board of directors of that Transaction Obligor:
|
(A)
|
approving the terms of, and the transactions contemplated by, the Amendment Documents to which it is a party and resolving that it execute, deliver and perform the Amendment Documents to which it is a party;
|
(B)
|
authorising a specified person or persons to execute the Amendment Documents to which it is a party on its behalf; and
|
(C)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any
|
(iii)
|
to the extent any change has been made from the specimen signatures previously provided to the Agent, a specimen of the signature of each person authorised by the resolution referred to in paragraph (ii);
|
(iv)
|
if applicable, a copy of a resolution of its board of supervisory directors (if any) of that Transaction Obligor approving its execution and the terms of, and the transactions contemplated by, the Amendment Documents to which it is a party;
|
(v)
|
if applicable, a copy of a resolution signed by all the holders of the issued shares in that Transaction Obligor approving the terms of, and the transactions contemplated by, the Amendment Documents to which that Transaction Obligor is a party;
|
(vi)
|
if it is required by law or any arrangement binding on it to obtain works council advice in respect of that Transaction Obligor's or any other person's entry into the Amendment Documents, a copy of a positive advice from its (central) works council (and, if such advice is not unconditional, confirmation from the Parent that (i) the conditions set by the works council are and will be complied with and (ii) such compliance does and will not have a Material Adverse Effect);
|
(vii)
|
a certificate of that Transaction Obligor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments (as defined in the Amended Facility Agreement) would not cause any borrowing, guarantee, security or similar limit binding on it to be exceeded;
|
(viii)
|
a certificate of an authorised signatory of that Transaction Obligor certifying that each copy document relating to it specified in this schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Effective Date.
|
(f)
|
In relation to each Transaction Obligor registered in Sweden:
|
(i)
|
a copy of the constitutional documents of that Transaction Obligor.
|
(ii)
|
a copy of a resolution of the board of directors of that Transaction Obligor:
|
(A)
|
approving the terms of, and the transactions contemplated by, the Amendment Documents to which it is a party and resolving that it execute, deliver and perform the Amendment Documents to which it is a party;
|
(B)
|
authorising a specified person or persons to execute the Amendment Documents to which it is a party on its behalf; and
|
(C)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any
|
(iii)
|
to the extent any change has been made from the specimen signatures previously provided to the Agent, a specimen of the signature of each person authorised by the resolution referred to in paragraph (ii);
|
(iv)
|
a certificate of that Transaction Obligor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments (as defined in the Amended Facility Agreement) would not cause any borrowing, guarantee, security or similar limit binding on that Transaction Obligor to be exceeded;
|
(v)
|
a certificate of an authorised signatory of that Transaction Obligor certifying that each copy document relating to it specified in this schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Effective Date;
|
(g)
|
An updated structure chart setting out the ultimate ownership of each Transaction Obligor and each Property (or confirmation in a form satisfactory to the Agent that the structure has not changed since 1 April 2015) or a certificate of a person authorised on behalf of each Transaction Obligor certifying that the constitutional documents previously provided to the Agent remain unchanged and in full force and effect.
|
2.
|
AMENDMENT AND OTHER DOCUMENTS
|
(a)
|
The following, duly executed by the relevant Parties thereto:
|
(i)
|
each Amendment Document;
|
(ii)
|
the Fee Letter;
|
(iii)
|
the Margin Letter;
|
(iv)
|
the supplemental agreement to the English Security Deed.
|
(b)
|
A copy of the duly executed amendment and restatement agreement in respect of the Italian Facility Agreement.
|
(c)
|
A copy of the duly executed amendment and restatement agreement in respect of the French Property Owners Loan Agreement.
|
3.
|
LEGAL OPINIONS
|
(i)
|
a legal opinion of DLA Piper UK LLP as to matters of Belgian law;
|
(ii)
|
a capacity legal opinion of Clifford Chance LLP as to matters of Belgian law;
|
(iii)
|
a legal capacity and enforceability opinion of DLA Piper Nederland N.V. as to matters of Dutch law;
|
(iv)
|
a legal opinion of DLA Piper UK LLP as to matters of English law;
|
(v)
|
a legal opinion of De Pardieu Brocas Maffei as to matters of French law;
|
(vi)
|
a capacity legal opinion of Clifford Chance LLP as to matters of French law (which, for the avoidance of doubt, will not cover any agreements governed by French law and entered into in the form of a notarial deed);
|
(vii)
|
a legal opinion of DLA Piper UK LLP as to matters of German law;
|
(viii)
|
an enforceability legal opinion of Bonelli Erede Pappalardo as to matters of Italian law;
|
(ix)
|
a capacity legal opinion of Clifford Chance LLP as to matters of Italian law;
|
(x)
|
legal capacity and enforceability opinions of Elvinger Hoss & Prussen as to matters of Luxembourg law in respect of the Loans to be made in each jurisdiction;
|
(xi)
|
a legal capacity and enforceability opinion of Lindahl as to matters of Swedish law.
|
4.
|
OTHER DOCUMENTS AND EVIDENCE
|
(a)
|
Assignment agreement in respect of all local law insurances (where required) duly signed.
|
(b)
|
Evidence that any process agent in Germany under each German Security Document has accepted its appointment.
|
(c)
|
Evidence satisfactory to the Agent that the merger between Prime BEL Brussels-T SPRL and Prime BEL Rue de la Loi - T SPRL (formerly known as Chrysalis Invest NV) as surviving entity has occurred.
|
(d)
|
A copy of the Further Utilisation Request.
|
(e)
|
A copy of any other authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable in connection with the entry into and performance of the transaction contemplated by this Amendment Agreement or for the validity and enforceability of this Amendment Agreement and the Original Facility Agreement when amended as contemplated by this Amendment Agreement.
|
5.
|
FEES AND EXPENSES
|
|
AMENDED AND RESTATED
TERM LOANS FACILITY AGREEMENT
FOR UP TO €578,572,083
This facility agreement is the "Principal Facility Agreement" as defined in a facility agreement dated the same day as this Agreement and also made between Prime Holdco C-T S. à r. l. Prime ITA Milan-T S.R.L. and Aareal Bank AG, amongst others.
|
|
|
|
|
|
1.
|
Definitions and Interpretation
|
1
|
|
2.
|
The Facility
|
43
|
|
3.
|
Purpose
|
44
|
|
4.
|
Conditions of Utilisation
|
44
|
|
5.
|
Utilisation
|
45
|
|
6.
|
Repayment
|
46
|
|
7.
|
Prepayment and cancellation
|
47
|
|
8.
|
Interest
|
52
|
|
9.
|
Interest Periods
|
55
|
|
10.
|
Changes to the calculation of interest
|
55
|
|
11.
|
Fees
|
57
|
|
12.
|
Tax gross up and indemnities
|
58
|
|
13.
|
Increased costs
|
72
|
|
14.
|
Other indemnities
|
74
|
|
15.
|
Mitigation by the Lenders
|
76
|
|
16.
|
Costs and expenses
|
76
|
|
17.
|
Bank Accounts
|
78
|
|
18.
|
Guarantee and indemnity
|
87
|
|
19.
|
Representations
|
91
|
|
20.
|
Information undertakings
|
98
|
|
21.
|
Financial covenants
|
102
|
|
22.
|
General undertakings
|
102
|
|
23.
|
Property Undertakings
|
110
|
|
24.
|
Events of Default
|
119
|
|
25.
|
Changes to the Lenders
|
124
|
|
26.
|
Changes to the Transaction Obligors
|
131
|
|
27.
|
Role of the Agent, and the Arranger and the Reference Banks
|
134
|
|
28.
|
Application of Proceeds
|
145
|
|
29.
|
Conduct of business by the Finance Parties
|
147
|
|
30.
|
Sharing among the Finance Parties
|
147
|
|
31.
|
Payment mechanics
|
149
|
|
32.
|
Set-off
|
152
|
|
33.
|
Notices
|
152
|
|
34.
|
Calculations and certificates
|
155
|
|
35.
|
Partial invalidity
|
155
|
|
36.
|
Remedies and waivers
|
155
|
|
37.
|
Amendments and waivers
|
155
|
|
38.
|
Confidential Information
|
160
|
|
39.
|
Confidentiality of Funding Rates and Reference Bank Quotations
|
163
|
|
40.
|
Counterparts
|
165
|
|
(1)
|
Prime Holdco C-T, S.à r.l.
a private limited liability company (
société à responsabilité limitée
) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 6A route de Trèves, 6th Floor, L-2633 Senningerberg, Grand Duchy of Luxembourg and registered with the Luxembourg trade and companies register under number B 192946 (the
"Company"
);
|
(2)
|
the COMPANIES
listed in part 1 of schedule 1 (
The Original Parties and Properties
) as original borrowers (the
"Original Borrowers"
);
|
(3)
|
the COMPANIES
listed in part 2 of schedule 1 (
The Original Parties and Properties
) as guarantors (the
"Original Guarantors"
);
|
(4)
|
AAREAL BANK AG
as mandated lead arranger (the
"Arranger"
);
|
(5)
|
AAREAL BANK AG
as lender (the
"Original Lender"
);
|
(6)
|
AAREAL BANK AG
as agent of the other Finance Parties (the
"Agent"
);
|
(7)
|
AAREAL BANK AG
as security trustee or security agent for the Secured Parties (the
"Security Agent"
); and
|
(8)
|
CAPITA TRUST COMPANY LIMITED
as security trustee or security agent for the Secured Parties (the
"English Security Agent"
)
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
a company or underwriters which has a rating for its long-term unsecured and non credit-enhanced debt obligations of one of the following: A (or better) by Standard & Poor's Rating Services or A (or better) by Fitch Ratings Ltd or A2 (or better) by Moody's Investors Service Limited or a comparable rating (or better) from an internationally recognised credit rating agency; or
|
(b)
|
any other company or underwriters approved by the Agent;
|
(a)
|
each Collection Account;
|
(b)
|
each General Account;
|
(c)
|
each Rent Account;
|
(d)
|
each Rent Deposit Account;
|
(e)
|
each Share Account;
|
(f)
|
each Service Charge Account;
|
(g)
|
the Prime OPCI Shareholding Account;
|
(h)
|
the Cash Sweep Account;
|
(i)
|
the Capex Account; or
|
(j)
|
the Deposit Account;
|
(a)
|
Aareal Bank AG;
|
(b)
|
Bank of America N.A.;
|
(c)
|
Sociéte Générale;
|
(d)
|
Banque Internationale à Luxembourg;
|
(e)
|
SEB Bank Schweden; and
|
(f)
|
such other bank as may be agreed in accordance with clause 17.2 (
Account Bank
);
|
(a)
|
SEB Investment GmbH (registered with the commercial register of the local court of Frankfurt am Main under HRB 19859);
|
(b)
|
North Star Asset Management Group Inc. or its Affiliate;
|
(c
|
)Cordea Savills;
|
(d)
|
Savills;
|
(e)
|
SEB;
|
(f)
|
Corpus Sireo;
|
(g)
|
Internos Global Investors;
|
(h)
|
Rockspring;
|
(i)
|
Aerium;
|
(j)
|
Pamera;
|
(k)
|
Cornerstone; or
|
(l)
|
such other asset manager as may be appointed in accordance with clause 23.9 (
Managing Agents, Asset Manager and Cash Manager
) of this Agreement;
|
(a)
|
the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of the Loan or Unpaid Sum until the end of
|
(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 Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the relevant Interest Period,
|
(c)
|
where the relevant deposit rate is less than zero, the amount paid by that Lender for placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period;
|
(a)
|
in respect of a payment in euro, a day (other than a Saturday or a Sunday) on which banks and financial markets are open in Luxembourg, London and Frankfurt for the transaction of business and which is also a day on which TARGET2 (Trans-European Automated Real-time Gross Settlement Express Transfer-System) is open for the transfer of payments; and
|
(b)
|
in respect of a payment in sterling, a day (other than a Saturday or a Sunday) on which banks and financial markets are open in Luxembourg, Frankfurt and London; and
|
(c)
|
in respect of a payment in kronor, a day (other than a Saturday or a Sunday) on which banks and financial markets are open in Luxembourg, London, Frankfurt and Stockholm; and
|
(d)
|
in respect of the fixing of EURIBOR, a day on which TARGET2 (Trans-European Automated Real-time Gross Settlement Express Transfer-System) is open for the transfer of payments;
|
(e)
|
in respect of the fixing of LIBOR, a day (other than a Saturday or a Sunday) on which banks and financial markets are open in London for the transaction of business;
|
(f)
|
in respect of the fixing of STIBOR a day (other than a Saturday or a Sunday) on which banks and financial markets are open in Stockholm for the transaction of business;
|
(g)
|
for any other purpose, a day (other than a Saturday or a Sunday) on which banks and financial markets are open in Luxembourg, London and Frankfurt for the transaction of business and which is also a day on which TARGET2 (Trans-European Automated Real-time Gross Settlement Express Transfer-System) is open for the transfer of payments;
|
(a)
|
the Interest Cover is equal to or less than 250 per cent; and/or
|
(b
|
the Loan to Value is equal to or greater than 65 per cent; and/or
|
(c)
|
any Individual Loan to Value is equal to or greater than 75 per cent; and/or
|
(d)
|
the Net Yield on Debt is equal to or lower than 7.5 per cent;
|
(a)
|
is, or is expressed to be, from time to time the subject of Transaction Security (other than a French Property); or
|
(b)
|
(in the case of a proposed Utilisation) is required to be the subject of Transaction Security immediately following the Utilisation,
|
(a)
|
in relation to the Original Lender, the Total Commitments and the amount of any other Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(i)
|
not cancelled, reduced or transferred by it under this Agreement; andnot deemed to be zero pursuant to clause 25.11 (
Disenfranchisement on Debt Purchase
|
(ii)
|
Transactions entered into by Sponsor Affiliates
);
|
(a)
|
1 (
Transaction Obligors
) (excluding any relevant to the Swedish Targetco and the Belgian Targetco);
|
(b)
|
2 (
Financial Information
);
|
(c)
|
3 (
Valuation and Survey
);
|
(d)
|
4 (
Insurance
);
|
(e)
|
sub-paragraphs (a) and (b) of paragraph 5 (
Property
);
|
(f)
|
sub-paragraphs (a) to (d), (i), (f) and (k) (insofar as those relate to the General Security Documents) of paragraph 6 (
Security and other Finance Documents
);
|
(g)
|
sub-paragraph (a) of paragraph 7 (
Sale and Purchase Agreement
);
|
(h)
|
paragraph 8 (
Asset Manager
);
|
(i)
|
sub-paragraphs (a) and (b) of paragraph 9 (
Tax
);
|
(j)
|
paragraph 10 (
Other due diligence reports
);
|
(k)
|
sub-paragraphs (ii), (iii), (iv), (vi), (vii), (ix) and (x) of paragraph 11 (
Legal opinions
);
|
(l)
|
12 (
Other documents and evidence
);
|
(a)
|
any member of the Group or any of its advisers; or
|
(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,
|
(i)
|
information that:
|
(A)
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of clause 38 (
Confidential Information
); or
|
(B)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
(C)
|
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) 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; and
|
(ii)
|
any Funding Rate or Reference Bank Quotation;
|
(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,
|
(a)
|
which has failed to make a Loan available or has notified the Agent that it will not make any Loan available by the Utilisation Date in accordance with clause 5.4 (
Lenders' participation
); or
|
(b)
|
which has otherwise rescinded or repudiated a Finance Document;
|
(i)
|
its failure to pay is caused by:
|
(A)
|
administrative or technical error; or
|
(B)
|
a Disruption Event; and
|
(ii)
|
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question;
|
(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
|
(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,
|
(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);
|
(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;
|
(a)
|
the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or
|
(b)
|
as otherwise determined pursuant to clause 10.1 (
Unavailability of Screen Rate
),
|
(a)
|
to satisfy (or reimburse an Obligor which has discharged) any liability, charge or claim upon an Obligor by a person which is not an Obligor or an Affiliate of an Obligor; or
|
(b)
|
in the replacement, reinstatement and/or repair of assets of an Obligor which have been lost, destroyed or damaged,
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
(b)
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a); or
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;
|
(a)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b), 1 January 2017,
|
(a)
|
moneys borrowed;
|
(b)
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with Relevant GAAP, be treated as a finance or capital lease;
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;
|
(g)
|
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative 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; and
|
(i)
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h);
|
(a)
|
the French Property Owner Loans Agreement (which shall include a guarantee by Prime OPCI of the liabilities of the French Property Owners);
|
(b)
|
the following security granted for the benefit of the PPD Lender under the French Property Owner Loans Agreement:
|
(i)
|
security entered into by each French Property Owner:
|
(A)
|
a French law governed privileges of money lender (
privilèges de prêteur de deniers
) over each French Property for an aggregate principal amount of EUR 105,650,000 increased with accessories of 10% regularized on the date of the first Utilisation and granted by each French Property Owner as security for its payment obligations under the French Intra-Group Loan granted to it pursuant to the French Property Owner Loans Agreement entered into by the French Property Owners, such as these privileges of money lender are provided in the French Property Owner Loans Agreement and in the relevant Sale and Purchase Agreement entered into by those French Property Owners as follows:
|
(B)
|
a French law governed first ranking pledge with respect to any balance receivables (
solde
) of each French Property Owner with respect to any bank account open in France in the name of a French Property Owner, granted by each French Property Owner as security for its payment obligations under the French Property Owner Loans Agreement entered into by the French Property Owners;
|
(C)
|
a French law governed first ranking pledge with respect to present and future receivables of each French Property Owner under the Lease Documents, local Insurances and the relevant Sale and Purchase Agreement, granted by each French Property Owner as security for its payment obligations under the French Property Owner Loans Agreement entered into by the French Property Owners; and
|
(D)
|
a French law governed first ranking pledge with respect to the share in the other French Property Owner owned by the relevant French Property Owner and granted by such relevant French Property Owner as security for its payment obligations under French Property Owner Loans Agreement entered into by the French Property Owners;
|
(E)
|
an English law security assignment of the benefit of any Hedge Documents and the Insurances to the extent governed by English law;
|
(F)
|
a German law security assignment agreement in respect of all rights and claims of each French Property Owner under the Sale and Purchase Agreement and in respect of their claims under the Asset Management Agreement;
|
(ii)
|
security entered into by Prime OPCI:
|
(A)
|
a French law governed first ranking pledge with respect to the shares in each French Property Owner owned by Prime OPCI and granted by Prime OPCI as security for the payment obligations of each French Property Owner;
|
(B)
|
a French law governed first ranking pledge with respect to the intragroup receivables vis-à-vis each French Property Owner owned by Prime OPCI and granted by Prime OPCI as security for the payment obligations of each French Property Owner;
|
(C)
|
a French law governed first ranking pledge with respect to any balance receivables (
solde
) of Prime OPCI with respect to any bank account open in France in the name of Prime OPCI, granted by Prime OPCI as security for its guarantee obligations under the French Property Owner Loans Agreement; and
|
(iii)
|
any other document evidencing or creating Security over any asset to secure the French Property Owner Loans Agreement designated as such by the Agent, the PPD Lender and the Company;
|
(c)
|
the amended and restated Property Owner Loans Agreement (the "
Amended French Property Owner Loans Agreement
"); and
|
(d)
|
the following security granted for the benefit of the PPD Lender under the Amended French Property Owner Loans Agreement:
|
(i)
|
security entered into by each French Property Owner:
|
(A)
|
a French law first priority mortgage
(hypothèque conventionnelle)
over each French Property for an aggregate principal amount of EUR 20,300,000 to be increased with accessories of 10% to be and granted by each French Property Owner as security for its payment obligations under the French Intra-Group Loan granted to it pursuant to the Amended French Property Owner Loans Agreement entered into by the French Property Owners, such as these mortgages are provided in the Amended French Property Owner Loans Agreement entered into by those French Property Owners as follows:
|
(B)
|
a French law governed second ranking pledge with respect to any balance receivables (
solde
) of each French Property Owner with respect to any bank account open in France in the name of a French Property Owner, granted by each French Property Owner as security for its payment obligations under the Amended French Property Owner Loans Agreement entered into by the French Property Owners;
|
(C)
|
a French law governed second ranking pledge with respect to present and future receivables of each French Property Owner under the Lease Documents, local Insurances and the relevant Sale and Purchase Agreement, granted by each French Property Owner as security for its payment obligations under the Amended French Property Owner Loans Agreement entered into by the French Property Owners; and
|
(D)
|
a French law governed second ranking pledge with respect to the share in the other French Property Owner owned by the relevant French Property Owner and granted by such relevant French Property Owner as security for its payment obligations under the Amended French Property Owner Loans Agreement entered into by the French Property Owners;
|
(E)
|
an English law security assignment of the benefit of any Hedge Documents and the Insurances to the extent governed by English law;
|
(F)
|
a German law confirmation agreement in respect of the security assignment referred to in (b)(i)(F) above;
|
(ii)
|
security entered into by Prime OPCI:
|
(A)
|
a French law governed second ranking pledge with respect to the shares in each French Property Owner owned by Prime OPCI and granted by Prime OPCI as security for the payment obligations of each French Property Owner;
|
(B)
|
a French law governed second ranking pledge with respect to the intragroup receivables vis-à-vis each French Property Owner owned by Prime OPCI and granted by Prime OPCI as security for the payment obligations of each French Property Owner;
|
(C)
|
a French law governed second ranking pledge with respect to any balance receivables (
solde
) of Prime OPCI with respect to any bank account open in France in the name of Prime OPCI, granted by Prime OPCI as security for its guarantee obligations under the Amended French Property Owner Loans Agreement; and
|
(iii)
|
any other document evidencing or creating Security over any asset to secure the Amended French Property Owner Loans Agreement
,
designated as such by the Agent, the PPD Lender and the Company;
|
(a)
|
"
Insurance Prepayment Proceeds
",
|
(b)
|
"
Compensation Prepayment Proceeds
"
|
(c)
|
"
Recovery Prepayment Proceeds
";
|
(d)
|
amounts paid pursuant to clause 17.3 (
Covenant repair
) of the Amended French Property Owner Loans Agreement; and
|
(e)
|
amounts paid following a "
Cash Sweep Event
",
|
(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;
|
(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
"
|
(i)
|
its failure to pay is caused by:
|
(A)
|
administrative or technical error; or
|
(B)
|
a Disruption Event; and
|
(ii)
|
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question;
|
(a
)
|
"calculation period"
means a period of 12 months;
|
(b)
|
"finance costs"
means the aggregate amount of interest and periodic fees payable to:
|
(i)
|
the Finance Parties under this Agreement; and
|
(ii)
|
the Finance Parties under (and as defined) in the Italian Facility Agreement,
|
(c)
|
"passing rental"
means, as at any Test Date, passing net rental income (excluding, for the avoidance of doubt, Tenant Contributions) (not including any amount which represents VAT) that will be received on a regular periodical basis by the Portfolio Borrowers under the Portfolio Lease Documents during the calculation period commencing on that Test Date;
|
(d)
|
in calculating finance costs:
|
(i)
|
any increase in the Margin as a result of a breach of any Individual Loan to Value test will be ignored;
|
(ii)
|
interest in respect of any Loan in sterling and euro shall be calculated by reference to the lower of:
|
(A)
|
LIBOR and EURIBOR as at the relevant Test Date (which rate is deemed to apply for the whole calculation period commencing on that Test Date) plus Margin; and
|
(B)
|
the relevant Cap Rate plus Margin;
|
(iii)
|
interest in respect of any Loan in kronor shall be calculated by reference to STIBOR as at the relevant Test Date (which rate is deemed to apply for the whole calculation period commencing on that Test Date) plus Margin;
|
(e)
|
in calculating passing rental:
|
(i)
|
a break clause under any Portfolio Lease Document will be deemed to be exercised at the earliest date available to the relevant tenant unless
|
(A)
|
a new unconditional (in respect of rental payment obligations) and binding Portfolio Lease Document has been entered into to take effect immediately on that break on equivalent or better terms to that existing Portfolio Lease Document; or
|
(B)
|
the time period during which such break clause may be exercised has expired in accordance with the terms of the relevant Lease Document;
|
(ii)
|
net rental income will be ignored:
|
(A)
|
if payable by a tenant that is a Portfolio Obligor or related to a Portfolio Obligor;
|
(B)
|
if not payable under a binding Portfolio Lease Document which is unconditional in respect of its rental payment obligations;
|
(C)
|
in respect of any Portfolio Lease Documents whose remaining term is 3 Months or less (unless the conditions in (e)(i)(A) apply);
|
(D)
|
where the aggregate amount of accumulated arrears is more than the rental payments payable in any period of three months;
|
(iii)
|
potential net rental income increases as a result of rent reviews will be ignored until unconditionally ascertained;
|
(iv)
|
net rental income payable by a tenant that is more than three Months in arrears on any of its rental payments will be ignored;
|
(v)
|
net rental income payable by a tenant that is subject to insolvency proceedings will be ignored;
|
(vi)
|
net rental income will be reduced by the amount of any deduction or withholding for or on account of Tax from that net rental income; and
|
(vii)
|
net rental income will be reduced by the amount of Operating Expenses;
|
(f)
|
the Company shall, at the request of the Agent, calculate Interest Cover but if the Company does not provide a calculation when requested by the Agent or the Agent disagrees with the calculation provided then the Agent may calculate Interest Cover and that calculation of the Agent shall prevail over any calculation of the Company; and
|
(g)
|
all calculations required shall be made by reference to the Base Currency Amount;
|
(a)
|
the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
(b)
|
the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
(a)
|
an Agreement for Lease;
|
(b)
|
an Occupational Lease; or
|
(c)
|
any other document designated as such by the Agent and the Company;
|
(a)
|
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
(b)
|
the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;
|
(c)
|
the limitation of the enforcement of the terms of leases of real property by laws of general application to those leases;
|
(d)
|
in relation to a Charged Property located in Germany, the limitation arising from section 1136 BGB and from notarial form requirements;
|
(e)
|
similar principles, rights and remedies under the laws of any Relevant Jurisdiction; and
|
(f)
|
any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinions supplied to the Agent as a condition precedent under this Agreement on or before the relevant Utilisation Date;
|
(a)
|
any Original Lender; and
|
(b)
|
any other person which has become a Lender in accordance with clause 25 (
Changes to the Lenders
),
|
(a)
|
the applicable Screen Rate as of the Specified Time for sterling and for a period equal in length to the Interest Period of that Loan; or
|
(b)
|
as otherwise determined pursuant to clause 10.1 (
Unavailability of Screen Rate
),
|
(a)
|
the financial condition of the Obligors and French Obligors (taken as a whole) or any other provider of Security; or
|
(b)
|
the ability of an Obligor and French Obligors (taken as a whole) to perform its financial and other material obligations under the Finance Documents (or the French Intra-Group Debt Documents); or
|
(c)
|
subject to the Legal Reservations, the validity or enforceability of, or the effectiveness or ranking of any Security granted or purported to be granted pursuant to any of, the Finance Documents (or the French Intra-Group Debt Documents) or the rights or remedies of any Finance Party under any of the Finance Documents (or the French Intra-Group Debt Documents);
|
(a)
|
(subject to paragraph (c)) 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.
|
(a)
|
of ground rent, rates and insurance premia;
|
(b)
|
in respect of costs and expenses incurred in complying with applicable laws and regulations relating to any Portfolio Property;
|
(c)
|
in respect of management, maintenance, repair or similar fees, costs and expenses in relation to any Portfolio Property; and
|
(d)
|
in respect of the provision of services relating to any Portfolio Property,
|
(a)
|
in relation to each Obligor, its pro forma balance sheet statement; and
|
(b)
|
in relation to the Swedish Targetco and Belgian Targetco, its latest (unconsolidated) unaudited balance sheet and income statement,
|
(a)
|
the payment of a dividend, distribution of share premium reserve, return of capital, repayment of capital, contribution or other distribution, redemption, repurchase, defeasement, retirement, reduction, or payment in respect of share capital or payments in respect of Subordinated Debt to any person other than an Obligor made by the Company from its General Account in accordance with this Agreement in circumstances where no Cash Sweep Event has occurred and is continuing and no Default is continuing or is reasonably likely to result from such payment;
|
(b)
|
any payment made by an Obligor to another Obligor, or by an Obligor to a French Obligor or to an Italian Facility Obligor, or a French Obligor to another French Obligor or an Italian Facility Obligor to another Italian Facility Obligor consistent with the terms of this Agreement, the Italian Facility Agreement or the Amended French Property Owner Loans Agreement in circumstances where no Event of Default is continuing or, where an Event of Default is continuing, the Agent notifies the Obligors' Agent that certain or all payments may be made while that Event of Default is continuing, until further notice is provided (provided that where such payments are permitted it shall be without prejudice to the Finance Parties' rights and remedies under this Agreement); and
|
(c)
|
the payment of intercompany debt envisaged under clause 3.1(a) (
Purpose
) and the consequential repayment of intercompany debt between the relevant Obligors;
|
(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,
|
(a)
|
the vendor of the shares in any Obligor or any Property or any of its Affiliates (or any employee, officer or adviser); or
|
(b)
|
the provider of any Property Report or the provider of any other due diligence report (in its capacity as provider of the same) in connection with the acquisition, development, financing or refinancing of the shares in any Obligor or any Property,
|
(i)
|
any reasonable expenses incurred by an Obligor to a person who is not an Obligor or Affiliate of an Obligor;
|
(ii)
|
any Tax incurred and required to be paid by an Obligor (as reasonably determined by that Obligor on the basis of existing rates and taking into account any available credit, deduction or allowance),
|
(a)
|
(other than where paragraph (b) applies) as the rate at which the relevant Reference Bank could borrow funds in the Relevant Market in sterling, euro or kronor (as applicable) 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; or
|
(b)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator;
|
(c)
|
(other than where paragraph (b) applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period; or
|
(d)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the Screen Rate are asked to submit to the relevant administrator.
|
(a)
|
its Original Jurisdiction;
|
(b)
|
any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;
|
(c)
|
any jurisdiction where it conducts its business; and
|
(d)
|
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it;
|
(a)
|
in relation to Loans made in euro, the European interbank market;
|
(b)
|
in relation to Loans made in sterling, the London interbank market; and
|
(c)
|
in relation to Loans made in kronor, the Stockholm interbank market;
|
(a)
|
rent, licence fees and equivalent amounts paid or payable;
|
(b)
|
any sum received or receivable from any deposit held as security for performance of a tenant's obligations;
|
(c)
|
a sum equal to any apportionment of rent allowed in favour of any Obligor;
|
(d)
|
any other moneys paid or payable in respect of occupation and/or usage of that Property and any fixture and fitting on that Property including any fixture or fitting on that Property for display or advertisement, on licence or otherwise;
|
(e)
|
any sum paid or payable under any policy of insurance in respect of loss of rent or interest on rent;
|
(f)
|
any sum paid or payable, or the value of any consideration given, for the grant, surrender, amendment, supplement, waiver, extension or release of any Lease Document;
|
(g)
|
any sum paid or payable in respect of a breach of covenant or dilapidations under any Lease Document;
|
(h)
|
any sum paid or payable by or distribution received or receivable from any guarantor of any occupational tenant under any Lease Document;
|
(i)
|
any Tenant Contributions; and
|
(j)
|
any interest paid or payable on, and any damages, compensation or settlement paid or payable in respect of, any sum referred to above less any related fees and expenses incurred (which have not been reimbursed by another person) by any Obligor;
|
(a)
|
the umbrella sale and purchase agreement dated 16 February 2015 made between, amongst other, the Sellers (as defined therein) and the Company; and
|
(b)
|
each Individual Transfer (as defined in the umbrella sale agreement referred to in paragraph (a) above);
|
(a)
|
in relation to any Loan denominated in sterling, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for sterling for the relevant period, displayed (before any correction, recalculation or republication by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters and if the
|
(b)
|
in relation to any Loan denominated in euro, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period, displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters and if the relevant agreed page is replaced or service ceases to be available the Agent may specify another page or service displaying the relevant appropriate rate after consultation with the Lenders and the Obligors' Agent; and
|
(c)
|
in relation to any Loan denominated in kronor, the interbank offered rate administered and calculated by Nasdaq Stockholm (or any other person which takes over the administration and calculation of that rate) under supervision by a committee appointed by the board of directors of the Swedish Bankers' Association for SEK for the relevant period, displayed (before any correction, recalculation or republication by the administrator) on the appropriate page of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters and if the relevant agreed page is replaced or service ceases to be available the Agent may specify another page or service displaying the relevant appropriate rate after consultation with the Lenders and the Obligors' Agent;
|
(a)
|
the Transaction Security expressed to be granted in favour of the Security Agent (or, as the case may be, the English Security Agent) as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b)
|
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent (or, as the case may be, the English Security Agent) as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favour of the Security Agent (or, as the case may be, the English Security Agent) as trustee for the Secured Parties; and
|
(c)
|
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent (or, as the case may be, the English Security Agent) is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties;
|
(a)
|
in relation to the Company, the Parent;
|
(b)
|
in relation to Prime UK Portman T- S.à r.l. and Prime UK Condor - T S.à r.l., Prime Pool VII -T S.à r.l.;
|
(c)
|
in relation to Prime GER Drehbahn - T S.à r.l., Prime GER Valentinskamp - T S.à r.l. and Prime GER Dammtorwall A-T S.à r.l., Prime Pool I - T S.à r.l.;
|
(d)
|
in relation to Prime OPCI, Prime Pool II - T, S.à r.l.;
|
(e)
|
in relation to Prime BEL Brussels-T BVBA and Prime BEL Rue de la Loi SPRL - T (
formerly Chrysalis Invest NV
) (from the date of its acquisition), Prime Pool V - T, S.à r.l.;
|
(f)
|
in relation to the Dutch Borrower, Prime Pool VI - T, S.à r.l.;
|
(g)
|
in relation to Swedish Targetco, Prime Pool IV B - T, S.à r.l.;
|
(h)
|
in relation to Prime Pool IV B - T, S.à r.l., Prime Pool IV A - T, S.à r.l.; and
|
(i)
|
in relation to each other Luxembourg Obligor, the Company;
|
(j)
|
in relation to Prime ITA Milan-T S.r.l., Prime Pool III C - T, S.à r.l.;
|
(k)
|
in relation to Prime Pool III C - T S.à r.l., Prime Pool III B - T S.à r.l.; and
|
(l)
|
in relation to Prime Pool III B - T S.à r.l., Prime Pool III A - T S.à r.l.;
|
(a)
|
the applicable Screen Rate as of the Specified Time for kronor and for a period equal in length to the Interest Period of that Loan; or
|
(b)
|
as otherwise determined pursuant to clause 10.1 (
Unavailability of Screen Rate
),
|
(a)
|
an Obligor;
|
(b)
|
the Parent;
|
(c)
|
the French Obligors;
|
(d)
|
the Italian Facility Obligors; or
|
(e)
|
any other person who becomes a Subordinated Creditor in accordance with this Agreement;
|
(a)
|
(at the discretion of the Agent (acting reasonably)) such reasonable fees as may be payable to the Asset Manager pursuant to the Asset Management Agreement); and
|
(b)
|
any applicable void costs;
|
(a)
|
the tax report produced by Deloitte LLP; and
|
(b)
|
the tax report produced by Arendt & Medernach SA,
|
(a)
|
contribution to:
|
(i)
|
ground rent or other sums payable under any Headlease
|
(ii)
|
rates;
|
(iii)
|
insurance premia;
|
(iv)
|
the cost of an insurance valuation;
|
(v)
|
a service or other charge in respect of a Portfolio Obligor's costs in connection with any management, repair, maintenance or similar obligation or in providing services to a tenant of, or with respect to, a Portfolio Property; or
|
(vi)
|
a reserve or sinking fund; or
|
(b)
|
VAT;
|
(a)
|
a document appointing an Asset Manager;
|
(b)
|
any Charged Account Control Deed;
|
(c)
|
a Finance Document;
|
(d)
|
a French Intra-Group Debt Document;
|
(e)
|
a Lease Document;
|
(f)
|
a Headlease;
|
(g)
|
the Italian Facility Agreement;
|
(h)
|
a document appointing a Managing Agent;
|
(i)
|
a document appointing a Cash Manager;
|
(j)
|
a Hedge Document;
|
(k)
|
each Sale and Purchase Agreement; or
|
(l)
|
any other document designated as such by the Agent and the Company;
|
(a)
|
the Parent;
|
(b)
|
an Obligor;
|
(c)
|
the French Obligors; or
|
(d)
|
a Subordinated Creditor;
|
(a)
|
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b)
|
the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate;
|
(a)
|
a Borrower which is resident for tax purposes in the US; or
|
(b)
|
an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes;
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a), or imposed elsewhere.
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears, a reference in this Agreement to:
|
(i)
|
the
"Agent"
, the
"Arranger"
, the
"English Security Agent"
, any
"Finance Party"
, any
"Lender"
, any
"Obligor"
, any
"Party"
, any
"Secured Party"
, any
"Counterparty"
, the
"Security Agent"
, any
"Transaction Obligor"
or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent or the English Security Agent, any person for the time being appointed as Security Agent or Security Agents (or as English Security Agent or English Security Agents, as the case may be) in accordance with the Finance Documents;
|
(ii)
|
a document in
"agreed form"
is a document which is previously agreed in writing by or on behalf of the Company and the Agent or, if not so agreed, is in the form specified by the Agent;
|
(iii)
|
"assets"
includes present and future properties, revenues and rights of every description;
|
(iv)
|
"date of this Agreement"
is to 1 April 2015;
|
(v)
|
"disposal"
includes (and
"dispose"
will be construed accordingly) a sale, transfer, assignment, grant, lease, licence, declaration of trust or other disposal, whether voluntary or involuntary, and includes in particular in relation to any:
|
(A)
|
German Property the granting of a usufruct "
Nießbrauch
" in respect thereof;
|
(B)
|
Belgian Property the granting or transfer of any rights, whether or not rights in rem "
zakelijke rechten/droits réels
" over the Belgian Property, including but not limited to ownership rights "
eigendom/propriété
", usufruct rights "
vruchtgebruik/usufruit
", long-term lease "
erfpacht/bail emphytéotique
", co-ownership right "
medeëigendom/copropriété"
, easement "
erfdienstbaarheid/servitude
" and right to construct "
opstalrecht/droit de superficie
"; and
|
(C)
|
Dutch Property, the granting of a right of superficies "
recht van opstal
", usufruct "
vruchtgebruik
", leasehold "
erfpacht
" or servitude "
erfdienstbaarheid
";
|
(vi)
|
a
"Finance Document"
or
"Transaction Document"
or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
(vii)
|
"guarantee"
means (other than in clause 18 (
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;
|
(viii)
|
"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;
|
(ix)
|
a
"Loan"
granted or to be granted by a Lender shall also include the plural in the event that the relevant Lender has granted or shall grant more than one Loan, unless the context requires a different interpretation. The foregoing applies accordingly in respect to any reference to Commitment;
|
(x)
|
a
"person"
includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership or other entity (whether or not having separate legal personality);
|
(xi)
|
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;
|
(xii)
|
a provision of law is a reference to that provision as amended or re-enacted; and
|
(xiii)
|
a time of day is a reference to Frankfurt time.
|
(b)
|
The determination of the extent to which a rate is
"for a period equal in length"
to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
|
(c)
|
Section, clause and schedule headings are for ease of reference only.
|
(d)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(e)
|
This Agreement is made in the English language and, therefore, the English language version shall prevail over any translation of this Agreement. In case of doubt, however, the meaning of any Belgian, Dutch, Italian, French, German or Swedish expressions and phrases used in this Agreement shall prevail over the meaning of the English expressions and phrases to which they relate.
|
(f)
|
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.
|
(g)
|
For the purposes of any calculation required under this Agreement any amount denominated in SEK or GBP shall be converted to the Base Currency at the Agent's Spot Rate of Exchange as at the relevant calculation date.
|
1.3
|
Currency symbols and definitions
|
(a)
|
"£"
,
"GBP"
and
"sterling"
denote the lawful currency of the United Kingdom
|
(b)
|
"€"
,
"EUR"
and
"euro"
denote the single currency of the Participating Member States; and
|
(c)
|
"kr", "SEK"
,
"kronor"
and
"krona"
denote the lawful currency of Sweden.
|
1.4
|
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 to enjoy the benefit of any term of this Agreement.
|
(b)
|
Subject to clause 37.6 (
Other exceptions
)
but otherwise 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.
|
(c)
|
Any Receiver, Delegate or any person described in clause 27.12(b) (
Exclusion of liability
) may, subject to this clause 1.4 and the Third Parties Act, rely on any clause of this Agreement which expressly confers rights on it.
|
1.5
|
German Legislation
|
(a)
|
"BGB"
means the German Civil Code (
Bürgerliches Gesetzbuch
);
|
(b)
|
"GwG"
means German Money Laundering Act (
Geldwäschegesetz
);
|
(c)
|
"KWG"
means the German Banking Act (
Kreditwesengesetz
);
|
(d)
|
"PfandBG"
means the German Covered Bond Act (
Pfandbriefgesetz
); and
|
(e)
|
"VAG"
means the German Insurance Supervision Act (
Versicherungsaufsichtsgesetz
).
|
1.6
|
Luxembourg terms
|
(c)
|
a
winding up
,
administration
or
dissolution
includes, without limitation, any procedure or proceeding in relation to an entity becoming bankrupt (
faillite
), insolvency, voluntary or judicial liquidation (
liquidation volontaire ou judiciaire
), composition with creditors (
concordat préventit de faillite
), reprieve from payment (
sursis de paiement
), controlled management (
gestion contrôlée
), fraudulent conveyance (
actio pauliana
), general settlement with creditors, reorganisation or any other similar proceedings affecting the rights of creditors generally under Luxembourg law, and shall be construed so as to include any equivalent or analogous liquidation or reorganisation proceedings;
|
(d)
|
an agent includes, without limitation, a "
mandataire
";
|
(e)
|
a
receiver
,
administrative receiver
,
administrator
,
trustee
,
custodian
,
sequestrator
or the like includes, without limitation, a
juge délégué, commissaire, juge-commissaire, mandataire ad hoc, administrateur provisoire, liquidateur
or
curateur
or any other person performing the same function of each of the foregoing;
|
(f)
|
a
matured obligation
includes, without limitation, any
exigible
,
certaine
and
liquide
obligation;
|
(g)
|
Security
or a
security interest
includes, without limitation, any
hypothèque
,
nantissement, privilège, accord de transfert de propriété à titre de garantie, gage sur fonds de commerce or sureté réelle
whatsoever whether granted or arising by operation of law; and
|
(h)
|
a person being
unable to pay its debts
includes, without limitation, that person being in a state of cessation of payments (
cessation de paiements
).
|
1.7
|
French terms
|
(i)
|
a
winding up
,
administration
or
dissolution
includes, without limitation, any procedure or proceeding in relation to an entity becoming bankrupt (
faillite
), insolvency, voluntary or judicial liquidation (
liquidation volontaire ou judiciaire
), composition with creditors (
accord de conciliation ou de mandat ad hoc ou plan de sauvegarde ou
plan de redressement
), reprieve from payment (
sursis de paiement ou délai de grâce
), controlled management (
administration provisoire ou judiciaire
),
|
(j)
|
an agent includes, without limitation, a "
mandataire
";
|
(k)
|
a
receiver
,
administrative receiver
,
administrator
,
trustee
,
custodian
,
sequestrator
or the like includes, without limitation, an
administrateur judiciaire, mandataire ad ho
c,
conciliateur
,
administrateur provisoire
,
fiduciaire
or
liquidateur
or any other person performing the same function of each of the foregoing;
|
(l)
|
a
matured obligation
includes, without limitation, any
exigible
,
certaine
and
liquide
obligation;
|
(m)
|
Security
or a
security interest
includes, without limitation, any
hypothèque
,
nantissement
,
gage
,
privilège
,
transfert de propriété à titre de garantie
or
sureté réelle
whatsoever whether granted or arising by operation of law; and
|
(n)
|
a person being
unable to pay its debts
includes, without limitation, that person being in a state of cessation of payments (
cessation de paiements
).
|
1.8
|
Dutch terms
|
(a)
|
an "
administrator
" includes a
bewindvoerder
;
|
(b)
|
an "
attachment
" includes a
beslag
;
|
(c)
|
a “
director
”, in relation to a Dutch Obligor, means a managing director (
bestuurder
) and “
board of directors
” means its managing board (
bestuur
);
|
(d)
|
"
gross negligence
" means grove
schuld
;
|
(e)
|
a "
moratorium
" includes
surseance van betaling
and "
granted a moratorium
" includes
surseance verleend
;
|
(f)
|
"
negligence
" means
schuld
;
|
(g)
|
a "
security interest
" includes any mortgage (
hypotheek
), pledge (
pandrecht
), retention of title arrangement (
eigendomsvoorbehoud
), privilege (
voorrecht
), right of retention (
recht van retentie
), right to reclaim goods (
recht van reclame
), and, in general, any right in rem (
beperkt recht
) created for the purpose of granting security (
goederenrechtelijk zekerheidsrecht
);
|
(h)
|
any "
step
" or procedure taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under section 36(2) of the Dutch Tax Collection Act (
Invorderingswet 1990
);
|
(i)
|
a "
liquidator
" includes a
curator
;
|
(j)
|
a "
receiver or an administrative receiver
" does not include a
curator
or
bewindvoerder
;
|
(k)
|
a "
winding-up
", "
administration
" or "
dissolution
" (and any of those terms) includes a Dutch entity being declared bankrupt (
failliet verklaard
) or dissolved (
ontbonden
).
|
1.9
|
Belgian Legislation
|
1.10
|
Belgian terms
|
(a)
|
a
liquidator
,
receiver
,
administrative receiver
,
administrator
,
compulsory manager
or other similar officer includes any
curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, mandataris ad hoc/mandataire ad hoc, ondernemingsbemiddelaar/médiateur d'entreprise
, as applicable, and
sekwester/séquestre
;
|
(b)
|
a
Security
or a
security interest
includes any mortgage (
hypotheek/hypothèque
),
pledge (
pand/nantissement
)
,
any mandate to grant a mortgage, a pledge or any other real security (
mandaat/mandat
), privilege (
voorrecht/privilège
), reservation of title arrangement (
eigendomsvoorbehoud/réserve de propriété
)
,
any real security (
zakelijke zekerheid/sûreté réelle)
and any transfer by way of security (
overdracht ten titel van zekerheid/transfert à titre de garantie
);
|
(c)
|
a person being
unable to pay its debts
is that person being in a state of cessation of payments
(staking van betaling/cessation de paiements)
;
|
(d)
|
a
suspension of payments
,
moratorium of any indebtedness
or
reorganisation
includes any
gerechtelijk akkoord
/
concordat judiciaire
or
gerechtelijke reorganisatie
/
réorganisation judiciaire
, as applicable;
|
(e)
|
a
composition
,
compromise
,
assignment
or
arrangement
includes a
minnelijk akkoord met schuldeisers/accord amiable avec des créanciers, gerechtelijk akkoord/concordat judiciaire
or
gerechtelijke reorganisatie/réorganisation judiciaire
, as applicable;
|
(f)
|
winding up
,
administration or dissolution
includes any
vereffening/liquidation, ontbinding/dissolution, faillissement/faillite
and
sluiting van een onderneming/ fermeture d'une enterprise
;
|
(g)
|
an
attachment, sequestration, distress, execution or analogous process
includes any
uitvoerend beslag/saisie exécutoire
and
bewarend beslag/saisie conservatoire
;
|
(h)
|
an
amalgamation
,
demerger
,
merger
,
consolidation
or
corporate reconstruction
includes a
overdracht
van
algemeenheid/transfert d'universalité
, overdracht
van bedrijfstak/transfert de branche d'activité
,
splitsing/scission
and
fusie/fusion
and assimilated transaction in accordance with article 676 and 677 of the Belgian Companies Code (
gelijkgestelde verrichting/opération assimilée
);
|
(i)
|
constitutional documents
means the
oprichtingsakte/acte constitutif, statuten/statuts
and
uittreksel van de Kruispuntbank voor Ondernemingen/extrait de la Banque Carrefour des Entreprises
;
|
(j)
|
guarantee
means, only for the purpose of the guarantee granted by a Belgian Obligor under this Agreement, an independent guarantee and not a surety (
borg/cautionnement
); and
|
(k)
|
an Obligor being
incorporated
in Belgium or of which its
jurisdiction of incorporation
is Belgium, means that such Obligor has its principal place of business (
voornaamste vestiging/établissement principal
(within the meaning of the Belgian Law of 16 July 2004 on the conflicts of law code)) in Belgium.
|
1.11
|
Italian legislation
|
1.12
|
Italian terms
|
(a)
|
a
receiver
, an
administrative receiver
, an
administrator
or the like includes, without limitation, a
curatore, commissario giudiziale, commissario straordinario, commissario liquidatore
, or any other person performing the same function of each of the foregoing;
|
(b)
|
a
winding-up
,
administration
or
dissolution
includes, without limitation, any procedure or proceeding in relation to
scioglimento
,
liquidazione
,
procedura concorsuale
(
fallimento, concordato fallimentare, concordato preventivo, liquidazione coatta amministrativa, amministrazione straordinaria delle grandi imprese in stato d'insolvenza
),
cessione dei beni ai creditori
and any out of court procedures set out under the Italian Insolvency Law( including any restructuring plan referred to under article 67 of the Italian Insolvency Law or any
accordo di ristrutturazione
under article 182-bis of the Italian Insolvency Law, as well as any other proceeding defined as "
procedura di risanamento
" or "
procedura concorsuale
" under Legislative Decree no. 170 dated May 21, 2004 , or any similar proceedings;
|
(c)
|
a
lease
includes, without limitations, a
contratto di locazione
and an
affitto d'azienda
;
|
(d)
|
Security
or
security interest
includes, without limitation, any
pegno, ipoteca, privilegio speciale
(including the
privilegio speciale
created pursuant to Article 46 of the Italian Legislative Decree No. 385 of 1 September 1993, as amended from time to time),
cessione del credito in garanzia, diritto reale di garanzia
and any other
garanzia reale
or other transactions having the same effect as each of the foregoing.
|
(e)
|
an
attachment
includes, without limitation, a
pignoramento
.
|
1.13
|
Swedish law matters
|
(a)
|
If any party to this agreement that is incorporated in Sweden (the "
Obligated Party
") is required to hold an amount on trust on behalf of another party (the "
Beneficiary
"), the Obligated Party shall hold such money as agent for the Beneficiary on a separate account in accordance with the Swedish Act of 1944 in respect of assets held on account (
lagen (1944:181) om redovisningsmedel
) and shall promptly pay or transfer the same to the Beneficiary or as the Beneficiary may direct.
|
(b)
|
For the avoidance of doubt, the Parties agree that any novation effected in accordance with clause 25 (
Changes to the Lenders
) shall, in relation to any Security Document governed by Swedish law, take effect as an assignment and assumption and transfer of such security interests.
|
1.14
|
Swedish terms
|
(a)
|
a
composition
,
assignment
or
similar arrangement
with any creditor includes a
företagsrekonstruktion
,
konkursförfarande
, or
ackordsuppgörelse
under the Swedish Bankruptcy Act (
konkurslagen
) or the Swedish Reorganisation Act (
lag om fõretagsrekonstruktion
) (as the case may be);
|
(b)
|
a
compulsory manager
,
receiver
,
administrator
includes a
konkursförvaltare
,
företagsrekonstruktör
or
likvidator
under Swedish law;
|
(c)
|
gross negligence
means
grov vårdslöshet
under Swedish law;
|
(d)
|
a
guarantee
includes any
garanti
under Swedish law which is independent from the debt to which it relates and any
borgen
under Swedish law which is accessory to or dependant on the debt to which it relates;
|
(e)
|
merger
includes any fusion implemented in accordance with Chapter 23 of the Swedish Companies Act;
|
(f)
|
a
reorganisation
includes any contribution of part of its business in consideration of shares (
apport
) and any demerger (
delning
) implemented in accordance with Chapter 24 of the Swedish Companies Act; and
|
(g)
|
a
winding up
,
administration
or
dissolution
includes a
frivillig likvidation
, or
tvångslikvidation
under Chapter 25 of the Swedish Companies Act.
|
2.
|
THE FACILITY
|
2.1
|
The Facility
|
2.2
|
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.
|
2.3
|
Obligors' Agent
|
(a)
|
Each Obligor (other than the Company) by its execution of this Agreement irrevocably appoints the Company 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 Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor , without further reference to or the consent of that Obligor; and
|
(ii)
|
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,
|
(b)
|
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Company or given to the Company under any Finance Document on behalf of an Obligor or in connection with any Finance Document (whether or not known to any Obligor ) 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 Company and any Obligor, those of the Company shall prevail.
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
(a)
|
Each Original Borrower (other than the PPD Lender) shall apply all amounts borrowed by it under the Facility in or towards financing the acquisition of its Property and for general working capital purposes and includes a prepayment in an aggregate amount not exceeding €100,000,000 of existing intercompany debt instructed by the Obligors' Agent to be paid directly to Prime Holdings - T (US), LLC.
|
(b)
|
The PPD Lender shall apply all amounts borrowed by it under the Facility in or towards financing the funding of the French Intra-Group Loans.
|
(c)
|
Each Additional Borrower shall apply all amounts borrowed by it under the Facility in or towards refinancing its existing indebtedness and for general working capital purposes.
|
3.2
|
Monitoring
|
4.
|
CONDITIONS OF UTILISATION
|
4.1
|
Initial conditions precedent
|
4.2
|
Further conditions precedent
|
(a)
|
on the date of the Utilisation Request and on the proposed Utilisation Date:
|
(i)
|
no Default is continuing or would result from the proposed Loan; and
|
(ii)
|
the Repeating Representations to be made by each Obligor are true in all material respects; and
|
(b)
|
immediately following the making of the Loan:
|
(i)
|
Interest Cover will be at least 250 per cent;
|
(ii)
|
the Loan to Value will not exceed 60 per cent;
|
(iii)
|
the Net Yield on Debt will be no less than 7.5 per cent; and
|
(iv)
|
no Individual Loan to Value will exceed 65 per cent.
|
(c)
|
no event described in clause 10.3 (
Market disruption
) has occurred between the date of this Agreement and the first Utilisation Date.
|
4.3
|
Maximum number of Loans
|
4.4
|
Conditions subsequent
|
5.
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
(a)
|
Each Borrower and Additional Borrower confirms and ratifies the "
Funding Indemnity and Utilisation Request
" dated on or around 27 March 2015 given by the Obligors' Agent.
|
(b)
|
A Borrower 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)
|
it specifies the purpose of the Loan;
|
(ii)
|
the proposed Utilisation Date is a Business Day within the Availability Period; and
|
(iii)
|
the currency and amount of the Utilisation comply with clause 5.3 (
Currency and amount
).
|
(b)
|
Utilisation Requests for all of the Loans must be delivered on the same day specifying the same Utilisation Date.
|
5.3
|
Currency and amount
|
(a)
|
The currency specified in a Utilisation Request must be euros save in respect of any Loan to be made in connection with the English Property and/or the Swedish Property in which case it must specify the currency as sterling or kronor (as applicable).
|
(b)
|
The amount of the proposed Loan must be an amount which, when aggregated with (i) the amount of each Loan made prior to the Amendment Date and (ii) (on and thereafter) the amount of each other Loan made or to be made on the same day, is not more than the lower of:
|
(i)
|
the Total Commitments;
|
(ii)
|
60% of the sum of the market values of the Charged Properties as set out in the Initial Valuation; and
|
(iii)
|
60% of the Acquisition Costs,
|
(c)
|
If the amount of any proposed Loan would result in the maximum amount available pursuant to clause 5.3(b) being exceeded the amount of each Loan shall be reduced in
|
5.4
|
Lenders' participation
|
5.5
|
Cancellation of Commitment
|
6.
|
REPAYMENT
|
6.1
|
Repayment of Loans
|
6.2
|
Reborrowing
|
6.3
|
Cash Sweep Shortfall Amounts
|
7.
|
PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
(a)
|
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
(b)
|
upon the Agent notifying the Company, the Commitment of that Lender will be immediately cancelled; and
|
(c)
|
each Borrower shall repay that Lender's Loans made to that Borrower on the Interest Payment Date for each Loan occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Loan shall be cancelled.
|
7.2
|
Change of control
|
(a)
|
If:
|
(i)
|
the Sponsor or an Affiliate of the Sponsor or a Related Entity of the Sponsor ceases to control the Parent; and/or
|
(ii)
|
there is any change within the group of "affiliated customers" within the meaning of article 4 section 1 no. 39 CRR (Capital Requirements Regulation),
|
(A)
|
the Company shall promptly notify the Agent upon becoming aware of that event;
|
(B)
|
a Lender shall not be obliged to fund a Utilisation; and
|
(C)
|
if a Lender so requires and notifies the Agent, the Agent shall, by not less than 10 days' notice to the Company, cancel the Commitment of that Lender and declare all outstanding Loans made by that Lender, together with accrued interest, and all other amounts accrued under the Finance Documents in respect of those Loans immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding Loans and amounts will become immediately due and payable.
|
(b)
|
For the purpose of clause 7.2(a):
|
(i)
|
"
control
" means (whether directly or indirectly):
|
(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 50 per cent. of the maximum number of votes that might be cast at a general meeting of the Parent; or
|
(2)
|
appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent; or
|
(3)
|
give directions with respect to the operating and financial policies of the entity with which the directors or other equivalent officers of the Parent are obliged to comply; and/or
|
(B)
|
the holding beneficially of more than 50 per cent. of the issued share capital of the Parent (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)
|
"Related Entity"
means any entity which is advised or managed by North Star Asset Management Group Inc. or an Affiliate of North Star Asset Management Group Inc.
|
7.3
|
Mandatory prepayment
|
7.4
|
Application of mandatory prepayments
|
(a)
|
An amount referred to in clause 7.3(a) shall be applied immediately as follows:
|
(i)
|
first
:
|
(A)
|
in an amount equal to the Allocated Repayment Amount for the Property the subject of, or owned by the relevant Obligor the shares of which were the subject of, the relevant disposal:
|
(1)
|
first
, in or towards prepayment of the Loans made to the Property Owner that owned that Property or where applicable, its parent;
|
(2)
|
secondly
, after prepayment of those Loans, in or towards prepayment of the other Loans and (unless an Event of Default is continuing) in consultation with the Company, or, where no agreement is reached within 10 Business Days of the start of such consultation, at the Agent's discretion with any such prepayment applied as to be in compliance with applicable laws but so that, if no Event of Default is continuing, upon application of any such prepayment, any Individual Loan to Value shall not, following such prepayment, be greater than 110 per cent, or less than 90 per cent of the Loan to Value, provided that, if prior to such prepayment, any relevant Individual Loan to Value is greater than 110 per cent or less than 90 per cent of the Loan to Value, then such prepayment shall not, in respect of such Individual Loan to Value, result in an increase in the 110 per cent or a decrease in the 90 per cent of the Loan to Value; and
|
(B)
|
in or towards payment of prepayment fees and any other amount that is or will become due and payable in accordance with clause 7.8(b) as a result of those prepayments; and
|
(ii)
|
s
econdly
, in payment of any surplus to the relevant General Account.
|
(b)
|
An amount referred to in clauses 7.3(b) to 7.3(d) shall be applied on the date provided for in accordance with clause 17.6(c) as follows:
|
(i)
|
in or towards:
|
(A)
|
first
, prepayment of the Loans made to the relevant Borrower referred to in clause 7.4(c);
|
(B)
|
secondly
, after prepayment of those Loans, prepayment of the other Loans at the Agent's discretion and (unless an Event of Default is continuing) in consultation with the Company, or, where no agreement is reached within 10 Business Days of the start of such consultation, at the Agent's discretion with any such prepayment applied as to be in compliance with applicable laws but so that, if no Event of Default is continuing, upon application of any such prepayment, any Individual Loan to Value shall not, following such prepayment, be greater than 110 per cent, or less than 90 per cent of the Loan to Value, provided that, if prior to such prepayment, any relevant Individual Loan to Value is greater than 110 per cent or less than 90 per cent of the Loan to Value, then such prepayment shall not, in respect of such Individual Loan to Value, result in an increase in the 110 per cent or a decrease in the 90 per cent of the Loan to Value; and
|
(ii)
|
in or towards payment of prepayment fees and any other amount that is or will become due and payable in accordance with clause 7.8(b) as a result of those prepayments,
|
(c)
|
For the purposes of clause 7.4(b)(i)(A), the relevant Borrower is:
|
(i)
|
insofar as the relevant amount to be applied in prepayment is derived from or relates to a Borrower or the assets of or shares in a Borrower, that Borrower; and
|
(ii)
|
otherwise, such Borrower or Borrowers as the Agent may determine, and (unless an Event of Default is continuing) in consultation with the Company, or, where no agreement is reached within 10 Business Days of the start of such consultation, at the Agent's discretion with any such prepayment applied as to be in compliance with applicable laws but so that, if no Event of Default is continuing, upon application of any such prepayment, any Individual Loan to Value shall not, following such prepayment, be greater than 110 per cent, or less than 90 per cent of the Loan to Value, provided that, if prior to such prepayment, any relevant Individual Loan to Value is greater than 110 per cent or less than 90 per cent of the Loan to Value, then such prepayment shall not, in respect of such Individual Loan to Value, result in an increase in the 110 per cent or a decrease in the 90 per cent of the Loan to Value.
|
7.5
|
Voluntary cancellation
|
7.6
|
Voluntary prepayment of Loans
|
(a)
|
A Borrower to which a Loan has been made may, if it gives the Agent not less than 10 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice,
|
(b)
|
A Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the available Facility is zero).
|
7.7
|
Right of repayment and cancellation in relation to a single Lender
|
(a)
|
If:
|
(i)
|
any sum payable to any Lender by an Obligor is required to be increased under clause 12.2(c); or
|
(ii)
|
any Lender claims indemnification from the Company under clause 12.3 (
Tax indemnity
) or clause 13.1 (
Increased costs
),
|
(b)
|
On receipt of a notice of cancellation referred to in clause 7.7(a), the Loans of that Lender shall immediately be reduced to zero.
|
(c)
|
On the last day of each Interest Payment Date which ends after the Company has given notice of cancellation under clause 7.7(a) (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan has been made by that Lender shall repay that Lender's Loan.
|
(d)
|
If a French Property Owner makes a payment under clause 5.7 (
Right of repayment and cancellation in relation to a single Lender
) of the Amended French Property Owner Loans Agreement, the PPD Lender will prepay its Loan by an equivalent amount but only to the extent that the PPD Lender has the same rights vis-à-vis a Lender under this Agreement pursuant to clause 7.7(a) above.
|
7.8
|
Restrictions
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this clause 7 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)
|
Subject to clause 11.3(c), any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and subject to any Break Costs and any prepayment and cancellation fees payable under this Agreement, without premium or penalty.
|
(c)
|
No Borrower may reborrow any part of the Facility which is prepaid.
|
(d)
|
The Borrowers shall not 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)
|
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f)
|
If the Agent receives a notice under this clause 7 it shall promptly forward a copy of that notice to either the Company or the affected Lenders as appropriate.
|
(g)
|
If all or part of any Lender's Loan is repaid or prepaid, an amount of that Lender's Commitment (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
|
(h)
|
Any prepayment of the Loans (other than a prepayment to a single Lender pursuant to clause 7.1 (
Illegality
), clause 7.2(a)(ii) (
Change of control
) or clause 7.7 (
Right of repayment and cancellation in relation to a single Lender
)) shall be paid to the Lenders in the proportion that the Loans granted by each Lender bears to the aggregate amount of all of the Loans.
|
8.
|
INTEREST
|
8.1
|
Calculation of interest
|
(a)
|
The rate of interest on each Loan made in euros for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
|
(i)
|
Margin; and
|
(ii)
|
EURIBOR;
|
(b)
|
the rate of interest on each Loan made in sterling for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
|
(i)
|
Margin; and
|
(ii)
|
LIBOR; and
|
(c)
|
the rate of interest on each Loan made in kronor for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
|
(i)
|
Margin; and
|
(ii)
|
STIBOR.
|
8.2
|
Payment of interest
|
8.3
|
Hedging
|
(a)
|
Each Borrower shall, or the Company on behalf of the Borrowers (other than the Swedish Borrower) and of each French Property Owner will, by no later than the date falling 20
|
(i)
|
a LIBOR interest rate cap with a notional amount equal to the aggregate of Loans in sterling with a strike rate of 2.0 per cent.;
|
(ii)
|
a EURIBOR interest rate cap with a notional amount equal to the aggregate of the Loans in euro with a strike rate of 0.5 per cent.,
|
(b)
|
By no later than the date falling 6 months prior to the fifth anniversary of this Agreement, the Borrowers (other than the Swedish Borrower), commencing on the expiry of the caps referred to in clause 8.3(a)(i) and 8.3(a)(ii), shall enter into, and maintain, (and the Company shall procure that each French Property Owner enters into and maintains) Hedge Documents as follows:
|
(i)
|
a LIBOR interest rate cap with a notional amount equal to the aggregate of the Loans then outstanding in sterling; and
|
(ii)
|
a EURIBOR interest rate cap with a notional amount equal to the Loans then outstanding in euro,
|
(c)
|
Each Hedge Document referred to in 8.3(a) and 8.3 (b)shall, in addition:
|
(i)
|
be based on a 1992 ISDA Master Agreement or a 2002 ISDA Master Agreement (or documented as a long form confirmation based on a 1992 ISDA Master Agreement or a 2002 ISDA Master Agreement);
|
(ii)
|
allow the rights of each Borrower (and of each French Property Owner) under that Hedge Document to be charged or assigned by way of security;
|
(iii)
|
be governed by English law;
|
(iv)
|
not permit the Counterparty to terminate or close out any transactions in respect of any Hedge Document (in whole or in part) except:
|
(A)
|
if the Agent serves notice under clause 24.18(a) or, having served notice makes a demand;
|
(B)
|
where the Counterparty is a Lender, that Lender serves a notice on the Obligors' Agent pursuant to clause 24.18(b) or, having served notice makes a demand;
|
(C)
|
if an Illegality (as that term is defined in the applicable ISDA Master Agreement) has occurred;
|
(D)
|
if an Additional Termination Event (as that term is defined in the applicable ISDA Master Agreement) pursuant to Part 1(g) of the relevant Schedule to the ISDA Master Agreement under the heading “
Clearing Requirement
” has occurred;
|
(E)
|
if a Misrepresentation (as that term is defined in the applicable ISDA Master Agreement) relating to an Additional Representation under Part 4(m)(ii) of the relevant Schedule to the ISDA Master Agreement under the heading “Dodd-Frank Act” has occurred;
|
(F)
|
if all the Loans and other amounts outstanding under the Finance Documents have been unconditionally and irrevocably paid and discharged in full; or
|
(G)
|
in the case of any other termination or closing out by a Counterparty or a Borrower, with the consent of the Agent.
|
(v)
|
not permit the Counterparty to suspend making payments under a transaction in respect of a Hedge Document unless the relevant Borrower is in breach of its payment obligations under any transaction in respect of that Hedge Document;
|
(d)
|
Any termination or close-out permitted under this clause 8.3 (
Hedging
) shall be without prejudice to the Borrowers' obligation to maintain (or the Company's obligation to procure that each French Property Owner maintains) Hedge Documents in accordance with this clause 8.3 (
Hedging
).
|
(e)
|
Neither the Counterparty nor the Borrowers (and the Company shall procure that no French Property Owner) may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Agent.
|
(f)
|
The Company on behalf of the Borrower and on behalf of each French Property Owner shall pay the applicable premium for each interest rate cap within 2 Business Days of each trade.
|
(g)
|
The Borrowers shall (and the Company shall procure that the French Property Owners shall) use their reasonable endeavours to document the Hedge Documents as soon as possible and shall provide the Agent with a copy of each signed and dated Hedge Document within 3 Business Days of its date and a certified copy within 10 Business Days of its date.
|
(h)
|
The Company shall notify the Agent of any material default by any Counterparty under any Hedge Document.
|
(i)
|
Each Borrower shall (and the Company shall procure that each French Property Owner shall) provide the Agent with a copy of any notice it receives from the Counterparty under its Hedge Document.
|
(j)
|
In circumstances where Aareal Bank AG is not the Counterparty, then to the extent that any requirement listed in this clause 8.3 (
Hedging
) would not be applicable to a
|
8.4
|
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 clause 8.4(c) is 2.00 per cent per annum 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 or for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).
|
(b)
|
Any interest accruing under this clause 8.4 shall be immediately payable by the Obligor on demand by the Agent.
|
(c)
|
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 2.00 per cent per annum higher than the rate which would have applied if the overdue amount had not become due.
|
(d)
|
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.
|
8.5
|
Notification of rates of interest
|
(a)
|
The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.
|
(b)
|
The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.
|
8.6
|
Insurance Undertaking Margin
|
9.
|
INTEREST PERIODS
|
9.1
|
Length of Interest Periods
|
9.2
|
Non-Business Days
|
10.
|
CHANGES TO THE CALCULATION OF INTEREST
|
10.1
|
Unavailability of Screen Rate
|
(a)
|
Interpolated Screen Rate
: If no Screen Rate is available for any of LIBOR EURIBOR or STIBOR for the Interest Period of a Loan, the applicable LIBOR EURIBOR or STIBOR (as applicable) shall be the relevant Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.
|
(b)
|
Historic Screen Rate
: If no Screen Rate is available for LIBOR, EURIBOR or STIBOR for:
|
(i)
|
sterling, euro or kronor; or
|
(ii)
|
the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,
|
(c)
|
Interpolated Historic Screen Rate
: If clause 10.1(b) applies but no Historic Screen Rate is available for the Interest Period of a Loan, the applicable LIBOR, EURIBOR or STIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan.
|
(d)
|
Reference Bank Rate
: If clause 10.1(c) applies but it is not possible to calculate the Interpolated Historic Screen Rate, the Interest Period of that Loan shall be the Reference Bank Rate as of the Specified Time for sterling, euro or kronor and for a period equal in length to the Interest Period of that Loan.
|
(e)
|
Cost of funds
: If clause 10.1(d) applies but no Reference Bank Rate is available for sterling, euro or kronor or the relevant Interest Period there shall be no LIBOR, EURIBOR or STIBOR (as applicable) for that Loan and clause 10.4 (
Cost of funds
) shall apply to that Loan for that Interest Period.
|
10.2
|
Calculation of Reference Bank Rate
|
(a)
|
Subject to clause 10.2(b), if LIBOR, EURIBOR or STIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
|
10.3
|
Market disruption
|
10.4
|
Cost of funds
|
(a)
|
If this clause 10.4 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified to the Agent by that Lender as soon as practicable and in any event within 2 Business Days of the first day of that Interest Period (or, if earlier, on the date falling 5 Business Days before the date on which interest is due to be paid in respect of that Interest Period) before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding that Loan from whatever source it may reasonably select;
|
(b)
|
If this clause 10.4 applies and the Agent or the Company so requires, the Agent and the Company 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.
|
(c)
|
Any alternative basis agreed pursuant to clause 10.4(b) shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.
|
10.5
|
Break Costs
|
(a)
|
Each Borrower shall, within 3 Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs.
|
11.
|
FEES
|
11.1
|
Arrangement fee
|
11.2
|
Agency fee
|
11.3
|
Prepayment and cancellation fee
|
(a)
|
Subject to clause 11.3(c), the Company must pay to the Agent for each Lender a prepayment and cancellation fee on the date of prepayment of all or any part of a Loan and on the date of cancellation of any part of the Total Commitments.
|
(b)
|
The amount of the prepayment and cancellation fee is:
|
(i)
|
if the prepayment or cancellation occurs on or before the first anniversary of the date of this Agreement 2.00 per cent of the amount prepaid or cancelled;
|
(ii)
|
if the prepayment or cancellation occurs after the first anniversary of this Agreement but on or before the second anniversary of the date of this Agreement, 1.50 per cent of the amount prepaid or cancelled;
|
(iii)
|
if the prepayment or cancellation occurs after the second anniversary of this Agreement but on or before the third anniversary of the date of this Agreement, 1.00 per cent of the amount prepaid or cancelled;
|
(iv)
|
if the prepayment or cancellation occurs after the third anniversary of this Agreement but on or before the fourth anniversary of the date of this Agreement, 0.50 per cent of the amount prepaid or cancelled; and
|
(c)
|
No prepayment or cancellation fee shall be payable under this clause 11.3 in respect of:
|
(i)
|
any prepayment or cancellation of an amount of up to 20 per cent of the Total Commitments; or
|
(ii)
|
if the prepayment or cancellation is made under clause 7.1 (
Illegality
), clause 7.7 (
Right of repayment and cancellation in relation to a single Lender
), clause 13.1 (
Increased costs
), 17.5 (
Cash Sweep Account
), 21.4 (
Covenant repair
) or the cancellation is made under clause 7.8(g); or
|
(iii)
|
if the prepayment is made by operation of clauses 17.11(d) and 17.11(f) (
French Intra-Group Loan Proceeds Account
).
|
12.
|
TAX GROSS UP AND INDEMNITIES
|
12.1
|
Definitions
|
(a)
|
In this Agreement:
|
(i)
|
lending through a Facility Office in Belgium; or
|
(ii)
|
a Belgian
Treaty Lender; or
|
(iii)
|
a credit institution within the meaning of article 107, §2, 5, a), second dash of the RD ITC, that is acting through its head office and is resident for tax purposes in a country with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxation agreement makes provision for exemption from tax imposed by Belgium) or in a country which is a member state of the European Economic Area; or
|
(iv)
|
a credit institution within the meaning of article 107, §2, 5, a), second dash of the RD ITC, that is acting through a permanent establishment which (i) itself qualifies as a credit institution within the meaning of the aforementioned article 107, §2, 5, a) second dash and (ii) is located in a country with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxation agreement makes provision for exemption from tax imposed by Belgium) or in a country which is a member state of the European Economic Area.
|
(i)
|
is treated as a resident of a Belgian
Treaty State for the purposes of the Belgian
Treaty;
|
(ii)
|
does not carry on a business in Belgium through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and
|
(iii)
|
fulfils any other conditions which must be fulfilled by it under the Belgian
Treaty in order to obtain exemption from Tax imposed by Belgium on interest payments due to that Lender under a Finance Document except that for this purpose it is assumed that any necessary procedural formalities are fulfilled.
|
(i)
|
where it relates to a UK Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in Clause 41 (
Tax Numbers
) of this Agreement, and is filed with HM Revenue and Customs within 30 days of the date of this Agreement; or
|
(ii)
|
where it relates to a UK Treaty Lender that is a New Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Transfer Certificate or Assignment Agreement, and is filed with HM Revenue & Customs within 30 days of that Transfer Date.
|
(i)
|
lending through a Facility Office in the Netherlands; or
|
(ii)
|
a Dutch
Treaty Lender; or
|
(iii)
|
a Lender which is otherwise exempt from any Dutch Tax imposed on interest payments due to that Lender under a Finance Document.
|
(i)
|
is treated as a resident of a Dutch
Treaty State for the purposes of the Dutch
Treaty;
|
(ii)
|
does not carry on a business in the Netherlands through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and
|
(iii)
|
fulfils any other conditions which must be fulfilled under the Dutch
Treaty in order to obtain exemption from Tax imposed on interest payments due to that Lender under a Finance Document except that for this purpose it is assumed that any necessary procedural formalities are fulfilled.
|
(i)
|
fulfils the conditions imposed by the domestic law of France in order for a payment of interest not to be subject to (or as the case may be, to be exempt from) any Tax Deduction; or
|
(ii)
|
is a French Treaty Lender; or
|
(iii)
|
a Lender which is otherwise exempt from any French Tax imposed on interest payments due to that Lender under a Finance Document.
|
(i)
|
is treated as a resident of a French Treaty State for the purposes of the French Treaty;
|
(ii)
|
does not carry on business in France through a permanent establishment with which that Lender's participation in the Loan is effectively connected;
|
(iii)
|
is acting from a Facility Office situated in its jurisdiction of incorporation; and
|
(iv)
|
fulfils any other conditions which must be fulfilled under the French Treaty by residents of the French Treaty State for such residents to obtain exemption for Tax imposed on interest by France, subject to the completion of any necessary procedural formalities.
|
(i)
|
lending through a Facility Office in Germany; or
|
(ii)
|
a German Treaty Lender.
|
(i)
|
is treated as a resident of a German Treaty State for the purposes of the German Treaty;
|
(ii)
|
does not carry on a business in Germany through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and
|
(iii)
|
fulfils any other conditions which must be fulfilled by it under the German Treaty in order to obtain exemption from Tax imposed by Germany on interest payments due to that Lender under a Finance Document except that for this purpose it is assumed that any necessary procedural formalities are fulfilled.
|
(i)
|
in relation to any United Kingdom sourced payment made under a Finance Document by an Obligor, a UK Qualifying Lender;
|
(ii)
|
in relation to any French sourced payment made under a Finance Document by an Obligor, a French Qualifying Lender;
|
(iii)
|
in relation to any German sourced payment made under a Finance Document by an Obligor, a German Qualifying Lender;
|
(iv)
|
in relation to any Belgian sourced payment made under a Finance Document by an Obligor, a Belgian Qualifying Lender;
|
(v)
|
in relation to any Dutch sourced payment made under a Finance Document by an Obligor, a Dutch Qualifying Lender; or
|
(vi)
|
in relation to any Swedish sourced payment made under a Finance Document by an Obligor, a Swedish Qualifying Lender.
|
(i)
|
lending through a Facility Office in Sweden; or
|
(ii)
|
a Swedish Treaty Lender; or
|
(iii)
|
a Lender which is otherwise exempt from any Swedish Tax imposed on interest payments due to that Lender under a Finance Document.
|
(i)
|
is treated as a resident of a Swedish Treaty State for the purposes of the Swedish Treaty;
|
(ii)
|
does not carry on a business in Sweden through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and
|
(iii)
|
fulfils any other conditions which must be fulfilled by it under the Swedish Treaty in order to obtain exemption from Tax imposed by Sweden on interest payments due to that Lender under a Finance Document except that for this purpose it is assumed that any necessary procedural formalities are fulfilled.
|
(i)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(ii)
|
a partnership each member of which is:
|
(A)
|
a company so resident in the United Kingdom; or
|
(B)
|
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
|
(iii)
|
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.
|
(i)
|
a Lender:
|
(A)
|
which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or
|
(B)
|
in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or
|
(ii)
|
a Lender which is:
|
(A)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(B)
|
a partnership each member of which is:
|
(1)
|
a company so resident in the United Kingdom; or
|
(2)
|
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;
|
(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; or
|
(iii)
|
a UK Treaty Lender; or
|
(iv)
|
a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.
|
(i)
|
is treated as a resident of a UK Treaty State for the purposes of the UK Treaty;
|
(ii)
|
does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and
|
(iii)
|
fulfils any other conditions which must be fulfilled by it under the UK Treaty for residents of that UK Treaty State to obtain full exemption from Tax imposed by the United Kingdom on interest payments under a Finance Document except that for this purpose it is assumed that any necessary procedural formalities are fulfilled.
|
(b)
|
Unless a contrary indication appears, in this clause 12 a reference to
"determines"
or
"determined"
means a determination made in the absolute discretion of the person making the determination acting in good faith.
|
(c)
|
This clause 12 shall not apply with respect to payments under any Hedge Document.
|
12.2
|
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 promptly 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 that 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)
|
A payment shall not be increased under clause 12.2(c) by reason of a Tax Deduction on account of Tax, if on the date on which the payment falls due:
|
(i)
|
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or
|
(ii)
|
the relevant Lender is a Qualifying Lender and the payment could have been made to the Lender without any Tax Deduction had that Lender complied with its obligations under clause 12.2; or
|
(iii)
|
the Tax Deduction is based on section 50a, paragraph 7 German Income Tax Act or any law amending or replacing section 50a, paragraph 7 German Income Tax Act.
|
(e)
|
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.
|
(f)
|
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 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.
|
(i)
|
Subject to clause 12.2(i), a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
|
(A)
|
A UK Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in Clause 41 (
Tax Numbers
) of this Agreement; and
|
(B)
|
a New Lender that is a UK Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the Transfer Certificate or Assignment Agreement which it executes,
|
(h)
|
If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with clause 12.2(g)(ii) and:
|
(i)
|
a Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or
|
(ii)
|
a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:
|
(A)
|
that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
|
(B)
|
HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,
|
(i)
|
If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in 12.2(g)(ii)no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment or its participation in any Loan unless the Lender otherwise agrees.
|
(j)
|
A Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.
|
(k)
|
A UK Non-Bank Lender shall promptly notify the Company and the Agent if there is any change in the position from that set out in the Tax Confirmation.
|
12.3
|
Tax indemnity
|
(a)
|
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 will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b)
|
Clause 12.3(a) shall not apply:
|
(i)
|
with respect to any Tax assessed on a Finance Party:
|
(A)
|
incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B)
|
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction; or
|
(C)
|
under the laws of the Netherlands to the extent such Tax becomes payable as a result of such Protected Party having a substantial interest (
aanmerkelijk belang
) in an Obligor as laid down in the Netherlands Income Tax Act 2001 (
Wet inkomstenbelasting 2001
) other than on or after enforcement of the share pledges conferred by the Security Documents; or
|
(D)
|
under the laws of Germany due to any security over German real estate having been granted;
|
(ii)
|
to the extent a loss, liability or cost:
|
(A)
|
is compensated for by an increased payment under clause 12.2 (
Tax gross-up
);
|
(B)
|
would have been compensated for by an increased payment under clause 12.2 (
Tax gross-up
) but was not so compensated solely because one of the exclusions in clause 12.2(d) applied; or
|
(C)
|
relates to a FATCA Deduction required to be made by a Party; or
|
(D)
|
is suffered or incurred with respect to any Bank Levy (or any payment attributable to, or liability arising as a consequence of, a Bank Levy).
|
(c)
|
A Protected Party making, or intending to make, a claim under clause 12.3(a) 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 12.3, notify the Agent.
|
12.4
|
Tax Credit
|
(a)
|
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and
|
(b)
|
that Finance Party has obtained and utilised that Tax Credit or part of that Tax Credit,
|
12.5
|
Lender Status Confirmation
|
(a)
|
not a UK Qualifying Lender;
|
(b)
|
a UK Qualifying Lender (other than a Treaty Lender); or
|
(c)
|
a UK Treaty Lender.
|
(d)
|
not a French Qualifying Lender;
|
(e)
|
a French Qualifying Lender (other than a Treaty Lender); or
|
(f)
|
a French Treaty Lender.
|
(g)
|
not a German Qualifying Lender;
|
(h)
|
a German Qualifying Lender (other than a Treaty Lender); or
|
(i)
|
a German Treaty Lender.
|
(j)
|
not a Belgian Qualifying Lender;
|
(k)
|
a Belgian Qualifying Lender (other than a Treaty Lender); or
|
(l)
|
a Belgian Treaty Lender.
|
(m)
|
not a Dutch Qualifying Lender;
|
(n)
|
a Dutch Qualifying Lender (other than a Treaty Lender); or
|
(o)
|
a Dutch Treaty Lender.
|
(p)
|
not a Swedish Qualifying Lender;
|
(q)
|
a Swedish Qualifying Lender (other than a Treaty Lender); or
|
(r)
|
a Swedish Treaty Lender.
|
12.6
|
Stamp taxes
|
(a)
|
The Company shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability that Secured Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document;
|
(b)
|
Clause 12.6(a) shall not apply to any cost, loss or liability any Finance Party incurs in relation to stamp duty, registration and other similar Taxes payable in respect of an assignment, transfer or other alienation of any kind by that Finance Party of any of its rights and/or obligations under any Finance Document..
|
12.7
|
VAT
|
(a)
|
All amounts 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 any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to clause 12.7(b), if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of that VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).
|
(b)
|
If VAT is or becomes 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 other than the Recipient (the
"Relevant Party"
) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i)
|
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this clause 12.7(b)(i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT payable on that supply; and
|
(ii)
|
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably
|
(d)
|
Any reference in this Clause 12.7 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated as making the supply, or (as appropriate) receiving the supply under the grouping rules (as provided for) in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).
|
(e)
|
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
12.8
|
FATCA Information
|
(a)
|
Subject to clause 12.8(c), each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party;
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
(b)
|
If a Party confirms to another Party pursuant to clause 12.8(a)(i) that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Clause 12.8(a) shall not oblige any Finance Party to do anything, and clause 12.8(a)(iii) shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with clause 12.8(a)(i) or 12.8(a)(ii) (including, for the avoidance of doubt, where clause 12.8(c) applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e)
|
If a Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i)
|
where an Original Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii)
|
where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date;
|
(ii)
|
the date a new US Tax Obligor accedes as a Borrower; or
|
(iv)
|
where a Borrower is not a US Tax Obligor, the date of a request from the Agent,
|
(A)
|
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
(B)
|
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f)
|
The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to clause 12.8(e) to the relevant Borrower.
|
(g)
|
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to clause 12.8(e) is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.
|
(h)
|
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to clause 12.8(e) or 12.8(g) without further verification. The Agent shall not be liable for any action taken by it under or in connection with clauses 12.8(e), 12.8(f) or 12.8(g).
|
12.9
|
FATCA Deduction
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.
|
13.
|
INCREASED COSTS
|
13.1
|
Increased costs
|
(a)
|
Subject to clause 13.3 (
Exceptions
) the Company shall, within 3 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 or (iii) the implementation or application of, or compliance with, Basel III or Solvency II or any other law or regulation which implements Basel III or Solvency II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).
|
(b)
|
In this Agreement
"Increased Costs"
means:
|
(i)
|
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii)
|
an additional or increased cost; or
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
(c)
|
In this Agreement "
Basel III
" means:
|
(i)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
(ii)
|
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(iii)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III"."
|
(d)
|
In this Agreement "Solven
cy II"
means the Directive 2009/138/EC of the European Parliament and the Council of 25 November 2009 on the taking-up and pursuit of the
|
13.2
|
Increased cost claims
|
(a)
|
A Finance Party intending to make a claim pursuant to clause 13.1 (
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, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3
|
Exceptions
|
(a)
|
Clause 13.1 (
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)
|
attributable to a FATCA Deduction required to be made by a Party;
|
(iii)
|
compensated for by clause 12.3 (
Tax indemnity
)
(or would have been compensated for under clause 12.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in clause 12.3(b) applied);
|
(iv)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;
|
(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 or Finance Party). For the avoidance of doubt, the definition of Basel II shall not be construed to include any Increased Cost attributable to the implementation or application of or compliance with Basel III (as defined in clause 13.1 (
Increased costs
)); or
|
(vi)
|
attributable to the implementation or application of or compliance with all Directives of the European Parliament and of the Council relating to any insurance business applicable prior to the implementation or application of Solvency II ("
Solvency I
").
|
(b)
|
In this clause 13.3, a reference to a
"Tax Deduction"
has the same meaning given to the term in clause 12.1 (
Definitions
).
|
14.
|
OTHER INDEMNITIES
|
14.1
|
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; or
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(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.
|
14.2
|
Other indemnities
|
(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 30 (
Sharing among the Finance Parties
);
|
(c)
|
funding, or making arrangements to fund, 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 Secured 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 Company.
|
14.3
|
Indemnity to the Agent
|
(a)
|
any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
|
(i)
|
investigating any event which it reasonably believes is a Default; or
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
(iii)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and
|
(b)
|
any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to clause 31.11 (
Disruption to payment systems etc.
) notwithstanding the
|
14.4
|
Indemnity to the Security Agent and to the English Security Agent
|
(a)
|
Each Obligor (subject to the limitations referred to in clause 18.9 (
Guarantee Limitations
)) jointly and severally shall promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:
|
(i)
|
any failure by the Company to comply with its obligations under clause 16 (
Costs and expenses
);
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
(iii)
|
the taking, holding, protection or enforcement of the Transaction Security;
|
(iv)
|
the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and the English Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
(v)
|
any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
(vi)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; or
|
(vii)
|
acting as Security Agent, English Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b)
|
The Security Agent, English Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this clause 14.4 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.
|
15.
|
MITIGATION BY THE LENDERS
|
15.1
|
Mitigation
|
(a)
|
Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in the Facility ceasing to be available or any amount becoming payable under or pursuant to, or cancelled pursuant to, any of clause 7.1 (
Illegality
), clause 12 (
Tax gross up and indemnities
) or clause 13.1 (
Increased Costs
), including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b)
|
Clause 15.1(a) does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2
|
Limitation of liability
|
(a)
|
The Company shall promptly 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 15.1 (
Mitigation
).
|
(b)
|
A Finance Party is not obliged to take any steps under clause 15.1 (
Mitigation
) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16.
|
COSTS AND EXPENSES
|
16.1
|
Transaction expenses
|
(a)
|
Subject to 16.1(b) below, the Company shall promptly on demand pay each of the Agent, the Arranger, the Security Agent and the English Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred (and advised in advance to the Company in writing by the Agent) by any of them (and, in the case of the Security Agent, by any Receiver or Delegate) in connection with the negotiation, preparation, printing, execution, syndication and perfection of:
|
(i)
|
this Agreement and any other documents referred to in this Agreement or in a Security Document; and
|
(ii)
|
any other Finance Documents executed after the date of this Agreement.
|
(b)
|
Clause (a) above shall not apply to costs and expenses associated with any Security Documents which may be required in connection with the transfer of any Loan to a German Insurance Lender in accordance with clause 25 (
Changes to the Lenders
); and
|
(c)
|
Clause (a)(i) above shall not apply to any costs and expenses incurred by the English Security Agent.
|
16.2
|
Amendment costs
|
(a)
|
an Obligor requests an amendment, waiver or consent; or
|
(b)
|
an amendment is required pursuant to clause 31.10 (
Change of currency
),
|
16.3
|
Valuations
|
(a)
|
The Agent may request a Valuation at any time.
|
(b)
|
The Company shall promptly on demand pay to the Agent the costs of:
|
(i)
|
the Initial Valuation;
|
(ii)
|
a Valuation obtained by the Agent every two years (or annually where such Valuation is carried out on a desktop basis);
|
(iii)
|
a Valuation obtained by the Agent in connection with the compulsory purchase of all or part of any Property; and
|
(iv)
|
a Valuation obtained by the Agent at any time when a Default is continuing or is likely to occur as a result of obtaining that Valuation.
|
(c)
|
Any Valuation not referred to in clause 16.3(b) will be at the cost of the Lenders.
|
(d)
|
Any Valuation for the purposes of the Italian Facility Agreement shall also be a Valuation for the purposes of this Agreement if it is capable of being relied on by the Finance Parties.
|
16.4
|
Enforcement and preservation costs
|
17.
|
BANK ACCOUNTS
|
17.1
|
Designation of Accounts
|
(a)
|
The Obligors (other than the Belgian Targetco prior to completion of the Belgian Reorganisation and Swedish Targetco prior to the opening of its Accounts in accordance with this Agreement) must maintain the bank accounts set out in schedule 15 (
Accounts
).
|
(b)
|
No Obligor may, without the prior consent of the Agent, maintain any other bank account with the exception of:
|
(i)
|
Belgian Targetco which may retain an account with each of Commerzbank and Belfius Bank which account shall be closed by 20 July 2015 in accordance with this Agreement; and
|
(ii)
|
Swedish Targetco, which may retain an account with SEB Bank Schweden.
|
17.2
|
Account bank
|
(a)
|
Subject to clauses 17.2(b) and 17.2(c), each Account must be held at the relevant Account Bank as set out in schedule 15 (
Accounts
).
|
(b)
|
An Account must be replaced with a bank account at the same or another bank at any time if the Agent so requests.
|
(c)
|
The replacement of an Account only becomes effective when the relevant bank agrees with the Agent and the relevant Obligors, in a manner satisfactory to the Agent, to fulfil the role of the bank holding that Account.
|
17.3
|
Collection Account
|
(a)
|
Except as provided in clause 17.3(f), the Cash Manager shall have signing rights in relation to the Collection Account of the relevant Property Owner.
|
(b)
|
Each Property Owner (other than Belgian Targetco prior to completion of the Belgian Reorganisation and Swedish Targetco prior to the opening of its Collection Account) will procure that the relevant Managing Agent and the Asset Manager ensure that all Rental Income is paid into the relevant Property Owner's Collection Account.
|
(c)
|
Prior to the opening of the Collection Account of the Swedish Borrower, the Swedish Borrower will ensure that (or will procure that the relevant Managing Agent and the Asset Manager ensure that) all Rental Income attributable to its Charged Property is paid into its existing account and, following its opening, to its Collection Account.
|
(d)
|
Prior to completion of the Belgian Reorganisation, the Belgian Targetco will ensure that (or will procure that the relevant Managing Agent and the Asset Manager ensure that) all Rental Income attributable to its Charged Property is paid into its existing accounts (where received within 20 Business Days of the Utilisation Date) and thereafter to the Collection Account in the name of the Belgian Borrower (which amounts shall be deemed to be made by way of intercompany loan between Belgian Targetco and Belgian Borrower).
|
(e)
|
Except as provided in clause 17.3(f) and subject to:
|
(i)
|
any restriction in any Subordination Agreement; and
|
(ii)
|
the requirement that amounts paid into a Collection Account for a particular purpose must be used for that purpose,
|
(A)
|
Tenant Contributions to that Property Owner's Service Charge Account;
|
(B)
|
any amounts attributable to VAT to that Property Owner's General Account;
|
(C)
|
all rent deposits to that Property Owner's Rent Deposit Account; and
|
(D)
|
all remaining amounts not transferred under (A) to (C) above to that Property Owner's Rent Account.
|
(f)
|
At any time following the occurrence of an Event of Default which is continuing, the Security Agent may:
|
(i)
|
operate each Collection Account;
|
(ii)
|
notify each Property Owner that its rights and the rights of the Cash Manager in respect of the operation or otherwise of that Property Owner's Collection
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, any Collection Account in or towards any purpose for which moneys in that Account may be applied.
|
17.4
|
Rent Account
|
(a)
|
Except as provided in clause 17.4(e) and subject in any event to the provisions of any Security Document, each Property Owner (acting by the Cash Manager) has signing rights in relation to its Rent Account.
|
(i)
|
Each Property Owner must ensure that all amounts referenced in clause 17.3(e)(ii)(D) are paid into its Rent Account.
|
(ii)
|
Each Obligor must ensure that any other amount received or receivable by it, other than any amount specifically required under this Agreement to be paid into any other Account, is paid into the relevant Rent Account.
|
(c)
|
Subject to any restriction in any Subordination Agreement and in any relevant Security Document, a Property Owner shall ensure that funds standing to the credit of its Rent Account are applied in or towards payments owing by that Property Owner:
|
(i)
|
pro rata of any unpaid amounts owing by that Property Owner to the Agent, the Arranger or the Security Agent under the Finance Documents;
|
(ii)
|
to the Agent for the Lenders of any principal, accrued interest and fees due but unpaid by that Property Owner under this Agreement,
|
(d)
|
Where, on any Test Date, a Cash Sweep Event has occurred and is continuing, the relevant Property Owner(s) must transfer (to the fullest extent legally permissible in its jurisdiction) all Surplus Cash and procure payment of any Cash Sweep Shortfall Amount (if applicable) to the Cash Sweep Account, which transfers shall constitute a payment in or towards satisfaction of Subordinated Debt.
|
(e)
|
At any time following the occurrence of an Event of Default which is continuing, the Security Agent may:
|
(i)
|
operate each Rent Account;
|
(ii)
|
notify the Property Owners that their rights (and those of the Cash Manager) to operate the Rent Accounts are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, any Rent Account in or towards any purpose for which moneys in any Account may be applied.
|
17.5
|
Cash Sweep Account
|
(a)
|
The Security Agent has sole signing rights in relation to the Cash Sweep Account.
|
(b)
|
Each Property Owner and the PPD Lender (in accordance with clause 17.11(d)) shall transfer (or in the case of a Cash Sweep Shortfall Amount, shall procure the transfer of (to the fullest extent legally permissible in its jurisdiction)) all amounts required pursuant to clause 17.4(d) into the Cash Sweep Account, which transfers shall constitute a payment in or towards satisfaction of Subordinated Debt.
|
(c)
|
Such amount as is required to prepay the relevant Allocated Loan Amount by an amount of no less than an amount equal to no less than 3% (calculated on an annual basis) of the relevant Allocated Loan Amount shall be applied by the Security Agent in immediate prepayment of the relevant Loan.
|
(d)
|
Thereafter, the Security Agent may release any payments made into the Cash Sweep Account pursuant to clause 17.4(d) which are not used for the purpose described in clause 17.5(c) to the General Account of the Company at the written request of the Company if the Security Agent is satisfied that on two consecutive Test Dates:
|
(i)
|
no Cash Sweep Event is continuing; and
|
(ii)
|
no Default has occurred and is continuing,
|
(e)
|
If a Cash Sweep Event is continuing on two consecutive Test Dates or where a Default has occurred and is continuing or the Repeating Representations are not correct in all material respects, all amounts standing to the credit of the Cash Sweep Account may be applied in prepayment of the relevant Loans at the Agent's discretion.
|
17.6
|
Deposit Account
|
(a)
|
The Security Agent has sole signing rights in relation to the Deposit Account.
|
(b)
|
Each Obligor must ensure that:
|
(i)
|
all Insurance Prepayment Proceeds paid to it are promptly upon receipt paid into the Deposit Account;
|
(ii)
|
all Compensation Prepayment Proceeds paid to it are promptly upon receipt paid into the Deposit Account;
|
(iii)
|
all Recovery Prepayment Proceeds paid to it are promptly upon receipt paid into the Deposit Account; and
|
(iv)
|
all amounts required pursuant to clause 21.4 (
Covenant repair
) paid to it are paid into the Deposit Account.
|
(c)
|
Except as provided in clause 31.6 (
Partial payments
) and 17.6(e) below, on each Interest Payment Date, or earlier at the request of the relevant Property Owner if it gives the Agent not less than 5 Business Days' notice, the Security Agent must withdraw from, and apply amounts standing to the credit of, the Deposit Account in accordance with clause 17.6(b)(i) to 17.6(b)(iii) in accordance with clause 7.3(
Mandatory Prepayment
).
|
(d)
|
Except as provided in clause 31.6 (
Partial payments
) and 17.6(e) below, the Security Agent may at its discretion withdraw from, and apply amounts standing to the credit of, the Deposit Account in accordance with clause 17.6(b)(iv) in prepayment of the relevant Loans promptly following receipt.
|
(e)
|
The Security Agent is obliged to make a withdrawal from the Deposit Account in accordance with clauses 17.6(c) and 17.6(d) only if:
|
(i)
|
no Default is continuing; and
|
(ii)
|
the Repeating Representations are correct and will be correct immediately after the withdrawal.
|
17.7
|
Rent Deposit Account
|
(a)
|
Except as provided in clause 17.7(d) each Property Owner (acting by the Cash Manager) has signing rights in relation to its Rent Deposit Account.
|
(b)
|
Each Property Owner must ensure that all deposits paid to its Collection Account in connection with any Lease Document are transferred into its Rent Deposit Account.
|
(c)
|
Except as provided in clause 17.7(d) and subject to:
|
(i)
|
any restriction in any Subordination Agreement; and
|
(ii)
|
the requirement that amounts paid into a Rent Deposit Account for a particular purpose must be used for that purpose,
|
(d)
|
At any time following the occurrence of an Event of Default which is continuing, the Security Agent may:
|
(i)
|
operate each Rent Deposit Account;
|
(ii)
|
notify each Property Owner that its rights (and those of the Cash Manager) to operate its Rent Deposit Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, any Rent Deposit Account in or towards any purpose for which moneys in any Account may be applied.
|
(e)
|
Notwithstanding Clauses 17.1(a) (
Designation of Accounts
) and 17.2(a) (
Account Bank
), each Property Owner shall not be required to open a Rent Deposit Account unless a Property Owner is obliged or entitled to hold a deposit in connection with any Lease Documents.
|
17.8
|
Service Charge Account
|
(a)
|
Except as provided in clause 17.8(d) the relevant Managing Agent and the Cash Manager shall have signing rights in relation to a Property Owner's Service Charge Account.
|
(b)
|
Each Property Owner will procure that the relevant Managing Agent, the Asset Manager and the Cash Manager ensure that all Tenant Contributions are transferred from the Collection Account to the relevant Service Charge Account.
|
(c)
|
Except as provided in clause 17.8(d) and subject to:
|
(i)
|
any restriction in any Subordination Agreement; and
|
(ii)
|
the requirement that amounts paid into a Service Charge Account for a particular purpose must be used for that purpose,
|
(d)
|
At any time following the occurrence of an Event of Default which is continuing, the Security Agent may:
|
(i)
|
operate each Service Charge Account;
|
(ii)
|
notify each Property Owner that its rights and the rights of the relevant Managing Agent, the Asset Manager and the Cash Manager in respect of the operation or otherwise of that Property Owner's Service Charge Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, any Service Charge Account in accordance with the terms of the relevant Lease Documents.
|
17.9
|
General Account
|
(a)
|
Except as provided in clause 17.9(d) each Obligor (acting by the Cash Manager) has signing rights in relation to its General Account.
|
(b)
|
Each Obligor (other than the PPD Lender) must ensure that any other amount received or receivable by it, and any amounts attributable to VAT (other than any amount specifically required under this Agreement to be paid into any other Account), is paid into its General Account.
|
(c)
|
Except as provided in clause 17.9(d) and subject to:
|
(i)
|
any restriction in any Subordination Agreement; and
|
(ii)
|
the requirement that amounts paid into a General Account for a particular purpose must be used for that purpose,
|
(d)
|
At any time following the occurrence of a Default, the Security Agent may:
|
(i)
|
operate the General Account of the Company;
|
(ii)
|
notify the Company that its rights (and those of the Cash Manager) to operate its General Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, any General Account in or towards any purpose for which moneys in any Account may be applied.
|
(e)
|
(Without prejudice to clause 17.9(d)), at any time following the occurrence of an Event of Default which is continuing, the Security Agent may:
|
(i)
|
operate each General Account;
|
(ii)
|
notify each Obligor that its rights (and those of the Cash Manager) to operate its General Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, any General Account in or towards any purpose for which moneys in any Account may be applied.
|
17.10
|
PPD Lender - treatment of payments
|
(a)
|
By virtue of operation of the
Dailly
law assignment entered into pursuant to the Amended French Property Owner Loans Agreement, the PPD Lender acknowledges that all amounts due and payable to it shall be paid by the French Property Owners direct to an account of the Security Agent and the Security Agent agrees that, on each Interest Payment Date, it shall apply such amounts as follows:
|
(i)
|
first
, in payment of any unpaid amounts owing by the PPD Lender to the Lenders under the Finance Documents;
|
(ii)
|
secondly
, in payment of any unpaid amounts owing by the PPD Lender to the Agent, the Arranger or the Security Agent under the Finance Documents;
|
(iii)
|
thirdly
, (subject to clause 17.11(d) below), any amount in excess of (i) and (ii) above, to the General Account of the PPD Lender.
|
(b)
|
The Security Agent is obliged to make a transfer to the General Account of the PPD Lender in accordance with clauses 17.10(a) only if:
|
(i)
|
no Event of Default is continuing; and
|
(ii)
|
the Repeating Representations are correct and will be correct immediately after the withdrawal.
|
17.11
|
French Intra-Group Loan Proceeds Account
|
(a)
|
The Security Agent has signing rights in relation to the French Intra-Group Loan Proceeds Account.
|
(b)
|
The PPD Lender must ensure that all French Intra-Group Loan Proceeds are credited to the French Intra-Group Loan Proceeds Account.
|
(c)
|
All French Intra-Group Loan Proceeds credited to the French Intra-Group Loan Proceeds Account are granted as a cash collateral charge (
gage-especes
) in favour of the PPD Lender.
|
(d)
|
Where, on any Test Date, a Cash Sweep Event has occurred and is continuing, the PPD Lender must transfer (to the fullest extent legally permissible in its jurisdiction) all amounts credited to the the French Intra-Group Loan Proceeds Account by the French Property Owners (resulting from a Cash Sweep Event under and as defined in the Amended French Property Owner Loans Agreement) and procure payment of any Cash Sweep Shortfall Amount (if applicable) to the Cash Sweep Account. Any amount so transferred will, when applied by the Security Agent to the repayment of the relevant Loans pursuant to clause 17.5 (
Cash Sweep Account
), automatically repay and discharge the relevant French Intra-Group Loan in a corresponding amount.
|
(e)
|
Where French Intra-Group Loan Proceeds (under limbs (a) to (c) of that definition) have been credited to the French Intra-Group Loans Proceeds Account, then, except as provided for in the partial repayment clause of the Amended French Property Owner Loans Agreement and of this Agreement and in clause 17.11(g) below, on each Interest Payment Date, or earlier at the request of the PPD Lender (acting on the instructions of the relevant French Property Owner ) if it gives the Security Agent not less than 5 Business Days' notice the Security Agent must withdraw from, and apply amounts standing to the credit of, the French Intra-Group Loans Proceeds Account in or towards repayment of the Loan made to the PPD Lender, which repayment shall reduce the French Intra-Group Loan of the relevant French Property Owner in a corresponding amount.
|
(f)
|
Except as provided for in the partial repayment clause of the Amended French Property Owner Loans Agreement and of this Agreement and in clause 17.11 (e) below, the Security Agent may at its discretion withdraw from, and apply amounts credited pursuant to the covenant repair clause of the Amended French Property Owner Loans Agreement and standing to the credit of the French Intra-Group Loans Proceeds Account in prepayment of the Loan, which prepayment shall reduce the French Intra-Group Loan of the relevant French Property Owner in a corresponding amount.
|
(g)
|
The Security Agent is obliged to make the payments in accordance with clauses 17.11(d) to 17.11(f) only if:
|
(i)
|
no Default is continuing; and
|
(ii)
|
the Repeating Representations are correct and will be correct immediately after the withdrawal.
|
17.12
|
Prime OPCI Shareholding Account
|
(a)
|
Except as provided in clause 17.12(d), the PPD Lender (acting by the Cash Manager) has signing rights in relation to the Prime OPCI Shareholding Account.
|
(b)
|
The PPD Lender must ensure that all dividends and other distributions paid by Prime OPCI are paid to the Prime OPCI Shareholding Account.
|
(c)
|
Except as provided in clause 17.12(d) and subject to:
|
(i)
|
any restriction in any Subordination Agreement; and
|
(ii)
|
the requirement that amounts paid into the Prime OPCI Shareholding Account for a particular purpose must be used for that purpose,
|
(d)
|
At any time when an Event of Default has occurred and is continuing, the Security Agent may:
|
(i)
|
operate the Prime OPCI Shareholding Account;
|
(ii)
|
notify the PPD Lender that its rights (and those of the Cash Manager) to operate the Prime OPCI Shareholding Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of the Prime OPCI Shareholding Account in or towards any purpose for which moneys in any Account may be applied.
|
17.13
|
Share Accounts
|
(a)
|
Except as provided in clause 17.13(c), each relevant Obligor has signing rights in relation to its Share Account.
|
(b)
|
Except as provided in clause 17.13(c) and subject to:
|
(i)
|
any restriction in any Subordination Agreement; and
|
(ii)
|
the requirement that amounts paid into a Share Account for a particular purpose must be used for that purpose,
|
(c)
|
At any time following the occurrence of an Event of Default which is continuing, the Security Agent may:
|
(i)
|
notify the Obligors that their rights to operate their Share Accounts are suspended, such notice to take effect in accordance with its terms; and
|
(ii)
|
withdraw from, and apply amounts standing to the credit of any Share Account in or towards any purpose for which moneys in any Account may be applied.
|
17.14
|
Capex Account
|
(a)
|
Except as provided in clause 17.14(d) the Company (acting by the Cash Manager) has signing rights in relation to the Capex Account.
|
(b)
|
The Company must ensure that any other amount received or receivable by it in connection with capital expenditure, other than any amount specifically required under this Agreement to be paid into any other Account, is paid into the Capex Account.
|
(c)
|
Except as provided in clause 17.14(d) and subject to:
|
(i)
|
any restriction in any Subordination Agreement; and
|
(ii)
|
the requirement that amounts paid into the Capex Account for a particular purpose must be used for that purpose (including for the purpose of capital expenditure set out in any relevant Budget),
|
(d)
|
At any time following the occurrence of an Event of Default which is continuing, the Security Agent may:
|
(i)
|
operate the Capex Account;
|
(ii)
|
notify the Company that its rights (and those of the Cash Manager) to operate the Capex Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, the Capex Account in or towards any purpose for which moneys in any Account may be applied.
|
17.15
|
Miscellaneous Accounts provisions
|
(a)
|
The Obligors must ensure that no Account goes into overdraft.
|
(b)
|
Any amount received or recovered by an Obligor otherwise than by credit to an Account must be held subject to the security created by the Finance Documents and immediately be paid to the relevant Account or to the Agent in the same funds as received or recovered.
|
(c)
|
If any payment is made into an Account in relation to which the Security Agent has sole signing rights which should have been paid into another Account, then, unless a Default is continuing, the Security Agent must, at the request of the relevant Obligor and on receipt of evidence satisfactory to the Security Agent that the payment should have been made to that other Account, pay that amount to that other Account.
|
(d)
|
Where a Default has occurred, the Company may request that the Security Agent transfer from any of the Company's Accounts to an Account of another Obligor such amount or amounts as are required to enable the relevant Obligor to remedy such Default and the Security Agent shall agree to any such request provided that, at the time of any such transfer, no Cash Sweep Event has occurred and is continuing and no Default would occur as a result.
|
(e)
|
The moneys standing to the credit of an Account may be applied by the Security Agent in payment of any amount due but unpaid to a Finance Party under the Finance Documents.
|
(f)
|
No Finance Party is responsible or liable to any Obligor for:
|
(i)
|
any non-payment of any liability of an Obligor which could be paid out of moneys standing to the credit of an Account; or
|
(ii)
|
any withdrawal wrongly made, if made in good faith.
|
(g)
|
Each Obligor must, within 5 Business Days of any request by the Agent, supply the Agent with the following information in relation to any payment received in an Account:
|
(i)
|
the date of payment or receipt;
|
(ii)
|
the payer; and
|
(iii)
|
the purpose of the payment or receipt.
|
18.
|
GUARANTEE AND INDEMNITY
|
18.1
|
Guarantee and indemnity
|
(a)
|
guarantees to each Finance Party punctual performance by each Obligor of all that Obligor's obligations under the Finance Documents; and
|
(b)
|
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 an Obligor under this indemnity will not exceed the amount it would have had to pay under this clause 18 if the amount claimed had been recoverable on the basis of a guarantee.
|
18.2
|
Continuing guarantee
|
18.3
|
Reinstatement
|
18.4
|
Waiver of defences
|
(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 any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any 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; or
|
(g)
|
any insolvency or similar proceedings.
|
18.5
|
Guarantor intent
|
18.6
|
Immediate recourse
|
18.7
|
Appropriations
|
(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 Obligor shall be entitled to the benefit of the same; and
|
(b)
|
hold in an interest-bearing suspense account any moneys received from any Obligor or on account of any Obligor's liability under this clause 18.
|
18.8
|
Deferral of Obligors' rights
|
(a)
|
to be indemnified by an Obligor;
|
(b)
|
to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;
|
(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 Obligor has given a guarantee, undertaking or indemnity under clause 18.1 (
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.
|
18.9
|
Guarantee Limitations
|
18.10
|
Release of Obligor's right of contribution
|
(a)
|
that Retiring Obligor is released by each other Obligor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Obligor arising by reason of the performance by any other Obligor of its obligations under the Finance Documents; and
|
(b)
|
each other Obligor 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,
|
18.11
|
French Obligors
|
18.12
|
Additional security
|
19.
|
REPRESENTATIONS
|
19.1
|
Status
|
(a)
|
It is a limited liability corporation, duly incorporated and validly existing under the law of its Original Jurisdiction.
|
(b)
|
It has the power to own its assets and carry on its business as it is being conducted.
|
19.2
|
Binding obligations
|
19.3
|
Non-conflict with other obligations
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
its constitutional documents; or
|
(c)
|
any material agreement or instrument binding upon it or any of its assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
19.4
|
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 Transaction Documents to
|
(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 Transaction Documents to which it is a party.
|
19.5
|
Validity and admissibility in evidence
|
(a)
|
All Authorisations required:
|
(i)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
(ii)
|
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
(b)
|
All Authorisations necessary for the conduct of the business, trade and ordinary activities of the Obligors have been obtained or effected and are in full force and effect if failure to obtain or effect those Authorisations would have a Material Adverse Effect.
|
19.6
|
Governing law and enforcement
|
(a)
|
The choice of the governing law of the Finance Documents will be recognised and enforced in its Relevant Jurisdictions.
|
(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 its Relevant Jurisdictions.
|
19.7
|
Deduction of Tax
|
(a)
|
It is not required to make any Tax Deduction (as defined in clause 12.1 (
Definitions
)) from any payment it may make under any Finance Document to a Lender which is a Qualifying Lender.
|
(b)
|
No Rental Income payable to any Obligor is subject to a requirement to make a deduction or withholding for or on account of Tax from that Rental Income, except that this representation shall not apply to: (i) Rental Income payable in respect of a UK Property which is subject to the UK's 'Non-Resident Landlords Scheme' under the Taxation of Income from Land (Non Residents) Regulations 1995 (but, for the avoidance of doubt, each Obligor's obligation under Condition Subsequent 15 in Schedule 17 (Conditions Subsequent) shall still apply), (ii) Rental Income payable in respect of a French Property which is not paid to a French bank account of the relevant Obligor or (iii) Rental Income payable in respect of a Belgian Property which is not paid to an Obligor in Belgium.
|
19.8
|
No filing or stamp taxes
|
(a)
|
Under the laws of its Relevant Jurisdiction it is not necessary that the Finance Documents be registered, filed, recorded, notarised or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid
|
(i)
|
the documentary duty of €0.15per copy of the Belgian law governed Finance Documents executed in Belgium;
|
(ii)
|
where necessary or desirable under the laws of any Relevant Jurisdiction where any of the Transaction Documents or any transaction contemplated by the Transaction Documents is required to be registered, filed, recorded, notarised or enrolled with any court, register or other authority in any Relevant Jurisdiction and any stamp, registration, notarial or similar Taxes or fees are payable on or in relation to the Transaction Documents or the transactions contemplated by the Transaction Documents;
|
(iii)
|
in the case of (i) court proceedings in a Luxembourg court or (ii) the presentation of any Finance Documents (either directly or by way of reference) to an autorité constituée, such court or autorité constituée may require registration of all or any of the Finance Documents with the Administration de l'Enregistrement et des Domaines in Luxembourg, which may result in registration duties becoming due and payable, at a fixed rate of EUR 12 or an ad valorem rate which depends on the nature of the registered document,
|
(b)
|
Any disclosure required to be made in relation to stamp duty land tax payable on any transactions contemplated by or being financed by the Transaction Documents under (i) the UK's Disclosure of Tax Avoidance Schemes (DOTAS) regime pursuant to Part 7 of the UK Finance Act 2004 (as amended), or (ii) under a similar disclosure regime in force in a jurisdiction where any Property or Obligor is situated, has been made.
|
19.9
|
VAT
|
19.10
|
No default
|
(a)
|
No Event of Default and, as at the date of this Agreement, the Amendment Date and each Utilisation Date, no Default is continuing or is reasonably likely to result from the making of any Utilisation or the entry into, or the performance of, or any transaction contemplated by, any Transaction Document.
|
(b)
|
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or a termination event (however described) under any other agreement or instrument which is binding on it or to which any of its assets are subject which has or is reasonably likely to have a Material Adverse Effect.
|
19.11
|
Information
|
(a)
|
To the best of its knowledge and belief (having made all due and careful enquiries), all information supplied by it or on its behalf to any Finance Party in connection with the
|
(b)
|
Any financial projections contained in the information referred to in clause 19.11(a) have been prepared as at their date on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c)
|
To the best of its knowledge and belief (having made all due and careful enquiries), it has not omitted to supply any information which, if disclosed, would make the information referred to in clause 19.11(a) untrue or misleading in any respect.
|
(d)
|
To the best of its knowledge and belief (having made all due and careful enquiries), as at the relevant Utilisation Date, nothing has occurred since the date of the information referred to in clause 19.11(a) which, if disclosed, would make that information untrue or misleading in any material respect.
|
19.12
|
Financial statements
|
(a)
|
The Original Financial Statements of each Additional Borrower were prepared in accordance with Relevant GAAP consistently applied unless expressly disclosed to the Agent in writing to the contrary before the date of this Agreement.
|
(b)
|
The Original Financial Statements of each Additional Borrower give a true and fair view of its financial condition as at the end of the relevant financial year and results of operations during the relevant financial year(consolidated in the case of the Company) unless expressly disclosed to the Agent in writing to the contrary prior to the date of this Agreement.
|
(c)
|
There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group.
|
(d)
|
Its most recent Financial Statements delivered pursuant to clause 20.1 (
Financial statements
):
|
(i)
|
have been prepared in accordance with Relevant GAAP; and
|
(ii)
|
give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition as at the end of the relevant financial year and operations during the relevant financial year (consolidated in the case of the Company) .
|
(e)
|
Since the date of the most recent Financial Statements delivered pursuant to clause 20.1 (
Financial statements
) there has been no material adverse change in its business, assets or financial condition (or the business or consolidated financial condition of the Group, in the case of the Company).
|
19.13
|
Pari passu ranking
|
19.14
|
No proceedings pending or threatened
|
19.15
|
Valuation
|
(a)
|
All information supplied by it or on its behalf to the Valuer for the purposes of each Valuation was true and accurate as at its date or (if appropriate) as at the date (if any) at which it is stated to be given.
|
(b)
|
Any financial projections contained in the information referred to in clause 19.15(a) have been prepared as at their date, on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c)
|
It has not omitted to supply any information to the Valuer which, if disclosed, would adversely affect the Valuation.
|
(d)
|
As at the relevant Utilisation Date, nothing has occurred since the date the information referred to in clause 19.15(a) was supplied which, if it had occurred prior to the Initial Valuation, would have adversely affected the Initial Valuation.
|
19.16
|
Title to Property
|
(a)
|
Each Property Owner named as owner of each relevant Property in part 4 of schedule 1 (
The Original Parties and Properties
) will, from the relevant Utilisation Date (and completion of all relevant notarisations and registrations):
|
(i)
|
in relation to each relevant Property other than any German Property (subject to registration of the relevant transfer in accordance with the laws of any Relevant Jurisdiction); and
|
(ii)
|
in relation to any German Property subject to the respective Luxembourg Borrower being registered in the respective land register (
Grundbuch
),
|
(b)
|
From the relevant Utilisation Date except as disclosed in the Property Report relating to a Charged Property:
|
(i)
|
no breach of any law, regulation or covenant is outstanding which adversely affects or might reasonably be expected to adversely affect the value, saleability or use of that Charged Property in any material respect;
|
(ii)
|
there is no covenant, agreement, stipulation, reservation, condition, interest, right, easement or other matter whatsoever adversely affecting that Charged Property in any material respect;
|
(iii)
|
nothing has arisen or has been created or is outstanding which would be an overriding interest, or an unregistered interest which overrides first registration or a registered disposition, over that Charged Property;
|
(iv)
|
all facilities necessary for the enjoyment and use of that Charged Property (including those necessary for the carrying on of its business at that Charged Property) are enjoyed by that Charged Property;
|
(v)
|
none of the facilities referred to in clause 19.16(b)(iv) are enjoyed on terms:
|
(A)
|
entitling any person to terminate or curtail its use of that Charged Property; or
|
(B)
|
which conflict with or restrict its use of that Charged Property in any material respect;
|
(vi)
|
the relevant Obligor has not received any notice of any adverse claim by any person in respect of the ownership of that Charged Property or any interest in it which might reasonably be expected to be determined in favour of that person, nor has any acknowledgement been given to any such person in respect of that Charged Property where that claim or acknowledgement materially and adversely affects that Charged Property; and
|
(vii)
|
that Charged Property is held by the relevant Obligor free from any lease or licence (other than those entered into in accordance with this Agreement and other than those set out in the Property Report in relation to that Property.
|
(c)
|
In relation to the Brussels Building Property, Prime BEL Rue de la Loi SPRL - T (
formerly Chrysalis Invest NV
) has complied with all its obligations resulting from the building right granted to it by the company known as European District Properties Two.
|
(d)
|
All deeds and documents necessary to show good and marketable title to a Borrower's interests in a Charged Property will from the relevant Utilisation Date be:
|
(i)
|
in possession of the Security Agent (or in respect of the English Properties only, the English Security Agent);
|
(ii)
|
held to the order of the Security Agent (or in respect of the English Properties only, the English Security Agent);
|
(iii)
|
held to the order of the Agent by a firm of solicitors approved by the Security Agent (or in respect of the English Properties only, the English Security Agent) for that purpose;
|
(iv)
|
held by a notary approved by the Agent for that purpose; or
|
(v)
|
where none of (i) to (iv) applies, held in such manner as is customary in the applicable jurisdiction and approved by the Agent.
|
19.17
|
Information for Property Reports
|
(a)
|
The information supplied by it or on its behalf to the lawyers who prepared any Property Report for the purpose of that Property Report was true and accurate as at the date of
|
(b)
|
The information referred to in clause 19.17(a) was at the date it was expressed to be given complete and did not omit any information which, if disclosed would make that information untrue or misleading in any material respect.
|
(c)
|
As at the Utilisation Date, nothing has occurred since the date of any information referred to in clause 19.17(a) which, if disclosed, would make that information untrue or misleading in any material respect.
|
19.18
|
No other business
|
(a)
|
No Obligor (other than Belgian Targetco and the Swedish Targetco) has traded or carried on any business since the date of its incorporation except for:
|
(i)
|
in the case of the Company, the ownership of the relevant Obligors; and
|
(ii)
|
in the case of each Shareholder which is also an Obligor, the ownership of any direct Subsidiary;
|
(iii)
|
in the case of each Borrower (other than the PPD Lender), ownership and management of its interests in the Properties.
|
(b)
|
Neither the Belgian Targetco nor the Swedish Targetco has traded or carried on any business since the date of its incorporation except for, ownership and management of its interests in its Property.
|
(c)
|
As at the date of this Agreement (or the Amendment Date, as the case may be), it is not party to any material agreement other than the Transaction Documents.
|
(d)
|
As at the date of this Agreement:
|
(i)
|
the Company does not have any Subsidiaries other than the Guarantors (excluding the Company); and
|
(ii)
|
no Borrower (other than the PPD Lender) has any Subsidiaries.
|
(e)
|
No Obligor:
|
(i)
|
has, or has had, any employees; and
|
(ii)
|
has any obligation in respect of any retirement benefit or occupational pension scheme.
|
19.19
|
Economic Beneficiary
|
19.20
|
Centre of main interests and establishments
|
19.21
|
Ranking of Security
|
19.22
|
Ownership
|
(a)
|
Each Obligor's entire issued share capital is legally and beneficially owned and controlled by the relevant Shareholder.
|
(b)
|
The shares in the capital of each Obligor are fully paid and are not subject to any option to purchase or similar rights.
|
(c)
|
The constitutional documents of each Obligor do not and could not restrict or inhibit any transfer of the shares of that Obligor on creation or enforcement of the security conferred by the Security Documents.
|
19.23
|
Repetition
|
20.
|
INFORMATION UNDERTAKINGS
|
20.1
|
Financial statements
|
(a)
|
as soon as they are available, but in any event within 180 days after the end of each financial year, the Financial Statements of each Obligor and the Parent (in each case prior to any audit requirement becoming effective) and (thereafter) audited for that financial year and accompanied by that review report (it being acknowledged that the first Financial Statements will cover the period from the date of acquisition of the Property to the end of the first financial year); and
|
(b)
|
as soon as they are available, but in any event within 90 days after the end of each half of each of its financial years:
|
(i)
|
the Parent's unaudited management accounts for that financial half year; and
|
(ii)
|
each other Obligor's unaudited management accounts for that financial half year;
|
(c)
|
not less than 30 days after the beginning of each calendar year, the Annual Budget for that calendar year.
|
20.2
|
Compliance Certificate
|
(a)
|
The Company shall supply to the Agent, with each quarterly report delivered pursuant to clause 20.4 (
Monitoring of Property
), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with clause 21 (
Financial covenants
) as at the Test Date falling immediately before the date of delivery of that report.
|
(b)
|
Each Compliance Certificate shall be signed by two managers of the Company.
|
20.3
|
Requirements as to financial statements
|
(a)
|
Each set of financial statements delivered by the Company pursuant to clause 20.1 (
Financial statements
) shall be certified by a director of manager (as the case may be) of the relevant company (authorised to represent the relevant company)
as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition as at the date as at which those financial statements were drawn up.
|
(b)
|
The Company shall procure that each set of financial statements delivered pursuant to clause 20.1 (
Financial statements
) is prepared using Relevant GAAP.
|
(c)
|
The Company shall procure that each set of financial statements of an Obligor delivered pursuant to clause 20.1 (
Financial statements
) is prepared using Relevant GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in Relevant GAAP, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Agent:
|
(i)
|
a description of any change necessary for those financial statements to reflect the Relevant GAAP, accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
|
(ii)
|
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
|
20.4
|
Monitoring of Property
|
(a)
|
Within twenty Business Days after each Test Date, the Company must supply to the Agent a report signed by a director or manager (as the case may be) of the relevant company (authorised to represent the relevant company)
containing the following information, in form and substance satisfactory to the Agent, in respect of (except in the case of proposed or required capital expenditure or repairs under clauses 20.4(a)(viii) and 20.4(a)(ix)) the quarterly period ending on that Test Date:
|
(i)
|
a schedule of the existing occupational tenants of each Property, showing for each tenant the rent, service charge, value added tax and any other amounts payable in that period by that tenant;
|
(ii)
|
copies of any management accounts and management cashflows produced by, or for, any Obligor;
|
(iii)
|
details of:
|
(A)
|
any arrears of rents or service charges under any Lease Document; and
|
(B)
|
any other material breaches of covenant under any Lease Document,
|
(iv)
|
details of any insolvency or similar proceedings affecting any occupational tenant of a Property or any guarantor of that occupational tenant;
|
(v)
|
details of any rent reviews with respect to any Lease Document in progress or agreed;
|
(vi)
|
details of any Lease Document which has expired or been determined or surrendered and any new letting proposed;
|
(vii)
|
copies of all material correspondence with insurance brokers handling the insurance of any Property;
|
(viii)
|
details of any actual or proposed capital expenditure with respect to each Property;
|
(ix)
|
details of any actual or required material repairs to each Property;
|
(x)
|
details of any notice it is entitled to serve on any former tenant of any Occupational Lease under section 17(2) of the Landlord and Tenant (Covenants) Act 1995 or on any guarantor of any such former tenant under section 17(3) of that Act; and
|
(xi)
|
any other information in relation to a Property reasonably requested by the Agent.
|
(b)
|
The Company must notify the Agent of:
|
(i)
|
any likely occupational tenant of any part of a Property; and
|
(ii)
|
any likely buyer of any part of a Property (including terms of reference).
|
20.5
|
Information: miscellaneous
|
(a)
|
at the same time as they are dispatched, copies of all documents dispatched by the Company to its shareholders generally (or any class of them) or its creditors generally (or any class of them) at the same time as they are dispatched;
|
(b)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings or investigations which are current, threatened or pending against any member of the Group, and which, if adversely determined, are reasonably likely to have a Material Adverse Effect;
|
(c)
|
promptly, such further information regarding the financial condition, business and operations of any member of the Group (in particular bank account statements for any Account) as any Finance Party (through the Agent) may reasonably request; and
|
(d)
|
promptly, such further information as may be required by applicable banking supervisory laws and regulations and/or in line with standard banking practice including any necessary documents or evidence in order for any Lender to carry out satisfactory "Statement Regarding Economic Beneficiary" or other similar checks under GwG or other applicable law in relation to the transactions contemplated in the Finance Documents as any Lender may request.
|
20.6
|
Notification of default
|
(a)
|
Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b)
|
Promptly upon a request by the Agent, the Company shall supply to the Agent a certificate signed by two of its director or managers (as the case may be) or senior officers 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).
|
20.7
|
"
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;
|
(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/or obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(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.
|
20.8
|
Confirmation pursuant to the GwG
|
(a)
|
Each Borrower shall deliver to each Lender on or before the date of this Agreement any documents or evidence for the purpose of GwG or other law or regulation relating to money laundering which are applicable to a Lender that a Lender may require from a Borrower.
|
(b)
|
Each Borrower shall deliver to the Lenders any necessary documents or evidence in order for the Lenders to carry out satisfactory "know your customer" or other similar checks under GwG or other applicable law in relation to the transactions contemplated in the Finance Documents.
|
(c)
|
Each Borrower acknowledges that under the GwG a Lender may not establish or continue a business relationship or carry out any transactions with a Borrower if they are unable to fulfil the requirements of due diligence laid down in § 3 Section 6, paragraph 1 nos. 1 to 3 of GwG or other applicable law. If a business relationship already exists, the Lender is obliged to terminate this relationship regardless of any other legal or contractual provisions. Therefore, in accordance with § 4 Section 6 of GwG, each Borrower shall provide the Lender with all necessary information and documents so that the Lender can meet its due diligence requirements. The Borrower shall inform the Lender without delay of any changes to the information and documents provided.
|
21.
|
FINANCIAL COVENANTS
|
21.1
|
Interest Cover
|
21.2
|
Loan to Value
|
21.3
|
Net Yield on Debt
|
21.4
|
Covenant repair
|
(a)
|
If there is a breach of clause 21.1 (
Interest Cover
), clause 21.2 (
Loan to Value
) or clause 21.3 (
Net Yield on Debt
) then the Borrower may within 10 Business Days of receiving notice of such breach from the Agent either:
|
(i)
|
place the amount which would be required to prepay the Loans to make good any such breach into the Deposit Account; or
|
(ii)
|
prepay the Loans in such amount as is needed to make good any such breach.
|
(b)
|
If on any Test Date there is a breach of any of clause 21.1 (
Interest Cover
), clause 21.2 (
Loan to Value
) or clause 21.3 (
Net Yield on Debt
), a single cash deposit or prepayment can be made for the purposes of remedying the breaches pursuant to clause 21.1, clause 21.2 and 21.3, which payment shall be made to the Deposit Account in accordance pursuant to clause 17.6(b)(iv) and applied in accordance with 17.6(d).
|
(c)
|
The requirements of clause 7.6 (
Voluntary prepayment of Loans
) shall not apply to any prepayment under this clause 21.4.
|
(d)
|
The ability to remedy a breach of clause 21.1 (
Interest Cover
), clause 21.2 (
Loan to Value
) or clause 21.3 (
Net Yield on Debt
) pursuant to this clause 21.4 may not be exercised on more than five occasions during the term of the Facility and may not be exercised in more than two consecutive quarters.
|
22.
|
GENERAL UNDERTAKINGS
|
22.1
|
Authorisations
|
(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,
|
(i)
|
enable it to perform its obligations under the Transaction Documents and to ensure, subject to the Legal Reservations, the legality, validity, enforceability or admissibility in evidence of any Transaction Document; or
|
(ii)
|
own its assets and carry on its business as it is being conducted.
|
22.2
|
Compliance with laws
|
22.3
|
Negative pledge
|
(a)
|
No Obligor shall create or permit to subsist any Security over any of its assets;
|
(b)
|
No Obligor shall:
|
(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;
|
(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,
|
(c)
|
Clauses 22.3(a) and 22.3(b) do not apply to any Security or (as the case may be) Quasi-Security, listed below:
|
(i)
|
the Transaction Security;
|
(ii)
|
any German Property encumbrance of which cannot be restricted under section 1136 BGB;
|
(iii)
|
any lien arising by operation of law and in the ordinary course of trading and any lien arising under the general terms and conditions of any Account Bank or other banks or financial institution with whom any member of the Group maintains a banking relationship in the ordinary course of business; or
|
(iv)
|
any Security that is released prior to or at each relevant Utilisation; or
|
(v)
|
any landlord's pledge (
Vermietungspfandrecht
) arising by operation of law under a headlease in favour of the relevant third party landlord;
|
(vi)
|
any Security the granting of which cannot be prohibited pursuant to section 1136 BGB; or
|
(vii)
|
any Security granted pursuant to the French Intra-Group Debt Documents.
|
(d)
|
No Obligor shall (i) segregate assets for the purpose of Article 2447-bis of the Italian Civil Code ("
Patrimoni Destinati ad uno Specifico Affare
"), (ii) issue any class of stock or other financial instruments under Article 2447-ter of the Italian Civil Code; or (iii) enter, or take any action aimed at entering, into any destined financings ("
Finanziamenti destinati ad uno specifico affare
") pursuant to Article 2447-bis, letter b, and Article 2447-decies of the Italian civil code.
|
22.4
|
Disposals
|
(a)
|
No Obligor shall enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to dispose of all or any part of any asset.
|
(b)
|
Clause 22.4(a) does not apply to any disposal:
|
(i)
|
permitted under clause 23.2 (
Occupational Leases
);
|
(ii)
|
of any German Property if such disposal cannot be prohibited pursuant to section 1136 BGB;
|
(iii)
|
of a Property or the shares in an Obligor, Prime OPCI or a French Property Owner, in each case in accordance with clause 22.4(c);
|
(iv)
|
of cash by way of a payment out of an Account in accordance with this Agreement;
|
(v)
|
made in the ordinary course of trading of any asset subject to the floating charge created under a Security Document; or
|
(vi)
|
made under or in connection with the Belgian Reorganisation.
|
(c)
|
An Obligor may dispose of its Property or its shares in another Obligor or in Prime OPCI or allow the disposal by Prime OPCI of shares in a French Property Owner if:
|
(i)
|
no Default and no Cash Sweep Event is continuing at the time of such disposal and no Default or Cash Sweep Event would result from that disposal;
|
(ii)
|
that disposal is on arm's length terms to an unrelated third party;
|
(iii)
|
the net disposal proceeds are not less than the aggregate of:
|
(A)
|
Allocated Repayment Amount of that Property or the Property owned by that Obligor or all Subsidiaries of that Obligor or in case of disposal of the shares in Prime OPCI, the French Property Owners or in case if disposal of the shares in a French Property Owner, that French Property Owner; and
|
(B)
|
an amount determined by the Agent to provide for prepayment fees and any other amount that is or will become due and payable in accordance with clause 7.8(b) as a result of the application of the net disposal proceeds in prepayment of the Loans; and
|
(iv)
|
immediately following that disposal the amount of the Portfolio Loan will not be less than €300,000,000,
|
(d)
|
The Obligors must ensure that the Disposal Proceeds are immediately applied in accordance with clause 7.4 (
Application of mandatory prepayments
) and if, for whatever reason, a relevant Obligor cannot arrange for all relevant Disposal Proceeds to be applied immediately in accordance with clause 7.4 (
Application of mandatory prepayments
), each other Obligor must ensure that such amount as is necessary be paid as to ensure that an amount equal to the relevant Disposal Proceeds is applied at the required time in accordance with clause 7.4 (
Application of mandatory prepayments
).
|
(e)
|
For the purposes of this clause 22.4 (
Disposals
),
"net
disposal
proceeds"
means the gross proceeds of any disposal permitted under clause 22.4(c) less the reasonable fees, costs and expenses and any tax associated with that disposal. In connection with any disposal of the shares in an Obligor or a Subsidiary of an Obligor the gross proceeds shall include the amount of the Borrower's indebtedness which is repaid as a condition of the disposal.
|
(f)
|
A Property disposed of, or a Property owned directly or indirectly by an Obligor or a Subsidiary of an Obligor the shares of which are disposed of, in accordance with clause 22.4(c) will cease to be a Property.
|
22.5
|
Financial Indebtedness
|
(a)
|
No Obligor may incur or permit to be outstanding any Financial Indebtedness.
|
(b)
|
Clause 22.5(a) does not apply to:
|
(i)
|
any Financial Indebtedness incurred under the Finance Documents;
|
(ii)
|
any Financial Indebtedness repaid prior to the relevant Utilisation;
|
(iii)
|
any Financial Indebtedness under the French Intra-Group Debt Documents; or
|
(iv)
|
any Subordinated Debt.
|
22.6
|
Lending and guarantees
|
(a)
|
No Obligor may be the creditor in respect of any loan or any form of credit to any person other than an Obligor or a French Obligor by way of Subordinated Debt or by way of French Intra-Group Loans.
|
(b)
|
No Obligor may give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which that Obligor assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents.
|
22.7
|
Merger
|
(a)
|
No Obligor shall enter into any amalgamation, demerger, merger or corporate reconstruction.
|
(b)
|
Clause 22.7(a) does not apply to any disposal permitted pursuant to clause 22.4 (
Disposals
) or any merger in connection with the Belgian Reorganisation.
|
22.8
|
Change of business
|
(a)
|
No Obligor may carry on any business on or after the initial Utilisation Date other than:
|
(i)
|
in the case of the Company, the ownership of the relevant Luxembourg Obligors and in the case of the PPD Lender the ownership of the relevant French Obligor;
|
(ii)
|
in the case of each Shareholder, each of its subsidiaries;
|
(iii)
|
in the case of each Borrower (other than the PPD Lender), the ownership and management of its interests in the Property or Properties in which it has an interest.
|
(b)
|
The Company must not have any Subsidiary other than the Obligors (and the French Obligors) (excluding the Company).
|
(c)
|
No Borrower (other than the PPD Lender) may have any Subsidiary.
|
22.9
|
Acquisitions
|
(a)
|
the acquisition of Belgian Targetco and the Swedish Targetco pursuant to the relevant Sale and Purchase Agreements; and
|
(b)
|
the acquisition contemplated by the Belgian Reorganisation,
|
22.10
|
Other agreements
|
(a)
|
the Transaction Documents; and
|
(b)
|
any other agreement expressly allowed under any other term of this Agreement.
|
22.11
|
Shares, dividends and share redemption
|
(a)
|
No Obligor shall issue any further shares or amend any rights attaching to its issued shares except to other Obligors or to the Parent and provided always that any such shares or rights are issued or made subject to the Transaction Security.
|
(b)
|
Except as permitted under clause 22.11(c), no Obligor shall:
|
(i)
|
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
(ii)
|
repay or distribute any dividend or share premium reserve;
|
(iii)
|
pay any management, advisory or other fee to or to the order of any of the shareholders of the Company; or
|
(iv)
|
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so.
|
(c)
|
Clause 22.11(b) does not apply to a Permitted Payment.
|
22.12
|
VAT group
|
22.13
|
Taxes
|
(a)
|
Each Obligor must pay and discharge all Taxes due and payable by it within the time period allowed and prior to the accrual of any material fine or penalty for late payment, unless (and only to the extent that):
|
(i)
|
payment of those Taxes is being contested in good faith;
|
(ii)
|
adequate reserves are being maintained for those Taxes and the costs required to contest them;
|
(iii)
|
such payment can be lawfully withheld and failure to pay those Taxes is not reasonably likely to have a Material Adverse Effect; and
|
(iv)
|
a stay of payment (
sursis
) is effective as long as any litigation with tax administration is pending.
|
(b)
|
Each Obligor must ensure that its residence for Tax purposes is and remains in its Original Jurisdiction.
|
22.14
|
Ownership
|
(a)
|
Prime Pool VII -T S.à r.l. must ensure that at all times it legally and beneficially owns and controls the entire share capital of each of Prime UK Portman T- S.à r.l. and Prime UK Condor - T S.à r.l.
|
(b)
|
Prime Pool I - T S.à r.l. must ensure that at all times it legally and beneficially owns and controls the entire share capital of each of Prime GER Drehbahn - T S.à r.l., Prime GER Valentinskamp - T S.à r.l. and Prime GER Dammtorwall A-T S.à r.l.
|
(c)
|
The PPD Lender must ensure that at all times it legally and beneficially owns and controls the entire share capital of Prime OPCI.
|
(d)
|
Prime Pool V - T, S.à r.l. must ensure that at all times it legally and beneficially owns and controls the entire share capital of (i) the Belgian Borrower (being Belgian Propco prior to the Belgian Reorganisation and Belgian Targetco thereafter) and (ii) Belgian Targetco (after its acquisition).
|
(e)
|
Prime Pool VI - T, S.à r.l. must ensure that at all times it legally and beneficially owns and controls the entire share capital of each of the Dutch Borrowers.
|
(f)
|
Prime Pool IV B - T, S.à r.l. must ensure that at all times it legally and beneficially owns and controls the entire share capital of the Swedish Targetco (following its acquisition).
|
(g)
|
Prime Pool IV A - T, S.à r.l. must ensure that at all times it legally and beneficially owns and controls the entire share capital of Prime Pool IV B - T, S.à r.l.
|
(h)
|
The Company must ensure that at all times it legally and beneficially owns and controls the entire share capital of each other Luxembourg Obligor.
|
22.15
|
French Intra-Group Debt Documents
|
(a)
|
shall procure that no French Obligor shall without the prior written consent of the Agent make any repayment or prepayment of any French Intra-Group Loan except in accordance with the terms of the Amended French Property Owner Loans Agreement;
|
(b)
|
shall not set-off any payment due from it against any sum due to it under any French Intra-Group Debt Document; and
|
(c)
|
shall:
|
(i)
|
at the written request of the Agent if an Event of Default is continuing or an Event of Default under the French Intra-Group Debt Document is continuing
|
(ii)
|
perform all of its obligations under each French Intra-Group Debt Document in accordance with its terms;
|
(iii)
|
not grant any waiver, release or consent under any French Intra-Group Debt Document without the prior written consent of the Agent; and
|
(iv)
|
not make any amendment to or vary any French Intra-Group Debt Document without the prior written consent of the Agent.
|
22.16
|
Further
Assurance
|
(a)
|
Each Obligor shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent (or, in connection with the English Properties only, the English Security Agent) may reasonably specify (and in such form as the Security Agent (or English Security Agent, as appropriate) may reasonably require in favour of the Security Agent (or English Security Agent, as appropriate) or their respective nominee(s));
|
(i)
|
to create, perfect, protect and maintain the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent, the English Security Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law;
|
(ii)
|
to confer on the Security Agent, English Security Agent or confer on the Finance Parties, Security over any property and assets of the Borrower located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Security Documents; and/or
|
(iii)
|
(if an Event of Default is continuing) to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.
|
(b)
|
Each Obligor 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 Agent, the English Security Agent or the Finance Parties by or pursuant to the Finance Documents.
|
(c)
|
Notwithstanding clauses 22.16(a) and 22.16(b) but without prejudice to clause 25.13(c), where a further mortgage is to be taken in respect of a Charged Property (or a French Property) over which a valid and properly perfected mortgage has already been created (and not being a further mortgage required in connection with the amendment, restatement, supplementing or otherwise of this Agreement or of the French Intra-Group Debt Documents) then any fees and expenses associated with such further mortgage shall be at the cost of the Lenders.
|
22.17
|
Assistance with the transfer and consent to division of Loans
|
(a)
|
Each Obligor shall provide assistance to, and at the reasonable request of, the Arranger in the preparation of any information memorandum and the initial assignment and transfer of any Loans made under the Facility (including, without limitation, by making management and its directors, managers or other relevant officers available for the purpose of making presentations to, or meeting, potential lending institutions) and will comply with all reasonable requests for information from potential transferees prior to completion of any such transfer.
|
(b)
|
Each Obligor acknowledges, agrees and hereby provides its consent to the division of all or any of the Loans in such amounts as may be required (at the Lenders' discretion) to effect a transfer of such Loans to a New Lender or otherwise.
|
23.
|
PROPERTY UNDERTAKINGS
|
23.1
|
Title
|
(a)
|
Each Property Owner must exercise its rights and comply in all respects with any covenant, stipulation or obligation (restrictive or otherwise) at any time affecting its Property where failure to do so would have a Material Adverse Effect.
|
(b)
|
Subject to the terms of clause 23.2 (
Occupational Leases
) and to the terms of any Lease Document, no Property Owner may agree to any amendment, supplement, waiver, surrender or release of any covenant, stipulation or obligation (restrictive or otherwise) at any time affecting its Property to the extent that the same would have a Material Adverse Effect.
|
(c)
|
Each Property Owner must promptly, upon the request of the Security Agent (or English Security Agent, as appropriate) take all such steps as may be necessary or desirable to enable the Security created by the Security Documents to be registered, where appropriate.
|
23.2
|
Occupational Leases
|
(a)
|
Subject to clause 23.2(b) below, no Property Owner may without the consent of the Agent (acting reasonably and which consent shall be provided to the Company by the Agent within 10 Business Days of such request provided that any such request is accompanied by all relevant information, which information is satisfactory to the Agent in all respects):
|
(i)
|
enter into any Agreement for Lease;
|
(ii)
|
other than under an Agreement for Lease, grant or agree to grant any new Occupational Lease;
|
(iii)
|
agree to any amendment, supplement, extension, waiver, surrender or release in respect of any Lease Document;
|
(iv)
|
exercise any right to break, determine or extend any Lease Document;
|
(v)
|
commence any forfeiture proceedings in respect of any Lease Document;
|
(vi)
|
grant any licence or right to use or occupy any part of a Property;
|
(vii)
|
consent to any sublease or assignment of any tenant's interest under any Lease Document (except where required to do so under the terms of the relevant Lease Document or by mandatory law);
|
(viii)
|
agree to any change of use under, or (except where required to do so under the terms of the relevant Lease Document or by mandatory law) rent review in respect of, any Lease Document; or
|
(ix)
|
serve any notice on any former tenant under any Lease Document (or on any guarantor of that former tenant) which would entitle it to a new lease or tenancy.
|
(b)
|
No consent will be required under clause 23.2(a) where the Lease Document is:
|
(i)
|
for the lower of 5,000 square metres (or its equivalent in square feet) or 30% of the net lettable area of any Property; and
|
(ii)
|
made on arms' length terms.
|
(c)
|
Each Property Owner must:
|
(i)
|
diligently collect or procure to be collected all Rental Income;
|
(ii)
|
exercise its rights and comply with its obligations under each Lease Document; and
|
(iii)
|
use its reasonable endeavours to ensure that each tenant complies with its obligations under each Lease Document,
|
(d)
|
Each Obligor must supply to the Agent each Lease Document, each amendment, supplement or extension to a Lease Document and each document recording any rent review in respect of a Lease Document promptly upon entering into the same.
|
(e)
|
The Obligors must use their reasonable endeavours to find tenants for any vacant lettable space in the Properties with a view to granting a Lease Document with respect to that space.
|
(f)
|
No Obligor may grant or agree to grant any Lease Document in respect of an English Property without including in the alienation covenant a provision for the proposed assignor on any assignment to guarantee the obligations of the proposed assignee until that assignee is released as tenant under the terms of the Landlord and Tenant (Covenants) Act 1995.
|
23.3
|
Headleases
|
(a)
|
Each Property Owner must:
|
(i)
|
exercise its rights and comply with its obligations under each Headlease;
|
(ii)
|
use its reasonable endeavours to ensure that each landlord complies with its obligations under each Headlease; and
|
(iii)
|
if so required by the Security Agent or the English Security Agent, apply for relief against forfeiture of any Headlease,
|
(b)
|
No Property Owner may:
|
(i)
|
agree to any amendment, supplement, waiver, surrender or release of any Headlease;
|
(ii)
|
exercise any right to break, determine or extend any Headlease;
|
(iii)
|
agree to any rent review in respect of any Headlease; or
|
(iv)
|
do or allow to be done any act as a result of which any Headlease may become liable to forfeiture or otherwise be terminated,
|
23.4
|
Maintenance
|
(a)
|
good and substantial repair and condition and, as appropriate, in good working order;
|
(b)
|
such repair, condition and order as to enable them to be let in accordance with all applicable laws and regulations; for this purpose, a law or regulation will be regarded as applicable if it is in force; or
|
(c)
|
where there is a legally enforceable obligation on a tenant to repair and maintain, the relevant Property Owner shall satisfy the requirements of this clause by taking all reasonable steps to enforce that obligation.
|
23.5
|
Development
|
(a)
|
No Property Owner may (save with the written consent of the Agent (acting reasonably):
|
(i)
|
make or allow to be made any application for planning permission in respect of any part of its Property; or
|
(ii)
|
carry out, or allow to be carried out, any demolition, construction, structural alterations or structural additions, development or other similar operations in respect of any part of its Property.
|
(b)
|
Clause 23.5(a) shall not apply to:
|
(i)
|
the maintenance of the buildings, plant, machinery, fixtures and fittings in accordance with the Transaction Documents; or
|
(ii)
|
the carrying out of non-structural improvements or alterations which affect only the interior of any building on a Property; or
|
(iii)
|
structural alterations and additions which are set out in the relevant Annual Budget; or
|
(iv)
|
any works undertaken by a tenant under the terms of its Lease Document or Agreement for Lease or any right under law.
|
(c)
|
Each Property Owner must comply in all material respects with all planning laws, permissions, agreements and conditions to which its Property may be subject.
|
(d)
|
Where there is a legally enforceable obligation on a tenant, the relevant Property Owner shall satisfy the requirements of this clause by taking all reasonable steps to enforce that obligation.
|
23.6
|
Notices
|
(a)
|
deliver a copy to the Security Agent (or where any such notice is in connection with an English Property, the English Security Agent); and
|
(b)
|
inform the Security Agent (or English Security Agent as appropriate) of the steps taken or proposed to be taken to comply with the relevant requirement, order or notice.
|
23.7
|
Investigation of title
|
(a)
|
carry out investigations of title to any Property; and
|
(b)
|
make such enquiries in relation to any part of any Property as a prudent mortgagee might carry out.
|
23.8
|
Power to remedy
|
(a)
|
If a Property Owner fails to perform any obligations under the Finance Documents affecting its Property, the Property Owner must allow the Security Agent and in respect of the English Properties, the English Security Agent, or their respective agents and contractors at a reasonable time and upon reasonable notice and subject to the terms of any Lease Document or applicable law:
|
(i)
|
to enter any part of its Property;
|
(ii)
|
to comply with or object to any notice served on the Property Owner in respect of its Property; and
|
(iii)
|
to take any action that the Security Agent may reasonably consider necessary or desirable to prevent or remedy any breach of any such term or to comply with or object to any such notice.
|
(b)
|
A Property Owner must immediately on request by the Security Agent (or English Security Agent, as appropriate) pay the reasonable costs and expenses of the Security Agent (or English Security Agent, as appropriate) or its agents and contractors incurred in connection with any reasonable action taken by it under this clause.
|
(c)
|
No Finance Party shall be obliged to account as mortgagee in possession as a result of any action taken under this clause.
|
23.9
|
Managing Agents, Asset Manager and Cash Manager
|
(a)
|
Subject to clause 23.9(b), no Obligor may:
|
(i)
|
appoint any Managing Agent, Asset Manager or Cash Manager;
|
(ii)
|
amend, supplement, extend or waive the terms of appointment of any Managing Agent, Asset Manager or Cash Manager; or
|
(iii)
|
terminate the appointment of any Managing Agent, Asset Manager or Cash Manager,
|
(b)
|
The consent of the Agent to the appointment of a new Managing Agent or Asset Manager shall not be unreasonably withheld or delayed in circumstance where:
|
(i)
|
such appointment is made on materially similar or better terms to that of the existing Managing Agent or Asset Manager (as appropriate); and
|
(ii)
|
any new Managing Agent or Asset Manager is (in the opinion of the Agent, acting reasonably) recognised in the relevant market as being of a similar standing and quality to the existing Managing Agent or Asset Manager; and
|
(iii)
|
the new Managing Agent (or Asset Manager, as the case may be) complies with all conditions set out in clause 23.9(c).
|
(c)
|
Each Obligor must ensure that each Managing Agent of any Property, any Asset Manager and any Cash Manager
|
(i)
|
enters into a Duty of Care Agreement with the Security Agent in form and substance satisfactory to the Agent (acting reasonably);
|
(ii)
|
acknowledges to the Security Agent that it has notice of the Security created by the Finance Documents; and
|
(iii)
|
agrees to deal with Rental Income received by it in accordance with this Agreement and without any withholding, set-off or counterclaim.
|
(d)
|
If a Managing Agent, Asset Manager or Cash Manager is in default of its obligations under its management agreement, under the Asset Management Agreement or under the Cash Management Agreement (as appropriate) and, as a result, an Obligor is entitled to terminate that management agreement, Asset Management Agreement or Cash Management Agreement, then, if the Agent so requires, that Obligor must promptly use all reasonable endeavours to:
|
(i)
|
terminate the management agreement, Asset Management Agreement or Cash Management Agreement (as appropriate); and
|
(ii)
|
appoint a new Managing Agent, Asset Manager or Cash Manager (as the case may be) in accordance with this clause 23.9 (
Managing Agents, Asset Manager and Cash Manager
).
|
23.10
|
Insurances
|
(a)
|
The Company must ensure that, at all times from each Utilisation Date, Insurances are maintained in full force and effect, which:
|
(i)
|
insure each Property Owner in respect of its interests in each Property and the plant and machinery on each Property (including fixtures and improvements) for their full replacement value (being the total cost of entirely rebuilding, reinstating or replacing the relevant asset if it is completely destroyed, together with all related fees and demolition costs) and to:
|
(A)
|
provide cover against loss or damage by fire, smoke, storm, hail, tempest, flood, backwater, tap water, water extinguishing system leakage, earthquake, lightning, excess voltage due to lightning, explosion, land subsidence, landslip, snowslide, snow pressure, volcanic eruption, vehicle impact, aircraft and other aerial devices and articles dropped from them, burglary and vandalism in the course of burglary, riot, civil commotion and, strike and lock-out, malicious damage, bursting or overflowing of water tanks, apparatus or pipes and all other normally insurable risks of loss or damage;
|
(B)
|
provide cover for site clearance and clean-up work, for demolition work, decontamination, costs for mitigating and preventing damages, shoring or propping up, professional fees (including any fees for architects and other planning or (re-) construction costs, costs connected with official requirements and professional fees) and value added tax together with adequate allowance for inflation and increase in rebuilding, reinstating or replacing prices;
|
(C)
|
provide cover against acts of terrorism, including any third party liability arising from such acts;
|
(D)
|
provide cover for loss of rent (in respect of a period of not less than three years or, if longer, the minimum period required under the Lease Documents) including provision for any increases in rent during the period of insurance;
|
(E)
|
provide cover for costs and fees incurred in connection with the rebuilding, reinstating or replacing of the relevant asset, even if the rebuilding, reinstating or replacing of an asset of the same type and quality implies increased costs due to technical developments and changes in legal framework; and
|
(ii)
|
include property owners’ public liability and third party liability insurance;
|
(iii)
|
insure such other risks as a prudent company in the same business as the Property Owners would insure; and
|
(iv)
|
in each case are in an amount, and in form acceptable at all times to the Agent and with an Acceptable Insurance Company.
|
(b)
|
The Company must procure that the Security Agent (as agent and trustee for the Finance Parties) is named as co-insured under each of the Insurances (other than public liability and third party liability insurances) but without liability on the part of the Security Agent or any other Finance Party for any premium in relation to those Insurances.
|
(c)
|
The Company must procure that the Insurances comply with the following requirements:
|
(i)
|
each of the Insurances must contain:
|
(A)
|
a non-invalidation and non-vitiation clause under which the Insurances will not be vitiated or avoided as against any insured party as a result of any circumstances beyond the control of that insured party or any misrepresentation, non-disclosure, or breach of any policy term or condition, on the part of any insured party or any agent of any insured party;
|
(B)
|
a waiver of the rights of subrogation of the insurer as against each Property Owner, the Finance Parties and the tenants of each Property; and
|
(C)
|
a loss payee clause in such terms as the Security Agent may reasonably require in respect of insurance claim payments otherwise payable to any Property Owner;
|
(ii)
|
the insurers must give at least 30 days' notice to the Security Agent if any insurer proposes to repudiate, rescind or cancel any Insurance, to treat it as avoided in whole or in part, to treat it as expired due to non-payment of premium or otherwise decline any valid claim under it by or on behalf of any insured party and must give the opportunity to rectify any such non-payment of premium within the notice period; or
|
(iii)
|
in respect of any Insurance which is subject to German law, as an alternative to the requirements of paragraphs 23.10(c)(i) and 23.10(c)(ii) above, a certificate (
Sicherungsschein/Sicherungsbestätigung
) by the respective insurance company confirming that the legal provisions set out in section 94 and 142 to 149 of the German Insurance Contract Act (
Verischerungsvertragsgesetz
) apply to all kinds of property insurances; and
|
(iv)
|
the relevant Property Owner must be free to assign all amounts payable to it under each of its Insurances and all its rights in connection with those amounts in favour of the Security Agent;
|
(d)
|
The Company must ensure that the Agent receives:
|
(i)
|
copies of the Insurances;
|
(ii)
|
receipts for the payment of premiums for insurance; and
|
(iii)
|
any information in connection with the insurances and claims under them which the Agent may reasonably require.
|
(e)
|
The Company must promptly notify the Agent of:
|
(i)
|
the proposed terms of any future renewal of any of the Insurances;
|
(ii)
|
any amendment, supplement, extension, termination, avoidance or cancellation of any of the Insurances made or, to its knowledge, threatened or pending;
|
(iii)
|
any claim, and any actual or threatened refusal of any claim, under any of the Insurances; and
|
(iv)
|
any event or circumstance which has led or may lead to a breach by any Property Owner of any term of this clause.
|
(f)
|
Each Property Owner must:
|
(i)
|
comply with the terms of the Insurances;
|
(ii)
|
not do or permit anything to be done which may make void or voidable any of the Insurances; and
|
(iii)
|
comply with all reasonable risk improvement requirements of its insurers.
|
(g)
|
The Company must ensure that:
|
(i)
|
each premium for the Insurances is paid promptly and in any event prior to the commencement of the period of insurance for which that premium is payable;
|
(ii)
|
in case of renewal or cancellation of an insurance, the Agent is provided with copies of the documents evidencing an extension of the relevant insurance cover not less than 15 Business Days prior to such renewal or cancellation; and
|
(iii)
|
all other things necessary are done so as to keep each of the Insurances in force.
|
(h)
|
If a Property Owner fails to comply with any term of this clause 23.10, the Agent may, at the expense of the Obligors effect any insurance and generally do such things and take such other action as the Agent may reasonably consider necessary or desirable to prevent or remedy any breach of this clause 23.10.
|
(i)
|
|
(i)
|
Except as provided below, the proceeds of any Insurances must, if the Agent so requires, be paid into the Deposit Account for application in accordance with clause 17.5 (
Cash Sweep Account
).
|
(ii)
|
To the extent required by the basis of settlement under any Insurances or under any Lease Document, each Property Owner must apply moneys received under any Insurances in respect of a Property towards replacing, restoring or reinstating that Property.
|
(iii)
|
The proceeds of any loss of rent insurance will be treated as Rental Income and applied in such manner as the Agent (acting reasonably) requires to have effect as if it were Rental Income received over the period of the loss of rent.
|
(iv)
|
Moneys received under liability policies held by a Property Owner which are required by that Property Owner to satisfy established liabilities of that Property Owner to third parties must be used to satisfy these liabilities.
|
23.11
|
Environmental matters
|
(a)
|
Each Property Owner must:
|
(i)
|
comply, and use reasonable endeavours to procure that any relevant third party complies, with all Environmental Law;
|
(ii)
|
obtain, maintain and comply with all requisite Environmental Permits applicable to it or to a Property; and
|
(iii)
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law applicable to it or a Property,
|
(b)
|
Each Property Owner must, promptly upon becoming aware, notify the Agent of:
|
(i)
|
a mateial Environmental Claim started, or to its knowledge, threatened;
|
(ii)
|
any circumstances reasonably likely to result in an Environmental Claim; or
|
(iii)
|
any suspension, revocation or notification of any Environmental Permit.
|
(c)
|
Each Property Owner must indemnify each Finance Party against any loss or liability which:
|
(i)
|
that Finance Party incurs as a result of any actual or alleged breach of any Environmental Law relating to a Property; and
|
(ii)
|
would not have arisen if a Finance Document had not been entered into,
|
23.12
|
Valentinskamp Property
|
(a)
|
provide a confirmation regarding the Valentinskamp Property that there are no indications of any unexploded ordinance which have not been removed, such confirmation to be in a form similar to those received for the other German Properties (or such other form as the Agent and the Company may agree); or
|
(b)
|
in the event that the confirmation in 23.12(a) cannot be provided by 31 August 2015, by no later than 10 Business Days following that date, use reasonable endeavours to provide evidence satisfactory to the Agent that the insurance sub-limit for bomb risks in respect of the Valentinskamp Property has been increased from EUR 3,400,000 to EUR 51,300,000.
|
(c)
|
Independently from (a) and (b) above:
|
(i)
|
if the Agent reasonably determines that the risk of existence of unexploded ordinance on the Valentinskamp Property means that the allocated Loan pertaining to that Property can no longer be funded through issuance of
Pfandbriefe
, the Agent may propose an increase in the Margin to apply to the relevant Loan only which shall take fully into account the higher funding costs to any Lender refinancing its Loans via issuance of
Pfandbriefe
in funding the Loan secured on the Valentinskamp Property;
|
(ii)
|
if the Company does not notify the Agent that it disagrees with the proposed increased Margin within 20 Business Days of the date the increased Margin was notified to the Company, the increased Margin shall at the end of that period be binding on all Obligors; and
|
(iii)
|
if the Company does not agree to the proposed increased Margin it shall notify the Agent within 20 Business Days of the date the increased Margin was notified to the Company whereupon the Loan secured on the Valentinskamp Property (and not otherwise) shall become due and payable upon 10 Business Days' demand by the Agent; and
|
(iv)
|
the Company shall procure that the Loan secured on the Valentinskamp Property is prepaid in full upon 20 Business Days' demand by the Agent provided that any such prepayment shall be treated as a mandatory prepayment under this Agreement but shall not:
|
(A)
|
attract any prepayment fee under this Agreement; and
|
(B)
|
count towards reducing any amount that may be prepaid or cancelled without prepayment fee in accordance with clause 11.3(c)(i) (
Prepayment and cancellation fee
) of this Agreement.
|
(d)
|
The Parties acknowledge and agree that the side letter to this Agreement which was dated 1 April 2015 and entered into in connection with the matters set out in this clause 23.12 (
Valentinskamp Property
) shall cease to have effect on and from the Amendment Date.
|
24.
|
EVENTS OF DEFAULT
|
24.1
|
Non-payment
|
(a)
|
its failure to pay is caused by:
|
(i)
|
administrative or technical error; or
|
(ii)
|
a Disruption Event; and
|
(b)
|
payment is made (in either case) within 3 Business Days of its due date.
|
24.2
|
Financial covenants
|
24.3
|
Other obligations
|
(a)
|
An Obligor does not comply with any term of clause 23.2 (
Occupational Leases
), clause 23.3 (
Headleases
) or clause 23.10(a) to 23.10(d) and 23.10(g)(ii)(Insurances).
|
(b)
|
A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in clause 24.1 (
Non-payment
), clause 24.2 (
Financial covenants
) and clause 24.3(a)).
|
(c)
|
No Event of Default under clause 24.3(b) will occur if the failure to comply is capable of remedy and is remedied within 10 Business Days of the earlier of (i) the Agent giving notice to the Company and (ii) any Transaction Obligor becoming aware of the failure to comply.
|
(d)
|
No Event of Default will occur during the Clean-Up Period in respect of Swedish Targetco and Belgian Targetco in respect of clause 20.1 (Financial statements) and clause 22.10 (
Other agreements
).
|
24.4
|
Misrepresentation
|
(a)
|
Any representation or statement made or deemed to be made by a Transaction Obligor in the Finance Documents or any other document delivered by or on behalf of any Transaction 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.
|
(b)
|
No Event of Default under clause 24.4(a) will occur if the circumstance in respect of which the misrepresentation was made is capable of remedy and is remedied within 10 Business Days of the earlier of (i) the Agent giving notice to the Company and (ii) any Transaction Obligor becoming aware of the misrepresentation.
|
(c)
|
No Event of Default will occur during the Clean-Up Period in respect of Swedish Targetco and Belgian Targetco in respect of clauses 19.5 (
Validity and admissibility in evidence
), 19.12 (
Financial Statements
) and clause 19.18 (
No other business
).
|
24.5
|
Cross default
|
(a)
|
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b)
|
Any Financial Indebtedness of any Obligor 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 Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d)
|
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e)
|
An Event of Default (as therein defined) occurs under the Italian Facility Agreement.
|
(f)
|
An Event of Default (as therein defined) occurs under the Amended French Property Owner Loans Agreement.
|
(g)
|
No Event of Default shall occur under this clause 24.5 where the Financial Indebtedness:
|
(i)
|
is subordinated under a Subordination Agreement; or
|
(ii)
|
(without prejudice to (e) or (f) above) is in respect of Financial Indebtedness arising under the Transaction Documents.
|
24.6
|
Insolvency
|
(a)
|
A Transaction Obligor:
|
(i)
|
is unable or admits inability to pay its debts as they fall due (including for the purpose of Article 5 of Italian Insolvency Law); or
|
(ii)
|
is deemed to, or is declared to, be unable to pay its debts under applicable law; or
|
(iii)
|
suspends or threatens to suspend making payments on any of its debts; or
|
(iv)
|
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness; or
|
(v)
|
has its details entered on any national official default payment system or insolvency register (or such analogous system or register as may operate in any Relevant Jurisdiction).
|
(b)
|
The value of the assets of any Transaction Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
|
(c)
|
The value of the assets of any Transaction Obligor incorporated in Sweden is less than 50 per cent of its nominal share capital, unless the relevant Transaction Obligor has taken the actions required in the Swedish Companies Act (
Aktiebolagslagen
2005:551
) in order to remedy such deficiencies within the times stipulated in the Swedish Companies Act.
|
(d)
|
A moratorium is declared in respect of any indebtedness of any Transaction Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
24.7
|
Insolvency proceedings
|
(a)
|
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(i)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Transaction Obligor;
|
(ii)
|
a composition, compromise, assignment or arrangement with any creditor of any Transaction Obligor;
|
(iii)
|
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Transaction Obligor or any of its assets; or
|
(iv)
|
enforcement of any Security over any assets of any Transaction Obligor,
|
(b)
|
Any of the circumstances set out in articles 2446, 2447, 2482
bis
and/or 2482
ter
of the Italian Civil Code, or any equivalent circumstances provided by applicable laws, arises in respect of an Italian Obligor.
|
(c)
|
An Italian Obligor is insolvent pursuant to Article 5 of the Italian Insolvency Law.
|
(d)
|
Clause 24.7(a) shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 21 days of commencement.
|
24.8
|
Creditors' process
|
24.9
|
Cessation of business
|
24.10
|
Unlawfulness and invalidity
|
(a)
|
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents or any Transaction Security created or expressed to be created or evidenced by the Security Documents ceases to be effective or any subordination created under a Subordination Agreement is or becomes unlawful.
|
(b)
|
Any obligation or obligations of any Transaction Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Finance Parties under the Finance Documents.
|
(c)
|
Any Finance Document ceases to be in full force and effect or any Transaction Security or any subordination created under a Subordination 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.
|
24.11
|
Repudiation and rescission of agreements
|
24.12
|
Compulsory purchase
|
(a)
|
Any part of any Charged Property or French Property is compulsorily purchased or the applicable local authority makes an order for the compulsory purchase of all or any part of any Property; and
|
(b)
|
taking into account the amount and timing of any compensation payable, the compulsory purchase has a Material Adverse Effect.
|
(a)
|
Any part of any Charged Property or French Property is destroyed or damaged; and
|
(b)
|
in the opinion of the Majority Lenders, taking into account the amount and timing of receipt of the proceeds of insurance effected in accordance with the terms of this Agreement, the destruction or damage has or will have a Material Adverse Effect.
|
(a)
|
The Company is not or ceases to be a legally and beneficially wholly owned Subsidiary of the Parent.
|
(b)
|
Save as permitted in this Agreement, any Obligor (other than the Company) is not or ceases to be a legally and beneficially wholly owned direct or indirect Subsidiary of the Company.
|
24.16
|
Encumbrance and Disposal of a German Property - Section 1136 BGB
|
24.17
|
Material adverse change
|
24.18
|
Acceleration
|
(a)
|
On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders or (where a notification has been made in accordance with clause 27.2(b) and the Negotiation Period has expired) the Notifying Lender, by notice to the Company:
|
(i)
|
cancel the Total Commitments whereupon they shall immediately be cancelled;
|
(ii)
|
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, whereupon they shall become immediately due and payable;
|
(iii)
|
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders;
|
(iv)
|
enforce the French Intra-Group Debt Documents; and/or
|
(v)
|
exercise or direct the Security Agent (or the English Security Agent, as appropriate) to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
|
(b)
|
In addition, on and at any time after the occurrence of an event of default pursuant to clauses 24.1 (
Non-payment
), 24.6 (
Insolvency
), 24.7 (
Insolvency proceedings
) or 24.8 (
Creditors' process
) each Lender may by notice to the Obligors' Agent:
|
(i)
|
cancel its Commitment whereupon such Commitment shall immediately be cancelled;
|
(ii)
|
declare that all or part of the Loan of that Lender, together with accrued interest, if any, be immediately due and payable, whereupon they shall become immediately due and payable;
|
(iii)
|
declare that all or part of the Loan of that Lender be payable on demand, whereupon they shall immediately become payable on demand by that Lender; and/or;
|
(iv)
|
exercise or direct the Security Agent (or the English Security Agent, as appropriate) to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
|
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,
|
(b)
|
Notwithstanding the foregoing, any Existing Lender and any New Lender which is an insurance company subject to German insurance supervisory law and which has a guarantee asset trustee (
Treuhänder für das Sicherungsvermögen
) (together the "
German Insurance Lenders
") may only assign and transfer and/or waive its rights and/or obligations with the consent of its guarantee asset trustee appointed pursuant to German insurance supervisory law and herewith irrevocably undertakes not to assign, transfer or otherwise dispose of any of its rights and claims under or in connection with this Agreement and any Security Document without the prior consent of such guarantee asset trustee.
|
25.2
|
Conditions of assignment or transfer
|
(a)
|
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 as it would have been under if it was an Original Lender; and
|
(ii)
|
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.
|
(b)
|
A transfer will only be effective if the procedure set out in clause 25.5 (
Procedure for transfer
) is complied with.
|
(c)
|
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 12 (
Tax gross up and indemnities
) or clause 13.1 (
Increased Costs
),
|
(d)
|
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, 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 transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
(e)
|
At the time of any transfer under this clause 25:
|
(i)
|
the Existing Lender must transfer or assign its Loan or a corresponding proportion of its Commitment under the Italian Facility Agreement to the same New Lender or to any wholly-owned Affiliate thereof (operating through the same or a different Facility Office); and
|
(ii)
|
that New Lender (or its wholly-owned Affiliate) must accede as a party to the Security Deed and to the English Security Deed as appropriate in its capacity as Lender under this Agreement and the Italian Facility Agreement.
|
25.3
|
Assignment or transfer fee
|
25.4
|
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 or any other documents;
|
(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,
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of 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 or re-assignment 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.
|
25.5
|
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 clause 25.5(c) 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 clause 25.5(b), 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 (without independent verification save as to whether the New Lender meets the description set out in clause 25.1(a)) 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)
|
Subject to clause 25.9 (
Pro rata interest settlement
), 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 each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the
"Discharged Rights and Obligations"
);
|
(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 New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger and the Existing 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"
.
|
25.6
|
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 clause 25.6(c) 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 clause 25.6(b), 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 (without independent verification save as to whether the New Lender meets the description set out in clause 25.1(a)) 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 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 assignment to such New Lender.
|
(c)
|
Subject to clause 25.9 (
Pro rata interest settlement
), on the Transfer Date:
|
(i)
|
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii)
|
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the
"Relevant Obligations"
) and expressed to be the subject of the release in the Assignment Agreement; and
|
(iii)
|
the New Lender shall become a Party as a
"Lender"
and will be bound by obligations equivalent to the Relevant Obligations.
|
(d)
|
Lenders may utilise procedures other than those set out in this clause 25.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with clause 25.5 (
Procedure for transfer
), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that
they comply with the conditions set out in clause 25.2 (
Conditions of assignment or transfer
).
|
25.7
|
Copy of Transfer Certificate or Assignment Agreement to Company
|
(a)
|
The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Company a copy of that Transfer Certificate or Assignment Agreement.
|
(b)
|
For the avoidance of doubt and notwithstanding any other provision of the Finance Documents, no Obligor shall be responsible for any transfer or assignment costs or expenses incurred by any Finance Party or potential Finance Party.
|
25.8
|
Security over Lenders' rights
|
(a)
|
any charge, pledge, 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,
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, pledge, 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 other than or in excess of, 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.
|
25.9
|
Pro rata interest settlement
|
(a)
|
If the Agent has notified the Lenders that it is able to distribute interest payments on a "
pro rata basis
" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to clause 25.5 (
Procedure for transfer
) or any assignment pursuant to clause 25.6 (
Procedure for assignment
) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
|
(i)
|
any interest or fees in respect of the relevant Loan which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (
"Accrued Amounts"
) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(ii)
|
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(A)
|
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(B)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this clause 25.9, have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(b)
|
In this clause 25 references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.
|
25.10
|
Prohibition on Debt Purchase Transactions
|
25.11
|
Disenfranchisement on Debt Purchase Transactions entered into by Sponsor Affiliates
|
(a)
|
For so long as a Sponsor Affiliate (i) beneficially owns a Commitment or (ii) has entered into a sub-participation agreement relating to a Commitment or other agreement or arrangement having a substantially similar economic effect and such agreement or arrangement has not been terminated:
|
(i)
|
in ascertaining the 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 such Commitment shall be deemed to be zero; and
|
(ii)
|
for the purposes of clause 30.5 (
Exceptions
), such Sponsor Affiliate or the person with whom it has entered into such sub-participation, other agreement or arrangement shall be deemed not to be a Lender (unless in the case of a person not being a Sponsor Affiliate it is a Lender by virtue otherwise than by beneficially owning the relevant Commitment).
|
(b)
|
Each Lender shall, unless such Debt Purchase Transaction is an assignment or transfer, promptly notify the Agent in writing if it knowingly enters into a Debt Purchase Transaction with a Sponsor Affiliate, (a "
Notifiable Debt Purchase Transaction
"), such notification to be substantially in the form set out in part 1 of schedule 16 (
Forms of Notifiable Debt Purchase Transaction Notice
).
|
(c)
|
A Lender shall promptly notify the Agent if a Notifiable Debt Purchase Transaction to which it is a party:
|
(i)
|
is terminated; or
|
(ii)
|
ceases to be with a Sponsor Affiliate.
|
(d)
|
Such notification to be substantially in the form set out in part 2 of schedule 16 (
Forms of Notifiable Debt Purchase Transaction Notice
).
|
(e)
|
Each Sponsor Affiliate that is a Lender agrees that:
|
(i)
|
in relation to any meeting or conference call to which all the Lenders are invited to attend or participate, it shall not attend or participate in the same if so requested by the Agent or, unless the Agent otherwise agrees, be entitled to receive the agenda or any minutes of the same; and
|
(ii)
|
in its capacity as Lender, unless the Agent otherwise agrees, it shall not be entitled to receive any report or other document prepared at the behest of, or on the instructions of, the Agent or one or more of the Lenders.
|
25.12
|
New Counterparties
|
(a)
|
another Lender;
|
(b)
|
an Affiliate of a Lender; or
|
(c)
|
another bank or financial institution approved by the Agent (acting on behalf of all Lenders),
|
25.13
|
Restriction note in favour of trustee
|
(a)
|
Each German Insurance Lender (if applicable) shall include their relevant full or partial claims under the Loans as well as the land charges and mortgages in each case to be created as security pursuant to schedule 2 paragraph 6 (
Security and other Finance Documents
) in their coverage assets within the meaning of § 66 VAG.
|
(b)
|
Therefore, any disposition of the relevant claims under the Loans of the German Insurance Lenders in particular any assignment and pledging, shall only be permissible with the prior written consent of the relevant trustee or its representative (§ 72 VAG). In the case of any assignment or pledging, the relevant German Insurance Lender will therefore deliver to the Obligors' Agent, together with the notification of the assignment or pledge, the approval of the trustee or its representative and (where required) copies of all trustee certifications and sample signatures (board of management and trustee).
|
(c)
|
Each Obligor agrees to co-operate, at the cost of the relevant German Insurance Lender, in relation to the execution, registration and/or transfer of the land charges and mortgages and other Security created or to be created as security in favour of the German Insurance Lender.
|
(d)
|
A restriction note will be registered in the land register under which the relevant German Insurance Lender may only dispose of its relevant land charge or mortgage with the prior written consent of the trustee or its representative.
|
26.
|
CHANGES TO THE TRANSACTION OBLIGORS
|
26.1
|
Assignments and transfer by Obligors
|
26.2
|
Additional Borrower
|
(a)
|
The Company may request that Swedish Targetco and Belgian Targetco each becomes an Additional Borrower. Swedish Targetco and Beligan Targetco shall become a Borrower if:
|
(i)
|
all the Lenders approve the addition of Swedish Targetco and Belgian Targetco;
|
(ii)
|
the Company and each of Swedish Targetco and Belgian Targetco deliver to the Agent a duly completed and executed Accession Deed;
|
(iii)
|
each of Swedish Targetco and Belgian Targetco is (or becomes) a Guarantor prior to or at the same time as becoming a Borrower;
|
(iv)
|
each of Swedish Targetco and Belgian Targetco is (or becomes) a Guarantor under and as defined in the Italian Facility Guarantee (as defined in the Italian Facility Agreement);
|
(v)
|
the Company confirms that no Default is continuing or would occur as a result of Swedish Targetco or Belgian Targetco becoming an Additional Borrower; and
|
(vi)
|
the Agent has received all of the documents and other evidence listed in schedule 2 (
Conditions Precedent
) in relation to Swedish Targetco and Belgian Targetco, 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 relevant documents and other evidence listed in schedule 2 (
Conditions Precedent
).
|
26.3
|
Additional Guarantors
|
(a)
|
The Company may request that Swedish Targetco and Belgian Targetco each becomes a Guarantor.
|
(b)
|
Swedish Targetco and Belgian Targetco shall each become an Additional Guarantor if:
|
(i)
|
the Company and each of Swedish Targetco and Belgian Targetco deliver to the Agent a duly completed and executed Accession Deed; and
|
(ii)
|
the Agent has received all of the documents and other evidence listed in schedule 2 (
Conditions Precedent
) in relation to Swedish Targetco and Belgian Targetco, each in form and substance satisfactory to the Agent.
|
(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 relevant documents and other evidence listed in schedule 2 (
Conditions Precedent
).
|
26.4
|
Resignation of a Borrower
|
(a)
|
The Company may request that a Borrower ceases to be a Borrower 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 Event of Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case);
|
(ii)
|
the Borrower is under no actual or contingent obligations (other than under clause 18 (
Guarantee and indemnity
)) under any Finance Document;
|
(iii)
|
the Borrower also resigns as a Guarantor and as Guarantor under the Italian Facility Agreement;
|
(iv)
|
either:
|
(C)
|
the Borrower has ceased to have an interest in any Charged Property and all the Lenders have consented to the Company's request; or
|
(D)
|
the Company is disposing of its shares in the Borrower in accordance with clause 22.4 (
Disposals
).
|
(c)
|
On acceptance by the Agent of a Resignation Letter the relevant Borrower shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents.
|
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 Event of Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case);
|
(ii)
|
the Guarantor is under no actual or contingent obligations (other than under clause 18 (
Guarantee and indemnity
)) under any Finance Document;
|
(iii)
|
the Guarantor also resigns as a Borrower and as a Guarantor in each case under and as defined in the Italian Facility Agreement;
|
(iv)
|
either:
|
(E)
|
the Guarantor has ceased to have an interest in any Charged Property and all the Lenders have consented to the Company's request; or
|
(F)
|
the Company is disposing of its shares in the Guarantor in accordance with clause 22.4 (
Disposals
).
|
(c)
|
On acceptance by the Agent of a Resignation Letter the relevant Guarantor shall cease to be a Guarantor and shall have no further rights or obligations under the Finance Documents.
|
26.6
|
Release of security
|
(a)
|
If a Borrower has ceased to be a Borrower in a manner allowed by this Agreement and has no further rights or obligations under the Finance Documents, any security created by that Borrower over its assets under the Security Documents will be released.
|
(b)
|
If a disposal of any asset subject to security created by a Security Document is made in the following circumstances:
|
(i)
|
the disposal is permitted by the terms of this Agreement;
|
(ii)
|
all the Lenders agree to the disposal;
|
(iii)
|
the disposal is being made at the request of the Security Agent (or the English Security Agent, as appropriate) in circumstances where any security created by the Security Documents has become enforceable; or
|
(iv)
|
the disposal is being effected by enforcement of a Security Document,
|
(c)
|
Any release under this clause 26.6 (
Release of security
) will not become effective until the date of the relevant disposal (and in relation to a disposal permitted pursuant to clause 22.4 (
Disposals
) only after the Disposal Proceeds have been received by the Agent in cleared funds in accordance with clause 22.4(d) or otherwise in accordance with the consent of the Majority Lenders.
|
(d)
|
If the Security Agent (or English Security Agent, as the case may be) is satisfied that a release is allowed under this clause, (at the request and expense of the Company) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release. Each other Finance Party irrevocably authorises the Security Agent and the English Security Agent (where appropriate) to enter into any such document. Any release will not affect the obligations of any other Obligor under the Finance Documents.
|
26.7
|
Additional Subordinated Creditors
|
(a)
|
The Company may request that any person becomes a Subordinated Creditor, with the prior approval of the Agent, by delivering to the Agent:
|
(i)
|
a duly executed Subordination Agreement;
|
(ii)
|
a duly executed Subordinated Creditor's Security Agreement; and
|
(iii)
|
such constitutional documents, corporate authorisations and other documents and matters as the Agent may reasonably require, in form and substance satisfactory to the Agent, to verify that the person's obligations are legally
|
(b)
|
A person referred to in clause 26.7(a) will become a Subordinated Creditor on the date the Agent enters into the Subordination Agreement and the Subordinated Creditor's Security Agreement delivered under clause 26.7(a).
|
27.
|
ROLE OF THE AGENT, AND THE ARRANGER AND THE REFERENCE BANKS
|
27.1
|
The Agent
|
(a)
|
Each of the Arranger and the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each of the Finance Parties authorises the Agent to perform the duties, obligations and responsibilities and 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.
|
27.2
|
Enforcement through Security Agent only
|
(a)
|
Subject to paragraph (b) below the Finance Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any right, power, authority or discretion arising under the Security Documents except through the Security Agent.
|
(b)
|
If a Lender intends to exercise any of its rights under clause 24.18 (
Acceleration
) as a result of the occurrence of any event of default pursuant to clauses 24.1 (
Non-payment
), 24.6 (
Insolvency
), 24.7 (
Insolvency proceedings
) or 24.8 (
Creditors' process
) (the
"Notifying Lender"
), it will immediately notify the other Finance Parties and the Company.
|
(c)
|
Following such notification, the Finance Parties and the Company shall, for a period of up to 1 month (the "
Negotiation Period
") use reasonable efforts to agree on a strategy for the payment and discharge of the Loan and the enforcement of any Transaction Security (a
"Recovery Strategy"
).
|
(d)
|
If the Finance Parties and the Company are not able to agree on a Recovery Strategy within the Negotiation Period, the Notifying Lender shall be entitled to exercise or to direct the Agent to exercise its rights under clause 24.18 (
Acceleration
) and to direct the Security Agent to enforce the Transaction Security (with the exception of any Security over the Properties).
|
(e)
|
Notwithstanding 27.2(a) above, the Lenders hereby consent to the enforcement of the other Transaction Security by the Agent as described in 27.2(d). In addition, the Lenders hereby irrevocably authorise each other Lender separately on their behalf to take all relevant enforcement steps required in connection with any mortgage on any Property. Each Lender hereby undertakes vis-à-vis the other Lenders to provide such authorisation only in circumstances where no agreement for a Recovery Strategy has been reached within the Negotiation Period.
|
27.3
|
Right to acquire
|
(a)
|
Any Lender which intends to terminate its Loans (or parts thereof) in accordance with clause 27.2(b) (the "
Terminating Lender
") is obliged to transfer its relevant Loans (or parts thereof) and any other corresponding rights and claims under and in connection with the Finance Documents to the other Lenders for payment of the full consideration if
|
(i)
|
the other Lenders (or any of them) (each a "
Purchasing Lender
") request such transfer in writing within the Negotiating Period; and
|
(ii)
|
it is ensured that
|
(A)
|
the Purchasing Lenders acquire all relevant Loans (or parts thereof) of the Terminating Lender and any other corresponding rights and claims under and in connection with the Finance Documents for a consideration which corresponds to the rights and claims of the Terminating Lender under and in connection with the Finance Documents; and
|
(B)
|
the aforementioned consideration is paid in full by the Purchasing Lenders to the Terminating Lender within the Negotiating Period.
|
(b)
|
The transfer obligation in clause 27.3(a) shall not apply if within the Negotiating Period (i) the Terminating Lender and the other Lenders agree on a restructuring or enforcement concept, (ii) the Terminating Lender refrains from its intention to terminate the Loans or (iii) the other Lenders also decide to terminate their Loans.
|
27.4
|
Instructions
|
(a)
|
The Agent shall:
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders; and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with clause 27.4(a)(i) (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b)
|
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d)
|
Clause 27.4(a) shall not apply:
|
(i)
|
where a contrary indication appears in a Finance Document;
|
(ii)
|
where a Finance Document requires the Agent to act in a specified manner or to take a specified action;
|
(iii)
|
in respect of any provision which protects the Agent's own position in its personal capacity as opposed to its role of Agent for the relevant Finance Parties including, without limitation, clause 27.7 (
No fiduciary duties
) to clause 27.12 (
Exclusion of liability
, clause 27.15 (
Confidentiality
) or Replacement of the Agent.
|
(e)
|
If giving effect to instructions given by the Majority Lenders would (in the Agent's opinion) have an effect equivalent to an amendment or waiver referred to in clause 37 (
Amendments and waivers
), the Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion, the Agent shall do so having regard to the interests of all the Finance Parties.
|
(g)
|
The Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h)
|
Without prejudice to the remainder of this clause 27.4 (
Instructions
), in the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties.
|
(i)
|
The Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This clause 27.4(i) 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.
|
27.5
|
Duties of the Agent
|
(a)
|
The duties of the Agent under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
Subject to clause 27.5(c), the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent, Security Agent or English Security Agent (as applicable) for that Party by any other Party.
|
(c)
|
Without prejudice to clause 25.7 (
Copy of Transfer Certificate or Assignment Agreement to Company
), clause 27.5(b) shall not apply to any Transfer Certificate or any Assignment Agreement.
|
(d)
|
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.
|
(e)
|
If the Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f)
|
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, the Security Agent or the English Security Agent) under this Agreement it shall promptly notify the other Finance Parties.
|
(g)
|
The Agent shall provide to the Company, within 10 Business Days of a request by the Company (but no more frequently than once per calendar month), a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments, the address and fax number (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents.
|
(h)
|
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
27.6
|
Role of the Arranger
|
27.7
|
No fiduciary duties
|
(a)
|
Nothing in any Finance Document constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.
|
(b)
|
Neither the Agent nor the Arranger shall be bound to account to any other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
27.8
|
Business with the Group
|
27.9
|
Rights and discretions
|
(a)
|
The Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii)
|
rely on a certificate from any person:
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b)
|
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties ) 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 any group of Finance Parties 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 Transaction Obligors.
|
(c)
|
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d)
|
Without prejudice to the generality of clause 27.9(c) or clause 27.9(e), the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be desirable.
|
(e)
|
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f)
|
The Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part, of any such person,
|
(g)
|
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent or security trustee under the Finance Documents.
|
(h)
|
Without prejudice to the generality of clause 27.10(g), 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.
|
(i)
|
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.
|
(j)
|
Notwithstanding any provision of any Finance Document to the contrary, none of the Agent, the Security Agent or English Security Agent is obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
27.10
|
Responsibility for documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, a Transaction Obligor or any other person in or in connection with any Finance Document or the Property Reports or the transactions contemplated in 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; or
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
27.11
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
(c)
|
whether any other event specified in any Finance Document has occurred.
|
27.12
|
Exclusion of liability
|
(a)
|
Without limiting clause 27.12(b) (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document, or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document;
|
(iii)
|
without prejudice to the generality of clauses 27.12(a)(i) and 27.12(a)(ii), any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(G)
|
any act, event or circumstance not reasonably within its control; or
|
(H)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent, in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this clause 27.12 subject to clause 1.4 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
|
(d)
|
Nothing in this Agreement shall oblige the Agent or the Arranger to carry out:
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Agent shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
27.13
|
Lenders' indemnity to the Agent
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent within 3 Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by any of them (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to clause 31.10(b) notwithstanding the Agent's 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 relevant Agent has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b)
|
Subject to clause 27.13(c), the Company shall promptly within 3 Business Days of demand reimburse any Lender for any payment that Lender makes to the Agent.
|
(c)
|
Clause 27.13(b) shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Agent to an Obligor or a cost, loss or liability which an Obligor would not otherwise be required to pay to the Agent under the Finance Document.
|
27.14
|
Resignation of the Agent
|
(a)
|
The Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Company.
|
(b)
|
Alternatively the Agent may resign by giving 30 days' notice to the other Finance Parties and the Company, in which case the Majority Lenders (after consultation with the other Finance Parties and the Company) may appoint a successor Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Agent in accordance with clause 27.14(b) within 20 days after notice of resignation was given, the retiring Agent (after consultation with the other Finance Parties and Company) may appoint a successor Agent.
|
(d)
|
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under clause 27.14(c), 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 with the proposed successor Agent amendments to this clause 27 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties.
|
(e)
|
The retiring Agent shall, 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. The Company shall, within 3 Business Days of demand, reimburse the retiring Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(f)
|
The resignation notice of the Agent 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 (other than its obligations under clause 27.14(e)ý above) but shall remain entitled to the benefit of clause 14.3 (
Indemnity to the Agent
), clause 14.4 (
Indemnity to the Security Agent
) and this clause 27 (and any fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any 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.
|
(h)
|
After consultation with the Company, the Majority Lenders may, by giving 30 days' notice to the Agent, require it to resign in accordance with clause 27.14(b) In this event, the Agent shall resign in accordance with clause 27.14(b) but the cost referred to in clause 27.14(e) shall be for the account of the Company.
|
(i)
|
The Agent shall resign in accordance with clause 27.14(b) (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to clause 27.14(c)) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i)
|
the Agent fails to respond to a request under clause 12.8 (
FATCA Information
) and a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii)
|
the information supplied by the Agent pursuant to clause 12.8 (
FATCA Information
) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii)
|
the Agent notifies the Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,
|
27.15
|
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.
|
(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.
|
27.16
|
Confidentiality
|
(a)
|
In acting as agent or trustee 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.
|
27.17
|
Relationship with the other Finance Parties
|
(a)
|
Subject to clause 25.9 (
Pro rata interest settlement
), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(i)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b)
|
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 33.6 (
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 officer by that Lender for the purposes of clause 33.2 (
Addresses
) and clause 33.6(a)(i) 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.
|
27.18
|
Credit appraisal by the Lenders
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance 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 Finance Document or the Security Property;
|
(c)
|
whether that Finance 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 Finance Document, the Security Property, 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 or the Security Property;
|
(d)
|
the adequacy, accuracy or completeness of the Property Reports and any other information provided by the Agent, the Security Agent, the English Security Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
27.19
|
Reference Banks
|
27.20
|
Deduction from amounts payable by the Agent
|
27.21
|
Reliance and engagement letters
|
28.
|
APPLICATION OF PROCEEDS
|
28.1
|
Order of application
|
(a)
|
in discharging any sums owing to the Security Agent, the English Security Agent any Receiver or any Delegate;
|
(b)
|
in payment of all costs and expenses incurred by the Agent or any Secured Party in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of this Agreement; and
|
(c)
|
in payment to the Agent for application in accordance with clause 31.6 (
Partial payments
).
|
28.2
|
Prospective liabilities
|
(a)
|
any sum to the Security Agent, English Security Agent, any Receiver or any Delegate; and
|
(b)
|
any part of the Secured Liabilities,
|
28.3
|
Investment of proceeds
|
28.4
|
Currency Conversion
|
(a)
|
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent (or the English Security Agent, as applicable) may convert any moneys received or recovered by the Security Agent (or the English Security Agent, as applicable) from one currency to another, at a market rate of exchange.
|
(b)
|
The obligations of any Transaction 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.
|
28.5
|
Permitted Deductions
|
(a)
|
to set aside by way of reserve amounts required to meet, and 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
|
(b)
|
to pay all Taxes which may be assessed against it in respect of any of the Security Assets, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent (or as English Security Agent, as applicable) under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
28.6
|
Good Discharge
|
(a)
|
Any payment to be made in respect of the Secured Liabilities by the Security Agent (or by the English Security Agent, as applicable) may be made to the Agent on behalf of the Finance Parties and any payment made in that way shall be a good discharge, to the
|
(b)
|
The Security Agent (or the English Security Agent, as applicable) is under no obligation to make the payments to the Agent under clause 28.6(a) in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
|
29.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
30.
|
SHARING AMONG THE FINANCE PARTIES
|
30.1
|
Payments to Finance Parties
|
(a)
|
the Recovering Finance Party shall, within 3 Business Days, notify details of the receipt or recovery to the Agent;
|
(b)
|
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 31 (
Payment mechanics
), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within 3 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 31.6 (
Partial payments
).
|
30.2
|
Redistribution of payments
|
30.3
|
Recovering Finance Party's rights
|
30.4
|
Reversal of redistribution
|
(a)
|
each Finance Party which has received a share of the relevant Sharing Payment pursuant to clause 30.2 (
Redistribution of payments)
shall, upon request of the 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.
|
30.5
|
Exceptions
|
(a)
|
This clause 30 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this clause, have a valid and enforceable claim against the 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 that other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
that 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.
|
31.
|
PAYMENT MECHANICS
|
31.1
|
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, 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 such Participating Member State or London, as specified by the Agent) and with such bank as the Agent, in each case, specifies.
|
31.2
|
Distributions by the Agent
|
31.3
|
Distributions to an Obligor
|
31.4
|
Clawback and pre-funding
|
(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)
|
Unless clause 31.4(c) applies, 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.
|
(c)
|
If the Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower:
|
(i)
|
the Agent shall notify the Company of that Lender's identity and the Borrower to whom that sum was made available shall on demand refund it to the Agent; and
|
(ii)
|
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
31.5
|
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 31.1(
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 another bank in the name of the Obligor or the Lender making the payment and designated as
|
(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.
|
(c)
|
A Party which has made a payment in accordance with this clause 31.5 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 27.16 (Repl
acement of the Agent
) each Party which has made a payment to a trust account in accordance with this clause 31.5 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 31.2 (
Distributions by the Agent
).
|
31.6
|
Partial payments
|
(a)
|
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
(i)
|
first
, in or towards payment pro rata of any unpaid amount owing to the Agent, the Security Agent, the English Security Agent any Receiver or any Delegate under the Finance Documents;
|
(ii)
|
secondly
, in or towards payment of any accrued interest and fees due but unpaid under this Agreement;
|
(iii)
|
thirdly,
in or towards payment of any principal due but unpaid under this Agreement; 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 all the Lenders vary the order set out in clauses 31.6(a)(ii) to 31.6(a)(iv). Any such variation may include the re-ordering of obligations set out in any such clause.
|
(c)
|
Clauses 31.5(a) and 31.5(b) will override any appropriation made by an Obligor.
|
31.7
|
No set-off by Obligors
|
31.8
|
Business Days
|
(a)
|
Any payment under the Finance Documents 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.
|
31.9
|
Currency of account
|
(a)
|
Subject to clauses 31.9(b) and 31.9(c), euro, sterling or kronor (as appropriate) is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c)
|
Any amount expressed to be payable in a currency other than euro, sterling or kronor (as appropriate) shall be paid in that other currency.
|
31.10
|
Change of currency
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Company); and
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
|
(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 Market and otherwise to reflect the change in currency.
|
31.11
|
Disruption to payment systems etc.
|
(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 Facilities 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 clause 31.11(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 clause 31.11(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 37 (
Amendments and waivers
);
|
(e)
|
the Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability 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 31.11; and
|
(f)
|
the Agent shall notify the Finance Parties of all changes agreed pursuant to clause 31.11(d).
|
32.
|
SET-OFF
|
33.
|
NOTICES
|
33.1
|
Communications in writing
|
33.2
|
Addresses
|
(a)
|
in the case of the Company, that identified with its name below;
|
(b)
|
in the case of each 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, the Security Agent and the English Security Agent, that identified with its name below,
|
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 5 Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
(b)
|
Any communication or document to be made or delivered to the Agent, the Security Agent or the English Security Agent will be effective only when actually received by the Agent, the Security Agent or the English Security Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's, the Security Agent's or English Security Agent's signature below (or any substitute department or officer as the Agent, Security Agent or English Security 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)
|
Any communication or document which becomes effective, in accordance with clauses 33.3(a) to 33.3(d), after 5.00pm in the place of receipt shall be deemed only to become effective on the following day.
|
33.4
|
Notification of address and fax number
|
33.5
|
Communication when Agent is Impaired Agent
|
33.6
|
Electronic communication
|
(a)
|
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties:
|
(i)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
|
(ii)
|
notify each other of any change to their address or any other such information supplied by them by not less than 5 Business Days' notice.
|
(b)
|
Any such electronic communication as specified in clause 33.6(a) to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.
|
(c)
|
Any such electronic communication as specified in clause 33.6(a) made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent, the Security Agent or the English Security Agent only if it is addressed in such a manner as the Agent, the Security Agent or the English Security Agent shall specify for this purpose.
|
(d)
|
Any electronic communication which becomes effective, in accordance with clause 33.6(c) after 5.00pm in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.
|
(e)
|
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this clause 33.6.
|
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.
|
34.
|
CALCULATIONS AND CERTIFICATES
|
34.1
|
Accounts
|
34.2
|
Certificates and Determinations
|
34.3
|
Day count convention
|
(a)
|
in respect of amounts accruing in euro or kronor, accrue from day to day and be calculated on the basis of the actual number of days elapsed and a year of 360 days; and
|
(b)
|
in respect of amounts accruing in sterling, accrue from day to day and be calculated on the basis of the actual number of days elapsed and a year of 365 days,
|
35.
|
PARTIAL INVALIDITY
|
36.
|
REMEDIES AND WAIVERS
|
37.
|
AMENDMENTS AND WAIVERS
|
37.1
|
Required consents
|
(a)
|
Subject to clause 37.2 (
All Lender matters
) and clause 37.6 (
Other exceptions
) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Company and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this clause 37.
|
(c)
|
Without prejudice to the generality of clauses 27.9(c), 27.9(d) and 27.9(e), the Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement.
|
(d)
|
Each Obligor agrees to any such amendment or waiver permitted by this clause 37 which is agreed to by the Company. This includes any amendment or waiver which would, but for this clause 37.1(d), require the consent of all of the Obligors.
|
37.2
|
All Lender matters
|
(a)
|
the definition of
"Majority Lenders"
in clause 1.1 (
Definitions
);
|
(b)
|
an extension to the date of payment of any amount under the Finance Documents (other than in relation to clause 7.2 (Change of control) and clause 7.4 (
Application of mandatory prepayments
);
|
(c)
|
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
(d)
|
a change in currency of payment of any amount under the Finance Documents;
|
(e)
|
an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments rateably under the Facility;
|
(f)
|
a change to the Company or the Borrowers other than in accordance with clause 26 (
Changes to the Transaction Obligors
);
|
(g)
|
any provision which expressly requires the consent of all the Lenders;
|
(h)
|
clause 2.2 (
Finance Parties' rights and obligations
), clause 7.2 (
Change of control
), clause 7.4 (
Application of mandatory prepayments
), clause 25 (
Changes to the Lenders
), clause 30 (
Sharing among the Finance Parties
), this clause 37, clause 42 (
Governing law
) or clause 43.1 (
Jurisdiction
);
|
(i)
|
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:
|
(i)
|
the guarantee and indemnity granted under clause 18 (
Guarantee and indemnity
);
|
(ii)
|
the Security Assets; or
|
(iii)
|
the manner in which the proceeds of enforcement of the Transaction Security are distributed,
|
(j)
|
the release of any guarantee and indemnity granted under clause 18 (
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 the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document;
|
(k)
|
If any Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any of the terms of any Finance Document or other vote of Lenders under the terms of this Agreement within 20 Business Days (unless the Company and the Agent agree to a longer time period in relation to any request) of that request being made, its Loans shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request.
|
37.3
|
Replacement of Lender
|
(a)
|
If at any time:
|
(i)
|
any Lender becomes a Non-Consenting Lender (as defined in clause 37.3(c)); or
|
(ii)
|
an Obligor becomes obliged to repay any amount in accordance with clause 7.1 (
Illegality
) or to pay additional amounts pursuant to clause 13.1 (
Increased costs
) or clause 12.2 (
Tax gross-up
) to any Lender in excess of amounts payable to the other Lenders generally,
|
(b)
|
The replacement of a Lender pursuant to this clause 37.3 shall be subject to the following conditions:
|
(i)
|
the Company shall have no right to replace the Agent, the Security Agent or the English Security Agent;
|
(ii)
|
neither the Agent nor the Lender shall have any obligation to the Company to find a Replacement Lender;
|
(iii)
|
in the event of a replacement of a Non-Consenting Lender such replacement must take place no later than 14 days after the date the Non-Consenting Lender notifies the Company and the Agent of its failure or refusal to give a consent in relation to, or agree to any, waiver or amendment to the Finance Documents requested by the Company; and
|
(iv)
|
in no event shall the Lender replaced under this clause 37.3(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 Company or the Agent (at the request of the Company) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of any provisions of the Finance Documents;
|
(ii)
|
the consent, waiver or amendment in question requires the approval of all the Lenders; and
|
(iii)
|
Lenders whose Commitments aggregate more than 85 per cent of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 85 per cent of the Total Commitments prior to that reduction) have consented or agreed to such waiver or amendment,
|
37.4
|
Disenfranchisement of Defaulting Lenders
|
(a)
|
For the purposes of this clause 37.4, the Agent may assume that the following Lenders are Defaulting Lenders:
|
(i)
|
any Lender which has notified the Agent that it has become a Defaulting Lender;
|
(ii)
|
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,
|
37.5
|
Replacement of a Defaulting Lender
|
(a)
|
The Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 15 Business Days' prior written notice to the Agent and such Lender replace such Lender by requiring 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 under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity (a "
Replacement Lender
") selected by the Company, 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 obligations or all the relevant obligations of the transferring Lender (including the assumption of the transferring Lender's Loans on the same basis as the transferring Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender's Loans and all accrued interest, and/or fees, Break Costs and other amounts payable in relation thereto under the Finance Documents.
|
(b)
|
Any transfer of rights and obligations of a Defaulting Lender pursuant to this clause 37.5 shall be subject to the following conditions:
|
(i)
|
the Company shall have no right to replace the Agent, Security Agent or English Security Agent;
|
(ii)
|
neither the Agent nor the Defaulting Lender shall have any obligation to the Company to find a Replacement Lender;
|
(iii)
|
the transfer must take place no later than 30 days after the notice referred to in clause 37.5(a); and
|
(iv)
|
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents.
|
37.6
|
Other exceptions
|
37.7
|
Replacement of Screen Rate
|
(a)
|
Subject to clause 37.6 (
Other exceptions
), if the Screen Rate is not available for sterling, euro or kronor any amendment or waiver which relates to providing for another benchmark rate to apply in relation to sterling, euro or kronor in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that benchmark rate) may be made with the consent of the Majority Lenders and the Obligors.
|
(b)
|
If any Lender fails to respond to a request for an amendment or waiver described in clause 37.7(a) within 10 Business Days (unless the Company and the Agent agree to a longer time period in relation to any request) of that request being made:
|
(i)
|
its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
|
(ii)
|
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
38.1
|
Confidentiality
|
38.2
|
Disclosure of Confidential Information
|
(a)
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, managers, 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 clause 38.2(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)
|
to any person:
|
(i)
|
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 or which succeeds (or which may potentially succeed) it as Agent, Security Agent or English Security Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(ii)
|
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 person's Affiliates, Related Funds, Representatives and professional advisers;
|
(iii)
|
appointed by any Finance Party or by a person to whom clause 38.2(b)(i) or 38.2(b)(ii) applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under clause 27.17(b));
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in clause 38.2(b)(i) or 38.2(b)(ii);
|
(v)
|
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;
|
(vi)
|
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;
|
(vii)
|
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to clause 25.8 (
Security over Lenders' rights
);
|
(viii)
|
who is a Party, a member of the Group or any related entity of an Obligor; or
|
(ix)
|
with the consent of the Company;
|
(A)
|
in relation to clauses 38.2(b)(i), 38.2(b)(ii) and 38.2(b)(iii), 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 clause 38.2(b)(iv), 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 clauses 38.2(b)(v), 38.2(b)(vi) and 38.2(b)(vii) 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; and
|
(c)
|
to any person appointed by that Finance Party or by a person to whom clause 38.2(b)(i) or 38.2(b)(ii) 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 Loans 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 clause 38.2(c) if the service provider to whom the Confidential Information is to be given has entered into a 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 Company and the relevant Finance Party; and
|
(d)
|
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.
|
38.3
|
Disclosure to numbering service providers
|
(a)
|
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:
|
(i)
|
names of Obligors;
|
(ii)
|
country of domicile of Obligors;
|
(iii)
|
place of incorporation of Obligors;
|
(iv)
|
date of this Agreement;
|
(v)
|
clause 42 (
Governing law
);
|
(vi)
|
the names of the Agent and the Arranger;
|
(vii)
|
date of each amendment of this Agreement;
|
(viii)
|
amount of Total Commitments;
|
(ix)
|
currency of the Facility;
|
(x)
|
type of Facility;
|
(xi)
|
ranking of Facility;
|
(xii)
|
Termination Date for Facility;
|
(xiii)
|
changes to any of the information previously supplied pursuant to clauses 38.3(a)(i) to 38.3(a)(xii); and
|
(xiv)
|
such other information agreed between such Finance Party and the Company,
|
(b)
|
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.
|
(c)
|
Each Obligor represents that none of the information set out in clauses 38.3(a)(i) to 38.3(a)(xiv) is, nor will at any time be, unpublished price-sensitive information.
|
(d)
|
The Agent shall notify the Company 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.
|
38.4
|
Entire agreement
|
38.5
|
Inside information
|
38.6
|
Notification of disclosure
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to clause 38.2(b)(v) except where such disclosure is made to any of the persons referred to in that clause during the ordinary course of its supervisory or regulatory function; and
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this clause 38.
|
38.7
|
Continuing obligations
|
(a)
|
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b)
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
39.
|
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS
|
39.1
|
Confidentiality and disclosure
|
(a)
|
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by clauses 39.1(b), 39.1(c) and 39.1(d).
|
(b)
|
The Agent may disclose:
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the relevant Borrower pursuant to clause 8.5 (Notification of rates of interest); and
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a 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 Agent and the relevant Lender or Reference Bank, as the case may be.
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:
|
(i)
|
any of its Affiliates and any of its or their officers, directors, managers, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this clause 39.1(c)(i) is informed in writing of its confidential nature and that it 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 that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
(ii)
|
any person 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 if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
(iii)
|
any person 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 if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
(d)
|
The Agent's obligations in this clause 39 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under clause 8.5 (Notification of rates of interest).
|
39.2
|
Related obligations
|
(a)
|
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
(b)
|
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:
|
(i)
|
of the circumstances of any disclosure made pursuant to clause 39.1(c)(ii) except where such disclosure is made to any of the persons referred to in that clause during the ordinary course of its supervisory or regulatory function; and
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this clause 39.
|
39.3
|
No Event of Default
|
40.
|
COUNTERPARTS
|
41.
|
TAX NUMBERS
|
42.
|
GOVERNING LAW
|
43.
|
ENFORCEMENT
|
43.1
|
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 43.1 is for the benefit of the Finance Parties only. As a result, no Finance 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 may take concurrent proceedings in any number of jurisdictions.
|
43.2
|
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 NorthStar Asset Management UK Ltd of 25-28 Old Burlington Street, London W1S 3AN as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(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 (on behalf of all the Obligors) must immediately (and in any event within 10 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)
|
Each Obligor expressly agrees and consents to the provisions of this clause 43 and clause 42 (
Governing law
).
|
44.
|
TRANSPARENCY PROVISIONS
|
(a)
|
it has appointed and has been assisted by its respective legal counsel in connection with the negotiation, preparation and execution of the Finance Documents; and
|
(b)
|
this Agreement and any Finance Document, and all of its terms and conditions, including the schedules thereto, have been specifically negotiated ("
oggetto di trattativa individuale
") between the Parties.
|
Signed by
Steven Kauff
for
and on behalf of
PRIME HOLDCO C-T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME UK PORTMAN
- T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME UK CONDOR - T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER DREHBAHN
- T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER
VALETINSKAMP - T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER
DAMMTORWALL - T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
:jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL II - T S.à
r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME BEL
RUE DE LA
LOI - T SPRL (formerly known as
Chrysalis Invest NV)
Address:
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME NLD
ROTTERDAM - T B.V.
Address:
Zuidplein 156
1077 XV Amsterdam
the Netherlands
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME NLD
AMSTERDAM - T B.V.
Address:
Zuidplein 156
1077 XV Amsterdam
the Netherlands
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
|
|
|
|
Signed by
Steven Kauff
for
and on behalf of
PRIME SWE
GOTHENBURG - T AB
Address:
Attention
: Jon Farkas
Email
:jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
Signed by
Steven Kauff
for
and on behalf of
PRIME UK Portman -
T, S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME UK CONDOR - T
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER DREHBAHN
- T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER
VALETINSKAMP - T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER
DAMMTORWALL - T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL II - T S.à
r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME BEL
RUE DE LA
LOI - T SPRL (formerly known as
Chrysalis Invest NV)
Address:
Attention
: Jon Farkas
Email
:jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
Signed by
Steven Kauff
for
and on behalf of
PRIME NLD
ROTTERDAM - T B.V.
Address:
Zuidplein 156
1077 XV Amsterdam,
the Netherlands
Attention
:Jon Farkas
Email
:
jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
Signed by
Steven Kauff
for
and on behalf of
PRIME NLD
AMSTERDAM - T B.V.
Address:
Zuidplein 156
1077 XV Amsterdam
the Netherlands
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
|
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL I -T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention: Jon Farkas
Email: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL VII -T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL III A - T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL III B -T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL III C -T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL V - T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL VI - T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME ITA MILAN - T,
S.R.L.
Address:
Via Tortona 25
20144, Milan
Italy
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL IV A - T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL IV B -T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME SWE GOTHENBURG - T AB
Address:
Attention
: Jon Farkas
Email
:jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
Signed by
Steven Kauff
for
and on behalf of
PRIME UK PORTMAN -
T, S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME UK CONDOR - T
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER DREHBAHN
- T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER
VALETINSKAMP - T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME GER
Dammtorwall - T S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL II - T S.à
r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME NLD
ROTTERDAM - T, B.V.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title:
|
Signed by
Steven Kauff
for
and on behalf of
PRIME NLD
AMSTERDAM - T B.V.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL VII -T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL I -T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL V - T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL VI - T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Steven Kauff
for
and on behalf of
PRIME POOL IV A - T,
S.à r.l.
Address:
6A route de Trèves
6th Floor,
L-2633 Senningerberg
Grand Duchy of Luxembourg
Attention
: Jon Farkas
Email
: jfarkas@nsamgroup.eu
|
)
)
)
Signature
/s/ Steven Kauff
Title: Manager
|
Signed by
Martin Wilmsen Rechtsanwalt
for
and on behalf of
AAREAL BANK AG
Address:
Paulinenstrasse 15,
65189 Wiesbaden
Germany
Facsimile No:
+49 611 348 3108
Attention:
CM-2 Transaction
Management
|
)
)
Signature
/s/ Martin Wilmsen Rechtsanwalt
|
Signed by
Martin Wilmsen Rechtsanwalt
for
and on behalf of
AAREAL BANK AG
Address:
Paulinenstrasse 15,
65189 Wiesbaden
Germany
Facsimile No:
+49 611 348 3108
Attention:
CM-2 Transaction
Management
|
)
)
Signature
/s/ Martin Wilmsen Rechtsanwalt
|
Signed by
Martin Wilmsen Rechtsanwalt
for
and on behalf of
AAREAL BANK AG
Address:
Paulinenstrasse 15,
65189 Wiesbaden
Germany
Facsimile No:
+49 611 348 3108
Attention:
CM-2 Transaction
Management
|
)
)
Signature
/s/ Martin Wilmsen Rechtsanwalt
|
Signed by
Martin Wilmsen Rechtsanwalt
for
and on behalf of
AAREAL BANK AG
Address:
Paulinenstrasse 15,
65189 Wiesbaden
Germany
Facsimile No:
+49 611 348 3108
Attention:
CM-2 Transaction
Management
|
)
)
Signature
/s/ Martin Wilmsen Rechtsanwalt
|
Signed by
Helena Anne Jane Giles
for
and on behalf of
CAPITA TRUST
COMPANY LIMITED
Address
: 4th Floor
40 Dukes Place
London
EC3A 7NH
Facsimile No:
+44(0)20 3170 0246
Attention:
Manager - Corporate Trusts
|
)
)
)
Signature
/s/ Helena Anne Jane Giles
|
Signed by
Martin Wilmsen Rechtsanwalt
for
and on behalf of
AAREAL BANK AG
Address:
Paulinenstrasse 15,
65189 Wiesbaden
Germany
Facsimile No:
+49 611 348 3108
Attention:
CM-2 Transaction
Management
|
)
)
Signature
/s/ Martin Wilmsen Rechtsanwalt
|
EXECUTION VERSION
|
|
|
COMMON TERMS AND FACILITIES AGREEMENT
|
6 APRIL 2015
|
TRIAS HOLDCO C-T S.À R.L.
as the Company
arranged by
GE REAL ESTATE LOANS LIMITED
CBRE LOAN SERVICING LIMITED
as the Agent
and
CBRE LOAN SERVICING GMBH
as the Security Agent
up to €200,390,475 and £26,080,076
relating to the Acquisition of certain real estate assets in France, Germany, The Netherlands, and the United Kingdom
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Allen & Overy LLP
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Contents
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Clause
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Page
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1
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Definitions and Interpretation
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1
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2
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The Facilities
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51
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3
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Purpose
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54
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4
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Conditions of Utilisation
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55
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5
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Utilisation
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56
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6
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Repayment
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58
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7
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Prepayment and Cancellation
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59
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8
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Interest
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67
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9
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Interest Periods
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71
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10
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Changes to the Calculation of Interest
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71
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11
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Fees
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73
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12
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Tax Gross-Up and Indemnities
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74
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13
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Increased Costs
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85
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14
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Other Indemnities
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87
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15
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Mitigation by the Lenders
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89
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16
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Costs and Expenses
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90
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17
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Bank Accounts
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91
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18
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Guarantee and Indemnity
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104
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19
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Representations
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109
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20
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Information Undertakings
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118
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21
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Financial Covenants
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122
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22
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General Undertakings
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124
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23
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Property Undertakings
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135
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24
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Events of Default
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145
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25
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Changes to Finance Parties
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151
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26
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Changes to the Obligors
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157
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27
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Role of the Agent, the Arranger and the Reference Banks
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160
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28
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The Security Agent
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169
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29
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Application of Proceeds
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184
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30
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Conduct of Business by the Finance Parties
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185
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31
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Sharing Among the Finance Parties
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186
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32
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Payment Mechanics
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187
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33
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Set-Off
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191
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34
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Notices
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191
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35
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Calculations and Certificates
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193
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36
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Partial Invalidity
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193
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37
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Remedies and Waivers
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193
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38
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Amendments and Waivers
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194
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39
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Confidentiality
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199
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40
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Counterparts
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202
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41
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Governing Law
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202
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42
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Enforcement
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202
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(1)
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TRIAS HOLDCO B-T S.À R.L.
, a private limited liability company (
société à responsabilité limitée
) incorporated under the laws of Luxembourg with its registered office at 6A, route de Trèves, L-2633 Senningerberg, Grand Duchy of Luxembourg, being registered with the Register of Commerce and Companies in Luxembourg under number B 192.535 and having a share capital of EUR 12,500 (the
Parent
);
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(2)
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TRIAS HOLDCO C-T S.À R.L.
, a private limited liability company (
société à responsabilité limitée
) incorporated under the laws of Luxembourg with its registered office at 6A, route de Trèves, L-2633 Senningerberg, Grand Duchy of Luxembourg, being registered with the Register of Commerce and Companies in Luxembourg under number B 192.534 and having a share capital of EUR 12,500 (the
Company
);
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(3)
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THE PERSONS
listed in Part 1 of Schedule 1 (Original Parties) (each a
Facility A Borrower
);
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(4)
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TRIAS POOL III – TLP S.C.A.
, a partnership limited by shares (
société en commandite par actions
) incorporated under the laws of Luxembourg with its registered office at 6A, route de Trèves, L-2633 Senningerberg, Grand Duchy of Luxembourg, in the course of being registered with the Register of Commerce and Companies in Luxembourg and having a share capital of EUR 31,000 (the
Facility B Borrower
);
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(5)
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THE PERSONS
listed in Part 2 of Schedule 1 (Original Parties) (each a
Facility C Borrower
);
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(6)
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THE PERSONS
listed in Part 3 of Schedule 1 (Original Parties) (each an
Original
Guarantor
);
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(7)
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GE REAL ESTATE LOANS LIMITED
as mandated lead arrangers of this Facility (whether acting individually or together the
Arranger
);
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(8)
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THE PERSONS
listed in Part 4 of Schedule 1 (Original Parties) as lenders (each an
Original
Lender
);
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(9)
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CBRE LOAN SERVICING LIMITED
as agent of the other Finance Parties (the
Agent
); and
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(10)
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CBRE LOAN SERVICING GMBH
as security agent and trustee for the Finance Parties (the
Security Agent
).
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1.
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DEFINITIONS AND INTERPRETATION
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1.1
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Definitions
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(a)
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each Initial Account Bank; or
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(b)
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any other bank or financial institution which becomes an Account Bank in accordance with Clause 17.2 (Account Bank).
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(a)
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each Property; and
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(b)
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all of the issued shares in each Targetco,
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(a)
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the Master Acquisition Agreement; or
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(b)
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each Local Acquisition Agreement.
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(a)
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each Acquisition Agreement; or
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(b)
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any other document designated as an Acquisition Document by the Agent and the Company.
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(a)
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the US Foreign Corrupt Practices Act of 1977;
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(b)
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the UK Bribery Act 2010; and
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(c)
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any similar applicable laws or regulations in any jurisdiction in which any Obligor or any member of the Group is located or doing business that relate to bribery or corruption.
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(a)
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the Initial Asset Manager;
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(b)
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NorthStar Asset Management Group Inc. and any Affiliate of NorthStar Asset Management Group Inc. whose business is or includes acting as asset manager of properties;
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(c)
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any entity which is managed and controlled (as determined in accordance with the definition of "control" in Clause 7.2 (Change of control and minimum parameter mandatory prepayment events)) by NorthStar Asset Management Group Inc. and whose business is or includes acting as asset manager of properties;
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(d)
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any Sponsor Affiliate whose business is or includes acting as asset manager of properties; or
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(e)
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any other person as may be nominated by the Company and approved by the Agent (acting on behalf of the Majority Lenders (acting reasonably)) provided that such approval shall not be unreasonably withheld or delayed and the approval of the Agent shall be deemed to have been provided if the Agent does not notify the Company of such approval within 15 Business Days of the date of the request by the Company to appoint a new asset manager.
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(a)
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the Initial Cash Manager;
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(b)
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NorthStar Asset Management Group Inc. and any Affiliate of NorthStar Asset Management Group Inc. whose business is or includes providing cash management and accounting services;
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(c)
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any entity which is managed and controlled (as determined in accordance with the definition of "control" in Clause 7.2 (Change of control and minimum parameter mandatory prepayment events)) by NorthStar Asset Management Group Inc. whose business is or includes providing cash management and accounting services;
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(d)
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any Sponsor Affiliate whose business is or includes providing cash management and accounting services; or
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(e)
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any other person as may be nominated by the Company and approved by the Agent (acting on behalf of the Majority Lenders (acting reasonably)) provided that such approval shall not be unreasonably withheld or delayed and the approval of the Agent shall be deemed to have been provided if the Agent does not notify the Company of such approval within 15 Business Days of the date of the request by the Company to appoint a new cash manager.
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(a)
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an Initial Managing Agent; or
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(b)
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any other person as may be nominated by the Company and approved by the Agent (acting on behalf of the Majority Lenders (acting reasonably)) provided that such approval shall not be unreasonably withheld or delayed and the approval of the Agent shall be deemed to have been provided if the Agent does not notify the Company of such approval within 15 Business Days of the date of the request by the Company to appoint a new managing agent of a Property.
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(a)
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in relation to the Primary Facility, the period from and including the date of this Agreement to and including 30 June 2015; and
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(b)
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in relation to a French Facility, the period from and including the date of the French Term Loan Agreements pursuant to which that French Facility is made available to and including 30 June 2015.
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(a)
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the amount of its participation in any outstanding Utilisations under that Facility; and
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(b)
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in relation to any proposed Utilisation, the amount of its participation in any other Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date.
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(a)
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in relation to any amount in the Base Currency, that amount; and
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(b)
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in relation to any amount in sterling, that amount converted into the Base Currency at the Agent’s spot Rate of Exchange on the date of this Agreement.
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(a)
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the interest (excluding Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
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(b)
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the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period,
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(a)
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(in relation to any date for payment or purchase of sterling) London; or
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(b)
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(in relation to any date for payment or purchase of the Base Currency) any TARGET Day.
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(a)
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Cash Trap Projected Net Operating Income;
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(b)
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Cash Trap Projected Finance Costs.
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(a)
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the Loan to Value on that Interest Payment Date is equal to or greater than 70 per cent.; or
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(b)
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the Cash Trap Debt Service Cover Ratio on that Interest Payment Date is equal to or less than 1.50:1.
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(a)
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the period of twelve Months starting on the Quarter Day falling immediately prior to that Interest Payment Date; or
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(b)
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if any period referred to in paragraph (a) above would include the Final Repayment Date, the period starting on the Quarter Day falling immediately prior to that Interest Payment Date and ending on the Final Repayment Date.
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(a)
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any break clause under any Lease Document will be deemed to be exercised at the earliest date available to the relevant tenant and it will be assumed that that part of that Property shall remain vacant thereafter unless the premises have been re-let;
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(b)
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Net Operating Income will be ignored if payable by a tenant that is an Obligor or related to an Obligor or an Affiliate of an Obligor;
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(c)
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Net Operating Income will be ignored if not payable under an unconditional and binding Lease Document;
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(d)
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potential Net Operating Income increases as a result of rent reviews will be ignored until unconditionally ascertained other than where there are fixed rental increases pursuant to the relevant Lease Document or pursuant to notified indexation;
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(e)
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Net Operating Income payable by a tenant that is more than three months in arrears on any of its rental payments will be ignored unless a guarantor is keeping rent current;
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(f)
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Net Operating Income will be reduced by the amount of any deduction or withholding for or on account of Tax from that Net Operating Income;
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(g)
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Net Operating Income will be ignored if payable by a tenant or by a guarantor that is subject to any of the events set out in Clause 24.7 (Insolvency proceedings); and
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(h)
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any estimate of projected Net Operating Income denominated in sterling will be converted to the Base Currency using the Agent’s Spot Rate of Exchange on that Interest Payment Date,
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(a)
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Clause 19.9 (VAT);
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(b)
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Clause 19.11 (Information);
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(c)
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Clause 19.12 (Financial statements);
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(d)
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paragraphs (e)(i), (e)(ii), (e)(vi), (e)(vii), (e)(ix), (e)(x) and (f) of Clause 19.16 (Title to Property and other assets);
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(e)
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Clause 19.18 (Environmental compliance);
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(f)
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Clause 19.19 (No other business); or
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(g)
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Clause 19.22 (Taxation).
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(a)
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Clause 22.2 (Compliance with laws);
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(b)
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Clause 22.3 (Negative pledge) (except to the extent that any other person has a legal mortgage on any Property or any other Security over any Accounts, Existing Accounts, Insurances or material contracts entered into by any Targetco);
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(c)
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Clause 22.5 (Financial Indebtedness) provided that the aggregate principal amount outstanding of such Financial Indebtedness is less than €250,000 (or its currency equivalent) in respect of the Group as a whole;
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(d)
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Clause 22.6 (Lending and guarantees)
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(e)
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Clause 22.8 (Conduct of business);
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(f)
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Clause 22.12 (Other agreements); and
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(g)
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Clause 22.16 (Taxes).
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(a)
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any reasonable expenses incurred by or on behalf of an Obligor to a person who is not an Obligor or an Affiliate of an Obligor;
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(b)
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any Tax incurred and required to be paid by or on behalf of an Obligor (as reasonably determined by that Obligor on the basis of existing rates and taking into account any available credit, deduction or allowance),
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(a)
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any member of the Group or any of its advisers; or
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(b)
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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,
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(i)
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information that:
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(A)
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is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39.1 (Confidential Information); or
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(B)
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is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
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(C)
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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; and
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(ii)
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any Funding Rate or Reference Bank Quotation.
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(a)
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purchases by way of assignment or transfer;
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(b)
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enters into any sub-participation in respect of; or
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(c)
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enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,
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(a)
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which has failed to make its participation in a Loan available (or has notified the Agent or the Company (which 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);
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(b)
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which has otherwise rescinded or repudiated a Finance Document; or
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(c)
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with respect to which an Insolvency Event has occurred and is continuing,
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(a)
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Default Level Net Operating Income;
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(b)
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Default Level Finance Costs.
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(a)
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the period of twelve Months starting on the date falling six Months prior to the Quarter Day falling immediately prior to that Interest Payment Date; and
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(b)
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if any period referred to in paragraph (a) above would include the Final Repayment Date, the period starting on the date falling six Months prior to the Quarter Day falling immediately prior to that Interest Payment Date and ending on the Final Repayment Date.
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(a)
|
in respect of the first period of six Months in respect of the Default Level Measurement Period relating to that Interest Payment Date, Net Operating Income actually received by the Obligors in that six month period;
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(b)
|
in respect of the second period of six Months in respect of the Default Level Measurement Period relating to that Interest Payment Date, the Company’s estimate of projected Net Operating Income to be paid to the Obligors which has been approved by the Agent (acting on the instructions of the Majority Lenders (acting reasonably)) for that six month period based on the following assumptions:
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(i)
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any break clause under any Lease Document will be deemed to be exercised at the earliest date available to the relevant tenant and it will be assumed that that part of that Property shall remain vacant thereafter; unless the premises have been re-let;
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(ii)
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Net Operating Income will be ignored if payable by a tenant that is an Obligor or related to an Obligor or an Affiliate of an Obligor;
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(iii)
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Net Operating Income will be ignored if not payable under an unconditional and binding Lease Document;
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(iv)
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potential Net Operating Income increases as a result of rent reviews will be ignored until unconditionally ascertained; other than where there are fixed rental increases pursuant to the relevant Lease Document or pursuant to notified indexation;
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(v)
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Net Operating Income payable by a tenant that is more than three Months in arrears on any of its rental payments will be ignored unless a guarantor is keeping rent current;
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(vi)
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Net Operating Income will be reduced by the amount of any deduction or withholding for or on account of Tax from that Net Operating Income;
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(vii)
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Net Operating Income will be ignored if payable by a tenant or by a guarantor that is subject to any of the events set out in Clause 24.7 (Insolvency proceedings); and
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(viii)
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any estimate of projected Net Operating Income denominated in sterling will be converted to the Base Currency using the Agent’s Spot Rate of Exchange on that Interest Payment Date
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(a)
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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
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(b)
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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:
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(i)
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from performing its payment obligations under the Finance Documents; or
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(ii)
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from communicating with other Parties in accordance with the terms of the Finance Documents,
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(a)
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air (including, without limitation, air within natural or man-made structures, whether above or below ground);
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(b)
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water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
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(c)
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land (including, without limitation, land under water).
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(a)
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the pollution or protection of the Environment;
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(b)
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the conditions of the workplace; or
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(c)
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the generation, handling, storage, use, release or spillage of any substance (including, without limitation, any waste or any emission of greenhouse gases) which, alone or in combination with any other, is capable of causing harm to the Environment.
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(a)
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each environmental short form desktop review in respect of each Property issued by Arcadis; and
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(b)
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environmental phase I audit in respect of each Property located in France and in Germany issued by Arcadis,
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(a)
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the applicable Screen Rate as of 11.00 a.m. (Brussels time) for euro on the Quotation Day for a period equal in length to that Interest Period; or
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(b)
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as otherwise determined pursuant to Clause 10.1 (Unavailability of Screen Rate),
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(a)
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to satisfy (or reimburse an Obligor which has discharged) any liability, charge or claim upon an Obligor by a person which is not an Obligor or an Affiliate of an Obligor; or
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(b)
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in the replacement, reinstatement and/or repair of assets of an Obligor which have been lost, destroyed or damaged,
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(a)
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in relation to French Targetco Alésia, an account with CommerzBank AG Succursale de Paris, 23 rue de la Paix, F– 75002, Paris with IBAN number FR7617629000010011912040359;
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(b)
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in relation to French Targetco Alésia, an account with CommerzBank AG Succursale de Paris, 23 rue de la Paix, F–75002, Paris with IBAN number FR7617629000010011912040068;
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(c)
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in relation to French Targetco Joubertco, an account with CommerzBank AG Succursale de Paris, 23 Rue de la Paix, F – 75002, Paris with IBAN number FR7617629000010011912460078;
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(d)
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in relation to French Targetco Jourbertco, an account with CommerzBank AG Succursale de Paris, 23 rue de la Paix, F – 75002, Paris with IBAN number FR7617629000010011912460369;
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(e)
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in relation to French Targetco Marceau, an account with CommerzBank AG Succursale de Paris, 23 rue de la Paix, F – 75002, Paris with IBAN number FR7617629000010011915680381; and
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(f)
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in relation to French Targetco Marceau, an account with CommerzBank AG Succursale de Paris, 23 rue de la Paix, F – 75002, Paris with IBAN number FR7617629000010011915680090.
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(a)
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in relation to French Targetco Alésia, intragroup debt for an amount of €9,168,717.50;
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(b)
|
in relation to French Targetco Joubertco, intragroup debt for an amount of € 1,400,868, and banking debt for an amount of € 6.625.309,69, i.e. an aggregate amount of €8,026,177.69; or
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(c)
|
in relation to French Targetco Marceau, intragroup debt for an amount of € 15.109.362 and banking debt for an amount of €15,042,755.41, i.e. an aggregate amount of €30,152,117.41.
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(a)
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in relation to each Original Facility A Lender, the amount in euro set opposite its name under the heading "Facility A Commitment" in Part 4 of Schedule 1 (Original Parties) and the amount of any other Facility A Commitment transferred to it under this Agreement; and
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(b)
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in relation to any other Facility A Lender, the amount in euro of any Facility A Commitment transferred to it under this Agreement,
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(a)
|
any Original Facility A Lender; and
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(b)
|
any bank, financial institution, trust, fund or other entity which has become a Facility A Lender in accordance with Clause 25 (Changes to Finance Parties),
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(a)
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in relation to each Original Facility B Lender, the amount in euro set opposite its name under the heading "Facility B Commitment" in Part 4 of Schedule 1 (Original Parties) and the amount of any other Facility B Commitment transferred to it under this Agreement; and
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(b)
|
in relation to any other Facility B Lender, the amount in euro of any Facility B Commitment transferred to it under this Agreement,
|
(a)
|
any Original Facility B Lender; and
|
(b)
|
any bank, financial institution, trust, fund or other entity which has become a Facility B Lender in accordance with Clause 25 (Changes to Finance Parties),
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(a)
|
in relation to each Original Facility C Lender, the amount in sterling set opposite its name under the heading "Facility C Commitment" in Part 4 of Schedule 1 (Original Parties) and the amount of any other Facility C Commitment transferred to it under this Agreement; and
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(b)
|
in relation to any other Facility C Lender, the amount in sterling of any Facility C Commitment transferred to it under this Agreement,
|
(a)
|
any Original Facility C Lender; and
|
(b)
|
any bank, financial institution, trust, fund or other entity which has become a Facility C Lender in accordance with Clause 25 (Changes to Finance Parties),
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
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(b)
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
|
(a)
|
in relation to a
withholdable payment
described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b)
|
in relation to a
withholdable payment
described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
|
(c)
|
in relation to a
passthru payment
described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
|
(a)
|
moneys borrowed;
|
(b)
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the Accounting Principles be treated as a finance or capital lease;
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(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
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(f)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;
|
(g)
|
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or closeout of that derivative 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;
|
(i)
|
any amount raised by the issue of redeemable shares which may be redeemable on or before the date falling six Months after the Final Repayment Date;
|
(j)
|
(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 (i) above.
|
|
(a)
|
in relation to the Original French Facility Lender, the amount set opposite its name under the heading "French Facility Commitment" in Part 4 of Schedule 1 (Original Parties) and the amount of any other French Facility Commitment transferred to it under this Agreement and a French Term Loan Agreement; and
|
(b)
|
in relation to any New Lender (which is a French Facility Lender), the amount of any French Facility Commitment transferred to it under this Agreement and a French Term Loan Agreement,
|
(a)
|
the Original French Facility Lender; and
|
(b)
|
any bank, financial institution, trust, fund or other entity which has become a French Facility Lender in accordance with Clause 25 (Changes to Finance Parties),
|
(a)
|
(i) the Insurance Prepayment Proceeds, (ii) the Compensation Prepayment Proceeds, (iii) the Recovery Prepayment Proceeds or (iv) the Disposal Proceeds, as applicable, received by that French Obligor which, if such amounts had been received by any other Obligor (other than a French Obligor), would have been required to have been applied by such Obligor in prepayment of the Loans in accordance with paragraphs (a) to (c) of Clause 7.6 (Application of Mandatory prepayments); less
|
(b)
|
the amount paid by that French Obligor in accordance with Clause 7.6 (Application of mandatory prepayments) on the relevant date of prepayment.
|
|
|
(a)
|
an employee, officer or representative of any non-US national government, political subdivision thereof, or local jurisdiction therein, a non-US government agency, instrumentality of a government agency or civilian or military government agency, or a non-US government-owned/government-controlled association, organisation or enterprise;
|
(b)
|
a non-US legislative, administrative or judicial official, regardless of whether elected or appointed;
|
(c)
|
an officer or individual who holds a position in a non-US political party;
|
(d)
|
a candidate for political office outside of the US; or
|
|
(e)
|
an officer or employee of a supra-national organisation (including without limitation, the World Bank, United Nations, International Monetary Fund, Organisation for Economic Cooperation and Development).
|
(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;
|
(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), (b) or (c) of the definition of "Defaulting Lender"; or
|
(d)
|
an Insolvency Event has occurred and is continuing with respect to the Agent;
|
(e)
|
its failure to pay is caused by:
|
(A)
|
administrative or technical error; or
|
(B)
|
a Disruption Event; and
|
|
(f)
|
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(a)
|
in respect of each Account (other than an Account of the OPCI), Bank of America, N. A.; and
|
(b)
|
in respect of each Account of the OPCI located in France, Société Générale.
|
(a)
|
in respect of each German Property, Corpus Sireo Asset Management Commercial GmbH;
|
(b)
|
in respect of the Dutch Properties, Internos;
|
(c)
|
in respect of the English Property, and the Scottish Property, Internos; and
|
(d)
|
in respect of the French Properties, Internos.
|
(a)
|
in respect of the Dutch Properties, CBRE B.V.;
|
(b)
|
in respect of the English Property and the Scottish Property, Savills (UK) Limited;
|
(c)
|
in respect of the French Properties, Cushman&Wakefield SAS and BNP Parisbas Real Estate Property Management France SAS;
|
(d)
|
in respect of the German Properties, STRABAG Property and Facility Services GmbH, Jones Lang LaSalle GmbH and Tectareal Property Management GmbH.
|
(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)
|
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its
|
|
(e)
|
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
|
(i)
|
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or
|
(ii)
|
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
(f)
|
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
(g)
|
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);
|
(h)
|
has a secured party take possession of all or substantially all its assets or has a distress, diligence, 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;
|
(i)
|
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 (h) above; or
|
(j)
|
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
(a)
|
an Agreement for Lease;
|
(b)
|
an Occupational Lease; or
|
(c)
|
any other document designated as such by the Agent and the Obligors' Agent.
|
(a)
|
the principle that equitable or discretionary remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
(b)
|
the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;
|
(c)
|
the limitation of the enforcement of the terms of leases of real property by laws of general application to those leases;
|
|
(d)
|
similar principles, rights, remedies and defences under the laws of any Relevant Jurisdiction; and
|
(e)
|
any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinions supplied to the Agent as a condition precedent under this Agreement on or before the first Utilisation Date or otherwise provided to the Agent in connection with the accession of an Additional Guarantor.
|
(a)
|
the applicable Screen Rate as of the Specified Time for sterling and for a period equal in length to the Interest Period of that Loan; or
|
(b)
|
as otherwise determined pursuant to Clause 10.1 (Unavailability of Screen Rate),
|
(a)
|
in respect of the Dutch Properties, the sale and purchase agreement dated 12 December 2014 enclosed as Schedule IV to the Master Acquisition Agreement and made, among others, between the Company and INTERNOS Spezialfondsgesellschaft mbH;
|
(b)
|
in respect of the English Properties, the sale and purchase agreement dated 12 December 2014 enclosed as Schedule V to the Master Acquisition Agreement and made, among others, between the Company, IVG Institutional Funds GmbH and INTERNOS Spezialfondsgesellschaft mbH;
|
(c)
|
in respect of the Scottish Properties, the sale and purchase agreement dated 12 December 2014 enclosed as Schedule X to the Master Acquisition Agreement and made, among others, between the Company, IVG Institutional Funds GmbH and INTERNOS Spezialfondsgesellschaft mbH;
|
(d)
|
in respect of the French Property, the sale and purchase agreement dated 12 December 2014 enclosed as Schedule VI to the Master Acquisition Agreement and made, among others, between the Company and INTERNOS Spezialfondsgesellschaft mbH;
|
|
(e)
|
in respect of French Targetco Joubert, the sale and purchase agreement dated 12 December 2014 enclosed as Schedule VII-A to the Master Acquisition Agreement and made, among others, between the Company and IVG Institutional Funds GmbH;
|
(f)
|
in respect of French Targetco Alésia, the sale and purchase agreement dated 12 December 2014 enclosed as Schedule VII-B to the Master Acquisition Agreement and made, among others, between the Company and IVG Institutional Funds GmbH;
|
(g)
|
in respect of French Targetco Marceau, the sale and purchase agreement dated 12 December 2014 enclosed as Schedule VII-C to the Master Acquisition Agreement and made, among others, between the Company and IVG Institutional Funds GmbH; and
|
(h)
|
in respect of the German Properties, the sale and purchase agreement dated 19 December 2014 enclosed as Exhibit G to the Master Acquisition Agreement and made, among others, between the Company, IVG Institutional Funds GmbH, PMG - Property Management GmbH and Via Bensi S.r.l.
|
(a)
|
whose participation in the outstanding Loans then aggregate equal to or more than 66⅔% of all Loans then outstanding;
|
(b)
|
if there is no Loan then outstanding, whose undrawn Commitments then aggregate equal to or more than 66⅔% of the Total Commitments;
|
(c)
|
or, if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated more than 66⅔% of the Total Commitments immediately prior to the reduction,
|
(a)
|
the Agent, the Company and a Lender; and
|
(b)
|
the Agent, each French Facility Borrower and the Original French Facility Lender under a French Term Loan Agreement.
|
|
(a)
|
the consolidated business, property or financial condition of the Group taken as a whole;
|
(b)
|
the ability of the Obligors (taken as a whole) to perform their payment obligations under the Finance Documents;
|
(c)
|
subject to the Legal Reservations and the Perfection Requirements, 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
|
(d)
|
subject to the Legal Reservations and Perfection Requirements, any rights or remedies of any Finance Party under any of the Finance Documents.
|
(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.
|
(a)
|
the amount standing to the credit of the Deposit Accounts (other than any amount standing to the credit of the Deposit Account which represents Lease Prepayment Proceeds);
|
|
(b)
|
the amount standing to the credit of each Equity Cure Account; and
|
(c)
|
the amount standing to the credit of the Reserve Accounts.
|
(a)
|
all Tenant Contributions in relation to that Property;
|
(b)
|
all void and non-recoverable Service Charge Expenses in relation to that Property;
|
(c)
|
any sum representing any VAT chargeable in respect of Rental Income; and
|
(d)
|
any ground rent or other payment due under any Headlease.
|
(a)
|
rates and insurance premia for that period;
|
(b)
|
costs and expenses incurred in complying with applicable laws and regulations relating to a Property;
|
(c)
|
reasonable property management, maintenance, insurance, repair or similar fees, costs and expenses in relation to a Property (as envisaged by the Business Plan); and
|
(d)
|
any amount in respect of or which represents VAT,
|
|
(a)
|
all Service Charge Expenses; and
|
(b)
|
any sum representing any VAT chargeable in respect of Rental Income.
|
(a)
|
the Company and each Original Guarantor, its
pro forma
profit and loss accounts and balance sheet for the period since its formation; and
|
(b)
|
each other Additional Guarantor, its unaudited (or, if available audited) financial statements for its latest financial year for which financial statements have been prepared.
|
|
(a)
|
the delivery of all certificates of title to securities which are the subject of Transaction Security to the Security Agent, together with signed but otherwise undated transfer forms, undated dividend mandates, undated director's letters of resignation, authorities to date and notices and acknowledgements duly executed in the form required pursuant to each Security Document; and
|
(b)
|
the making or the procuring of registrations, filings, endorsements, notarisations, translations, stampings, notifications, acknowledgements and/or acceptances of the Finance Documents (and/or the Security created thereunder) necessary for the validity, enforceability (as against the relevant Transaction Obligor as well as any third party) and/or perfection thereof.
|
(a)
|
which are contemplated by the terms of the Business Plan or any updated Business Plan which has been delivered to the Agent in accordance with Clause 20.8 (Business Plan); or
|
(b)
|
required pursuant to the terms of any Lease Document or to comply with any law or regulation,
|
(a)
|
any encumbrance, easement or other agreement or arrangement having similar effect which is registered in section II of the German Land Register (Abteilung II) after the date of the relevant land register extracts used for the Property Report in respect of that German Property and:
|
|
(i)
|
is subordinated in ranking to the German Land Charge encumbering that German Property; or
|
(ii)
|
(A) does not materially adversely affect (I) the value of that German Property (
nicht wertmindernde Belastungen
) and (II) the eligibility of the Loan and/or any German land charge and/or any other Transaction Security charging any Property to be registered in the cover pool of a Lender (
Deckungsstockfähigkeit
); or
|
(B)
|
such encumbrance is a priority notice of conveyance in connection with a Permitted Property Disposal in respect of that German Property, provided that any such Permitted Property Disposal is completed within six Months of the date of registration of such priority notice;
|
(b)
|
in case of a tenant easement, that easement complies with the criteria for tenant easements set forth by the committee for tenant easements (
Arbeitskreis Mieterdienstbarkeiten
) of the German association of Pfandbrief banks (
Deutscher Pfandbriefbanken
) in its publication as of 30 July 2008 (Az. 6.410), as amended from time to time (including without limitation the specification (and due registration) of a maximum amount (
Höchstbetrag
) for the value of such easement of not more than EUR25,000;
|
(c)
|
any encumbrance, easement or other agreement or arrangement having similar effect which exists on the first Utilisation Date, is registered in section II of the German Land Register (
Abteilung II des Grundbuchs
) and is disclosed in the Property Report in respect of the German Properties.
|
(a)
|
any distribution of cash required to be made by the OPCI to the Facility B Borrower (as shareholder of the OPCI) pursuant to Article L.214-69 of the French Monetary and Financial Code; or
|
(b)
|
any distributions of cash required to be made by French Targetco Joubert to the OPCI as its shareholder to benefit from the tax regime provided under Article 208 C of the French Tax Code; or
|
(c)
|
any distributions of cash which French Propco is required to make to enable the OPCI to comply with its distribution requirements vis-à-vis the Facility B Borrower (as shareholder of the OPCI) pursuant to Article L.214-69 of the French Monetary and Financial Code,
|
|
(a)
|
the payment of a dividend, distribution of share premium reserve, return of capital, repayment of capital, contribution or other distribution, redemption, repurchase, defeasement, retirement, reduction, or payment in respect of share capital or payments in respect of Subordinated Debt made by the Company from its General Account in accordance with this Agreement provided that at the time such payment, distribution, redemption, repurchase, defeasement, retirement or reduction is made no Default is continuing, no Cash Trap Event is continuing and no Default or Cash Trap Event would occur as a result of the payment, distribution, redemption, repurchase, defeasement, retirement or reduction;
|
(b)
|
any payment (including any Permitted OPCI Distribution) made by an Obligor to another Obligor consistent with the terms of this Agreement.
|
(a)
|
influencing any acts or decision of a Government Official in his/her official capacity;
|
(b)
|
inducing such Government Official to do or omit to do any act in violation of the lawful duty of such Government Official;
|
(c)
|
securing any improper advantage in connection with, or in any way relating to, the obtaining of any governmental authorisation or approval; or
|
(d)
|
directing, obtaining or retaining of any business with respect to the activities to which the Loans relate.
|
(a)
|
each German Property;
|
(b)
|
each other property described in Schedule 2 (The Properties); and
|
|
(c)
|
any other present or future freehold and leasehold property and any other interest in land or buildings and all rights relating thereto in which an Obligor has an interest from time to time (including, in respect of properties located in the Netherlands, by way of a right of superficies or an apartment right),
|
(a)
|
the payment of rent, ground rent or any other amount, or any cost or expense, under or in connection with a Headlease;
|
(b)
|
the payment of any premium for insurance, or any cost or expense required to keep any insurance in force, in accordance with this Agreement; or
|
(c)
|
the payment of any amount which, in the opinion of the Lender concerned, is required to preserve or protect any Security Asset or is necessary to avoid a material adverse effect on the value of, or income generated by, any Property,
|
(a)
|
for Facility A Loans, Facility B Loans and a loan under the French Facility the first day of that period; or
|
(b)
|
for Facility C Loans, two TARGET Days before the first day of that period,
|
|
(a)
|
the Vendors under the Acquisition Agreements (or any employee, officer or adviser); or
|
(b)
|
the provider of any Report or the provider of any other due diligence report (in its capacity as provider of the same) in connection with the Acquisitions,
|
(i)
|
any reasonable expenses incurred by or on behalf of an Obligor to a person who is not an Obligor or an Affiliate of an Obligor;
|
(ii)
|
any Tax incurred and required to be paid by or on behalf of an Obligor (as reasonably determined by that Obligor on the basis of existing rates and taking into account any available credit, deduction or allowance),
|
(a)
|
in relation to LIBOR:
|
(i)
|
(other than where sub-paragraph (ii) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in sterling 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; or
|
(ii)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator; or
|
(b)
|
in relation to EURIBOR:
|
(i)
|
(other than where sub-paragraph (ii) below applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period; or
|
(ii)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.
|
|
(a)
|
if
,
as at the date of such Disposal
,
the Loan to Value as at the most recent Interest Payment Date falling prior to that date is equal or greater than 60 per cent., an amount which is equal to 115 per cent. of the Allocated Loan Amount in respect of each Property which is the subject of that Disposal; or
|
(b)
|
if
,
as at the date of such Disposal
,
the Loan to Value as at the most recent Interest Payment Date falling prior to that date is less than 60 per cent., an amount which is equal to 110 per cent. of the Allocated Loan Amount in respect of each Property which is the subject of that Disposal.
|
(a)
|
its Original Jurisdiction;
|
(b)
|
any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;
|
(c)
|
any jurisdiction where it conducts its business; and
|
(d)
|
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a)
|
rent, licence fees and equivalent amounts paid or payable;
|
|
(b)
|
any sum received or receivable from any deposit held as security for performance of a tenant's obligations;
|
(c)
|
a sum equal to any apportionment of rent allowed in favour of any Obligor;
|
(d)
|
any other moneys paid or payable in respect of occupation and/or usage of that Property and any fixture and fitting on that Property including any fixture or fitting on that Property for display or advertisement, on licence or otherwise;
|
(e)
|
any sum paid or payable under any policy of insurance in respect of loss of rent or interest on rent;
|
(f)
|
any sum paid or payable, or the value of any consideration given, for the grant, surrender, amendment, supplement, waiver, extension or release of any Lease Document;
|
(g)
|
any sum paid or payable in respect of a breach of covenant or dilapidations under any Lease Document and for expenses incurred in relation to any such breach;
|
(h)
|
any sum paid or payable by or distribution received or receivable from any guarantor of any occupational tenant under any Lease Document;
|
(i)
|
any Tenant Contributions;
|
(j)
|
any contribution to a sinking fund paid by an occupational tenant under an Occupational Lease;
|
(k)
|
any contribution by a tenant of a Property to ground rent due under any Lease Document out of which an Obligor derives its interest in that Property;
|
(l)
|
any interest paid or payable on, and any damages, compensation or settlement paid or payable in respect of, any sum referred to above less any related fees and expenses incurred (which have not been reimbursed by another person) by or on behalf of any Obligor; and
|
(m)
|
any amount in respect of or which represents VAT.
|
(a)
|
a Property Report;
|
(b)
|
the Tax Due Diligence Report;
|
(c)
|
a Tax Structure Report;
|
(d)
|
each Technical Due Diligence Report or;
|
|
(e)
|
each Environmental Report.
|
(a)
|
in relation to an Account Bank (
provided that
for the purposes of determining the Requisite Rating of an Account Bank, the ratings held by a Holding Company of such Account Bank may be used), the rating of short term instruments with at least one of the following ratings: F1 by Fitch, P-1 by Moody's or A-1 by S&P;
|
(b)
|
in relation to any insurance company or underwriter, long term instruments with a rating, or an insurer financial strength rating, with a rating of A- (or better) by S&P; and
|
(c)
|
in relation to a Counterparty, long term debt instruments with at least one of the following ratings: A3 (or better) by Moody's or A- (or better) by S&P.
|
(a)
|
the United Nations Security Council;
|
(b)
|
the European Union; or
|
(c)
|
the governmental institutions and agencies of the United States of America, including, without limitation, the OFAC or the governmental institutions and agencies of the United Kingdom,
|
|
(a)
|
the Specially Designated Nationals List and the Sectoral Sanctions Identifications List each administered and enforced by OFAC;
|
(b)
|
the Financial Sanctions: Consolidated List of Targets administered and enforced by HMT;
|
(c)
|
the Blocked Person List; or
|
(d)
|
any other list maintained or public designation made by any Sanctions Authority or under US Sanctions Laws in respect of the targets or scope of the Sanctions that are administered and enforced by that Sanctions Authority,
|
(a)
|
whose name is listed on, or is owned or controlled by a person whose name is listed on, or acting on behalf of a person whose name is listed on, any Sanctions List;
|
(b)
|
that is incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person incorporated under the laws of, a country or territory that is the target of country-wide or territory-wide Sanctions; or
|
(c)
|
that is otherwise the target of any Sanction.
|
(a)
|
Trias UK Edinburgh – T, S.à r.l. a private limited liability company (
société à responsabilité limitée
) incorporated under the laws of Luxembourg with its registered office at 6A, route de Trèves, L-2633 Senningerberg, Grand Duchy of Luxembourg, being registered with the Register of Commerce and Companies in Luxembourg under number B 194.364 and having a share capital of GBP 15,000; and
|
(b)
|
Trias UK Delta – T, S.à r.l. a private limited liability company (
société à responsabilité limitée
) incorporated under the laws of Luxembourg with its registered office at 6A, route de Trèves, L-2633 Senningerberg, Grand Duchy of Luxembourg, being registered with the Register of Commerce and Companies in Luxembourg under number B 194.335 and having a share capital of GBP 15,000.
|
(a)
|
in relation to EURIBOR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period, displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of
|
|
(b)
|
in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters,
|
(a)
|
each of the documents set out in Schedule 4 (Security Documents);
|
(b)
|
any other document evidencing or creating Security over any asset, or supplemental to any Security Document, securing any obligation of any Transaction Obligor to a Finance Party under the Finance Documents; or
|
(c)
|
any other document designated as such by the Security Agent and the Obligors' Agent.
|
(a)
|
the Transaction Security expressed to be granted in favour of the Security Agent as agent and trustee for the Finance Parties and all proceeds of that Transaction Security;
|
(b)
|
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in respect of any Secured Liabilities to the Security Agent as agent and trustee for the Finance Parties and secured by the Transaction Security together with all representations and warranties
|
|
(c)
|
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required or expressed by the terms of the Finance Documents to hold as agent and trustee on trust for the Finance Parties.
|
(a)
|
head rent or ground rent;
|
(b)
|
insurance premia;
|
(c)
|
the cost of an insurance valuation;
|
(d)
|
a service or other charge in respect of an Obligor's costs in connection with any management, repair, maintenance or similar obligation or in providing services to a tenant of, or with respect to, a Property (including, without limitation, with respect to a German Property any amount which is recoverable (
umlagefähig)
from a tenant;
|
(e)
|
a reserve or sinking fund; and/or
|
(f)
|
any expenses incurred in respect of a breach of covenant of any Lease Document where such contribution is to be applied in remedying such breach or discharging such expenses,
|
(a)
|
each Sponsor and each of its Affiliates;
|
(b)
|
any trust of which a Sponsor or any of its Affiliates is the sole trustee;
|
(c)
|
any partnership of which a Sponsor or any of its Affiliates is the general partner (or equivalent); and
|
(d)
|
any trust, fund or other entity which is under the control of a Sponsor or any of its Affiliates,
|
|
(a)
|
an Obligor;
|
(b)
|
the Parent; or
|
(c)
|
any other person who becomes a Subordinated Creditor in accordance with this Agreement.
|
(a)
|
which is controlled, directly or indirectly, by the first mentioned entity;
|
(b)
|
more than half of the issued shares of which is beneficially owned, directly or indirectly by the first mentioned entity; or
|
(c)
|
which is a Subsidiary of another Subsidiary of the first mentioned entity,
|
|
(a)
|
the tax structure report dated on or about the date of this Agreement issued by Deloitte LLP; and
|
(b)
|
the tax structure report dated on or about the date of this Agreement issued by Arendt & Medernach SA,
|
(a)
|
contribution to Service Charge Expenses;
|
(b)
|
operating expenses (
Betriebskosten
) including, without limitation, the expenses defined in section 2 of the German Regulation on Operating Expenses (
Betriebskostenverordnung
) dated 25 November 2003; and
|
(c)
|
VAT.
|
|
(a)
|
a Finance Document;
|
(b)
|
a Headlease;
|
(c)
|
a document appointing an Approved Managing Agent;
|
(d)
|
a document appointing an Approved Asset Manager;
|
(e)
|
a document appointing an Approved Cash Manager;
|
(f)
|
each Occupational Lease;
|
(g)
|
each Acquisition Document;
|
(h)
|
any other document designated as such by the Agent and the Obligors' Agent.
|
(a)
|
an Obligor;
|
(b)
|
the Parent; or
|
(c)
|
a Subordinated Creditor.
|
(a)
|
the proposed Transfer Date specified in the relevant Assignment Agreement; and
|
(b)
|
the date on which the Agent executes the relevant Assignment Agreement.
|
|
(a)
|
a Borrower which is resident for tax purposes in the US; or
|
(b)
|
an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a)
|
the Initial Valuation; and
|
(b)
|
any subsequent valuation instructed by the Agent in accordance with and subject to Clause 16.4 (Valuations) and in form and substance satisfactory to the Agent,
|
(i)
|
is carried out on a "market value" basis (as defined in the then current Statements of Assets Valuation Practice and Guidance Notes issued by the Royal Institution of Chartered Surveyors' (or its successors)); or
|
(ii)
|
upon request by the Agent (acting at its sole discretion), includes a determination of the mortgage lending value in accordance with section 16 of the German Act on Covered Bonds (
Pfandbriefgesetz
) and the German Regulation for the Assessment of Mortgage Lending Values (
Beleihungswertverordnung
) (provided that such mortgage lending value will not be used for the purposes of calculating the Loan To Value).
|
(a)
|
each of Cushman Wakefield, JLL, Knight Frank and Savills PLC;
|
|
(b)
|
if CBRE (or any of CBRE’s Affiliates) are not acting as Agent or Security Agent, CBRE; or
|
(c)
|
if all of the valuers listed in paragraph (a) above are conflicted in a jurisdiction, CBRE,
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) (as amended); and
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
(a)
|
IVG Institutional Funds GmbH with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt am Main, registered in the commercial register of Frankfurt am Main under number HRB 91062, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) "EuroWest";
|
(b)
|
PMG - Property Management GmbH with business address at THE SQUAIRE 18, Am Flughafen, 60549 Frankfurt am Main and its seat in Frankfurt, registered in the commercial register of the local court of Frankfurt am Main under number HRB 96246;
|
(c)
|
Via Bensi S.à r.l. a limited liability company incorporated under the laws of Italy with registered office at via Olmetto 17, Milan Italy;
|
(d)
|
INTERNOS Spezialfondsgesellschaft mbH, with business address at Goetheplatz 4, 60311 Frankfurt am Main and its seat in Frankfurt am Main, registered in the commercial register of Frankfurt am Main under number HRB 98593, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) "ProCommerz"; and
|
(e)
|
WestInvest Gesellschaft für Investmentfonds mbH with business address at Hans-Böckler-Straße 33, 40476 Düsseldorf and its seat in Düsseldorf, registered in the commercial register of Düsseldorf under number HR B 24304, acting for the special AIF-fund (
Spezial-AIF-Sondervermögen
) "WestInvest Spezial 1".
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears, a reference in a Finance Document to:
|
(i)
|
the
Agent
, the
Arranger
, any
Finance Party
, any
Counterparty
, any
Lender
, any
Obligor
, any
Party
, the
Security Agent
or any
Transaction Obligor
or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;
|
|
(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)
|
apartment right
means
appartementsrecht
;
|
(iv)
|
assets
includes present and future properties, revenues and rights of every description;
|
(v)
|
a
disposal
includes a sale, transfer, assignment, grant, lease, licence, declaration of trust, participation or other transfer of economic ownership, compulsory acquisition, compulsory sale or other disposal or agreement for the disposal of, or the grant or creation of any interest derived from, any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions) and
dispose
will be construed accordingly;
|
(vi)
|
a
Finance Document
or
Transaction Document
or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated;
|
(vii)
|
freehold
means
eigendom
;
|
(viii)
|
ground rent
includes any
canon or retributie
;
|
(ix)
|
a
group of Lenders
includes all the Lenders;
|
(x)
|
guarantee
means (other than in Clause 18 (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;
|
(xi)
|
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;
|
(xii)
|
leasehold
means
erfpacht
;
|
(xiii)
|
land registry
means in respect of any property, any land registry or any other equivalent registry anywhere in the world exercising a registration function in respect of that property;
|
(xiv)
|
a
person
includes any individual, firm, company, corporation, unincorporated corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality) or two or more of the foregoing;
|
(xv)
|
a
regulation
includes any regulation, order, 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;
|
(xvi)
|
sole signing rights
of a Finance Party in respect of an Obligor's bank account held in Germany means that the Finance Party operates the relevant account based on an authorisation by the relevant Obligor (
Kontoführungsbefugnis
) with its employees or delegates being the sole registered signatory/authorised person (
Kontoführungsberechtigter
) for the relevant account; it being understood that (i) the granting of sole signing rights to a Finance Party does not legally
|
|
(xvii)
|
title
when used in relation to a German Property means the sole legal and beneficial ownership (
uneingeschränktes Alleineigentum
), partial ownership (
Teileigentum
), co-ownership (
Miteigentum
);
|
(xviii)
|
right of superficies
means
opstalrecht
;
|
(xix)
|
constitutional documents
includes, in relation to any person, as the context so requires, the certificate of incorporation, limited partnership agreement, articles of association, by laws, charter, trust instrument or deed of that person and/or other document(s) defining the existence and regulating the control of that person as between it and its shareholders (but not between its shareholders only);
|
(xx)
|
share
or
share capital
includes, as the context so requires, a share, stock, limited or other partnership interest, unit, warrant, and any other interest in, or related to, the equity of a person (other than a natural person) and
shareholder
shall be construed accordingly;
|
(xxi)
|
a provision of law is a reference to that provision as amended or re-enacted; and
|
(xxii)
|
a time of day is a reference to London time.
|
(b)
|
The determination of the extent to which a rate is
for a period equal in length
to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
|
(c)
|
Section, Clause and Schedule headings are for ease of reference only.
|
(d)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(e)
|
A Default is
continuing
if it has not been remedied or waived or an Event of Default is
continuing
if it has not been waived.
|
(f)
|
A Cash Trap Event is
continuing
if, at any time, such Cash Trap Event had occurred on the most recent Interest Payment Date occurring prior to such time.
|
1.3
|
Dutch terms
|
(a)
|
a
necessary action to authorise
where applicable, includes without limitation:
|
(i)
|
any action required to comply with the Works Councils Act of the Netherlands (
Wet op de ondernemingsraden
); and
|
|
(ii)
|
obtaining an unconditional positive advice (
advies
) from the competent works council(s);
|
(b)
|
financial
assistance
means any act not permitted by article 2:98c of the Dutch Civil Code;
|
(c)
|
a
security interest
includes any mortgage (
hypotheek
), pledge (
pandrecht
), retention of title arrangement (
eigendomsvoorbehoud
), right of retention (
recht van retentie
), right to reclaim goods (
recht van reclame
), and, in general, any right in rem (
beperkt recht
), created for the purpose of granting security (
goederenrechtelijk zekerheidsrecht
);
|
(d)
|
a
winding-up
,
administration
or
dissolution
includes a bankruptcy (
faillissement
) or dissolution (
ontbinding
);
|
(e)
|
a
moratorium
includes
surseance van betaling
and
a moratorium is declared
or
occurs
includes
surseance verleend
;
|
(f)
|
any
step
or
procedure
taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under section 36 of the Tax Collection Act of the Netherlands (
Invorderingswet 1990
);
|
(g)
|
a
liquidator
includes a curator;
|
(h)
|
an
administrator
includes a
bewindvoerder
; and
|
(i)
|
an
attachment
includes a
beslag
.
|
1.4
|
French terms
|
(a)
|
a
winding-up, administration
or
dissolution
includes a
redressement judiciaire
, a
cession totale de l'entreprise,
a
liquidation judiciaire
, a
sauvegarde
, a
sauvegarde accélérée
or a
sauvegarde financière accélérée
under articles L. 620-1 to L.644-6 of the French Commercial Code;
|
(b)
|
a
composition, assignment
or
similar arrangement with any creditor
includes a
procédure de conciliation
or a
mandate ad hoc
under articles L.611-3 to L.611-15 of the French Commercial Code;
|
(c)
|
a
compulsory manager, receiver
or
administrator
includes an
administrateur judiciaire, a mandataire ad hoc,
a
conciliateur
, a
mandataire liquidateur
or any other person appointed as a result of any proceedings described in paragraphs (a) and (b) above;
|
(d)
|
a
guarantee
means any guarantee, bond, indemnity, letter of credit, a cautionnement, an aval and any garantie which is independent from the debt to which it relates, or other legally binding insurance against loss granted by one person in respect of any obligation(s) of another person, or any legally binding agreement by one person to assume any obligation(s) of (or any legally binding arrangement by or under which obligation(s) is/are assumed in respect of) any other person, or any legally binding agreement under which two or more persons assume joint and several liability in respect of any obligation(s) of any person and
guaranteed
shall be construed accordingly;
|
|
(e)
|
a
reconstruction
includes any contribution of part of its business in consideration of shares (
apport partiel d'actifs
) and any demerger (
scission
) implemented in accordance with articles L.236-1 to L. 236-24 of the French Commercial Code;
|
(f)
|
a
Security
includes any type of security (
sȗreté réelle
) and transfer by way of security;
|
(g)
|
a lease includes an opération de crédit-bail; and
|
(h)
|
a person being
unable to pay its debts
includes that person being in a state of
cessation des paiements
as defined in article L. 631-1 of the French Commercial Code or with respect to credit institutions (
établissements de credit
) as defined in article L. 613-26 of the French Monetary and Financial Code.
|
1.5
|
Luxembourg terms
|
(a)
|
moratorium of any indebtedness
,
winding-up
,
dissolution
administration
,
reorganisation
,
composition
, or
arrangement with any creditor
includes, without limitation, bankruptcy (
faillite
), insolvency, voluntary or judicial liquidation (
liquidation volontaire ou judiciaire
), composition with creditors (
concordat préventif de faillite
), moratorium or reprieve from payment (
sursis de paiement
), controlled management (
gestion contrôlée
), fraudulent conveyance (
action pauliana
), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally;
|
(b)
|
liquidator
,
receiver
,
administrative receiver
,
administrator
or the like includes, without limitation, a
juge délégué, commissaire, juge-commissaire, liquidateur
or
curateur
;
|
(c)
|
a Luxembourg Obligor being
unable or admits inability to pay its debts as they fall due
, a Luxembourg Obligor being
deemed to be unable to pay its debts under applicable law
, includes, without limitation, that Luxembourg Obligor being in a state of cessation of payments (
cessation de paiements
) or having lost its creditworthiness (
ébranlement de credit
);
|
(d)
|
a reference to
director
includes, without limitation, a reference to a
manager
(
gérant
); and
|
(e)
|
constitutional documents
includes, without limitation, its up-to-date (restated) articles of association (
statuts consolidés
).
|
1.6
|
Scottish Terms
|
(a)
|
the
Land Registry
shall include a reference to the Registers of Scotland;
|
(b)
|
assignment
and “assigns” shall include assignation and assignees” respectively;
|
(c)
|
transfer
shall mean (i) dispone when expressed as a verb and where it relates to a heritable interest; (ii) Disposition when expressed as a noun and where it relates to a heritable interest; (iii) assign when expressed as a verb; and (iv) Assignation when expressed as a noun and where it relates to a leasehold or security interest;
|
|
(d)
|
surety
shall mean guarantor;
|
(e)
|
freehold
shall mean heritable proprietorship;
|
(f)
|
counterpart
shall (in the context of Finance Documents executed under Scots Law) be disregarded;
|
(g)
|
surrender
shall include a renunciation where it relates to an interest held under a lease;
|
(h)
|
premium
shall include a premium, grassum or other financial incentive;
|
(i)
|
covenant
shall include any obligation or undertaking by either a tenant or landlord under a lease; and in the context of undertakings given by the Obligors to any Finance Parties
covenants
shall mean obligations when expressed as a noun; and
covenant
shall mean oblige itself when expressed as a verb;
|
(j)
|
forfeiture
shall mean irritancy; and
|
(k)
|
judgment
shall mean decree.
|
1.7
|
Currency symbols and definitions
|
(a)
|
£, GBP
and
sterling
denotes the lawful currency of the United Kingdom.
|
(b)
|
EUR and euro
denote the single currency of the Participating Member States.
|
1.8
|
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
) or otherwise to enforce or to enjoy the benefit of any term of any Finance Document.
|
(b)
|
Subject to Clause 38.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary any Finance Document at any time.
|
(c)
|
Any Receiver, Delegate or any person described in paragraph (b) of Clause 27.10 (Exclusion of liability) may, subject to this Clause 1.8 and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.
|
2.
|
THE FACILITIES
|
2.1
|
The Facilities
|
(a)
|
Subject to the terms of this Agreement:
|
(i)
|
the Facility A Lenders make available to the Facility A Borrowers a euro term loan facility in an aggregate amount equal to the Total Facility A Commitments;
|
(ii)
|
the Facility B Lenders make available to the Facility B Borrower a euro term loan facility in an aggregate amount equal to the Total Facility B Commitments; and
|
|
(iii)
|
the Facility C Lenders make available to the Facility C Borrowers a sterling term loan facility in an aggregate amount equal to the Total Facility C Commitments.
|
(b)
|
Subject to the terms of this Agreement and subject to the terms of the applicable French Term Loan Agreement:
|
(i)
|
the Original French Facility Lender make available to the French Propco a euro term loan facility in an aggregate amount equal to the Total French Facility A Commitments;
|
(ii)
|
the Original French Facility Lender make available to the French Targetco Joubert a euro term loan facility in an aggregate amount equal to the Total French Facility B Commitments;
|
(iii)
|
the Original French Facility Lender make available to the French Targetco Marceau a euro term loan facility in an aggregate amount equal to the Total French Facility C Commitments; and
|
(iv)
|
the Original French Facility Lender make available to the French Targetco Alésia a euro term loan facility in an aggregate amount equal to the Total French Facility D Commitments.
|
(c)
|
It is expressly agreed that each French Term Loan Agreement is the only document under which the French Facility Lender have agreed to make the relevant French Facility available to the relevant French Facility Borrower. For the avoidance of doubt, this Agreement shall not be construed as a loan agreement to the extent related to any French Facility.
|
(d)
|
Each Facility will be made available to the relevant Borrower in the manner specified in the Funds Flow.
|
2.2
|
Property Protection Loans
|
(a)
|
A Lender (other than the Original French Facility Lender) may, with the consent of the Majority Lenders, make one or more Property Protection Loans whether requested by an Obligor or not. For as long as the French Facility Lender is the Original French Facility Lender, if a Property Protection Loan is to be made to a French Facility Borrower, the relevant Lender first has to make such Property Protection Loan available to the Original French Facility Lender for it to on-lend the proceeds of the Property Protection Loan to the relevant French Facility Borrower.
|
(b)
|
Each Property Protection Loan will:
|
(i)
|
be repayable on the next Interest Payment Date following the date on which such Property Protection Loan was made; and
|
(ii)
|
be treated as a Loan and bear interest in accordance with Clause 8.4 (Default interest) as if it were an overdue amount.
|
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.
|
2.4
|
Obligors' Agent
|
(a)
|
Each Obligor (other than the Obligors' Agent) by its execution of this Agreement or a Guarantor Accession Deed irrevocably appoints the Obligors' Agent to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises and instructs:
|
(i)
|
the Obligors' Agent on its behalf to:
|
(A)
|
execute any Guarantor Accession Deed;
|
(B)
|
supply all information concerning itself contemplated by this Agreement to the Finance Parties;
|
(C)
|
give all notices and instructions;
|
(D)
|
make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor;
|
(E)
|
sign, despatch and receive as its agent (without prior consultation or agreement) all documents and notices to be signed, despatched or received by that Obligor;
|
(F)
|
sign or agree any amendment or waiver in relation to any Finance Document on behalf of that Obligor;
|
(G)
|
take as its agent any other action necessary or desirable under or in connection with the Finance Documents; and
|
(ii)
|
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Obligors' Agent on its behalf,
|
(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 another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.
|
|
(c)
|
Notwithstanding any other term of the Finance Documents, any amendment to Clause 18.12 (Limitations: Luxembourg Guarantors) or Clause 18.13 (Limitations: French Guarantors) which would impose any additional obligation on or increase the obligation of any Guarantor incorporated in Luxembourg or in France will require the prior written consent of each such Guarantor incorporated in Luxembourg or in France (as applicable).
|
(d)
|
The respective liabilities of each of the Obligors (other than the Obligors' Agent) under the Finance Documents shall not be in any way affected by:
|
(i)
|
any act done or any irregularity (or purported irregularity) in any act done by or any failure (or purported failure) by the Obligors' Agent;
|
(ii)
|
the Obligors' Agent acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor; or
|
(iii)
|
the failure (or purported failure) by, or inability (or purported inability) of, the Obligors' Agent to inform any Obligor of receipt by it of any notification under the Finance Documents.
|
(e)
|
The Obligors’ Agent is herewith released from any restriction pursuant to section 181 of the German Civil Code and any other similar restrictions applicable to it pursuant to any other applicable law, in each case, to the extent legally possible.
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
(a)
|
Each Facility A Borrower must apply all amounts borrowed by it under Facility A towards financing the purchase price payable to the relevant Vendor for the acquisition of the relevant Dutch Property or German Property to be acquired by that Facility A Borrower and the payment of Acquisition Costs (other than periodic fees), each as described in the Funds Flow and not otherwise provided that the amounts borrowed on the first Utilisation Date must not be used to acquire the Additional Property.
|
(b)
|
The Facility B Borrower must apply all amounts borrowed by it under Facility B towards making the French Facilities available to the French Facility Borrowers in the manner set out in this Agreement and the relevant French Term Loan Agreement as described in the Funds Flow and not otherwise.
|
(c)
|
Each Facility C Borrower must apply all amounts borrowed by it under Facility C towards financing the purchase price payable to the relevant Vendor for the acquisition of the relevant English Property or Scottish Property to be acquired by that Facility C Borrower and the payment of the Acquisition Costs (other than periodic fees), each as described in the Funds Flow and not otherwise.
|
(d)
|
The French Propco must apply all amounts borrowed by it under French Facility A towards financing the purchase price payable to the relevant Vendor for the acquisition of the relevant French Property to be acquired by the French Propco, each as described in the Funds Flow and not otherwise.
|
(e)
|
The French Targetco Joubert, the French Targetco Marceau and the French Targetco Alésia must each apply amounts borrowed by them under the applicable French Facility made available to them towards the refinancing of their Existing Debt as described in the Funds Flow and not otherwise.
|
|
3.2
|
Monitoring
|
4.
|
CONDITIONS OF UTILISATION
|
4.1
|
Initial conditions precedent
|
(a)
|
The Lenders (other than the Original French Facility Lender) will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to:
|
(i)
|
any Utilisation in respect of the Original Properties if on or before the first Utilisation Date the Agent has received all of the documents and other evidence listed in Part 1 and Part 3 of Schedule 3 (Conditions Precedent and Conditions Subsequent) unless waived by the Agent on such terms as the Lenders (other than the Original French Facility Lender) consider fit; and
|
(ii)
|
any Utilisation in respect of the Additional Property if on or before the second Utilisation Date the Agent has received all of the documents and other evidence listed in Part 3of Schedule 3 (Conditions Precedent and Conditions Subsequent) unless waived by the Agent on such terms as the Lenders (other than the Original French Facility Lender) consider fit,
|
(b)
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders (other than the Original French Facility Lender) authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
(c)
|
The Original French Facility Lender must make the French Facilities available to the French Facility Borrowers pursuant to the French Term Loan Agreements, immediately upon receipt of the Agent’s notification referred to in paragraph (a) above in respect of Facility B.
|
4.2
|
Further conditions precedent
|
(a)
|
no Default (other than a Default resulting from a breach of a Clean-Up Undertaking or a misrepresentation in respect of a Clean-Up Representation which in each case occurred in the period from and including the first Utilisation Date to and including the Clean-Up Date) is continuing or would result from the proposed Loan; and
|
(b)
|
the Repeating Representations (other than a misrepresentation in respect of a Clean-Up Representation which occurred in the period from and including the first Utilisation Date to and including the Clean-Up Date) to be made by each Obligor are true in all material respects.
|
4.3
|
Conditions subsequent
|
(a)
|
The Obligors will deliver to the Agent each of the documents and other evidence listed in Part 2 of Schedule 3 (Conditions Precedent and Conditions Subsequent) in form and substance satisfactory to
|
|
(b)
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
4.4
|
Maximum number of Loans
|
(a)
|
The Obligors' Agent may not deliver a Utilisation Request if, as a result of the proposed Utilisation:
|
(i)
|
more than twenty-one Facility A Loans would be outstanding and any Facility A Borrower would have borrowed more than one Facility A Loan; and
|
(ii)
|
more than six Facility C Loans would be outstanding and any Facility C Borrower would have borrowed more than one Facility C Loan.
|
(b)
|
Only one Loan may be outstanding under each of Facility B, French Facility A, French Facility B, French Facility C and French Facility D.
|
5.
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
(a)
|
Each Facility A Borrower may utilise Facility A by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time applicable to the Facility A Loans.
|
(b)
|
The Facility B Borrower may utilise Facility B by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time applicable to the Facility B Loan.
|
(c)
|
Each Facility C Borrower may utilise Facility C by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time applicable to the Facility C Loans.
|
(d)
|
Each French Facility Borrower may utilise the French Facility made available to it by delivery to Agent of a duly completed Utilisation Request not later than the Specified Time applicable to the French Facility Loans.
|
5.2
|
Completion of a Utilisation Request
|
(a)
|
A Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i)
|
it identifies the Facility to be utilised;
|
(ii)
|
it specifies the purpose of the Loan;
|
(iii)
|
the proposed Utilisation Date is a Business Day within the Availability Period;
|
(iv)
|
the first Utilisation Date specified in the first Utilisation Request for a Facility A Loan is the same as the first Utilisation Date specified in the first Utilisation Request for a Facility B Loan, a Facility C Loan and a French Facility;
|
|
(v)
|
the Utilisation Request in connection with the acquisition of the Additional Property is submitted by a Facility A Borrower in respect of Facility A;
|
(vi)
|
in respect of the German Properties it specifies that proceeds of a Loan made available for the purposes of paragraph (a) of Clause 3.1 (Purpose) must be credited to an account of:
|
(A)
|
the Vendors of the respective German Property or any other person or entity designated under a Local Acquisition Agreement and the Master Acquisition Agreement; or
|
(B)
|
the creditor of such Vendor (with a view to discharge and release Existing Land Charges); or
|
(C)
|
such other account approved by the Original Lender and the Company for this purpose,
|
(vii)
|
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount).
|
(b)
|
No Borrower may (or the Company on behalf of a Borrower may not) submit Utilisation Requests for more than three different Utilisation Dates.
|
5.3
|
Currency and amount
|
(a)
|
The currency specified in a Utilisation Request for:
|
(i)
|
the Facility A Loans, must be euro;
|
(ii)
|
the Facility B Loan, must be euro;
|
(iii)
|
the Facility C Loans, must be sterling; and
|
(iv)
|
the French Facilities, must be euro.
|
(b)
|
The amount of the proposed Facility A Loans must be an amount which is in aggregate not more than the lower of:
|
(i)
|
the amount set out in the Funds Flow; and
|
(ii)
|
the Total Facility A Commitments.
|
(c)
|
The amount of the proposed Facility B Loan must be an amount which is in aggregate not more than the lower of:
|
(i)
|
the amount set out in the Funds Flow; and
|
(ii)
|
the Total Facility B Commitments.
|
(d)
|
The amount of the proposed Facility C Loans must be an amount which is in aggregate not more than the lower of:
|
(i)
|
the amount set out in the Funds Flow; and
|
(ii)
|
the Total Facility C Commitments.
|
|
(e)
|
The amount of the proposed French Facilities must be an amount which is in aggregate not more than the lower of:
|
(i)
|
the amount set out in the Funds Flow; and
|
(ii)
|
the French Facility Commitments.
|
5.4
|
Lenders' participation
|
(a)
|
If the conditions set out in this Agreement have been met, each Lender (other than the Original French Facility Lender) will make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
(b)
|
If the conditions set out in this Agreement and each French Term Loan Agreement have been met, the Original French Facility Lender will make its participation in each French Facility available by the Utilisation Date.
|
(c)
|
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
|
(d)
|
The Agent shall notify each Lender (other than the Original French Facility Lender) of the amount of the Loan and the amount of its participation in that Loan, in each case by the Specified Time.
|
5.5
|
Cancellation of Commitment
|
6.
|
REPAYMENT
|
6.1
|
Repayment of Loans
|
(a)
|
Each Borrower (other than the French Facility Borrowers) must repay the aggregate outstanding amount of all Loans granted to it and all other amounts outstanding under the Finance Documents on the Final Repayment Date.
|
(b)
|
Each French Facility Borrower must repay the outstanding amount of the French Facility Loan owed by it and all other amounts outstanding under the relevant French Term Loan Agreement and any other amounts which the relevant French Facility Borrower has undertaken to pay under any Finance Documents to any Finance Party on the Final Repayment Date.
|
(c)
|
The Agent must apply all amounts received under paragraph (b) above from a French Facility Borrower in immediate repayment of the Facility B Loans and such repayment will be deemed to prepay the French Facility Loan owed by such French Facility Borrower for the same amount.
|
6.2
|
Reborrowing
|
|
7.
|
PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
(a)
|
If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan:
|
(i)
|
that Lender must promptly notify the Agent upon becoming aware of that event;
|
(ii)
|
upon the Agent notifying the Obligors' Agent, each Available Commitment of that Lender will be immediately cancelled; and
|
(iii)
|
each Borrower must repay that Lender's participation in the Loans made to it 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 (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment(s) shall be cancelled in the amount of the participation repaid.
|
(b)
|
If the relevant Lender in paragraph (a) above is the Original French Facility Lender, then each French Facility Borrower must pay any amounts owed to the Original French Facility Lender under the relevant French Facility Loan into the Midco Blocked Account in accordance with the conditions described in paragraph (a) above and such amounts will be immediately applied by the Original French Facility Lender (in its capacity as Facility B Borrower) in prepayment of the Facility B Loan. The Facility B Lender's and the Original French Facility Lender's corresponding Commitment(s) shall accordingly be cancelled in the amount of the participation repaid or prepaid.
|
(c)
|
If the relevant Lender in paragraph (a) above is a Facility B Lender, then upon notification by that Lender in accordance with paragraph (a) above, the Facility B Loan as well as the French Facility Loans will become immediately due and payable and each French Facility Borrower must repay the Original French Facility Lender’s participation in the French Facility Loan made to it on the last day of the Interest Period for each French Facility Loan occurring after the Agent has notified the Obligors' Agent pursuant to paragraph (a) above or, if earlier, the date specified by the Facility B Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and the Original French Facility Lender's corresponding Commitment(s) shall be cancelled in the amount of the participation repaid. Any amounts paid by a French Facility Borrower pursuant to this paragraph (c) must be paid into the Midco Blocked Account and such amounts will be immediately applied by the Original French Facility Lender (in its capacity as Facility B Borrower) in prepayment of the Facility B Loan. The Facility B Lender's corresponding Commitment(s) shall accordingly be cancelled in the amount of the participation repaid or prepaid.
|
7.2
|
Change of control and minimum parameter mandatory prepayment events
|
(a)
|
For the purpose of this Clause 7.2:
|
(i)
|
Change of Control
means the Sponsor, a Sponsor Affiliate or a Related Entity ceases to control any Obligor (unless in the context of a Permitted Disposal);
|
(ii)
|
control
means (whether directly or indirectly):
|
(A)
|
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
|
I.
|
cast, or control the casting of more than 50 per cent. of voting share capital of an Obligor;
|
II.
|
appoint or remove all, or the majority, of the directors, managers or other equivalent officers of an Obligor; and
|
III.
|
give directions with respect to the operating and financial policies of an Obligor with which the directors, managers or other equivalent officers of that Obligor are obliged to comply; and
|
(B)
|
the holding beneficially of more than 50 per cent. of the issued share capital of an Obligor (excluding, in each case, 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
|
(iii)
|
Related Entity
means any entity which is advised or managed by NorthStar Asset Management Group Inc. or an Affiliate thereof.
|
(b)
|
If:
|
(i)
|
a Change of Control occurs; or
|
(ii)
|
at any time, the only Properties remaining in the Group are Dutch Properties,
|
7.3
|
Mandatory prepayment – remaining loan
|
7.4
|
Mandatory prepayment
|
(a)
|
the amount of any Disposal Proceeds;
|
(b)
|
the amount of any Insurance Prepayment Proceeds;
|
(c)
|
the amount of any Compensation Prepayment Proceeds; and
|
|
(d)
|
the amount of any Recovery Prepayment Proceeds.
|
7.5
|
Cash Trap Event mandatory prepayment
|
(a)
|
If, on any Interest Payment Date, a Cash Trap Event occurs and no Cash Trap Event had occurred on the immediately preceding Interest Payment Date, no Obligor will be required to apply any Cash Trap Proceeds in prepayment of the Loans on that Interest Payment Date.
|
(b)
|
If, on any Interest Payment Date, a Cash Trap Event occurs and a Cash Trap Event had occurred on the immediately preceding Interest Payment Date, the Security Agent shall (and is irrevocably authorised by the Company and the French Facility Borrowers to) withdraw such Cash Trap Proceeds from the relevant Reserve Accounts and apply such proceeds in prepayment of the relevant Loans on that Interest Payment Date in accordance with provisions of Clause 7.6(f) (Application of mandatory prepayments) until no Cash Trap Event (calculated on a pro forma basis on that Interest Payment Date, taking into account the Loans so prepaid) is continuing (the
Relevant Cash Trap Proceeds
). Any Cash Trap Proceeds standing to the credit of a Reserve Account after such prepayment of the Relevant Cash Trap Proceeds on the relevant Interest Payment Date will remain in such Reserve Account until released and transferred in accordance with paragraph (c) below.
|
(c)
|
If, on any Interest Payment Date, no Cash Trap Event occurs and Cash Trap Proceeds are continuing to stand to the credit of any Reserve Account and no Cash Trap Event occurred on the previous Interest Payment Date, then provided that no Default is continuing (and provided that no Default or Cash Trap Event will occur as a result) the Security Agent shall (and is irrevocably authorised by the Company to) withdraw such Cash Trap Proceeds from the Reserve Account and transfer them:
|
(i)
|
with respect to any Cash Trap Proceeds standing to the credit of the Company Reserve Accounts, to the Company's General Account; and
|
(ii)
|
with respect to any Cash Trap Proceeds standing to the credit of a French Facility Borrower Reserve Account, to the General Account of such French Facility Borrower.
|
7.6
|
Application of mandatory prepayments
|
(a)
|
An amount referred to in paragraph (a) of Clause 7.4 (Mandatory prepayment)) which is paid into a Deposit Account as a result of a Release Price Disposal must be applied on the date provided for in accordance with paragraph (b) of Clause 17.7 (Deposit Account) as follows:
|
(i)
|
first
, in an amount equal to the Release Price of the Property or Properties the subject of, or owned by the Obligor the Ownership Interests of which were the subject of, the relevant Release Price Disposal:
|
(A)
|
in or towards prepayment of the Loan made to the relevant Borrower that owned that Property; and
|
(B)
|
except for any French Obligor, after prepayment of the Loan referred to in sub-paragraph (A) above (i) first, in or towards prepayment of the other Loans (other than, as applicable, the French Facility Loans) which are made in the same currency as the Loan referred to in sub-paragraph (A) above
pro rata
and (ii) secondly, in or towards prepayment of the other Loans (other than, as applicable, the French Facility Loans) which are made in a different currency to the currency of the Loan referred to in sub-paragraph (A) above
pro rata
; and
|
|
(ii)
|
secondly
, in or towards payment of any amount that is or will become due and payable in accordance with paragraph (b) of Clause 7.11 (Restrictions) arising as a result of the prepayments referred to in sub-paragraph (i) above provided that any relevant French Obligor shall only be required to pay amounts in accordance with paragraph (b) of Clause 7.11 (Restrictions) as a result of the prepayments of Loans made to that French Obligor; and
|
(iii)
|
thirdly
, in payment of any surplus to the relevant General Account.
|
(b)
|
An amount referred to in paragraph (a) of Clause 7.4 (Mandatory prepayment)) which is paid into a Deposit Account as a result of a Total Prepayment Disposal must be applied on the date provided for in accordance with paragraph (b) of Clause 17.7 (Deposit Account) as follows:
|
(i)
|
first
:
|
(A)
|
in or towards prepayment of the Loan made to the relevant Borrower that owned that Property; and
|
(B)
|
except for any French Obligor, after prepayment of the Loan referred to in sub-paragraph (A) above (i) first, in or towards prepayment of the other Loans (other than, as applicable, the French Facility Loans) which are made in the same currency as the Loan referred to in sub-paragraph (A) above
pro rata
and (ii) secondly, in or towards prepayment of the other Loans (other than, as applicable, the French Facility Loans) which are made in a different currency to the currency of the Loan referred to in sub-paragraph (A) above
pro rata
; and
|
(ii)
|
secondly
, in or towards payment of any amount that is or will become due and payable in accordance with paragraph (b) of Clause 7.11 (Restrictions) arising as a result of the prepayments referred to in sub-paragraph (i) above provided that any relevant French Obligor shall only be required to pay amounts in accordance with paragraph (b) of Clause 7.11 (Restrictions) as a result of the prepayments of Loans made to that French Obligor.
|
(iii)
|
thirdly
, in payment of any surplus to the relevant General Account.
|
(c)
|
An amount referred to in paragraphs 7.4(b) to (d) of Clause 7.4 (Mandatory prepayment)) must be applied on the date provided for in accordance with paragraph (b) of Clause 17.7 (Deposit Account) as follows:
|
(i)
|
first
:
|
(A)
|
in or towards prepayment of the Loan made to the relevant Borrower referred to in paragraph (e) below; and
|
(B)
|
except for any French Obligor, after prepayment of the Loan referred to in sub-paragraph (A) above (i) first, in or towards prepayment of the other Loans (other than, as applicable, the French Facility Loans) which are made in the same currency as the Loan referred to in sub-paragraph (A) above
pro rata
and (ii) secondly, in or towards prepayment of the other Loans (other than, as applicable, the French Facility Loans) which are made in a different currency to the currency of the Loan defined to in sub-paragraph (A) above
pro rata
; and
|
(ii)
|
secondly
, in or towards payment of prepayment fees arising as a result of the prepayments referred to in sub-paragraph (i) above (except for any French Obligor, it being specified that
|
|
(iii)
|
thirdly
, in payment of any surplus to the relevant General Account.
|
(d)
|
For the purposes of paragraph (c)(i)(A) above, the relevant Borrower is:
|
(i)
|
insofar as the relevant amount to be applied in prepayment is derived from or relates to an Borrower or the Ownership Interests of any Borrower, that Borrower;
|
(ii)
|
otherwise, such Borrower as the Majority Lenders elect.
|
(e)
|
For the purposes of allocating any amounts which are required to be prepaid in accordance with paragraph (b)(i)(B) or paragraph (c)(i)(B) above between the Borrowers:
|
(i)
|
first
, any such amounts in sterling will be nominally converted into euro at the Agent’s Spot Rate of Exchange on the relevant prepayment date;
|
(ii)
|
secondly
, following any nominal conversion made pursuant to sub-paragraph (i) above, the total amount to be prepaid will be allocated between all the Borrowers (other than the French Facility Borrowers) by reference for each of such Borrowers to the proportion that the outstanding amount of a such Borrower’s Loan at that time bears to the amount of all Loans (other than the French Facility Loans and the Facility B Loan) owed by all Borrowers at that time (and, for this purpose, any Facility C Loans will be nominally converted from sterling into euro at the Agent's Spot Ratio of Exchange at that time); and
|
(iii)
|
thirdly
, in order to discharge the prepayment obligations set out in paragraph (b)(i)(B) or paragraph (c)(i)(B) above, each Borrower (other than the French Facility Borrowers) will apply an amount equal to its pro-rated amount calculated in accordance with sub-paragraph (ii) above, provided that any Facility C Borrower shall first nominally convert its pro-rated amount into sterling at the Agent's Spot Rate of Exchange (which shall be the inverse of the exchange rates referred to in sub-paragraphs (i) and (ii) above) on the relevant prepayment date.
|
(f)
|
Any amount of Cash Trap Proceeds which is required to be prepaid in accordance with paragraph (b) of Clause 7.5 (Cash Trap Event mandatory prepayment) will be applied as follows:
|
(i)
|
first
, any amount of Cash Trap Proceeds in sterling will be nominally converted to euro at the Agent's Spot Rate of Exchange on the date on which such Cash Trap Proceeds are required to be applied in prepayment of the Loans;
|
(ii)
|
secondly
, following any nominal conversion made pursuant to sub-paragraph (i) above, the total amount of Cash Trap Proceeds standing to the credit of the Company Reserve Account in euro up to the Relevant Cash Trap Proceeds reduced by the whole amount credited to the French Facility Borrower Reserve Accounts will be allocated between all the Borrowers (other than the Facility B Borrower and the French Facility Borrowers) by reference to the proportion that the outstanding amount of any such Borrowers’ Loan at that time bears to the amount of
|
|
(iii)
|
thirdly
, the Security Agent will apply:
|
(A)
|
on behalf of each Borrower (other than the Facility B Borrower and the French Facility Borrowers) an amount of Cash Trap Proceeds standing to the credit of the Company's Euro Reserve Account which is equal to any such Borrower's Cash Trap Prepayment Allocation in prepayment of the Loan(s) made to such Borrower, provided that any Facility C Borrower shall first nominally convert its Cash Trap Prepayment Allocation into sterling at the Agent's Spot Rate of Exchange (which shall be the inverse of the exchange rates referred to in sub-paragraphs (i) and (ii) above) on the date on which such Cash Trap Proceeds are required to be applied in prepayment of the relevant Loans; and
|
(B)
|
on behalf of:
|
I.
|
each French Facility Borrower, the amount of Cash Trap Proceeds standing to the credit of its French Facility Borrower Reserve Account in prepayment of its French Facility Loan into the Midco Blocked Account;
|
II.
|
the French Facility B Lender in prepayment of the Facility B Loan for an amount corresponding to the aggregate amount of the prepayments made under the French Facility Loans credited to the Midco Blocked Account.
|
(g)
|
At any time when the Facility B Loan remains outstanding, any amounts which are prepaid by or on behalf of a French Facility Borrower pursuant to Clause 7.4 (Mandatory prepayment) and pursuant to Clause 7.5 (Cash Trap Event mandatory prepayment) must be paid into the Midco Blocked Account and such amounts must be immediately applied by the Original French Facility Lender (in its capacity as Facility B Borrower) in prepayment of the Facility B Loan
|
(h)
|
At any time a French Facility Borrower makes a prepayment pursuant to the Clause 7.4 (Mandatory prepayment), the Company must ensure (and must procure that the other Obligors (other than the French Obligors) must ensure) that an amount equal to the French Mandatory Prepayment Shortfall Amount is paid to the Agent to be applied:
|
(i)
|
first
, in or towards prepayment of the Loans which are made in Euros
pro rata
;
|
(ii)
|
secondly
, in or towards prepayment of the other Loans which are not made in Euros
pro rata
.
|
7.7
|
Facility B Loan mandatory prepayment
|
|
7.8
|
Voluntary cancellation
|
(a)
|
Subject to Clause 7.11 (Restrictions), the Obligors' Agent may, if it gives the Agent not less than five Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part, being:
|
(i)
|
in respect of a Facility A, Facility B and any French Facility, €1,000,000; and
|
(ii)
|
in respect of a Facility C, £1,000,000,
|
(b)
|
Any cancellation under this Clause 7.8 shall reduce the Commitments of the Lenders rateably under that Available Facility.
|
(c)
|
At any time when the Facility B Loan is still outstanding, the Obligors' Agent may only voluntarily cancel all or any part of the Facility B Loan if, at the same time, a corresponding part of the French Facility is also cancelled.
|
7.9
|
Voluntary prepayment of Loans
|
(a)
|
Subject to Clause 7.11 (Restrictions), a Borrower may, if it 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 the Loans, but. if in part, being an amount that reduces the amount of the Loans by a minimum of:
|
(i)
|
in respect of a Facility A Loan, the Facility B Loan and any French Facility Loan, €1,000,000; and
|
(ii)
|
in respect of a Facility C Loan, £1,000,000.
|
(b)
|
A Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the Available Facility is zero).
|
7.10
|
Right of repayment and cancellation 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 12.2
(
Tax gross-up
)
; or
|
(ii)
|
any Lender claims indemnification under Clause 12.3
(
Tax indemnity) or Clause 13.1 (Increased Costs); or
|
(iii)
|
any amount payable to any Lender (other than the Original French Facility Lender or any affiliated successor) by a French Obligor is not, or will not be (when the relevant corporate income tax is calculated) treated as a deductible charge or expense for French tax purposes by reason of that amount being (i) paid or accrued to a Lender incorporated, domiciled, established or acting through a Facility Office situated in a Non-Cooperative Jurisdiction, or (ii) paid to an account opened in the name of or for the benefit of that Lender (including, for the avoidance of doubt an account opened by the Security Agent) in a financial institution situated in the Non-Cooperative Jurisdiction,
|
|
(b)
|
On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitments 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 of cancellation under paragraph (a) above (or, if earlier, the date specified by the Obligors' Agent in that notice), the Borrowers shall repay that Lender's participation in that Loan.
|
7.11
|
Restrictions
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement or any French Term Loan 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 and any French Term Loan Agreement shall be made together with (without double counting):
|
(i)
|
accrued interest (excluding Margin unless in the context of a securitisation of the Facilities) and, if that repayment or prepayment is made on a day which is not an Interest Payment Date, interest (including Margin) which (but for the relevant repayment or prepayment) would accrue on the amount repaid or prepaid during the period up to and including the next Interest Payment Date;
|
(ii)
|
any applicable prepayment fees which are due and payable pursuant to Clause 11.4 (Prepayment Fee);
|
(iii)
|
any applicable Break Costs; and
|
(iv)
|
any other amounts due under the Finance Documents which become due and payable as a result of the prepayment.
|
(c)
|
No Borrower may reborrow all or any part of the Facilities which is prepaid.
|
(d)
|
No Borrower may 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)
|
No amount of the Total Commitments cancelled under this Agreement and any French Term Loan Agreement may be subsequently reinstated.
|
(f)
|
If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Obligors' Agent or the affected Lenders, as appropriate.
|
(g)
|
If all or part of any Lender's participation in a Loan is repaid or prepaid, an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
|
|
(h)
|
Any prepayment of a Loan (other than a prepayment to a single Lender pursuant to Clause 7.1 (Illegality), Clause 7.2 (Change of control and minimum parameter mandatory prepayment events) or Clause 7.10 (Right of repayment and cancellation in relation to a single Lender)) shall be applied
pro rata
to each Lender's participation in that Loan.
|
7.12
|
Right of cancellation in relation to a Defaulting Lender
|
(a)
|
If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent 5 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.
|
7.13
|
German Property restrictions – mandatory prepayment
|
(a)
|
any restrictions resulting from monument protection (
Denkmalschutz
), ordinances for urban design or preservation (
Gestaltungs- oder Erhaltungssatzungen
) or urban development contracts (
städtebauliche Verträge
) apply to a German Property; or
|
(b)
|
an agreement, interest, right or easement or other matter whatsoever adversely affects a German Property in any material respect,
|
8.
|
INTEREST
|
8.1
|
Calculation of interest
|
(a)
|
margin for that Lender applicable to that Lender’s participation in the Loans (the
Margin
); and
|
(b)
|
in relation to:
|
(i)
|
any Loan in euro, EURIBOR; or
|
(ii)
|
any Loan in sterling, LIBOR,
|
|
8.2
|
Payment of interest
|
8.3
|
Hedging
|
(a)
|
The Company and/or the Borrowers must:
|
(i)
|
enter into Hedging Agreements on or before the first Utilisation Date which must be maintained at all times in accordance with this Clause 8.3; and
|
(ii)
|
promptly (and in any event within five Business Days of entering into a Hedging Agreement) provide the Agent with copies of each Hedging Agreement which the Company and/or the Borrowers are party to.
|
(b)
|
At all times the aggregate notional amount of the transactions entered into under any Hedging Agreement must be at least equal to 100 per cent. of the value of the aggregate amount of outstanding Loans.
|
(c)
|
Subject to paragraph (j) below, all Hedging Agreements must:
|
(i)
|
provide for interest rate caps with a strike rate in respect of all of the hedging arrangements hedging the Loans denominated in euro at any time:
|
(A)
|
in respect of the period from (and including) the first Utilisation Date to (but excluding) the first anniversary of the Utilisation Date, of 2.00 per cent. per annum; and
|
(B)
|
in respect of the period from (and including) the first anniversary of the first Utilisation Date to (but excluding) the Final Repayment Date, that would generate a Default Level Debt Service Cover Ratio of 1.25:1 (for the avoidance of doubt taking into account the Margin) (calculated as at the Interest Payment date falling immediately prior to the entry into of the relevant Hedging Agreement);
|
(ii)
|
provide for interest rate caps with a strike rate in respect of all of the hedging arrangements hedging the Loans denominated in sterling at any time:
|
(A)
|
in respect of the period from (and including) the first Utilisation Date to (but excluding) the first anniversary of the first Utilisation Date, of 2.00 per cent. per annum; and
|
(B)
|
in respect of the period from (and including) the first anniversary of the first Utilisation Date to (but excluding) the Final Repayment Date, that would generate a Default Level Debt Service Cover Ratio of 1.25:1 (for the avoidance of doubt taking into account the Margin) (calculated as at the Interest Payment date falling immediately prior to the entry into of the relevant Hedging Agreement);
|
|
(iii)
|
in respect of the period from (and including) the first Utilisation Date to (but excluding) the first anniversary of the Utilisation Date be for successive terms which are not shorter than six Months;
|
(iv)
|
in respect of the period from (and including) the first anniversary of the Utilisation Date to (and including) the Final Repayment Date be for a term ending on the Final Repayment Date;
|
(v)
|
be with a Counterparty whose rating complies with the Requisite Rating;
|
(vi)
|
be with a Counterparty acceptable to the Agent (acting reasonably);
|
(vii)
|
have settlement dates coinciding with the Interest Payment Dates; and
|
(viii)
|
be based on an ISDA Master Agreement (including where an ISDA Master Agreement is incorporated by reference) and otherwise in form and substance satisfactory to the Agent.
|
(d)
|
The rights of the Obligors under any Hedging Agreement must, without prejudice to, and after giving effect to, any contractual netting provision contained in that Hedging Agreement, be charged and/or assigned by way of security under a Security Document.
|
(e)
|
The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement.
|
(i)
|
Neither a Counterparty nor the Company may amend or waive the terms of any Hedging Agreement without the consent of the Agent (acting reasonably).
|
(ii)
|
Sub-paragraph (i) above does not apply to an amendment or waiver that is administrative or mechanical in nature and does not give rise to a conflict with any provision of the Finance Documents.
|
(f)
|
The Company may not terminate or close out any hedging arrangements entered into pursuant to any Hedging Agreement except:
|
(i)
|
if it becomes illegal for it to continue to comply with its obligations under the Hedging Agreement or those hedging arrangements;
|
(ii)
|
if following such termination or close out the Company enters into hedging arrangements which are or will be evidenced by Hedging Agreements which comply with the provisions of this Clause 8.3;
|
(iii)
|
if the Secured Liabilities have unconditionally and irrevocably been paid and discharged in full; or
|
(iv)
|
with the prior written consent of the Agent.
|
(g)
|
If a Counterparty ceases to have a Requisite Rating (a
Hedge Downgrade Trigger
), the Company shall procure that either:
|
(i)
|
each Hedging Agreement entered into with such Counterparty is terminated or closed-out and new Hedging Agreements are entered into which comply with this Clause; or
|
(ii)
|
such Counterparty grants Security in favour of the Company (and over which Transaction Security is granted in favour of the Finance Parties) over an account into which it deposits an
|
|
(h)
|
If any Hedging Agreement is terminated under paragraph (g)(i), the Company must, as soon as practicable and in any event within 30 days of the termination of the relevant Hedging Agreement (or procure that the Borrowers enter into Hedging Agreements), enter into Hedging Agreements which comply with this Clause 8.3.
|
(i)
|
If a Counterparty grants Security in favour of the Company under paragraph (g)(ii) above and that Counterparty ceases to have a Revised Requisite Rating the Company must terminate the or close out the Hedging Agreements with that Counterparty and enter into Hedging Agreements which comply with this Clause 8.3 as soon as reasonably practicable but in any event by no later than 30 days after the Counterparty ceases to have a Revised Requisite Rating.
|
(j)
|
The Company and all the Lenders may amend the terms of the Finance Documents to allow for interest rate swaps to be provided on such terms as the Lenders and the Company may agree.
|
(k)
|
In relation to any Hedging Agreement entered into by the Company:
|
(i)
|
each Borrower will take the benefit of the Hedging Agreement in a notional principal amount equal to and in the same currency as the Loan in respect of which it is a Borrower;
|
(ii)
|
each Borrower will pay or account to the Company for its pro rata share of the premium payable or paid by the Company for the interest rate caps; and
|
(iii)
|
the Company will pay or account to each Borrower for any amount received under the Hedging Agreements pro rata to each Borrower' s notional principal amount and currency in respect of the Loans advanced to those Borrowers.
|
(l)
|
All amounts payable to a Borrower under paragraph (k) above must be transferred directly into that Borrower’s Rent Account.
|
8.4
|
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 (c) below, is two per cent. per annum 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).
|
(b)
|
Any interest accruing under this Clause 8.4 shall be immediately payable by that Obligor on demand by the Agent.
|
(c)
|
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 two per cent. per annum higher than the rate which would have applied if the overdue amount had not become due.
|
(d)
|
Except for a French Obligor, 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.
|
(e)
|
For a French Obligor, default interest (if unpaid) on an overdue amount due by a French Obligor will be compounded with that overdue amount only if, in accordance with article 1154 of the French Civil Code, that interest is due for a period of at least one year, but will remain immediately due and payable.
|
8.5
|
Notification of rates of interest
|
9.
|
INTEREST PERIODS
|
9.1
|
Length of Interest Periods
|
9.2
|
Non-Business Days
|
10.
|
CHANGES TO THE CALCULATION OF INTEREST
|
10.1
|
Unavailability of Screen Rate
|
(a)
|
Interpolated Screen Rate
|
(b)
|
Reference Bank Rate
|
(c)
|
Cost of funds
|
|
10.2
|
Calculation of Reference Bank Rate
|
(a)
|
Subject to paragraph (b) below, if LIBOR or EURIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
|
10.3
|
Market disruption
|
10.4
|
Cost of funds
|
(a)
|
If this Clause 10.4 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified to the Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
(b)
|
If this Clause 10.4 applies 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 30 days) with a view to agreeing a substitute basis for determining the rate of interest.
|
(c)
|
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Obligors' Agent, be binding on all Parties.
|
(d)
|
In respect of the French Facility Loans, the applicable cost of funds of the Original French Facility Lender under this Clause 10.4 will be the interest rate applicable under the Facility B Loan following application of the provisions of this Clause 10.4.
|
10.5
|
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, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
|
11.
|
FEES
|
11.1
|
Arrangement fee
|
11.2
|
Agency fee
|
11.3
|
Security Agency Fee
|
11.4
|
Prepayment Fee
|
(a)
|
Subject to paragraph (b) below, on the date (such date a
Prepayment Date
) of any mandatory or voluntary prepayment of all or any part of any Loan pursuant to Clause 7 (Prepayment and Cancellation), the Company must (or must procure that the Borrowers) pay to the Agent for the account of each relevant Lender a prepayment fee (a
Prepayment Fee
) as follows:
|
(i)
|
if the prepayment occurs before (and including) the first anniversary of the first Utilisation Date (the
First Anniversary Date
), an amount equal to 1.5 per cent. of the aggregate amount of principal prepaid;
|
(ii)
|
if the prepayment occurs after the First Anniversary Date but before (and including) the second anniversary of the first Utilisation Date (the
Second Anniversary Date
), an amount equal to 1.0 per cent. of the aggregate amount of principal prepaid; and
|
(iii)
|
if the prepayment occurs after the Second Anniversary Date but before (and including) the third anniversary of the first Utilisation Date (the
Third Anniversary Date
), an amount equal to 0.75 per cent. of the aggregate amount of principal prepaid.
|
(b)
|
Paragraph (a) above does not apply if a prepayment of all or part of a Loan is made:
|
(i)
|
under Clause 7.1 (Illegality);
|
(ii)
|
from a Cure Amount (where such Cure Amount has been applied in prepayment of such Loan in accordance with this Agreement);
|
(iii)
|
from Insurance Prepayment Proceeds (where such Insurance Prepayment Proceeds have been applied in prepayment of such Loan in accordance with this Agreement); or
|
(iv)
|
under Clause 7.10 (Right of repayment and cancellation in relation to a single Lender); or
|
(v)
|
at any time after (and excluding) the Third Anniversary Date.
|
(c)
|
Notwithstanding paragraphs (a) and (b) above but subject to paragraph (d) below, no Prepayment Fee will be payable on a prepayment of part of a Loan made under, and in accordance with, the Finance Documents if such prepayment, when aggregated with any other prepayment of a Loan made under,
|
|
(d)
|
If any Lender becomes a Non-Consenting Lender and its participations in the Loans are prepaid in accordance with Clause 38.7 (Replacement of a Lender), the Prepayment Fee payable to that Lender shall be calculated on the basis of an assumption (for the purposes of this paragraph (d) only) that all outstanding Loans are prepaid on the same date as the date on which the participations in the Loans are prepaid to the relevant Non-Consenting Lender.
|
12.
|
TAX GROSS-UP AND INDEMNITIES
|
12.1
|
Tax Definitions
|
(a)
|
In this Agreement:
|
(i)
|
where it relates to a UK Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name in Part 2 of Schedule 1 (Original Parties), and is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or
|
(ii)
|
where it relates to a UK Treaty Lender that is a New Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Assignment Agreement and is filed with HM Revenue & Customs within 30 days of that Transfer Date.
|
(i)
|
is an Other Treaty Lender; or
|
(ii)
|
a Lender which is otherwise exempt from any Dutch Tax imposed on interest payments due to that Lender under a Finance Document.
|
(i)
|
is an Other Treaty Lender; or
|
(ii)
|
fulfils the conditions imposed by French law, in order for an interest payment not to be subject to (or as the case may be, to be exempt from) any Tax Deduction; or
|
(iii)
|
the Original French Facility Lender or any affiliated successor.
|
(i)
|
tax resident in Germany or lending through a Facility Office in Germany; or
|
|
(ii)
|
an Other Treaty Lender.
|
(i)
|
in relation to a payment made by a UK Borrower under a Finance Document, a UK Qualifying Lender;
|
(ii)
|
in relation to a payment made by a French Facility Borrower under a Finance Document, a French Qualifying Lender;
|
(iii)
|
in relation to a payment made by a German Borrower under a Finance Document, a German Qualifying Lender;
|
(iv)
|
in relation to a payment made by a Dutch Borrower under a Finance Document, a Dutch Qualifying Lender
|
(i)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(ii)
|
a partnership each member of which is:
|
(A)
|
a company so resident in the United Kingdom; or
|
(B)
|
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
|
(iii)
|
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.
|
|
(a)
|
in respect of a payment by a UK Borrower, a Lender which:
|
(i)
|
is treated as a resident of a Treaty State for the purposes of the Treaty;
|
(ii)
|
does not carry on a business in the United Kingdom through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and
|
(iii)
|
fulfils any conditions which must be fulfilled under the double taxation agreement for residents of that Treaty State to obtain full exemption from taxation on interest imposed by the United Kingdom except that for this purpose it is assumed that the following are fulfilled:
|
(A)
|
any condition contained in the Treaty which relates to the amount or terms of that advance or to there not being a special relationship between the Obligor and the Lender or between both of them and another person by reason of which the amount of interest paid exceeds the amount which would have been paid in the absence of such relationship; and
|
(B)
|
any necessary procedural formalities (a
UK Treaty Lender
); and
|
(b)
|
in respect of a payment by a Borrower other than a UK Borrower, a Lender which:
|
(i)
|
is treated as a resident of a Treaty State for the purposes of the Treaty;
|
(ii)
|
does not carry on a business in the Borrower's Jurisdiction through a permanent establishment with which that Lender's participation in the Loan is effectively connected;
|
(iii)
|
fulfils any conditions which must be fulfilled under the double taxation agreement for residents of that Treaty State to obtain full exemption from taxation on interest imposed by the Borrower’s Jurisdiction except that for this purpose it is assumed that the following are fulfilled:
|
(A)
|
any condition contained in the Treaty which relates to the amount or terms of that advance or to there not being a special relationship between the Obligor and the Lender or between both of them and another person by reason of which the amount of interest paid exceeds the amount which would have been paid in the absence of such relationship; and
|
(B)
|
any necessary procedural formalities; and
|
(iv)
|
if such payment is by a French Facility Borrower, a Lender which is acting from a Facility Office situated in its jurisdiction of incorporation (an
Other Treaty Lender
).
|
|
(i)
|
a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document
and is:
|
(A)
|
a Lender:
|
(1)
|
which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or
|
(2)
|
in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or
|
(B)
|
a Lender which is:
|
(1)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(2)
|
a partnership each member of which is:
|
(bb)
|
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;
|
(3)
|
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; or
|
(C)
|
a UK Treaty Lender; or
|
(ii)
|
a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.
|
(b)
|
Unless a contrary indication appears, in this Clause 12 (Tax Gross-Up and Indemnities) a reference to
determines
or
determined
means a determination made in the absolute discretion of the person making the determination, acting in good faith.
|
12.2
|
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 Obligors' Agent 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 promptly 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 Obligors' Agent and that 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)
|
A payment shall not be increased under clause 12.2(c) by reason of a Tax Deduction on account of Tax imposed by a Borrower's Jurisdiction, if on the date on which the payment falls due:
|
(i)
|
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or
|
(ii)
|
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without any Tax Deduction had that Lender complied with its obligations under paragraph (i) or (j) below; or
|
(iii)
|
the German Borrower is required by the relevant Tax office to make a Tax Deduction on account of German Tax based on section 50a paragraph 7 German Income Tax Act (
Einkommensteuergesetz
) or any law amending or replacing section 50a paragraph 7 German Income Tax Act having the same effect.
|
(e)
|
A French Obligor shall not be required to make an increased payment under Clause 12.2(c) above to a Lender (other than the Original French Facility Lender or any affiliated successor) by reason of any Tax Deduction for or on account of Tax imposed by France on a payment made to a Lender if such Tax Deduction is imposed solely because this payment is made to an account opened in the name of or for the benefit of that Lender (including, for the avoidance of doubt an account opened by the Security Agent) in a financial institution situated in a Non-Cooperative Jurisdiction.
|
(f)
|
A Guarantor will not be obliged to make an increased payment under Clause 12.2(c) above with respect to a payment by it in respect of a liability due for payment by a Borrower to the extent that, had the relevant payment been made by that Borrower, Tax would have been imposed on such payment for which that Borrower would not have been obliged to make an increased payment under Clause 12.2(c) above.
|
(g)
|
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.
|
(h)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under Section 975 of ITA (where the Tax Deduction is in respect of tax imposed by the United Kingdom) or 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.
|
|
(i) (i)
|
Subject to subparagraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
|
(A)
|
A UK Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part 2 of Schedule 1 (Original Parties); and
|
(B)
|
a New Lender that is a UK Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the Assignment Agreement which it executes,
|
(j)
|
If a UK Treaty Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with subparagraph (i)(ii) above and:
|
(i)
|
the Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or
|
(ii)
|
the Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:
|
(A)
|
that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
|
(B)
|
HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,
|
(k)
|
If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with subparagraph (i)(ii) above , no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment or its participation in any Loan unless the Lender otherwise agrees.
|
(l)
|
The Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.
|
(m)
|
A Non-Bank Lender which becomes a Party after the date on which this Agreement is entered into gives a Tax Confirmation to each Obligor by entering into an Assignment Agreement.
|
|
(n)
|
A Non-Bank Lender shall promptly notify the Obligors' Agent and the Agent if there is any change in the position from that set out in the Tax Confirmation.
|
(o)
|
Any Lender which is a Treaty Lender and which ceases, for whatever reason, to be a Qualifying Lender shall promptly notify the Borrower and the Agent of that change in status.
|
12.3
|
Tax indemnity
|
(a)
|
Each Obligor 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 will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b)
|
Paragraph (a) 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 Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction; or
|
(C)
|
under the laws of the Netherlands to the extent such Tax becomes payable as a result of such Protected Party having a substantial interest (
aanmerkelijk belang
) in an Obligor as laid down in the Netherlands Income Tax Act 2001 (
Wet inkomstenbelasting 2001
);
|
(ii)
|
with respect to any Tax assessed on a Finance Party under the laws of Germany solely due to the fact that the Loans are secured (directly or indirectly) by real estate located in Germany (
inländischem Grundbesitz
) or by German rights subject to the civil code provisions relating to real estate (
inländische Rechte, die den Vorschriften des bürgerlichen Rechts über Grundstücke unterliegen
), unless the relevant Finance Party has been a Treaty Lender when it became a Party and the reason it has ceased to be a Treaty Lender is the introduction of, or a change in, any law or regulation, or a change in the interpretation or application of any law, treaty or regulation or in any published practice or published concession of any tax authority, after it became a Party; or
|
(iii)
|
to the extent a loss, liability or cost:
|
(A)
|
is compensated for by an increased payment under Clause 12.2 (Tax gross-up);
|
(B)
|
would have been compensated for by an increased payment under Clause 12.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in that clause applied;
|
(C)
|
relates to a FATCA Deduction required to be made by a Party.
|
|
(c)
|
A Protected Party making, or intending to make a claim under paragraph (a) 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 Obligors' Agent.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Agent.
|
12.4
|
Tax Credit
|
(a)
|
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and
|
(b)
|
that Finance Party has obtained and utilised that Tax Credit or part of that Tax Credit,
|
12.5
|
Lender status confirmation
|
(a)
|
In respect of a payment made by a UK Borrower under a Finance Document:
|
(i)
|
not a UK Qualifying Lender;
|
(ii)
|
a UK Qualifying Lender (other than a UK Treaty Lender); or
|
(iii)
|
a UK Treaty Lender.
|
(b)
|
In respect of a payment made by a French Facility Borrower under a Finance Document:
|
(i)
|
not a French Qualifying Lender;
|
(ii)
|
a French Qualifying Lender (other than an Other Treaty Lender); or
|
(iii)
|
an Other Treaty Lender.
|
(c)
|
In respect of a payment made by a German Borrower under a Finance Document:
|
(i)
|
not a German Qualifying Lender;
|
(ii)
|
a German Qualifying Lender (other than an Other Treaty Lender); or
|
(iii)
|
an Other Treaty Lender.
|
(d)
|
In respect of a payment made by a Dutch Borrower under a Finance Document:
|
|
(i)
|
not a Dutch Qualifying Lender;
|
(ii)
|
a Dutch Qualifying Lender (other than an Other Treaty Lender); or
|
(iii)
|
an Other Treaty Lender
|
12.6
|
Stamp taxes
|
(a)
|
The Company 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, land and buildings transaction tax, registration and other similar Taxes payable in respect of any Finance Document.
|
(b)
|
Clause 12.6(a) shall not apply to any cost, loss or liability any Finance Party incurs in relation to stamp duty, registration and other similar Taxes payable in respect of an assignment, transfer or other alienation of any kind by that Finance Party of any of its rights and/or obligations under any Finance Document, other than:
|
(i)
|
an assignment or transfer made as a result of an Obligor exercising its right under Clause 7.10 (Right of repayment and cancellation in relation to a single Lender) solely due to a change in any law or regulation;
|
(ii)
|
an assignment or transfer which a Finance Party is required to make, solely as a result of a change in any law or regulation, in order for that Finance Party to observe its obligations under Clause 15 (Mitigation by the Lenders); or
|
(iii)
|
an assignment or transfer required in order to enforce the Security Documents.
|
12.7
|
Value added tax
|
(a)
|
All amounts 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 any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, and that Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to that Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of that VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).
|
(b)
|
If VAT is or becomes 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 other than the Recipient (the
Relevant Party
) is required by the terms of any Finance Document to pay an amount equal to the
|
|
(i)
|
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this subparagraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii)
|
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this Clause 12.7 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated as making the supply, or (as appropriate) receiving the supply under the grouping rules (as provided for) in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).
|
(e)
|
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
12.8
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party; and
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA.
|
|
(b)
|
If a Party confirms to another Party pursuant to subparagraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with subparagraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
12.9
|
FATCA Deduction
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Obligors' Agent and the Agent, and the Agent shall notify the other Finance Parties.
|
12.10
|
Other Information
|
(a)
|
Subject to paragraph (b) below, each Party shall, within ten Business Days of a reasonable request by another Party, supply to that other Party such forms, documentation and other information relating to its status as that other Party requests to enable that other Party to comply with any regulations made under section 222 of the Finance Act 2013 or any other applicable law or regulation in any jurisdiction implementing similar international arrangements for the exchange of Tax or financial information between jurisdictions.
|
(b)
|
No Party is obliged to do anything under paragraph (a) above which would or might in its reasonable opinion constitute a breach of any applicable:
|
(i)
|
law or regulation;
|
(ii)
|
fiduciary duty; or
|
(iii)
|
duty of confidentiality.
|
|
13.
|
INCREASED COSTS
|
13.1
|
Increased Costs
|
(a)
|
Subject to Clause 13.3 (Exceptions), each Borrower shall, 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 after the date of this Agreement; or
|
(ii)
|
compliance with any law or regulation made after the date of this Agreement.
|
(b)
|
In this Clause 13,
Increased Costs
means:
|
(i)
|
a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii)
|
an additional or increased cost; or
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
(c)
|
If a Finance Party (other than the Original French Facility Lender) incurs or suffers any Increased Costs in accordance with paragraph (a) above, the amount of such Increased Costs payable under a French Facility by a French Facility Borrower to the French Facility Lender is equal to the amount of the Increased Costs payable by the Facility B Borrower under a Facility B Loan calculated by reference to the proportion that the outstanding amount of any such French Facility Loan at that time bears to the amount of all French Facility Loans owed to the French Facility Lender.
|
13.2
|
Increased Cost claims
|
(a)
|
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Obligors' Agent.
|
(b)
|
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3
|
Exceptions
|
(a)
|
Clause 13.1 (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)
|
attributable to a FATCA Deduction required to be made by a Party;
|
(iii)
|
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
|
|
(iv)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;
|
(v)
|
attributable to the implementation or application of, or compliance with, Basel II (but excluding any amendment arising out of Basel III); or
|
(vi)
|
a Basel III Cost or a CRD IV Cost except to the extent that:
|
(A)
|
the relevant Finance Party confirms to the Agent and the Company that it is seeking to recover those costs to a similar extent from its comparable borrowers generally; and
|
(B)
|
the relevant Finance Party can demonstrate to the Agent and the Company that it was not able to determine the amount of those costs as at the date of this Agreement.
|
(b)
|
Clause 13.1 (Increased Costs) does not apply to the extent the Increased Cost is incurred by a Counterparty in its capacity as such.
|
(c)
|
In this Clause 13, a reference to:
|
(i)
|
Basel II
means 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 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);
|
(ii)
|
Basel III
means:
|
(A)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated; and
|
(B)
|
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(C)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III"; and
|
(iii)
|
Basel III
Costs
means any Increased Cost attributable to the implementation or application of or compliance with Basel III.
|
(iv)
|
CRD IV
means:
|
(A)
|
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and
|
(B)
|
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit
|
|
(v)
|
CRD IV
Costs
means any Increased Cost attributable to the implementation or application of or compliance with CRD IV.
|
(d)
|
In this Clause 13.3, a reference to a
Tax Deduction
has the same meaning given to the term in Clause 12.1 (Tax Definitions).
|
14.
|
OTHER INDEMNITIES
|
14.1
|
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; or
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(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.
|
14.2
|
Other indemnities
|
(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 31 (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), it being expressly agreed that if the first Utilisation Date does not take place on 8 April 2015 the Company shall promptly pay to the Original Lender the funding costs of the Original Lender equal to one day EURIBOR on 7 April 2015 (in relation to each Loan in euro which is proposed to be made on 8 April 2015) and one day LIBORon 7 April 2015 (in relation to each Loan in sterling which is proposed to be made on 8 April 2015);
|
|
(d)
|
any Finance Party converting the proceeds of any proposed Loan which is standing to the credit of the Clifford Chance LLP London client account or the Linklaters LLP London client account (but only to the extent such proceeds are held to the order of the Original Lender or counsel on their behalf) into the currency of the relevant Facility under which it was proposed the Loan was to be advanced, for the purposes of returning such proposed proceeds to the Original Lender in the relevant currency;
|
(e)
|
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;
|
(f)
|
any litigation commenced by any person (other than a Transaction Obligor) against a Finance Party or any Obligor or a Shareholder in connection with any transaction contemplated by the Finance Documents.
|
14.3
|
Obligors' Indemnity to the Agent
|
(a)
|
any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
|
(i)
|
investigating any event which it reasonably believes is an Event of Default;
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
(iii)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents; and
|
(b)
|
any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 32.11 (Disruption to payment systems etc.) (otherwise than by reason of the Agent's gross negligence, wilful misconduct or fraud), in acting as Agent under the Finance Documents.
|
14.4
|
Obligors' Indemnity to the Security Agent
|
(a)
|
Each Obligor must promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:
|
(i)
|
any failure by the Company to comply with its obligations under Clause 16 (Costs and Expenses);
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
(iii)
|
the taking, holding, protection or enforcement of the Transaction Security;
|
(iv)
|
the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents, the Transaction Security or by law;
|
(v)
|
any default by any Obligor or any other Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in any of the Finance Documents;
|
|
(vi)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents; or
|
(vii)
|
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b)
|
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Finance Parties, indemnify itself out of the Security Assets in respect of, and pay and retain all sums necessary to give effect to the indemnity in this Clause 14.4 and shall have a lien on the Transaction Security and the proceeds of enforcement of the Transaction Security for all moneys payable to it.
|
14.5
|
French Facility Borrowers' Indemnity to the Original French Facility Lender
|
(a)
|
This Clause 14 applies to the French Obligors, without any double counting with any amount to be paid in accordance with paragraph (b) below, provided that any costs, liabilities and loss payable by such French Obligor under this Clause 14, (i) if such amount relates to the relevant French Term Loan Agreement and the relevant French Facility Loan, shall be borne exclusively by such French Obligor and (ii) otherwise shall be borne by the French Obligor as Guarantor subject to Clause 18.13 (Limitations: French Guarantors).
|
(b)
|
Each French Facility Borrower shall indemnify the Original French Facility Lender, at its first request, against any cost, loss or liability the Original French Facility Lender (as Facility B Borrower) has to pay at any time to any other Finance Party pursuant to the Finance Documents, on a
pro rata
basis by reference to the proportion that the outstanding amount of such French Borrower’s French Facility Loan at that time bears to the amount of all French Facility Loans owed by the French Borrowers at that time, to the extent that such French Facility Borrower is not already obliged to indemnify, pay or reimbursed such cost, loss or liability to the Original French Facility Lender (as Facility B Borrower) pursuant to any other provisions of a Finance Documents.
|
15.
|
MITIGATION BY THE LENDERS
|
15.1
|
Mitigation
|
(a)
|
Each Finance Party must, in consultation with the Obligors' Agent, take all reasonable steps to mitigate any circumstances which arise and which would result in any Facility ceasing to be available or any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross-Up and Indemnities), Clause 13 (Increased Costs) or in any amount payable under a Finance Document by a French Obligor becoming not deductible from its taxable income for French tax purposes by reason of that amount being (i) paid or accrued to a Finance Party incorporated, domiciled, established or acting through a Facility Office situated in a Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name of or for the benefit of that Finance Party in a financial institution situated in a Non-Cooperative Jurisdiction, in each case including (but not limited to) transferring its rights and obligations under the Finance Documents to an Affiliate of that Finance Party or to another Facility Office, it being specified, for the avoidance of doubt, that the substitution of such Facility Office by a Facility Office that is not located in a Non- Cooperative Jurisdiction or of such bank account by a bank account that is not opened in a financial institution situated in a Non-Cooperative Jurisdiction, will be considered as reasonable steps for the purpose hereof.
|
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents but does not apply in respect of any part of any Loan which has been transferred as part of a Securitisation.
|
15.2
|
Limitation of liability
|
(a)
|
Each Obligor must promptly 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 15.1 (Mitigation), provided that any costs and expenses payable by a French Obligor under this Clause 15, (i) if such amount relates to the relevant French Term Loan Agreement and the relevant French Facility Loan, shall be borne exclusively by such French Obligor and (ii) otherwise shall be borne by that French Obligor as Guarantor subject to Clause 18.13 (Limitations: French Guarantors).
|
(b)
|
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16.
|
COSTS AND EXPENSES
|
16.1
|
Transaction expenses
|
(a)
|
this Agreement and any other documents referred to in this Agreement or in a Security Document; and
|
(b)
|
any other Finance Documents executed after the date of this Agreement.
|
16.2
|
Amendment costs
|
(a)
|
an Obligor requests an amendment, waiver or consent or
|
(b)
|
an amendment is required pursuant to Clause 32.10 (Change of currency),
|
16.3
|
Enforcement costs
|
|
16.4
|
Valuations
|
(a)
|
The Agent may request a Valuation (and instruct a Valuer) at any time.
|
(b)
|
Each Obligor must promptly on demand pay to the Agent the costs of:
|
(i)
|
the Initial Valuation;
|
(ii)
|
a Valuation obtained by the Agent on an annual basis prior to the Final Repayment Date;
|
(iii)
|
a Valuation obtained by the Agent in connection with the compulsory purchase of all or part of any Property; and
|
(iv)
|
a Valuation obtained by the Agent at any time when a Default is continuing or the Agent reasonably believes that a Default is likely to occur as a result of obtaining that Valuation.
|
(c)
|
Any Valuation not referred to in paragraph (b) above will be at the cost of the Lenders (other than the Original French Facility Lender), provided that if the Agent requests a Valuation pursuant to paragraph (b)(iv) above and that Valuation does not result in a Default, such Valuation will also be at the cost of the Lenders (other than the Original French Facility Lender).
|
16.5
|
Security Agent's ongoing costs
|
16.6
|
French Facility Borrowers' costs and expenses duty
|
17.
|
BANK ACCOUNTS
|
17.1
|
Designation of Accounts
|
(a)
|
Each Propco (with the exception of the UK Propcos) must, on or before the first Utilisation Date (or, in the case of each Targetco, on or before the Account Backstop Date), open and maintain an account designated the
Rent Collection Account
denominated in euro.
|
(b)
|
Each UK Propco must, on or before the first Utilisation Date, open and maintain an account designated the
Rent Collection Account
denominated in sterling.
|
|
(c)
|
Each Propco (with the exception of the UK Propco) must, on or before the Account Backstop Date, open and maintain the following bank accounts, each denominated in euro:
|
(i)
|
an account designated the
Service Charge Account
;
|
(ii)
|
an account designated the
Rent Account
; and
|
(iii)
|
an account designated the
Propco
General Account
.
|
(d)
|
Each UK Propco must, on or before the Account Backstop Date, open and maintain the following bank accounts, each denominated in sterling:
|
(i)
|
an account designated the
Service Charge Account
;
|
(ii)
|
an account designated the
Rent Account
; and
|
(iii)
|
an account designated the
Propco General Account
.
|
(e)
|
Each French Propco must, on or before the Account Backstop Date, open and maintain the following bank accounts, denominated in euro:
|
(i)
|
an account designated the
French Facility Borrower Reserve
Account
;
|
(ii)
|
an account designated the
French Facility Borrower Deposit Account
.
|
(f)
|
Each Midco (other than the Original Facility B Borrower and the OPCI) must, on or before the Account Backstop Date, open and maintain an account designated the
Midco
General Account
denominated in euro.
|
(g)
|
The Original Facility B Borrower must on or before the Account Backstop Date, open and maintain the following bank accounts, each denominated in euro:
|
(i)
|
an account designated the
Midco Blocked Account
;
|
(ii)
|
an account designated the
Midco
General Account
;
|
(iii)
|
an account designated the
OPCI Shareholder Account
;
|
(iv)
|
an account designated the
Alésia Shareholder Account
; and
|
(v)
|
an account designated the
Marceau Shareholder Account
.
|
(h)
|
The OPCI must on or before the Account Backstop Date, open and maintain the following bank accounts each denominated in euro:
|
(i)
|
an account designated the
OPCI General Account
; and
|
(ii)
|
an account designated the
OPCI Deposit Account
; and
|
(iii)
|
an account designated the
Joubert Shareholder Account
.
|
(i)
|
The Company must, on or before the Account Backstop Date, open and maintain the following bank accounts:
|
|
(i)
|
an account designated the
Euro Company Account
denominated in euro;
|
(ii)
|
an account designated the
Sterling Company Account
denominated in sterling (together with the Euro Company Account referred to as the
Company General Accounts
);
|
(iii)
|
an account designated the
Euro
Equity Cure Account
denominated in euro;
|
(iv)
|
an account designated the
Sterling
Equity Cure Account
denominated in sterling (together with the Euro Equity Cure Account referred to as the
Equity Cure Accounts
);
|
(v)
|
an account designated the
Euro Deposit Account
denominated in euro;
|
(vi)
|
an account designated the
Sterling Deposit Account
denominated in sterling (together with the Euro Deposit Account referred to as the
Company
Deposit Accounts
);
|
(vii)
|
an account designated the
Euro Reserve Account
denominated in euro;
|
(viii)
|
an account designated the
Sterling Reserve Account
denominated in sterling (together with the Euro Reserve Account referred to as the
Reserve Accounts
);
|
(j)
|
No Obligor may, without the prior consent of the Agent, maintain any other account with any bank or financial institution save for any rent deposit accounts in which tenant rent deposits are held (a
Rent Deposit Account
) and any Existing Account which is not required or permitted to be maintained in accordance with this Clause 17 and is closed by the Account Backstop Date.
|
17.2
|
Account Bank
|
(a)
|
Subject to paragraph (b) below, each Account must be held at an Account Bank.
|
(b)
|
All Accounts must be subject to Transaction Security on terms satisfactory to the Security Agent.
|
(c)
|
An Account must be replaced with an account at the same or another bank or financial institution at any time if:
|
(i)
|
the relevant Account Bank ceases to have a Requisite Rating and the Agent so requires; or
|
(ii)
|
the Obligors' Agent so requests and the Agent consents,
provided that
such other financial institution shall have a Requisite Rating or shall otherwise be approved in writing by the Majority Lenders (acting reasonably).
|
(d)
|
The replacement of an Account only becomes effective when the relevant bank agrees with the Agent and the Obligors' Agent, in a manner satisfactory to the Agent, to fulfil the role of the bank holding that Account and acknowledges that such Account shall be the subject of the Transaction Security.
|
(e)
|
Each Obligor must, on or before the Account Backstop Date, provide to the Agent a duly signed copy of each Account Control Agreement to which it is party.
|
|
17.3
|
Rent Collection Accounts
|
(a)
|
Except as provided in paragraph (f) below, the Approved Cash Manager has signing rights to each Rent Collection Account.
|
(b)
|
Each Propco must ensure that all Rental Income owed to it (other than rent deposits to be paid into its Rent Deposit Account) is directly paid into its Rent Collection Account and on each Rent Collection Account Sweep Date all Net Rental Income standing to the credit of its Rent Collection Account on the last Business Day of the Month immediately preceding that Rent Collection Account Sweep Date is transferred from the Rent Collection Account into the Rent Account of that Propco.
|
(c)
|
Each Propco must ensure that:
|
(i)
|
all Tenant Contributions (excluding VAT);
|
(ii)
|
all void and non-recoverable Service Charge Expenses; and
|
(iii)
|
any ground rent or other payment due under any Headlease,
|
(d)
|
Each Propco must ensure that any sum representing any VAT chargeable in respect of Rental Income (in respect of the Properties owned by the relevant Propco) are paid promptly into its General Account.
|
(e)
|
No Propco may withdraw funds from its Rent Collection Account for any other purpose.
|
(f)
|
At any time when an Event of Default is continuing, the Security Agent may, and is irrevocably authorised by each Propco to:
|
(i)
|
operate the Rent Collection Accounts;
|
(ii)
|
notify any Propco that its rights to operate its Rent Collection Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, any Rent Collection Account in or towards any purpose for which moneys in that Account may be applied.
|
(A)
|
any operation of French Targetco Joubert's Rent Collection Account, French Targetco Alésia's Rent Collection Account, French Targetco Marceau's Rent Collection Account and French Propco's Rent Collection by the Security Agent pursuant to paragraph (f) above shall be limited to the application of amounts standing to the credit of the relevant Rent Collection Account in or towards any purpose for which moneys in that Account of the relevant French Facility Borrower may be applied; and
|
(B)
|
any operation of French Targetco Joubert's Rent Collection Account or French Propco’s Rent Collection Account by the Security Agent pursuant to paragraph (f) above shall not prevent any Permitted OPCI Distribution by French Targetco Joubert or by French Propco.
|
|
(g)
|
Provided that no Event of Default is continuing and the Dutch Share Capital Funding Amount has been deposited into the Rent Collection Accounts, the Approved Cash Manager may withdraw the Dutch Share Capital Funding Amount and transfer it to the General Accounts of the Dutch Propcos.
|
17.4
|
Rent Accounts
|
(a)
|
The Security Agent has sole signing rights in relation to the Rent Accounts.
|
(b)
|
(i)
Each Propco must ensure that:
|
(A)
|
all Net Rental Income (other than the rent deposits to be paid into its Rent Deposit Account) is paid directly from its Rent Collections Account;
|
(B)
|
all proceeds of any Insurances in respect of loss of rent which are to be treated as Rental Income in accordance with paragraph (k) of Clause 23.12 (Insurances) are paid;
|
(C)
|
any amount payable to it in accordance with paragraph (l) of Clause 8.3 (Hedging) is paid; and
|
(D)
|
any amount which is transferred to that Propco on any Interest Payment Date from any other member of the Group for the purposes of covering any shortfall of interest, fees and other amounts due and payable under the Finance Documents on that Interest Payment Date is paid,
|
(ii)
|
Sub-paragraph (i) above shall not apply to Lease Prepayment Proceeds.
|
(c)
|
If any payment of any amount referred to in paragraph (b) above is paid into an Account other than a Rent Account, that payment must be paid immediately into a Rent Account.
|
(d)
|
Except as provided in Clause 32.6 (Partial payments) and paragraph (e) below, on each Interest Payment Date, the Security Agent shall (and is irrevocably authorised by the Propcos to) withdraw from, and apply amounts standing to the credit of, the Rent Account of a Propco in order to pay or transfer the amounts below owed by such Propco, in the following order:
|
(i)
|
first
, to the extent not already paid by a tenant or otherwise funded out of the proceeds credited to the Rent Collection Account or the Service Charge Account of that Propco, in or towards any reasonable amounts due under any Headlease or ground lease or reasonable insurance premia as set out in the Business Plan, or any other amounts reasonably required in respect of the Properties on account of void and non-recoverable Services Charge Expenses, in each case as set out in the Business Plan;
|
(ii)
|
secondly
,
in or towards payment pro rata of any unpaid amounts owing to the Agent, the Arranger or the Security Agent (including any amount due to any Receiver or Delegate) due but unpaid under the Finance Documents;
|
(iii)
|
thirdly
, in or towards payment pro rata to the Agent (or to the Midco Blocked Account in respect of the French Facility Borrowers) for the relevant Lenders of any accrued interest on any Property Protection Loans due but unpaid under the Finance Documents;
|
|
(iv)
|
fourthly
, in or towards payment pro rata to the Agent (or to the Midco Blocked Account in respect of the French Facility Borrowers) for the relevant Lenders of any principal of Property Protection Loans due but unpaid under the Finance Documents;
|
(v)
|
fifthly
, in or towards payment to the Agent (or to the Midco Blocked Account in respect of the French Facility Borrowers) for the relevant Lenders of any accrued interest, fees and expenses in respect of the Facilities due but unpaid under the Finance Documents;
|
(vi)
|
sixthly
, in or towards payment to the Agent (or to the Midco Blocked Account in respect of the French Facility Borrowers) for the relevant Lenders of any principal in respect of the Facilities due but unpaid under the Finance Documents;
|
(vii)
|
seventhly
, in or towards payment to the Agent (or to the Midco Blocked Account in respect of the French Facility Borrowers) pro rata of any other sum due but unpaid to the Finance Parties under the Finance Documents;
|
(viii)
|
eighthly
, provided no Default is continuing, in or towards payment into the General Account of that Propco for the purposes of meeting tax liabilities (as estimated in good faith by that Propco, and as approved by the Agent by reference to the Business Plan);
|
(ix)
|
ninthly
, in or towards payment into the General Account for the purposes of paying for any Permitted Capex for the immediately following quarter in accordance with the Business Plan; and
|
(x)
|
tenthly
:
|
(A)
|
if on that Interest Payment Date a Cash Trap Event is continuing, in or towards payment of (i) any surplus standing to the credit of the Rent Accounts of all Propcos other than the French Facility Borrowers to the relevant Company Reserve Account and (ii) any surplus standing to the credit of the Rent Account of a French Facility Borrower to its French Facility Borrower Reserve Account; or
|
(B)
|
if on that Interest Payment Date no Cash Trap Event is continuing, in or towards payment of any surplus to its General Account.
|
(e)
|
The Parties hereby agree that any amount which is paid into the Rent Account of a Propco on any Interest Payment Date by any other member of the Group for the purposes of covering any shortfall of interest, fees and other amounts due and payable under the Finance Documents on that Interest Payment Date must not be applied in accordance with sub-paragraph (d)(i) above and must instead be applied in accordance with sub-paragraphs (d)(ii) to (d)(vii) above (as applicable).
|
(f)
|
If any Obligor is unable to make a payment to a Reserve Account in accordance with paragraph (d)(x)(A) above from funds which are available to that Obligor but which (for whatever reason) cannot be transferred to a Reserve Account, each other Obligor (other than a French Obligor) must ensure that an amount equal to the payment due from that Obligor is transferred to the relevant Reserve Account on the relevant Interest Payment Date (a
Reserve Account Shortfall Payment
).
|
(g)
|
The Company must notify the Agent by no later than five Business Days prior to the date of any Reserve Account Shortfall Payment.
|
(h)
|
The Security Agent is obliged to make a withdrawal from a Rent Account in accordance with paragraph (d) above only if no Event of Default is continuing.
|
|
(i)
|
On any day on which an amount is due but unpaid under a Headlease, the Security Agent may, and is irrevocably authorised by each Obligor to:
|
(i)
|
withdraw from the relevant Rent Account an amount necessary to meet that due amount; and
|
(ii)
|
apply that amount in payment of that due amount,
|
(j)
|
Any operation of French Targetco Joubert's Rent Account by the Security Agent under this Clause 17.4 shall not prevent any Permitted OPCI Distribution which French Targetco Joubert is required to make pursuant to paragraph (b) under the definition of Permitted OPCI Distribution.
|
(k)
|
Any operation of French Propco’s Rent Account by the Security Agent under this Clause 17.4 shall not prevent any permitted OPCI Distribution which French Propco is required to make pursuant to paragraph (c) under the definition of Permitted OPCI Distribution.
|
17.5
|
Midco Blocked Account
|
(a)
|
The Security Agent has sole signing rights in relation to the Midco Blocked Account.
|
(b)
|
At any time when the Facility B Loan remains outstanding, any amounts which are paid by a French Facility Borrower to the Original French Facility Lender must be paid directly to the Midco Blocked Account and such amounts shall be promptly applied by the Security Agent in accordance with paragraphs (d)(ii) to (d)(vii) of Clause 17.4 (Rent Accounts).
|
(c)
|
The Security Agent is obliged to make a withdrawal from a Midco Blocked Account in accordance with paragraph (b) above only if no Event of Default is continuing.
|
(d)
|
If at any time the Original French Facility Lender is unable to make a payment under this Agreement from funds which are available to that Obligor but which (for whatever reason) is not sufficient, each other Obligor (other than the French Obligors) must ensure that an amount equal to the payment due from the Original French Facility Lender is transferred to the Midco Blocked Account on the relevant Interest Payment and such amounts shall be promptly applied by the Security Agent in accordance with paragraphs (d)(ii) to (d)(vii) of Clause 17.4 (Rent Accounts) (a
Midco Blocked Account Shortfall Payment
).
|
(e)
|
The Company must notify the Agent by no later than five Business Days prior to the date of any Midco Blocked Account Shortfall Payment.
|
17.6
|
Rent Deposit Accounts
|
(a)
|
Except as provided in paragraph (c)
below
, each Propco has signing rights in relation to its Rent Deposit Account.
|
(b)
|
Each Propco must ensure that:
|
(i)
|
each Rent Deposit Account is solely maintained for the purpose of holding rent deposits in respect of Occupational Leases; and
|
|
(ii)
|
to the extent that the relevant Propco is entitled to withdraw any amount standing to the credit of any Rent Deposit Account for its own account, it will withdraw such amount and apply it in or towards any purpose for which moneys in an Account may be applied.
|
(c)
|
At any time when an Event of Default is continuing, the Security Agent may:
|
(i)
|
operate any Rent Deposit Account;
|
(ii)
|
notify the relevant Obligor that its rights to operate its Rent Deposit Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
to the extent that the relevant Propco is entitled to withdraw any amount standing to the credit of any Rent Deposit Account for its own account, it will withdraw from, and apply amounts standing to the credit of, a Rent Deposit Account in accordance with the terms of the Occupational Leases which relate to the rent deposits.
|
17.7
|
Deposit Accounts
|
(a)
|
The Security Agent has sole signing rights in relation to each Deposit Account.
|
(b)
|
Each Obligor must ensure that:
|
(i)
|
any Disposal Proceeds are, unless immediately applied in accordance with Clause 7.4 (Mandatory prepayment), paid into (i) except for the French Obligors, the relevant Company Deposit Account, (ii) for each French Facility Borrower, its French Facility Borrower Deposit Account and (iii) for the OPCI, its OPCI Deposit Account in accordance with Clause 22.4 (Disposals);
|
(ii)
|
any amount payable to the Company under any Hedging Agreement to which it is a party is paid directly by the Counterparty to the relevant Hedging Agreement into a Deposit Account;
|
(iii)
|
all Lease Prepayment Proceeds, Insurance Prepayment Proceeds, Compensation Prepayment Proceeds and Recovery Prepayment Proceeds owed or paid to it are, promptly upon receipt, paid into the relevant Deposit Account.
|
(c)
|
Except as provided in Clause 32.6 (Partial payments) and paragraph (i) below, on each Interest Payment Date, or earlier at the request of the Company if it gives the Agent not less than two Business Days' notice, the Security Agent must withdraw from, and apply amounts standing to the credit of, the relevant Deposit Accounts (but excluding any Lease Prepayment Proceeds) in accordance with Clause 7.4 (Mandatory prepayment) and Clause 7.6 (Application of mandatory prepayments).
|
(d)
|
Except as provided in paragraph (i) below, if any Lease Prepayment Proceeds are deposited into the relevant Deposit Account (i.e. the relevant French Facility Borrower Deposit Account or the relevant Company Deposit Account) and the Company or the relevant French Facility Borrower holding this Account subsequently provides evidence in form and substance satisfactory to the Agent that the vacant space at the relevant Property (which was vacated in connection with the payment of such Lease Prepayment Proceeds) has been re-let pursuant to the terms of an Occupational Lease in accordance with Clause 23.2 (Occupational Leases), the Security Agent shall transfer an amount equal to such Lease Prepayment Proceeds (or if part of the relevant vacant space has been re-let a
pro rata
amount of such Lease Prepayment Proceeds) from the relevant Deposit Account to the General Account of the relevant Propco.
|
|
(e)
|
If any amount standing to the credit of a Deposit Account cannot be applied by the Security Agent in accordance with paragraph (c) above (for whatever reason), each Obligor (other than the French Obligor) must ensure that an amount equal to the shortfall which was required to be paid from that Deposit Account in prepayment of the Loans by an Obligor on the relevant date is paid to the Agent to be applied in prepayment of the Loans (a
Deposit Account Shortfall Payment
).
|
(f)
|
The Company must notify the Agent by no later than five Business Days prior to the date of any Deposit Account Shortfall Payment.
|
(g)
|
The Security Agent will (and is duly authorised by the Company and the French Obligors to) transfer any amount of Disposal Proceeds which are not applied in accordance with paragraph (c) above from its Deposit Account to (i) with respect to the Disposal Account of the Company, the General Account of the relevant Obligor(s) (other than the French Obligors)
pro rata
provided that such transfer does not include any amounts of Equity Contribution paid into that Deposit Account in accordance with paragraph (d)(ii) of Clause 22.4 (Disposals) and (ii) with respect to any French Obligor, to its General Account.
|
(h)
|
The Security Agent will (and is duly authorised by the Company to) transfer such amount payable to the Company under any Hedging Agreement to which it is a party as referred to in paragraph (b)(ii) above from the relevant Deposit Account into the Rent Accounts of the Propcos
pro rata
in the same currency and in accordance with the Loans borrowed by the relevant Propco. For the avoidance of doubt, each Propco will take the benefit of the interest rate caps under the Hedging Agreement in a notional principal amount equal to and in the same currency as that Propco's Loan in respect of which it is a Borrower.
|
(i)
|
The Security Agent is obliged to make a withdrawal from a Deposit Account:
|
(i)
|
in accordance with paragraphs (c) above only if no Event of Default is continuing; and
|
(ii)
|
in accordance with paragraph (d) above only if no Default is continuing.
|
17.8
|
Service Charge Accounts
|
(a)
|
Except as provided in paragraph (d) below, each Approved Managing Agent has signing rights in relation to its Propco’s Service Charge Account.
|
(b)
|
Each Propco must ensure that any amounts which are permitted to be paid from its Rent Collection Account to its Service Charge Account are paid promptly into its Service Charge Account.
|
(c)
|
Except as provided in paragraph (d), a Propco may withdraw any amount from its Service Charge Account for the particular purpose for which it was paid into its Service Charge Account.
|
(d)
|
At any time when an Event of Default is continuing, the Security Agent may:
|
(i)
|
operate any Service Charge Account;
|
(ii)
|
notify the relevant Propco that its rights to operate its Service Charge Account are suspended, such notice to take effect in accordance with its terms; and
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, a Service Charge Account in or towards any purpose for which moneys in that Account may be applied.
|
|
17.9
|
Reserve Accounts
|
(a)
|
The Security Agent has sole signing rights in relation to each Reserve Account.
|
(b)
|
The Security Agent must pay, on each Interest Payment Date, all amounts into the relevant Reserve Accounts from each Rent Account in accordance with sub-paragraph (x)(A) of Clause 17.4 (Rent Accounts).
|
(c)
|
If a Borrower is required to apply any Cash Trap Proceeds in prepayment of the Loan(s) in accordance with paragraph (b) of Clause 7.5 (Cash Trap Event mandatory prepayment), the Security Agent must withdraw an amount of such Cash Trap Proceeds from the relevant Reserve Account(s) in accordance with the requirements of paragraph (b) of Clause 7.5 (Cash Trap Event mandatory prepayment) and Clause 7.6(f) (Application of mandatory prepayments) and apply such amount in prepayment of the relevant Loan(s) in accordance with the same provisions.
|
(d)
|
If any Cash Trap Proceeds are standing to the credit of a Reserve Account and the Security Agent is instructed to withdraw such proceeds from the Reserve Account and pay them into the relevant General Account(s) in accordance with paragraph (c) of Clause 7.5 (Cash Trap Event mandatory prepayment), the Security Agent must withdraw such Cash Trap Proceeds in accordance with the requirements of paragraph (c) of Clause 7.5 (Cash Trap Event mandatory prepayment) and pay them into the relevant General Account(s).
|
(e)
|
The Security Agent is obliged to make a withdrawal from a Reserve Account in accordance with paragraph (d) above only if no Event of Default is continuing.
|
17.10
|
Equity Cure Accounts
|
(a)
|
The Security Agent has sole signing rights in relation to each Equity Cure Account.
|
(b)
|
The Company may pay into the Equity Cure Accounts any amount in accordance with paragraph (c)(ii) of Clause 21.3 (Equity Cure).
|
(c)
|
Provided that no Event of Default is continuing, the Security Agent shall, at the request of the Company withdraw any amount from the Equity Cure Accounts for application in voluntary prepayment of the Loans in accordance with the terms of this Agreement.
|
(d)
|
Provided that:
|
(i)
|
no Default or Cash Trap Event is continuing;
|
(ii)
|
the Agent has been provided with evidence (in form and substance satisfactory to the Majority Lenders) that the tests in Clause 21.1 (Loan to Value Ratio) and Clause 21.2 (Default Level Debt Service Cover Ratio) are satisfied for two consecutive Interest Payment Dates without taking into account any amount standing to the credit of the Equity Cure Accounts; and
|
(iii)
|
the release of the amount standing to the credit of the Equity Cure Accounts would not result in a Default or Cash Trap Event,
|
|
(e)
|
If any amount has been deposited into the Equity Cure Accounts pursuant to paragraph (c)(ii) of Clause 21.3 (Equity Cure) (the
Relevant Cure Payment
) and any of the tests in Clause 21.1 (Loan to Value Ratio) or Clause 21.2 (Default Level Debt Service Cover Ratio) are not satisfied for two consecutive Interest Payment Dates without taking into account the amount standing to the credit of the Equity Cure Accounts, the Security Agent shall withdraw an amount equal to the Relevant Cure Payment from the Equity Cure Accounts for application in voluntary prepayment of the Loans in accordance with the terms of this Agreement.
|
17.11
|
General Accounts
|
(a)
|
Except as provided in paragraphs (c) and (d) below, each Obligor has signing rights in relation to its General Account.
|
(b)
|
Each Obligor must ensure that any other amount received or receivable by it, other than any amount specifically required under this Agreement to be paid into any other Account, is paid into its relevant General Account.
|
(c)
|
Except as provided in paragraph (d) below, paragraph (e) of Clause 22.14 (Shares, units, dividends and share redemption) and subject to any restriction in any Subordination Agreement and the requirement that amounts paid into a General Account for a particular purpose must be used for that purpose, an Obligor may withdraw any amount from its General Account for any purpose consistent with the Finance Documents.
|
(d)
|
At any time when an Event of Default is continuing, the Security Agent may:
|
(i)
|
operate any General Account other than the OPCI General Account;
|
(ii)
|
notify the relevant Obligor that its rights to operate its General Account (other than the OPCI General Account) are suspended, such notice to take effect in accordance with its terms;
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, a General Account (other than the OPCI General Account) in or towards any purpose for which moneys in any Account may be applied; and
|
(iv)
|
with respect to the OPCI General Account, address to the relevant Account Bank any blocking notice in accordance with the terms and conditions of the Security Document creating a Transaction Security over the OPCI General Account,
|
(A)
|
any operation of any of the French Facility Borrower's General Account by the Security Agent pursuant to paragraph (d) above shall be limited to the application of amounts standing to the credit of the relevant General Account in or towards any purpose for which moneys in any Account of the holder of the relevant General Account may be applied;
|
(B)
|
any operation of French Targetco Joubert's General Account by the Security Agent pursuant to paragraph (d) above shall not prevent any Permitted OPCI Distribution which the French Targetco Joubert is required to make pursuant to paragraph (b) under the definition of Permitted OPCI Distribution;
|
(C)
|
any operation of the French Propco’s General Account by the Security Agent pursuant to paragraph (d) above shall not prevent any Permitted OPCI Distribution which French Propco
|
|
17.12
|
Shareholder Accounts
|
(a)
|
Except as provided in paragraphs (d) and (f) below, the French Facility B Lender and the OPCI (each a
French Shareholder
) have signing rights to their respective Shareholder Accounts.
|
(b)
|
The French Facility B Lender must ensure that:
|
(i)
|
the only payments to be made into the OPCI Shareholder Account are Permitted Payments which constitute a distribution to the French Facility B Lender in its capacity as shareholder of the OPCI;
|
(ii)
|
the only payments to be made into the Alésia Shareholder Account are Permitted Payments which constitute a distribution to the French Facility B Lender in its capacity as shareholder of French Targetco Alésia; and
|
(iii)
|
the only payments to be made into the Marceau Shareholder Account are Permitted Payments which constitute a distribution to the French Facility B Lender in its capacity as shareholder of French Targetco Marceau.
|
(c)
|
The OPCI must ensure that the only payments to be made into the Joubert Shareholder Account are Permitted Payments which constitute a distribution to the OPCI in its capacity as shareholder of French Targetco Joubert.
|
(d)
|
Except as provided in paragraph (c) above, paragraph (e) of Clause 22.14 (Shares, units, dividends and share redemption) and subject to any restriction in any Subordination Agreement, a French Shareholder may withdraw any amount from its Shareholder Account for any purpose consistent with the Finance Documents.
|
(e)
|
At any time when an Event of Default is continuing, the Security Agent may:
|
(i)
|
operate any Shareholder Account (other than the Joubert Shareholder Account);
|
(ii)
|
notify the relevant French Shareholder that its rights to operate its Shareholder Accounts (other than the Joubert Shareholder Account) are suspended, such notice to take effect in accordance with its terms;
|
(iii)
|
withdraw from, and apply amounts standing to the credit of, a Shareholder Account (other than the Joubert Shareholder Account) in or towards any purpose for which moneys in any Account may be applied, provided that this should not prevent the payment of any Permitted OPCI Distributions into the OPCI Shareholder Account;
|
(iv)
|
with respect to the Joubert Shareholder Account, address to the relevant Account Bank any blocking notice in accordance with the terms and conditions of the Security Document creating a Transaction Security over the Joubert Shareholder Account, provided that this should not
|
|
17.13
|
Existing Accounts
|
(a)
|
on or before the Account Backstop Date,
the Agent is provided with evidence in form and substance satisfactory to it (acting on the instruction of the Majority Lenders) that each Existing Account has been closed and the balance of each Existing Account has been transferred to the relevant Rent Collection Account(s);
|
(b)
|
no Existing Account shall become overdrawn; and
|
(c)
|
except for:
|
(i)
|
the transfers to the Rent Collection Account(s) referred to in paragraph (a) above; and
|
(ii)
|
any transfers in or towards any purpose for which moneys in a Rent Account or Service Charge Account may be applied,
|
17.14
|
Miscellaneous Accounts provisions
|
(a)
|
The Obligors must ensure that no Account goes into overdraft.
|
(b)
|
Any amount received or recovered by any Obligor otherwise than by credit to an Account must be held subject to the security created by the Finance Documents and immediately be paid to the relevant Account or to the Agent in the same funds as received or recovered.
|
(c)
|
If any payment is made into an Account in relation to which the Security Agent has sole signing rights which should have been paid into another Account, then, unless an Event of Default is continuing, the Security Agent must, at the request of the Obligors and on receipt of evidence satisfactory to the Security Agent that the payment should have been made to that other Account, pay that amount to that other Account.
|
(d)
|
The moneys standing to the credit of an Account (other than a Rent Deposit Account or prior to the occurrence of an Event of Default which is continuing a Service Charge Amount) may be applied by the Security Agent in payment of any amount due but unpaid to a Finance Party under the Finance Documents provided that any amount standing to the credit of a French Obligor's Account can only be allocated to the amount owed by such French Obligor under the Finance Documents.
|
(e)
|
No Finance Party is responsible or liable to any Obligor for:
|
(i)
|
any non-payment of any liability of any Obligor which could be paid out of moneys standing to the credit of an Account, to the extent the Agent or Security Agent have complied with the provisions of this Clause 17 (Bank Accounts); or
|
(ii)
|
any withdrawal wrongly made, if made in good faith.
|
|
(f)
|
The Company must, within five Business Days of any reasonable request by the Agent, supply the Agent with the following information in relation to any payment received in an Account:
|
(i)
|
the date of payment or receipt;
|
(ii)
|
the payer; and
|
(iii)
|
the purpose of the payment or receipt.
|
(g)
|
The Obligors may pay to an Account Bank such reasonable transaction charges and other fees (in each case, consistent with that Account Bank's usual practice in relation to similar accounts) as the Obligors' Agent may from time to time agree with that Account Bank. No other charges or fees shall be payable to the Account Bank (in its capacity as such) in respect of the Accounts.
|
(h)
|
If an Obligor makes any payment into an Account which is not held in its name or for its benefit, an intercompany loan shall arise owed by the relevant Borrower to the Obligor making the payment.
|
(i)
|
To the extent that any payment is made from an Account by or on behalf of any Borrower to or for the benefit of another Obligor, an intercompany loan shall arise owed by that Obligor to the relevant Borrower.
|
18.
|
GUARANTEE AND INDEMNITY
|
18.1
|
Guarantee and indemnity
|
(a)
|
guarantees to each Finance Party punctual performance by each Obligor of all that Obligor's obligations under the Finance Documents;
|
(b)
|
undertakes with each Finance Party that whenever another Obligor does not pay any amount when due under or in connection with any Finance Document, that Obligor shall immediately on demand by the Agent 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 an Obligor under this indemnity will not exceed the amount it would have had to pay under this Clause 18 if the amount claimed had been recoverable on the basis of a guarantee.
|
18.2
|
Continuing guarantee
|
|
18.3
|
Reinstatement
|
18.4
|
Waiver of defences
|
(a)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any Obligor or any 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 member of the Group or any other person;
|
(e)
|
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature and whether or not more onerous) or replacement of any Finance Document or any other document or security (including, without limitation, any change in the purpose of, any extension of, or any variation or increase in any facility or amount made available under 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; or
|
(g)
|
any insolvency or similar proceedings.
|
18.5
|
Guarantor intent
|
|
18.6
|
Immediate recourse
|
(a)
|
Each Obligor 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 Obligor under this Clause 18. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
|
(b)
|
Each Obligor acknowledges the right of the Agent pursuant to Clause 24.18 (Acceleration) to accelerate the payment of any sum that may become due under any guarantee or indemnity contained in this Clause 18.
|
18.7
|
Appropriations
|
(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 Obligor shall be entitled to the benefit of the same; and
|
(b)
|
hold in an interest-bearing suspense account any moneys received from any Obligor or on account of any Obligor's liability under this Clause 18.
|
18.8
|
Deferral of Obligors' rights
|
(a)
|
to be indemnified by an Obligor;
|
(b)
|
to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;
|
(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 Obligor has given a guarantee, undertaking or indemnity under Clause 18 (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.
|
|
18.9
|
Release of Obligors' right of contribution
|
(a)
|
that Retiring Obligor is released by each other Obligor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Obligor arising by reason of the performance by any other Obligor of its obligations under the Finance Documents; and
|
(b)
|
each other Obligor 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 Obligor.
|
18.10
|
Additional security
|
18.11
|
Further assurance
|
18.12
|
Limitations: Luxembourg Guarantors
|
(a)
|
Notwithstanding any other provisions to the contrary in this Agreement, the guarantee granted by any Luxembourg Guarantor under this Clause 18 for the obligations of any Obligor which is not a direct or indirect subsidiary of such Luxembourg Guarantor shall be limited at any time, with no double counting, to an aggregate amount not exceeding the higher of:
|
(b)
|
95% of such Luxembourg Guarantor's
capitaux propres
(as referred to in article 34 of the Luxembourg law dated 19 December 2002 on the commercial register and annual accounts as amended (the
2002 Law
), determined as at the date on which a demand is made under this guarantee, increased by the amount of any Intra-Group Liabilities; and
|
(c)
|
95% of such Luxembourg Guarantor's
capitaux propres
(as referred to in art 34 of the 2002 Law) determined as at the date of this Agreement, increased by the amount of any Intra‑Group Liabilities.
|
(d)
|
For the purpose of determining the amount of the
capitaux propres
under this Clause 18.12, the assets of the Luxembourg Guarantor will be valued at their market value rather than their book value, as determined in good faith by the Agent or a reputable external expert to be appointed and instructed by the Agent (acting in its absolute discretion). Each Luxembourg Guarantor acknowledges that it is not entitled to challenge the appointment and instruction of an external expert made by the Agent and that
|
|
(e)
|
For the purposes of this Clause 18.12,
Intra-Group Liabilities
shall mean any amounts owed by the Luxembourg Guarantor to any other member of the group of companies to which it belongs (including, for the avoidance of doubt, any amounts owed that are represented by hybrid instruments such as preferred equity certificates) and that have not been financed (directly or indirectly) by a borrowing under the Finance Documents.
|
(f)
|
In addition, the above limitation shall not apply to (i) any amounts borrowed by a Luxembourg Guarantor or any of its direct or indirect subsidiaries under the Finance Documents and (ii) any amounts borrowed under the Finance Documents and on-lent, or otherwise made available, to the Luxembourg Guarantor or any of its direct or indirect subsidiaries (in any form whatsoever).
|
18.13
|
Limitations: French Guarantors
|
(a)
|
the obligations and liabilities of each French Guarantor under the Finance Documents and in particular under this Clause 18 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 Commercial Code and/or misuse of corporate assets within the meaning of article L.242-6 or L.244-1 of the French Commercial Code or any other law or regulation having the same effect, as interpreted by French courts;
|
(b)
|
the obligations and liabilities of each French Guarantor under Clause 18 for the obligations under the Finance Documents of any other Obligor which is not a Subsidiary of that French Guarantor (the
Guaranteed Obligor
), will be limited at any time to an amount equal to the aggregate of all amounts borrowed directly or indirectly under the Finance Documents by that Guaranteed Obligor and outstanding at the date a payment is to be made by such French Guarantor under this Clause 18 (
Guarantee and Indemnity
) to the extent directly or indirectly on-lent or otherwise made available by the Guaranteed Obligor to that French Guarantor or its Subsidiaries under any French Term Loan Agreement, inter-company loan agreement or similar arrangement and outstanding at the date a payment is to be made by such French Guarantor under this Clause 18(
Guarantee and Indemnity
) (it being specified that any payment made by such French Guarantor under this Clause 18 in respect of such Guaranteed Obligor's payment obligations under the Finance Documents shall automatically extinguish the payment obligations of such French Guarantor or of its Subsidiaries towards such Guaranteed Obligor
pro tanto
); and
|
(c)
|
the obligations and liabilities of each French Guarantor under Clause 18 for the obligations under the Finance Documents of any Obligor which is its Subsidiary shall not, in relation to amounts due by such Obligor as Borrower, be limited and shall therefore cover all amounts due by such Obligor as Borrower and, in relation to amounts due by such Obligor as Guarantor of another Obligor (the
Subsidiary
Guaranteed Obligor
), shall be limited at any time to an amount equal to the aggregate of all amounts borrowed directly or indirectly under the Agreement by the Subsidiary Guaranteed Obligor and outstanding at the date a payment is to be made by such French Guarantor under this Clause 18 (
Guarantee and Indemnity
) to the extent directly or indirectly on-lent or otherwise provided by it to that French Guarantor and/or its Subsidiaries under inter-company loan agreements or similar arrangements and
|
|
19.
|
REPRESENTATIONS
|
19.1
|
Status
|
(a)
|
It is a limited liability company, or for the French Propco, it is an unlimited liability company, duly incorporated or established and validly existing under the laws of its Original Jurisdiction.
|
(b)
|
It has the power to own its assets and carry on its business as it is being conducted.
|
19.2
|
Binding obligations
|
19.3
|
Non-conflict with other obligations
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
its constitutional documents; or
|
(c)
|
any material agreement or instrument binding upon it or any of its assets or constitute a material default or termination event (however described) under any such agreement or instrument.
|
19.4
|
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 Transaction Documents to which it is or will be a party and the transactions contemplated by those Transaction 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 Transaction Documents to which it is a party.
|
19.5
|
Validity and admissibility in evidence
|
(a)
|
Subject to the Legal Reservations, all Authorisations required:
|
(i)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
(ii)
|
to make the Transaction Documents to which it is a party admissible in evidence in each Relevant Jurisdiction,
|
|
(b)
|
All Authorisations necessary for the conduct of the business, trade and ordinary activities of the Obligors have been obtained or effected and are in full force and effect if failure to obtain or effect those Authorisations has or will have a Material Adverse Effect.
|
19.6
|
Governing law and enforcement
|
(a)
|
the choice of governing law of each of the Finance Documents will be recognised and enforced in each Relevant Jurisdiction; and
|
(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.
|
19.7
|
Deduction of Tax
|
(a)
|
As at the date of this Agreement, no UK Borrower is required to make any Tax Deduction from any payment it may make under any Finance Document to a Lender which is:
|
(i)
|
a UK Qualifying Lender:
|
(A)
|
falling within sub-paragraph (i)(A) of the definition of UK Qualifying Lender; or
|
(B)
|
except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within sub-paragraph (i)(B) of the definition of
UK
Qualifying Lender
; or
|
(C)
|
falling within sub-paragraph (ii) of the definition of UK Qualifying Lender; or
|
(ii)
|
a UK Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).
|
(b)
|
As at the date of this Agreement, no French Facility Borrower is required to make any Tax Deduction from any payment it may make under any Finance Document to the Original French Facility Lender.
|
(c)
|
As at the date of this Agreement, no Obligor (other than a UK Borrower and a French Facility Borrower) is required to make any Tax Deduction from any payment it may make under any Finance Documents.
|
19.8
|
No filing or stamp taxes
|
|
19.9
|
VAT
|
(a)
|
It is not a member of a VAT group other than a group made up solely of Obligors.
|
(b)
|
Each of the French Facility Borrowers has properly and timely elected for the application of VAT to the Rental Income in accordance with the provisions of Article 260-2 of the French Tax Code and is fully entitled to recover VAT.
|
19.10
|
No default
|
(a)
|
No Event of Default and, as at the date of this Agreement and the Utilisation Date, no Default is continuing or is reasonably likely to result from the making of any Utilisation or the entry into, or the performance of, or any transaction contemplated by, any Transaction Document.
|
(b)
|
No other event or circumstance is outstanding which constitutes (or with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or a termination event (however described) under any other agreement or instrument which is binding on it or to which any of its assets are subject which has, or will have a Material Adverse Effect.
|
19.11
|
Information
|
(a)
|
Except as disclosed in any Report, all written factual information supplied by it or on its behalf to any Finance Party in connection with the Transaction Documents was true and accurate in all material respects as at the date it was provided or as at any date at which it was stated to be given.
|
(b)
|
Any financial projections provided by it or on its behalf contained in the information referred to in paragraph (a) above have been prepared as at their date, on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c)
|
Except as disclosed in any Report, it has not omitted to supply any factual information which, if disclosed, would make the information referred to in paragraph (a) above untrue or misleading in any material respect as at any date it was stated to be given.
|
(d)
|
Except as disclosed in any Report, as at the Utilisation Date, nothing has occurred since the date of the information referred to in paragraph (a) which, if disclosed, would make that information untrue or misleading in any material respect.
|
19.12
|
Financial statements
|
(a)
|
Its Original Financial Statements were prepared in accordance with the Accounting Principles consistently applied.
|
(b)
|
Its Original Financial Statements give a true and fair view of its financial condition as at the end of the relevant financial year and results of operations during the relevant financial year.
|
|
(c)
|
Its most recent financial statements delivered pursuant to Clause 20.1 (Financial statements) and if available as at the date hereof:
|
(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 of (if audited) or fairly represent (if unaudited) its financial condition as at the end of the relevant financial year and operations (consolidated in the case of the Parent) during the relevant financial year.
|
19.13
|
Pari passu ranking
|
19.14
|
No proceedings pending or threatened
|
19.15
|
Valuation
|
(a)
|
To the best of its knowledge and belief having made due and careful enquiry, all written factual information supplied by it or on its behalf to the Valuer for the purposes of each Valuation was true and accurate as at its date or (if appropriate) as at the date (if any) at which it is stated to be given.
|
(b)
|
Any financial projections provided by it or on its behalf and contained in the information referred to in paragraph (a) above have been prepared as at their date, on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c)
|
To the best of its knowledge and belief having made due and careful enquiry, it has not omitted to supply any factual information to the Valuer which, if disclosed, would adversely affect the Valuation as at the date at which it is stated to be given.
|
(d)
|
To the best of its knowledge and belief having made due and careful enquiry, as at the Utilisation Date, nothing has occurred since the date the information referred to in paragraph (a) above was supplied which, if it had occurred prior to the Initial Valuation.
|
19.16
|
Title to Property and other assets
|
(a)
|
Except as disclosed in any Property Report, each Obligor named as owner of a Property (other than a German Property) in Schedule 2 (The Properties) on and from the Utilisation Date:
|
(i)
|
pending completion of the registration of its interests in the relevant property with the appropriate law registry will be the legal and beneficial owner or registered proprietor of that Property; and
|
(ii)
|
has good and marketable title to that Property (and in the case of the Scottish Properties, with no exclusion of indemnity by the Keeper of the Land Registry), free from Security and
|
|
(b)
|
Each German Propco will, from the first Utilisation Date have an irrevocable and unlimited expectancy right (
Anwartschaftsrecht
) to become the legal and beneficial, in relation to each such German Property, owner (
Eigentümer
) of that German Property, free from Security (other than those created by or pursuant to the Security Documents and other than any Existing Land Charge) and encumbrances, third party rights (other than any Permitted Encumbrances), and except as disclosed in a Report or taken into account in the Initial Valution, public law disposal restrictions (e.g. due to refurbishment areas (
Sanierungsgebiet
) or development areas (
Entwicklungsgebiet
)), public charges (
Baulasten
) or, to the best knowledge and belief of each German Propco, restrictions resulting from monument protection (
Denkmalschutz
), ordinances for urban design or preservation (
Gestaltungs- oder Erhaltungssatzungen
) or urban development contracts (
städtebauliche Verträge
).
|
(c)
|
Except as disclosed in any Property Report, each Obligor has good and marketable title to its Ownership Interests which are expressed to be the subject of the Transaction Security, free from Security and restrictions and onerous covenants (other than that created by or pursuant to the Security Documents or which constitutes Permitted Security).
|
(d)
|
Each Obligor has good and marketable title to its Subordinated Debt which are expressed to be the subject of the Transaction Security, free from Security and restrictions and onerous covenants (other than that created by or pursuant to the Security Documents or which constitutes Permitted Security).
|
(e)
|
From the Utilisation Date except as disclosed in the Property Report relating to a Property:
|
(i)
|
no breach of any law, regulation (including but not limited to the ERP (
établissement recevant du public
)) or covenant is outstanding which adversely affects or might reasonably be expected to adversely affect the value, saleability or use of that Property in any material respect;
|
(ii)
|
there is no covenant, agreement, stipulation, reservation, condition, interest, right, easement or other matter whatsoever adversely affecting that Property (other than a German Property) in any material respect;
|
(iii)
|
there is no agreement, interest, right, easement or other matter whatsoever adversely affecting that German Property in any material respect;
|
(iv)
|
nothing has arisen or has been created or is outstanding which would be an overriding interest, or an unregistered interest which overrides first registration or a registered disposition, over that Property;
|
(v)
|
there is no encroachment (
Überbau
) in respect of a German Property;
|
(vi)
|
all facilities necessary for the carrying on of its business at that Property are enjoyed by that Property;
|
(vii)
|
none of the facilities referred to in sub-paragraph (vi) above are enjoyed on terms:
|
(A)
|
entitling any person to terminate or curtail its use of that Property; or
|
(B)
|
which conflict with or restrict its use of that Property in any material respect;
|
|
(viii)
|
the relevant Obligor has not received any notice of any adverse claim by any person in respect of the ownership of that Property or any interest in it which might reasonably be expected to be determined in favour of that person, nor has any acknowledgement been given to any such person in respect of that Property in each case where the claim or acknowledgement materially and adversely affects that Property;
|
(ix)
|
that Property is held by the relevant Obligor free from any lease or licence (other than those entered into in accordance with this Agreement); and
|
(x)
|
except as disclosed in any Technical Due Diligence Report and to the best of its knowledge and belief having made due and careful enquiry, each Property is free and clear of material damage and structural defects.
|
(f)
|
All deeds and documents necessary to show good and marketable title to any Obligors' interest in a Property located in the United Kingdom will from the Utilisation Date be:
|
(i)
|
in possession of the Security Agent;
|
(ii)
|
held at the applicable land registry to the order of the Security Agent; or
|
(iii)
|
held to the order of the Security Agent by a firm of solicitors approved by the Security Agent for that purpose.
|
(g)
|
Upon registration of the German Propcos as owner of the respective German Property in the relevant German Land Register, the German Propcos will become the sole legal and beneficial owners of the German Properties, free from any Security (other than those created by or pursuant to the Security Documents) and encumbrances, third party rights and public law restrictions (other than any Permitted Encumbrances).
|
19.17
|
Information for Reports
|
(a)
|
To the best of its knowledge and belief having made due and careful enquiry, the written factual information supplied by it or on its behalf to (i) the lawyers who prepared any Property Report for the purpose of that Property Report and (ii) any report provider in connection with the preparation of any other Report, was true and accurate as at the date of the relevant Report or (if appropriate) as at the date (if any) at which it is stated to be given.
|
(b)
|
To the best of its knowledge and belief having made due and careful enquiry, the information referred to in paragraph (a) above was at the date it was expressed to be given complete and did not omit any information which, if disclosed would make that information untrue or misleading.
|
(c)
|
To the best of its knowledge and belief having made due and careful enquiry, as at the Utilisation Date, nothing has occurred since the date of any information referred to in paragraph (a) above which, if disclosed, would make that information untrue or misleading.
|
19.18
|
Environmental compliance
|
(a)
|
Except as disclosed in any Environmental Report, each member of the Group is in compliance in all material respects with all Environmental Law, Environmental Permits and all other material covenants, conditions, restrictions or agreements directly or indirectly concerned with any contamination, pollution or waste or the release or discharge of any emission or substance capable of causing harm to any living
|
|
(b)
|
Except as disclosed in any Environmental Report, no material Environmental Claim has been commenced or is threatened against any member of the Group.
|
19.19
|
No other business
|
(a)
|
No Obligor has traded or carried on any business since the date of its formation other than:
|
(i)
|
in the case of the Obligors, its entry into and performance of the terms of the Transaction Documents;
|
(ii)
|
in the case of each Targetco, conducting the business of acquiring, managing, developing, letting and owning its Property;
|
(iii)
|
the ownership of the Obligors; and
|
(iv)
|
any business ancillary to those referred to in sub-paragraphs (i) to (iii) above conducted in a manner consistent with the Finance Documents.
|
(b)
|
No Obligor has or has had at any time:
|
(i)
|
any employees; or
|
(ii)
|
any obligation in respect of any retirement benefit or occupational pension scheme.
|
(c)
|
No Obligor owns directly or indirectly, legally or beneficially, any investments in any unlimited company, partnership or other entity with unlimited liability other than shown in the Group Structure Chart.
|
(d)
|
No Obligor has any material liabilities (whether actual or contingent) other than under the Transaction Documents or arising as a result of its ownership, development management and/or occupation of the Properties.
|
19.20
|
Centre of main interests and establishments
|
19.21
|
Ranking of Security
|
|
19.22
|
Taxation
|
(a)
|
It has duly and punctually paid and discharged all material Tax imposed upon it or its assets within the time period allowed without incurring material interest or penalties (save to the extent that (i) payment is being contested in good faith, (ii) it has maintained adequate reserves for the payment of such Taxes and (iii) payment can be lawfully withheld).
|
(b)
|
It has filed all Tax returns without incurring any material late filing interest or penalty.
|
(c)
|
It is not aware of any claims being asserted against it with respect to Taxes.
|
(d)
|
Each of the Obligors is resident for Tax purposes solely in its Original Jurisdiction and does not have a permanent establishment outside of its Original Jurisdiction.
|
(e)
|
No Rental Income payable to any Obligor is subject to a requirement to make a deduction or withholding for or on account of Tax from that Rental Income except that this representation shall not apply to Rental Income payable in respect of a UK Property which is subject to the UK’s “Non-Resident Landlords Scheme” pursuant to the Taxation of Income from Land (Non-Residents) Regulations 1995 (but, for the avoidance of doubt, the Company’s obligation under the condition subsequent set out in paragraph 1(c) in Part 4 (Conditions Subsequent) Schedule 3 (Conditions Precedents and Conditions Subsequent) shall still apply).
|
(f)
|
It does not have the sole or main objective of Tax avoidance in entering into the Transaction Documents.
|
(g)
|
No Obligor has entered into any transaction with any third party except on arm’s length terms and for full market value.
|
(h)
|
It is not a US Tax Obligor.
|
19.23
|
French Tax
|
(a)
|
Each of the French Facility Borrowers and its direct and indirect shareholders are not subject to (including on a joint and several basis) the annual 3%-tax on property (
taxe annuelle de 3% sur les immeubles
) provided for by article 990 D of the French Tax Code, or is exempt from such Tax.
|
(b)
|
None of the French Facility Borrowers belong to a French tax consolidated group (
groupe intégré fiscalement
) within the meaning of articles 223 A
et seq
of the French Tax Code.
|
(c)
|
Trias OPCI – T complies with all requirements to benefit from the tax regime provided under article 208, 3° nonies of the French Tax Code.
|
19.24
|
Dutch fiscal unity
|
19.25
|
Ownership
|
(a)
|
As at the first Utilisation Date (and assuming that Completion has occurred as at that date), the Group Structure Chart accurately shows the ownership of each Original Obligor and each Targetco immediately after Completion.
|
|
(b)
|
As at the second Utilisation Date (and assuming that Completion in respect of the accession of the Additional German Propco and the Additional Property has occurred as at that date), the Updated Group Structure Chart accurately shows the ownership of each Obligor.
|
(c)
|
The shares (or any other Ownership Interests) in the capital of each Obligor are fully paid and are not subject to any option to purchase or similar rights.
|
(d)
|
The constitutional documents of each Obligor whose Ownership Interests are subject to the Transaction Security do not and could not restrict or inhibit any transfer of those Ownership Interests on creation or on enforcement of the Transaction Security.
|
19.26
|
Acquisition Documents
|
(a)
|
The Acquisition Documents contain all the material terms of the Acquisition.
|
(b)
|
To the best of its knowledge, no representation or warranty (as qualified by any disclosure made in accordance with the terms of any Acquisition Document) given by any party to the Acquisition Documents is untrue or misleading in any material respect.
|
19.27
|
Anti-Money Laundering Laws
|
19.28
|
Anti-corruption and anti-terrorism
|
(a)
|
In connection with the activities to which the Facilities relate, each Obligor has not directly or indirectly made or promised, and does not know or have reason to know that any of its employees, or any third party acting on its behalf, has made or promised a contribution, payment or gift or otherwise provided any other thing of value to, or for the private use of, any Government Official for the purpose of making a Prohibited Payment.
|
(b)
|
No officer, director or shareholder of an Obligor (but excluding any shareholder of the Parent):
|
(i)
|
is a Government Official; or
|
(ii)
|
is on a Sanctions List or is owned or controlled by a person who is on a Sanction List.
|
19.29
|
Insurance
|
19.30
|
Repetition
|
(a)
|
Each Additional Guarantor makes the representations and warranties set out in this Clause 19 (except 19.11 (Information), 19.25 (Ownership) (and 19.26 (Acquisition Documents)) to each Finance Party on the date of its accession as a Party.
|
(b)
|
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:
|
|
(i)
|
(except in the case of Clause 19.12 (Financial statements), the date of each Utilisation Request, on the Utilisation Date and the first day of each Interest Period; and
|
(ii)
|
in the case of Clause 19.12 (Financial statements), each date on which an Obligor delivers, or, if earlier, is obliged to deliver, financial statements in accordance with Clause 20.1 (Financial statements)
(except that those contained in paragraph (a) of Clause 19.12 (Financial statements) will cease to be so made once subsequent financial statements have been delivered under this Agreement).
|
20.
|
INFORMATION UNDERTAKINGS
|
20.1
|
Financial statements
|
(a)
|
its audited consolidated financial statements for that financial year; and
|
(b)
|
if audited financial statements are required to be prepared by an Obligor under applicable local law and regulation, the audited financial statements of that Obligor for that financial year or, if audited financial statements are not required to be prepared by an Obligor under applicable local law and regulations, the unaudited financial statements of that Obligor.
|
20.2
|
Compliance Certificate
|
(a)
|
The Obligors' Agent must supply to the Agent a Compliance Certificate:
|
(i)
|
five Business Days before each Interest Payment Date; and
|
(ii)
|
following the injection of any Cure Amount, in accordance with Clause 21.3 (Equity Cure).
|
(b)
|
Each Compliance Certificate must set out, in reasonable detail, calculations as to:
|
(i)
|
compliance with Clause 21.1 (Loan to Value Ratio) for the Interest Payment Date in respect of which that Compliance Certificate is delivered;
|
(ii)
|
compliance with Clause 21.2 (Default Level Debt Service Cover Ratio) for the Interest Payment Date in respect of which that Compliance Certificate is delivered.
|
(c)
|
If the Agent (acting reasonably) is of the opinion that there is a manifest error in a calculation in any Compliance Certificate provided by the Obligors' Agent pursuant to paragraph (a) above, or the Obligors' Agent does not provide a calculation when requested by the Agent, then the Agent must promptly notify the Borrowers of the details of this manifest error or missing information. Following that notification, the Agent may run the relevant calculation, and that calculation will, in the absence of manifest error, prevail over any calculation provided by the Borrowers (or in the absence of any calculation, as applicable). The Agent must promptly notify the Borrowers of any consequent revisions to the calculation.
|
(d)
|
Each Compliance Certificate must be duly authorised by the Obligors' Agent.
|
|
20.3
|
Requirements as to financial statements
|
(a)
|
Each set of financial statements delivered by the Company pursuant to Clause 20.1 (Financial statements) must be certified by a director of the relevant company as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition as at the date as at which those financial statements were drawn up.
|
(b)
|
The Company will procure that each set of financial statements of an Obligor delivered pursuant to Clause 20.1 (Financial statements) is prepared using the Accounting Principles, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in the Accounting Principles, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Agent:
|
(i)
|
a description of any change necessary for those financial statements to reflect the Accounting Principles, accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
|
(ii)
|
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
|
(c)
|
Any reference in this Agreement to those financial statements will be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
|
20.4
|
Monitoring of Property
|
(a)
|
On or before the date falling five Business Days before each Interest Payment Date, the Company must supply to the Agent a report containing the following information, in form and substance satisfactory to the Agent, in respect of (except in the case of proposed or required capital expenditure or repairs under sub-paragraphs (vii) and (viii) below) the Financial Quarter ending immediately prior to that Interest Payment Date:
|
(i)
|
a schedule of the existing occupational tenants of each Property, showing for each tenant, any guarantor, the term, any break clause, the rent, rent free, service charge, VAT, any other amounts payable in that period by that tenant together with, for each Property, details of all Operating Expenses;
|
(ii)
|
details of:
|
(A)
|
any arrears of rents or service charges under any Lease Document in excess of €50,000 (or its currency equivalent); and
|
(B)
|
any other material breaches of covenant under any Lease Document of which it is aware and in its reasonable opinion may have a material impact on the value of the relevant Property,
|
(iii)
|
details of any material dispute or litigation with, or any insolvency or similar proceedings affecting, any material occupational tenant of a Property or any guarantor of that material
|
|
(iv)
|
details of the next rent review date and of any rent reviews with respect to any Lease Document where the annual Rental Income payable in respect of that Lease Document exceeds €100,000 per annum; and
|
(v)
|
details of any Lease Document which has expired or been determined or surrendered in the relevant period and of any Lease Document maturing in the next 12 Months and any new letting signed and any proposed new letting where the proposed annual Rental Income exceeds €250,000 per annum (or its currency equivalent);
|
(vi)
|
copies of all material correspondence with insurance brokers handling the insurance of any Property where the claim has a value in excess of € 100,000 (or its currency equivalent);
|
(vii)
|
details of any actual capital expenditure with respect to each Property and any proposed capital expenditure which is not envisaged by the Business Plan;
|
(viii)
|
details of any actual or required material refurbishment, redevelopment or repairs to any Property where the projected costs of such refurbishment, redevelopment or repairs exceeds €100,000 (or its currency equivalent);
|
(ix)
|
any other information in relation to a Property reasonably requested by the Agent (in sufficient copies for all the Lenders, if the Agent so requests); and
|
(x)
|
details of any correspondence with the head landlord or its agents or insurers in relation to the Headlease or the Property to the extent that any such correspondence could reasonably be expected to have an impact on the Property and/or any Security and any evidence required to demonstrate compliance with its obligations under Clause 23.3 (Headleases).
|
(b)
|
The Obligors' Agent must notify the Agent of any likely buyer of any part of a Property (including terms of reference).
|
20.5
|
Information: miscellaneous
|
(a)
|
promptly upon becoming aware of them, the details of any material litigation, arbitration or administrative proceedings or investigations which are current, threatened or pending against any member of the Group (or against its directors) (including, without limitation, any update on the on-going proceedings before the commercial rents judge (
juge des loyers commerciaux
) and on the outcome of the challenge of the indexation clause, both in in respect of the Sanofi lease, in connection with the relevant French Property or any arbitration or administrative proceedings or investigations where the value of the relevant claim or amount contested exceeds €100,000 (or its currency equivalent));
|
(b)
|
promptly following receipt by the relevant German Propco, a copy of the hazardous materials survey and any certificate of removal in relation to the hazardous materials in relation to the German Property located in Münsterstrasse 261, 40470 Düsseldorf received by the relevant German Propco from the relevant Vendor after the date of this Agreement;
|
|
(c)
|
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which is made against any Obligor (or against its directors); and
|
(d)
|
promptly, such further information regarding the financial condition, business and operations of any Obligor or the Group, as any Finance Party (through the Agent) may reasonably request.
|
20.6
|
Notification of default
|
(a)
|
Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b)
|
Promptly upon a request by the Agent, the Obligors' Agent shall supply to the Agent a certificate signed by two of its directors or senior officers 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).
|
20.7
|
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;
|
(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 by a Lender or the French Facility Lender of any of its rights under this Agreement and a French Term Loan Agreement to a party that is not a Lender prior to such assignment,
|
(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)
|
In respect of the New Sponsor, promptly following receipt by the Agent or a Lender 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) in order for the Agent or such Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable
|
|
20.8
|
Business Plan
|
(a)
|
The Company:
|
(i)
|
will update the Business Plan annually on or before 30 January in each year prior to the Final Repayment Date and will deliver to the Agent the updated Business Plan; and
|
(ii)
|
may amend or update the Business Plan at any time.
|
(b)
|
If the Company updates or changes the Business Plan, it must promptly deliver to the Agent, in sufficient copies for each of the Lenders, such updated or changed Business Plan together with a written explanation of the main changes in that Business Plan.
|
21.
|
FINANCIAL COVENANTS
|
21.1
|
Loan to Value Ratio
|
21.2
|
Default Level Debt Service Cover Ratio
|
21.3
|
Equity Cure
|
(a)
|
Subject to, and in accordance with, the provisions of this Clause 21.3, the Company may elect to designate a net amount received by it in cash (in euro) in respect of any Equity Contribution and/or Subordinated Debt (a
Cure Amount
) in order to remedy any Financial Covenant Breach. For the purposes of this Agreement, a
Financial Covenant Breach
means, in respect of the same Interest Payment Date, any one or more of a Loan to Value Breach or a Default Level Debt Service Cover Breach (each as defined below), as the context requires.
|
(b)
|
If, on any Interest Payment Date, a Financial Covenant Breach occurs, the Cure Amount must be an amount at least equal to the following:
|
(i)
|
in the event of a breach of the Loan to Value covenant set out in Clause 21.1 (Loan to Value Ratio) (a
Loan to Value Breach
), an amount equal to the minimum reduction in Loans on the relevant Interest Payment Date which would have been required to prevent such Loan to Value Breach; or
|
(ii)
|
in the event of a breach of the Default Level Debt Service Cover Ratio covenant set out in Clause 21.2 (Default Level Debt Service Cover Ratio) above (a
Default Level
Debt Service Cover Breach
), an amount equal to the minimum reduction required to be made to the Loans at the start of the Default Level Measurement Period relating to that Interest Payment Date
|
|
(iii)
|
in the event of more than one Financial Covenant Breach on that Interest Payment Date, the highest of the applicable Cure Amounts calculated in accordance with the preceding sub-paragraphs.
|
(c)
|
In order to remedy any Financial Covenant Breach or Financial Covenant Breaches, the Obligors must, on or before the date falling fifteen Business Days after (and including) the relevant Interest Payment Date on which such Financial Covenant Breach or Financial Covenant Breaches occurred, ensure that the relevant Cure Amount is either:
|
(i)
|
applied in prepayment of the Loans; or
|
(ii)
|
deposited into the Equity Cure Account.
|
(d)
|
A Cure Amount may only be taken into account to remedy one or more Financial Covenant Breaches in respect of an Interest Payment Date if each of the following conditions is satisfied:
|
(i)
|
such Cure Amount is applied in accordance with paragraph (c) above;
|
(ii)
|
at the time the Cure Amount is applied in accordance with paragraph (c) above, notice is given by the Company to the Agent and such notice:
|
(A)
|
certifies the aggregate of such amounts received by the Company, specifies the Financial Covenant Breach (or Financial Covenant Breaches) and the Default Level Measurement Period (if applicable) in respect of which such Cure Amount is to be taken into account (with regard to the provisions of paragraph (b) above) and is signed by a director of the Company; and
|
(B)
|
is accompanied by a revised Compliance Certificate indicating compliance with the ratios in Clause 21.1 (Loan to Value Ratio) and 21.2 (Default Level Debt Service Cover Ratio) above after taking into account the Cure Amount designated in accordance with this Clause 21.3 to remedy the non-compliance; and
|
(iii)
|
no Cure Amount may be designated as set out above:
|
(A)
|
more than four times over the life of the Facilities; or
|
(B)
|
in respect of more than two consecutive Interest Payment Dates.
|
(e)
|
For the purpose of calculating the Loan to Value Ratio, the Default Level Debt Service Cover Ratio and the Cash Trap Debt Service Cover Ratio pursuant to this Agreement, any component (or any part of any component) of such ratios (including, but not limited to, the Loans, the Market Value, the Cash Trap Debt Service, the Cash Trap Net Operating Income, the Default Level Debt Service and the Default Level Net Operating Income) which is expressed in a currency other than the Base Currency, must be converted into the Base Currency at the Agent's Spot Rate of Exchange on the relevant date of calculation.
|
|
22.
|
GENERAL UNDERTAKINGS
|
22.1
|
Authorisations
|
(a)
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b)
|
if requested, supply certified copies to the Agent of,
|
(i)
|
enable it to perform its obligations under the Transaction Documents and to ensure the legality, validity, enforceability or admissibility in evidence in each Relevant Jurisdiction of any Transaction Document; or
|
(ii)
|
own its assets and carry on its business as it is being conducted.
|
22.2
|
Compliance with laws
|
22.3
|
Negative pledge
|
(a)
|
No Obligor may create or permit to subsist any Security over any of its assets or any encumbrances, easement or any other arrangement having a similar effect over any of its Properties.
|
(b)
|
No Obligor may:
|
(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;
|
(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,
|
(c)
|
Paragraph (a) above does not apply to any Security or (as the case may be) Quasi-Security, or any encumbrances, easement or any other arrangement having a similar effect listed below:
|
|
(i)
|
the Transaction Security;
|
(ii)
|
any lien arising by operation of law and in the ordinary course of trading;
|
(iii)
|
any lien arising under the general terms and conditions of banks or Sparkassen (
Allgemeine Geschäftsbedingungen der Banken oder Sparkassen
) with whom any member of the Group maintains a banking relationship in the ordinary course of business;
|
(iv)
|
any Security or Quasi-Security over bank accounts arising under clause 24 or clause 25 of the general terms and conditions (
algemene bankvoorwaarden
) of any member of the Dutch Bankers’ Association (
Nederlandse Vereniging van Banken
) provided that such Security or Quasi Security is limited to secure amounts which are owed to the relevant account bank for bank account management fees;
|
(v)
|
any Security or Quasi-Security over bank accounts arising under the Custody Agreement;
|
(vi)
|
any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier's standard terms but for the avoidance of doubt, excluding any Property or Ownership Interests;
|
(vii)
|
any Security (existing at the date of this Agreement) that is to be irrevocably removed or discharged or released in full on or prior to the Utilisation Date;
|
(viii)
|
any Security over a German Property the granting or creation of which cannot be prohibited under section 1136 of the German Civil Code (
Bürgerliches Gesetzbuch
);
|
(ix)
|
any permitted Encumbrances;
|
(x)
|
any other Security granted by an Obligor with the prior written consent of the Agent (acting on the instructions of the Majority Lenders); and
|
(xi)
|
any Security securing indebtedness the outstanding principal amount of which (when aggregated with the outstanding principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under sub-paragraphs (i) to (ix) above does not exceed €250,000 (or its currency equivalent) at any time.
|
22.4
|
Disposals
|
(a)
|
No Obligor may enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary), to dispose of all or any part of any assets.
|
(b)
|
Paragraph (a) above does not apply to any disposal:
|
(i)
|
permitted under Clause 23.2 (Occupational Leases);
|
(ii)
|
by an Obligor of a Property or of any of its Ownership Interests in an Obligor made in accordance with paragraph (c) or paragraph (d) below;
|
|
(iii)
|
of cash by way of a payment out of an Account in accordance with this Agreement;
|
(iv)
|
of assets compulsorily acquired by any government authority;
|
(v)
|
of assets (other than a Property, Ownership Interests, businesses or Intellectual Property) in exchange for other assets comparable or superior as to type, value and quality;
|
(vi)
|
arising as a result of any Permitted Security;
|
(vii)
|
made in the ordinary course of trading of any asset subject to the floating charge created under a Security Agreement;
|
(viii)
|
of obsolete assets which are no longer required for the efficient operation of its business;
|
(ix)
|
of assets (other than any Ownership Interests, any Property, businesses or Intellectual Property) for cash where the net consideration receivable (when aggregated with the net consideration receivable for any other sale, lease, licence, transfer or other disposal not allowed under the preceding paragraphs) does not exceed €250,000 (or its currency equivalent) in any financial year; or
|
(x)
|
of a German Property (which cannot be prohibited under section 1136 of the German Civil Code (
Bürgerliches Gesetzbuch
)).
|
(c)
|
An Obligor may dispose of its Property, or its Ownership Interests in an Obligor, (each a
Disposal
)
if:
|
(i)
|
such Disposal is on arm's length terms to an unrelated third party for cash consideration;
|
(ii)
|
as at the date of entering into a binding agreement in respect of such Disposal, no Default is continuing (or, if a Default is continuing, such Default will be remedied to the satisfaction of the Agent (acting reasonably) before or as a result of the completion of such Disposal) or would result from the completion of such Disposal;
|
(iii)
|
as at the date of entering into a binding agreement in respect of such Disposal, no Cash Trap Event is continuing (or, if a Cash Trap Event is continuing, such Cash Trap Event will be remedied to the satisfaction of the Agent (acting reasonably) before or as a result of the completion of such Disposal) or would result from the completion of such Disposal;
|
(iv)
|
the Disposal Proceeds received from such Disposal, when aggregated with any Equity Contribution paid into the relevant Deposit Account at the same time as such Disposal Proceeds, are not less than the aggregate of:
|
(A)
|
the Release Price of that Property or, in the case of the disposal of Ownership Interests in an Obligor, of the Property or Properties owned by that Obligor or any Subsidiary; and
|
(B)
|
an amount determined by the Agent (acting reasonably) to provide for prepayment fees and any other amounts that will become due and payable under paragraph (b) of Clause 7.11 (Restrictions) as a result of the application of the Disposal Proceeds in prepayment of the Loans; and
|
(v)
|
the Obligors' Agent certifies to the Agent in writing that the conditions in sub-paragraphs (i) to (iv) above have been satisfied,
|
|
(d)
|
Subject to paragraph (e) below an Obligor may make a Disposal at any time after the date falling twelve Months before the Final Repayment Date, at any time when a Cash Trap Event is continuing (and such Cash Trap Event would not be remedied to the satisfaction of the Agent (acting reasonably) before or as a result of the completion of such Disposal) and at any time when such a Disposal would trigger a Cash Trap Event if:
|
(i)
|
that disposal is on arm's length terms to an unrelated third party for cash consideration;
|
(ii)
|
the Disposal Proceeds received from such Disposal, when aggregated with any Equity Contribution paid into the relevant Deposit Account at the same time as such Disposal Proceeds, are not less than the aggregate of:
|
(A)
|
the Release Price of that Property or, in the case of the disposal of Ownership Interests in an Obligor, of the Property or Properties owned by that Obligor or any Subsidiary; and
|
(B)
|
an amount determined by the Agent (acting reasonably) to provide for prepayment fees and any other amounts that will become due and payable under paragraph (b) of Clause 7.11 (Restrictions) as a result of the application of the Disposal Proceeds in prepayment of the Loans;
|
(iii)
|
in respect of a Disposal which triggers a Cash Trap Event, if the Disposal Proceeds received from such Disposal exceed the Release Price of that Property or, in the case of the disposal of Ownership Interests in an Obligor, of the Property or Properties owned by that Obligor or any Subsidiary (the
excess
), an amount equal to the lower of:
|
(A)
|
the excess; and
|
(B)
|
the amount required to remedy any Cash Trap Event which is continuing after such Disposal,
|
(iv)
|
the Obligors' Agent certifies to the Agent in writing that the conditions in sub-paragraphs (i) and (ii) above have been satisfied,
|
(e)
|
No Obligor may make a Disposal pursuant to paragraph (d) above if the Disposal would trigger a Default or if an Event of Default is continuing at the date of the proposed binding agreement in respect of such Disposal.
|
(f)
|
The Obligor must ensure that all Disposal Proceeds are immediately paid into the relevant Deposit Account for application in accordance with Clause 17.7 (Deposit Accounts).
|
(g)
|
A Property disposed of, or a Property owned by a Borrower the Ownership Interests of which are disposed of, in accordance with paragraphs (c) above and (d) above will cease to be a Property.
|
(h)
|
In order to determine whether, for the purposes of paragraph (c) or (d) above, a Cash Trap Event that is continuing at the time of a Disposal will be remedied by that Disposal or whether a Cash Trap Event
|
|
(i)
|
the Loan to Value as at the most recent Interest Payment Date prior to the delivery of that certificate would not equal or exceed 70 per cent. on a
pro forma
basis as a result of the Relevant Disposal where, for these purposes, the Loan to Value as at the most recent Interest Payment Date prior to the delivery of that certificate will be
pro forma
adjusted by deducting the Market Value of the relevant Property or Properties forming part of the Relevant Disposal from the Market Value of all Properties (as determined for the Loan to Value as at the most recent Interest Payment Date prior to the delivery of that certificate) and by deducting from the outstanding Loans (excluding the French Facility Loans to the extent that it is still outstanding) as at the most recent Interest Payment Date prior to the delivery of that certificate the Disposal Proceeds that are certified by the Obligors' Agent to be applied in prepayment of the Loans in accordance with this Clause 22.4; and
|
(ii)
|
the Cash Trap Debt Service Cover Ratio as at the most recent Interest Payment Date prior to the delivery of that certificate would be greater than 1.5:1 on a
pro forma
basis as a result of the Relevant Disposal where, for these purposes, the Cash Trap Debt Service Cover Ratio as at the most recent Interest Payment Date prior to the delivery of that certificate will be
pro forma
adjusted by calculating Cash Trap Debt Service for the relevant Cash Trap Measurement Period as if the Disposal Proceeds that are certified by the Obligor's Agent to be applied in prepayment of the Loans in accordance with this Clause 22.4 (excluding the French Facility Loans to the extent that it is still outstanding) on the first day of such Cash Trap Measurement Period with the Cash Trap Projected Net Operating Income in respect of that Cash Trap Measurement Period being reduced by the Cash Trap Projected Net Operating Income attributable to the Property or Properties forming part of the Relevant Disposal.
|
22.5
|
Financial Indebtedness
|
(a)
|
No Obligor may, without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), incur or permit to be outstanding any Financial Indebtedness;
|
(b)
|
Paragraph (a) does not apply to any Financial Indebtedness:
|
(i)
|
incurred under the Finance Documents;
|
(ii)
|
repaid on or prior to the Utilisation Date;
|
(iii)
|
which constitutes Subordinated Debt which is subject to paragraph (c) below;
|
(iv)
|
that arises as a normal trade credit in the ordinary course of any Obligor’s trading and is not outstanding for more than 90 days; or
|
(v)
|
not permitted by the preceding paragraphs and the outstanding principal amount of which does not exceed €250,000 (or its currency equivalent) in aggregate for the Group at any time.
|
(c)
|
Each Obligor must ensure that each Subordinated Debt Document and the Subordinated Debt created or evidenced by that Subordinated Debt Document, is governed by the laws of Luxembourg.
|
22.6
|
Lending and guarantees
|
(a)
|
No Obligor may be the creditor in respect of any loan or any form of credit to any person other than:
|
|
(i)
|
any loan to another Obligor which constitutes Subordinated Debt;
|
(ii)
|
any trade credit extended by an Obligor in the ordinary course of trade and is not outstanding for more than 90 days; and
|
(iii)
|
any advance payment made in relation to Permitted Capex in the ordinary course of business provided that the aggregate annual amount of any such advance payments does not exceed 10 per cent of the aggregate projected costs of the Permitted Capex for that 12 Month period.
|
(b)
|
No Obligor may give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which that Obligor assumes any liability of any other person other than:
|
(i)
|
any guarantee or indemnity given under the Finance Documents; or
|
(ii)
|
any liability of an Obligor arising under a declaration of joint and several liability (
hoofdelijke aansprakelijkheid
) as referred to in Article 2:403 of the Dutch Civil Code.
|
22.7
|
Merger
|
(a)
|
No Obligor may enter into any amalgamation, demerger, merger or corporate reconstruction.
|
(b)
|
Paragraph (a) above does not apply to any Disposal permitted pursuant to Clause 22.4 (Disposals).
|
22.8
|
Conduct of business
|
(a)
|
No Obligor may trade or carry on any business or incur any liabilities other than:
|
(i)
|
the ownership of the Obligors; and
|
(ii)
|
in the case of each Propco, the ownership, management and letting of its interests in the relevant Property and related activities in any manner which is consistent with the Finance Documents.
|
(b)
|
The Parent may not make or permit any material change to the nature or scope of the business or activities of the Obligors.
|
(c)
|
The Parent must not have any direct or indirect Subsidiaries other than the Obligors.
|
22.9
|
Acquisitions
|
(a)
|
No Obligor may make any acquisition or investment.
|
(b)
|
Paragraph (a) above shall not apply to:
|
(i)
|
any Acquisition; or
|
(ii)
|
a Permitted Share Issue.
|
22.10
|
Targetco
|
|
22.11
|
Acquisition Documents
|
(a)
|
No Obligor may, in any material respect, amend, vary, novate, forego or waive any provision, right or condition arising in or under any Acquisition Document or agree to do any of those things except as disclosed to the Agent before the date of this Agreement or with the prior consent of the Agent (acting reasonably) or as required by law.
|
(b)
|
Each Obligor must comply with all its material obligations under the Acquisition Documents.
|
(c)
|
Each Obligor must take all reasonable and practical steps to preserve and enforce its material rights and pursue any claims and remedies arising under the Acquisition Documents.
|
22.12
|
Other agreements
|
(a)
|
the Transaction Documents;
|
(b)
|
any agreement in connection with or for the purposes of carrying out the Permitted Capex; and
|
(c)
|
any other agreement expressly allowed under any other term of this Agreement.
|
22.13
|
Material contracts
|
(a)
|
Subject to Clause 23.9 (Managing Agents), Clause 23.11 (Asset Managers) and excluding amendments to any agreements in connection with or for the purpose of carrying out the Permitted Capex, no Obligor may amend or alter the terms of any contract (other than the Custody Agreement) to which it is a party which creates liability in excess of €100,000 (or its currency equivalent) without the prior written consent of the Agent (not to be unreasonably withheld or delayed). For the avoidance of doubt, the terms of this clause do not permit any amendments or alterations to the terms of a management agreement which would be in breach of 23.9 (Managing Agents) or Clause 23.11 (Asset Managers).
|
(b)
|
The OPCI may not amend or alter the Custody Agreement in a way that will adversely affect the rights of the Finance Parties under the Finance Documents.
|
(c)
|
The OPCI may not invest into any Financial Securities (
Tites Financiers
) as defined in the Custody Agreement without the prior written consent of the Lenders.
|
22.14
|
Shares, units, dividends and share redemption
|
(a)
|
No Obligor may issue any further shares or amend any rights attaching to its issued shares, units, stocks, debentures or other securities.
|
(b)
|
Paragraph (a) above does not apply to a Permitted Share Issue.
|
(c)
|
No Obligor may:
|
(i)
|
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital or partnership capital (or any class of its share capital, partnership capital or unit capital);
|
(ii)
|
repay or distribute any dividend or share premium reserve;
|
|
(iii)
|
pay any management, advisory or other fee to or to the order of any of its shareholders or partners; or
|
(iv)
|
redeem, repurchase, defease, retire or repay any of its share capital, partnership capital or unit capital or resolve to do so.
|
(d)
|
No Obligor may subscribe for or otherwise acquire any stock, share or unit which is only partly paid up or in respect of which the company which issued that stock, share or unit has any call or lien.
|
(e)
|
Paragraph (c) does not apply to a Permitted Payment provided that, at the time such Permitted Payment is made no Default is continuing, no Cash Trap Event is continuing and no Default or Cash Trap Event would occur as a result of the Permitted Payment.
|
(f)
|
Each Obligor must promptly pay all calls or other payments which may be or become due in respect of any shares, units or other Ownership Interests held by it and must not appoint any third party nominee (other than the appointment of the Security Agent pursuant to the terms of a Security Document) to exercise any members' or partners' rights or information rights in relation to any shares, units or other Ownership Interests held by it.
|
(g)
|
The French Facility Borrowers must promptly pay by way of dividend or cash distribution (to the extent legally permissible) an amount equal to the French Mandatory Prepayment Shortfall Amount received by such French Facility Borrower to its shareholder and each Obligor shall ensure (to the extent legally permissible) that any payments received directly or indirectly from the French Facility Borrowers pursuant to this paragraph (g) are paid (via on-payment of dividend or cash distribution) to the Company.
|
22.15
|
VAT
|
(a)
|
No Obligor may form or be a member of any VAT group other than with another Obligor.
|
(b)
|
No Propco, other than a Dutch Propco with a VAT exempt tenant, may take any steps (whether by act, omission or otherwise) by which any option to tax made by it by virtue of which VAT is chargeable in respect of its property rental activity could be revoked or cease to have effect.
|
22.16
|
Taxes
|
(a)
|
Each Obligor must make all Tax filings within applicable time limits (save as where failure to do so would not (i) give rise to a Material Adverse Effect or (ii) trigger material late submission penalties or fees) and pay all Taxes due and payable by it (including without limitation, any Taxes due and payable by an Obligor in respect of a Spin) prior to the accrual of any material fine or penalty for late payment, unless (and only to the extent that):
|
(i)
|
payment of those Taxes is being contested in good faith; and
|
(ii)
|
adequate reserves are being maintained for those Taxes and the costs required to contest them.
|
(b)
|
Each Obligor must comply in all material respects with all Tax laws applicable to it including, for the avoidance of doubt, any legislation, rules, published practice and any rulings and clearances from any tax authority, relating to transfer pricing and thin capitalisation.
|
(c)
|
Each Obligor must:
|
(i)
|
ensure that its residence for Tax purposes is solely in its Original Jurisdiction;
|
|
(ii)
|
ensure that no tax losses belonging to it or tax reliefs available to it are surrendered, waived or otherwise disposed of (but, for the avoidance of doubt, this shall not include the disclaiming of any capital allowances) without the Agent's prior written consent except to another Obligor; and
|
(iii)
|
subject to paragraph (a) above and paragraphs (c) and (d) below, except in relation to a transfer of the Ownership Interests in the Group by the Original Sponsor to the New Sponsor (the
Spin
), ensure that no latent material capital gains tax, stamp duty or stamp duty land tax liability of any Obligor is triggered or realised, whether by reason of capital gains tax degrouping or for any other reason except that this undertaking shall not be given in relation to any such latent tax liability triggered or realised by reason of French Targetco Joubert electing to enter into the tax regime provided for by article 208 C of the French Tax Code.
|
(d)
|
The Company shall by not less than 10 Business Days prior to implementing the Spin provide the Agent with updated Tax Structure Reports (addressed to or capable of being relied upon by the Finance Parties) which must set out the steps required to implement the Spin and confirm the amount of all tax liabilities of the Group which will become payable by the Group as a result of the implementation of the Spin.
|
(e)
|
Each Obligor must ensure that on or prior to the date of effecting the Spin, an amount equal to the amount of any Taxes due and payable by the Group in respect of the Spin (as set out in the updated Tax Structure Reports referred to in paragraph (d) above) is standing to the credit of the Company General Account.
|
(f)
|
Each Obligor must ensure that it does not have a branch, agency, business (other than the rental business in respect of the relevant Property) or other permanent establishment outside its Original Jurisdiction.
|
(g)
|
Each Propco acquiring a UK Property must request an approval of HM Revenue & Customs under the Taxation of Income from Land (Non-Residents) Regulations 1995 in order that all amounts of Rental Income may be paid to that Propco without any withholding or deduction of tax.
|
(h)
|
On and from the date of acquisition of a UK Property by a Propco, that Propco must hold the relevant UK Property on investment account and exclusively with an investment intention for UK tax purposes.
|
(i)
|
SCI Trias FRA Marly – T shall ensure that it does not carry out any real estate trading or building development for trading purposes.
|
(j)
|
No Obligor shall enter into any transaction with any person which gives rise to material tax leakage as a result of not being on arm's length terms.
|
22.17
|
Luxembourg Tax
|
(a)
|
The Obligors must, to the extent permitted by law, implement the Transaction and determine its liability to tax in accordance with the principles laid down in the Tax Structure Report and the Obligors undertake to inform the Luxembourg tax authorities about the implementation of the structure and the main aspects of the tax treatment applicable thereto in an information letter which will be submitted to the Luxembourg tax authorities together with the filing of the next annual tax return and will promptly notify the Agent when such information letter has been submitted to the Luxembourg Tax Authorities (and in any case, no later than 30 days after such filing).
|
(b)
|
Upon the request of any Lender, the Obligors will procure that such Lender or its agent as permitted to inspect at the offices of Arendt in Luxembourg the information letter and any transfer pricing
|
|
(c)
|
The UK Propcos will use GBP as their functional currency.
|
22.18
|
French Tax
|
(a)
|
Each of the French Facility Borrowers and its direct and indirect shareholders shall remain not subject to (including on a joint and several basis) the annual 3%-tax on property (
taxe annuelle de 3% sur les immeubles
) provided for by article 990 D of the French Tax Code or shall be exempt from such 3% tax.
|
(b)
|
None of the French Facility Borrowers will belong to a French tax consolidated group (
groupe intégré fiscalement
) within the meaning of articles 223 A
et seq
of the French Tax Code, except if such group is formed solely with other French Facility Borrowers.
|
(c)
|
Trias OPCI – T shall comply with all requirements to benefit from the tax regime provided under article 208, 3° nonies of the French Tax Code.
|
(d)
|
Provided that it is in the best economic interests of French Targetco Joubert to do so, French Targetco Joubert shall make the election referred to in article 208 C III bis of the French Tax Code and comply with all requirements to benefit from the tax regime provided under article 208 C of the French Tax Code from 1 January 2016.
|
(e)
|
SCI Trias FRA Marly – T shall not elect to be subject to corporation income tax imposed by France.
|
22.19
|
Dutch fiscal unity
|
22.20
|
Syndication and Securitisation
|
(a)
|
Each Obligor agrees that all or part of any Loan or Commitment, or any Lender's interest therein or under any Finance Document may be syndicated and/or securitised (whether alone or in conjunction with any other loan or loans).
|
(b)
|
Each Obligor must provide reasonable assistance to each Arranger in the preparation of any information memorandum prepared in relation to this transaction and to the primary syndication of the Facility (including, without limitation, by making senior management available for the purpose of making presentations to, or meeting with, potential lending institutions) and will comply with all reasonable requests for information from potential syndicate members prior to completion of syndication.
|
(c)
|
In connection with the syndication and/or Securitisation of any Facility (whether alone or in conjunction with other facilities), each Obligor agrees to:
|
(i)
|
co-operate with the Finance Parties to facilitate any Securitisation of all or any part of this Facility or of any Loan, and the rating of any Lender's interest in any of the Finance Documents by internationally recognised ratings agencies nominated by the Finance Party concerned;
|
|
(ii)
|
co-operate in the preparation of the related offering circular and to provide such information as any Finance Party may reasonably require, including any information relating to the Properties and the Obligors generally which any Finance Party may reasonably consider necessary to include in that offering circular;
|
(iii)
|
subject to the terms of the Occupational Leases, provide such access to the Properties, tenant and financial information and to the management of the Obligors as the Agent may reasonably require; and
|
(iv)
|
enter into any additional documents or any amendments to the Finance Documents that the Agent may reasonably require (including any required to tranche, sub-divide or split the whole or part of a Loan into one or more separate tranches in any amounts, having the same or different interest rates and which may rank in priority on a
pari passu
basis or otherwise) (each a
Tranche
)
provided that
in each case, the Obligors shall not be required to agree to any amendments which:
|
(A)
|
have a material adverse impact or impose any greater obligation on any member of the Group;
|
(B)
|
result or could result in the increase in the weighted average cost of the Facility (whether by an increase in the Margin, fees or otherwise) to the Obligors; or
|
(C)
|
are not necessary or reasonably incidental to establish Tranches in accordance with the terms of this paragraph (c)(iv).
|
22.21
|
Sanctions
|
(a)
|
Each Obligor must at all times comply in all respects with all Sanctions and with the requirements of all laws and regulations applicable to it, including without limitation, all laws and regulations regarding anti-terrorism, however, in each case only insofar as this undertaking does not result in a violation of, or conflict with, section 7 of the German Foreign Trade Ordinance (
Außenwirtschaftsverordnung
).
|
(b)
|
No Obligor shall (and the Company shall procure that no other member of the Group will) use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of the Facility to fund or finance any business activities or transactions:
|
(i)
|
of or with a Sanctions Restricted Party; or
|
(ii)
|
in any other manner which would reasonably be expected to result in any member of the Group or any Finance Party being in breach of any Sanctions (if and to the extent applicable to either of them) or becoming a Sanctions Restricted Party,
|
(c)
|
No Obligor may (and the Company must procure that no other member of the Group will) use any revenue or benefit derived from any activity or dealing with any Sanctions Restricted Party in discharging any obligation due or owing to any Lender or other Finance Party.
|
(d)
|
The Parent and its Affiliates have conducted their businesses in compliance with applicable Anti-Corruption Law and have instituted and maintained, and will continue to maintain, policies and
|
|
(e)
|
The Borrowers may not directly or indirectly use the proceeds of any Loan or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other person or entity for the purpose of financing or facilitating any activity that would violate applicable Anti-Corruption Law.
|
22.22
|
Anti-corruption law
|
(a)
|
No Obligor may (and the Parent must ensure that no other member of the Group will) directly or indirectly use the proceeds of any Facility:
|
(i)
|
for any purpose which would breach any Anti-Corruption Law;
|
(ii)
|
to make or promise to make a Prohibited Payment;
|
(iii)
|
in connection with any business involving or benefiting a Sanction List or a Sanctioned Country.
|
(iv)
|
for any illegal purpose and will not repay any Facility with the proceeds of any illegal activity.
|
(b)
|
Each Obligor must (and the Parent must ensure that each other member of the Group will):
|
(i)
|
conduct its business in compliance with applicable Anti-Corruption Laws; and
|
(ii)
|
maintain policies and procedures designed to promote and achieve compliance with applicable Anti-Corruption Law.
|
22.23
|
Financial Assistance
|
22.24
|
Pensions or employees
|
23.
|
PROPERTY UNDERTAKINGS
|
23.1
|
Title
|
(a)
|
Each Propco must exercise and enforce its rights and comply in all material respects with any covenant, stipulation or obligation (restrictive or otherwise) at any time affecting its Property.
|
(b)
|
Subject to the terms of Clause 23.2 (Occupational Leases) and to the terms of any Lease Document, no Obligor may agree to any material amendment, supplement, waiver, surrender or release of any covenant, stipulation or obligation (restrictive or otherwise) at any time affecting any Property.
|
|
(c)
|
Each Obligor must promptly, upon the request of the Security Agent, take all such steps as may be necessary or desirable to enable the Security expressed to be created by the Security Documents to be validly registered, where appropriate, at any applicable land registry.
|
23.2
|
Occupational Leases
|
(a)
|
Subject to paragraphs (b) and (c) below, no Obligor may, without the consent of the Agent (which consent shall be provided to the Company by the Agent within 5 Business Days of such request provided that the Agent has been provided with and is satisfied (acting reasonably) by all relevant and material information reasonably requested by it, such request to be made as a single information request list and not on a piecemeal basis and such consent shall be deemed to have been provided if the Agent does not notify the Company of such approval within 5 Business Days of such request):
|
(i)
|
enter into any Agreement for Lease;
|
(ii)
|
other than under an Agreement for Lease, grant or agree to grant any new Occupational Lease;
|
(iii)
|
agree to any amendment, supplement, extension, waiver, surrender or release in respect of any material terms of any Lease Document;
|
(iv)
|
exercise any right to break, determine or extend, any Lease Document (except an extension on market terms or better);
|
(v)
|
commence any forfeiture or irritancy proceedings (nor serve any notice irritating any Lease Document) in respect of any Lease Document;
|
(vi)
|
grant any licence or right to use or occupy any part of a Property;
|
(vii)
|
consent to any sublease or assignment of any tenant's interest under any Lease Document;
|
(viii)
|
agree to any alterations or change of use under or (except where required to do so under the terms of the relevant Lease Document) rent review in respect of, any Lease Document; or
|
(ix)
|
serve any notice on any former tenant under any Lease Document (or on any guarantor of that former tenant) which would entitle it to a new lease or tenancy.
|
(b)
|
Paragraph (a) above does not apply to:
|
(i)
|
the entry into of any Agreement for Lease or the grant of any new Occupational Lease;
|
(ii)
|
any concession, common area, retail and/or hospitality area or car park in respect of the Properties, which is the subject of such grant, amendment, supplement, extension, waiver, surrender, release, sub-lease, assignment or termination,
|
(c)
|
Each Propco must:
|
(i)
|
diligently collect or use all reasonable endeavours to procure to be collected all Rental Income;
|
(ii)
|
exercise its material rights and comply with its material obligations under each Lease Document; and
|
|
(iii)
|
use its reasonable endeavours to ensure that each tenant complies with its material obligations under each Lease Document (including the enforcement of any related guarantee),
|
(d)
|
Any Lease Prepayment Proceeds received by a Propco must be paid into the relevant Deposit Account for application in accordance with Clause 17.7 (Deposit Accounts).
|
(e)
|
Each Obligor must supply to the Agent each Lease Document, each amendment, supplement or extension to a Lease Document and each document recording any rent review in respect of a Lease Document following request from the Agent.
|
(f)
|
The Obligors must use their reasonable endeavours to find tenants for any vacant lettable space in the Properties with a view to granting a Lease Document with respect to that space unless such vacant lettable space is kept vacant for valid letting strategy purposes.
|
23.3
|
Headleases
|
(a)
|
Each Obligor must:
|
(i)
|
exercise its material rights and comply with its obligations under each Headlease to which it is party;
|
(ii)
|
use its reasonable endeavours to ensure that each landlord (including the head landlord) complies with its obligations under each Headlease to which it is party; and
|
(iii)
|
promptly notify the Agent and the Security Agent of any matter (including, but not limited to, any correspondence from or on behalf of the head landlord in relation to any forfeiture proceedings, whether actual or threatened) by reason of which any Headlease has or may become subject to determination or to the exercise of any right of re‑entry or forfeiture and, if so required by the Security Agent, apply for relief against forfeiture or irritancy of any Headlease; and
|
(iv)
|
provide the Agent with evidence satisfactory to the Agent that each payment due in respect of ground rent and other sums payable under each Headlease has been duly paid within 5 days of its due date,
|
(b)
|
No Obligor may:
|
(i)
|
agree to any material amendment, supplement, waiver, surrender or release of any Headlease;
|
(ii)
|
exercise any right to break, determine or extend any Headlease;
|
(iii)
|
agree to any upwards rent review in respect of any Headlease except where the relevant Headlease is subject to fixed stepped increases and the amounts are disclosed in a Property Report; or
|
(iv)
|
deliberately do or allow to be done any act as a result of which any Headlease may become liable to forfeiture or irritancy or otherwise be terminated.
|
|
23.4
|
Maintenance
|
(a)
|
Each Obligor must ensure that all buildings, plant, machinery, fixtures and fittings on its Property are in, and maintained in:
|
(i)
|
good repair consistent with the principles of good estate management; and
|
(ii)
|
such repair, condition and order so as to enable them to be let in accordance with all applicable laws and regulations; for this purpose, a law or regulation will be regarded as applicable if it is in force.
|
(b)
|
Where there is an obligation on a tenant to repair or maintain the Obligors shall satisfy the requirements of paragraph (a) above by using commercially reasonable endeavours to enforce that obligation.
|
23.5
|
Development and Alterations
|
(a)
|
No Obligor may without the prior consent of the Agent carry out, or allow to be carried out, any demolition, construction, structural alterations or additions, development or other similar operations in respect of any part of its Property provided that such consent shall not be unreasonably withheld or delayed and the approval of the Agent shall be deemed to have been provided if the Agent does not notify the Company of such approval within 20 Business Days of the date of the request by the Company.
|
(b)
|
Paragraph (a) above does not apply to:
|
(i)
|
the maintenance of the buildings, plant, machinery, fixtures and fittings in accordance with the Transaction Documents;
|
(ii)
|
the carrying out of any non-material, non-structural improvements or alterations which affect only the interior of any building on a Property;
|
(iii)
|
any works undertaken by a tenant under the terms of any Occupational Lease or Agreement for Lease or as of right under any law; or
|
(iv)
|
any Permitted Capex.
|
(c)
|
Each Obligor must comply in all material respects with all planning laws, permissions, agreements and conditions to which its Property may be subject. Where this is an obligation of a tenant the Obligors shall satisfy these requirements by using commercially reasonable endeavours to enforce that obligation.
|
23.6
|
Notices
|
(a)
|
deliver a copy to the Security Agent; and
|
(b)
|
inform the Security Agent of the steps taken or proposed to be taken to comply with the relevant requirement, order or notice.
|
|
23.7
|
Investigation of title
|
(a)
|
carry out investigations of title to any Property; and
|
(b)
|
make such enquiries in relation to any part of any Property as a prudent mortgagee might carry out.
|
23.8
|
Power to remedy
|
(a)
|
If any Obligor fails to perform any obligations under the Finance Documents affecting its Property having been requested by the Security Agent to do so, each Obligor must allow the Security Agent (without any obligation on the Security Agent to do so) or its agents and contractors (to the extent within its power to do so and at a reasonable time and upon reasonable notice and subject to the terms of any Lease Document):
|
(i)
|
to enter any part of its Property;
|
(ii)
|
to comply with or object to any material notice served on any Obligor in respect of its Property; and
|
(iii)
|
to take any action that the Security Agent may reasonably consider necessary or desirable to prevent or remedy any breach of any such term or to comply with or object to any such notice.
|
(b)
|
Each Obligor must within 5 Business Days of a request by the Security Agent pay the reasonable costs and expenses of the Security Agent or its agents and contractors incurred in connection with any action taken by it under this Clause.
|
(c)
|
No Finance Party will be liable as or obliged to account as mortgagee in possession as a result of any action taken under this Clause.
|
23.9
|
Managing Agents
|
(a)
|
No Obligor may:
|
(i)
|
appoint any managing agent or similar person (other than an Approved Managing Agent);
|
(ii)
|
amend, supplement, extend or waive the terms of appointment of any Approved Managing Agent in any material respect; or
|
(iii)
|
terminate the appointment of any Approved Managing Agent (unless an Approved Managing Agent is being appointed in its place),
|
(b)
|
Each Obligor must ensure that:
|
(i)
|
each Approved Managing Agent of any Property:
|
|
(A)
|
enters into a Duty of Care Agreement with the Security Agent in form and substance satisfactory to the Agent (acting reasonably);
|
(B)
|
if it collects rent, has a minimum PI cover of €2,000,000 (or its currency equivalent) (with the exception of the JLL PI cover as disclosed in its certificate of insurance);
|
(C)
|
acknowledges to the Security Agent that it has notice of the Security created by the Finance Documents; and
|
(D)
|
agrees to pay (if it collects rent):
|
I.
|
all Net Rental Income received by it into a Rent Account;
|
II.
|
all other amounts (excluding VAT received by it into a Service Charge Account); and
|
III.
|
all amounts of VAT received by it into a General Account,
|
(ii)
|
that the appointment of each Approved Managing Agent is on arms' length market terms.
|
(c)
|
If:
|
(i)
|
any of the events or circumstances set out in Clause 24.6 (Insolvency) apply to an Approved Managing Agent; or
|
(ii)
|
an Approved Managing Agent is in default of its material obligations under its management agreement the Obligor concerned must promptly notify the Agent, and if, as a result of that default, an Obligor is entitled to terminate that management agreement, then, if an Event of Default is continuing and the Agent so requires,
|
(A)
|
terminate the management agreement; and
|
(B)
|
appoint a new Approved Managing Agent in accordance with this Clause.
|
23.10
|
Approved Cash Managers
|
(a)
|
No Obligor may:
|
(i)
|
appoint any cash manager or similar person (other than an Approved Cash Manager);
|
(ii)
|
amend, supplement, extend or waive the terms of appointment of any Approved Cash Manager in any material respect to the extent such terms relate to the requirements of the Approved Cash Manager to comply with the requirements of the Finance Document; or
|
(iii)
|
terminate the appointment of any Approved Cash Manager (unless an Approved Cash Manager is being appointed in its place),
|
|
(b)
|
Each Obligor must ensure that each Approved Cash Manager:
|
(i)
|
enters into a Duty of Care Agreement with the Security Agent in form and substance satisfactory to the Agent (acting reasonably); and
|
(ii)
|
if it collects rent, has a minimum PI cover of €10,000,000 (or its currency equivalent);
|
(iii)
|
agrees to pay:
|
(A)
|
all Net Rental Income received by it into a Rent Account;
|
(B)
|
all other amounts (excluding VAT received by it into a Service Charge Account); and
|
(C)
|
all amounts of VAT received by it into a General Account,
|
(xviii)
|
in each case without any withholding, set-off or counterclaim; and.
|
(c)
|
If:
|
(i)
|
any of the events or circumstances set out in Clause 24.6 (Insolvency) apply to an Approved Cash Manager; or
|
(ii)
|
an Approved Cash Manager is in default of its material obligations under the terms of its appointment the Obligor concerned must promptly notify the Agent, and if, as a result of that default, an Obligor is entitled to terminate that appointment, then, if an Event of Default is continuing and the Agent so requires,
|
(A)
|
terminates the appointment in respect of its services as the Approved Cash Manager; and
|
(B)
|
appoints a new Approved Cash Manager in accordance with this Clause.
|
23.11
|
Asset Managers
|
(a)
|
No Obligor may:
|
(i)
|
appoint any asset manager or similar person (other than an Approved Asset Manager);
|
(ii)
|
amend, supplement, extend or waive the terms of appointment of any Approved Asset Manager in any material respect; or
|
(iii)
|
terminate the appointment of any Approved Asset Manager (unless an Approved Asset Manager is being appointed in its place),
|
(b)
|
Each Obligor must ensure that each Approved Asset Manager of any Property:
|
(i)
|
enters into a Duty of Care Agreement with the Security Agent in form and substance satisfactory to the Agent (acting reasonably); and
|
|
(ii)
|
acknowledges to the Security Agent that it has notice of the Security created by the Finance Documents.
|
(c)
|
If:
|
(i)
|
any of the events or circumstances set out in Clause 24.6 (Insolvency) apply to an Approved Asset Manager; or
|
(ii)
|
an Approved Asset Manager is in default of its material obligations under its management agreement the Obligor concerned must promptly notify the Agent, and if, as a result of that default, an Obligor is entitled to terminate that management agreement, then, if an Event of Default is continuing and the Agent so requires,
|
(A)
|
terminate the management agreement; and
|
(B)
|
appoint a new Approved Asset Manager in accordance with this Clause.
|
23.12
|
Insurances
|
(a)
|
Each Obligor must ensure that, at all times from the Utilisation Date, Insurances are maintained in full force and effect, which are in compliance with section 15 of the German Mortgage Bond Act (
Pfandbriefgesetz
) and which:
|
(i)
|
insure each Obligor in respect of its interests in each Property owned by it and the plant and machinery on each Property owned by it (including trade and other fixtures and fixed plant and machinery forming part of that Property and improvements) for their full replacement value (being the total cost of entirely rebuilding, reinstating or replacing the relevant asset if it is completely destroyed, together with all related fees and demolition costs) and to:
|
(A)
|
provide cover against loss or damage by fire, storm, flood, earthquake, lightning, explosion, impact, aircraft and other aerial devices and articles dropped from them, riot, civil commotion and malicious damage, resulting damage from bursting or overflowing of water tanks, apparatus or pipes and all other normally insurable risks of loss or damage;
|
(B)
|
provide cover for demolition and site clearance, shoring or propping up, professional fees and value added tax together with adequate allowance for inflation;
|
(C)
|
provide cover against acts of terrorism;
|
(D)
|
provide cover for loss of rent or prospective rental income (in respect of a period of not less than three years or, if longer, the minimum period required under the Lease Documents) including provision for any increases in rent during the period of insurance; and
|
(ii)
|
include property owners' public liability and third party liability insurance with no exclusions for third party liability arising from acts of terrorism;
|
(iii)
|
insure such other risks as a prudent company in the same business as the Obligors would insure; and
|
|
(iv)
|
in each case are in an amount, and in form, and with an insurance company or underwriters, in each case having a Requisite Rating, acceptable at all times to the Agent.
|
(b)
|
Each Obligor must procure that each of the Insurances is in the names of the Obligors concerned and that the Security Agent (as agent and trustee for the Finance Parties) is named as co-insured under each of the Insurances (other than public liability and third party liability insurances) but without liability on the part of the Security Agent or any other Finance Party for any premium in relation to those Insurances.
|
(c)
|
Each Obligor must procure that the Insurances comply with the following requirements:
|
(i)
|
each of the Insurances must contain:
|
(A)
|
solely with respect to the commercial property insurance set forth under paragraph (a)(i) and (a)(ii) of Clause 23.12 (Insurances), a non-invalidation and non-vitiation clause under which the Insurances will not be vitiated or avoided as against any insured party or mortgagee or security holder as a result of any circumstances beyond the control of that insured party or any misrepresentation, act, neglect, non-disclosure, or breach of any policy term or condition, on the part of any insured party or any agent of any insured party that is beyond the control of that party;
|
(B)
|
a waiver of the rights of subrogation of the insurer as against each Obligor, the Security Agent, the Finance Parties and the tenants of each Property; and
|
(C)
|
solely with respect to the commercial property insurance set forth under paragraph (a)(i) and (a)(ii) of Clause 23.12 (Insurances), a loss payee clause with the Security Agent named as loss payee and on such terms as the Security Agent may reasonably require in respect of insurance claim payments in excess of €100,000 (or its currency equivalent) otherwise payable to any Obligor including a provision under which the proceeds of the insurance are payable directly to the Agent;
|
(ii)
|
the insurers must give at least 30 days' notice to the Security Agent if any insurer proposes to repudiate, rescind or cancel any Insurance, to treat it as avoided in whole or in part, to treat it as expired due to non-payment of premium or otherwise decline any valid claim under it by or on behalf of any insured party and must give the opportunity to rectify any such non-payment of premium within the notice period; and
|
(iii)
|
each Obligor must be free to assign all amounts payable to it under each of its Insurances and all its rights in connection with those amounts in favour of the Security Agent.
|
(d)
|
Each Obligor must ensure that the Agent receives copies of all Insurances acceptable to the Agent and described in this Clause, receipts for the payment of premiums for insurance and any information in connection with the insurances and claims under them which the Agent may reasonably require, provided that (where applicable) that Obligor is provided with the same by the head landlord. If the Agent considers that the amount insured by, or the risks covered by, any Insurances are inadequate, the Agent may require any Obligor to increase the amount insured by, and/or amend the category of risks covered by, any Insurance Policy to such extent and in such manner as the Agent may consider appropriate and that Obligor must promptly comply with such request.
|
(e)
|
Each Obligor must promptly notify the Agent of:
|
|
(i)
|
the proposed terms of any future renewal of any of the Insurances;
|
(ii)
|
any amendment, supplement, extension, termination, avoidance or cancellation of any of the Insurances made or, to its knowledge, threatened or pending;
|
(iii)
|
any claim in excess of €100,000 (or its currency equivalent), and any actual or threatened refusal of any claim, under any of the Insurances; and
|
(iv)
|
any event or circumstance which has led or may lead to a breach by any Obligor of any term of this Clause.
|
(f)
|
Each Obligor must:
|
(i)
|
comply with the terms of the Insurances;
|
(ii)
|
not do or permit anything to be done which may make void or voidable any of the Insurances; and
|
(iii)
|
take reasonable and practical steps to comply with all reasonable risk improvement requirements of its insurers.
|
(g)
|
Each Obligor must ensure that:
|
(i)
|
each premium for the Insurances is paid promptly upon receipt of an invoice for which that premium is payable (including, without limitation, the construction insurance in respect of the French Property located at 58 Avenue Marceau and 23/25 rue Bassano, 75008 Paris); and
|
(ii)
|
all other things necessary are done so as to keep each of the Insurances in force.
|
(h)
|
If any Obligor fails to comply with any term of this Clause, the Agent after the issuance and delivery of written notice to the Obligor setting forth an explanation of such non-compliance may (without any obligation to do so), at the expense of the Obligors effect any insurance on behalf of the Agent or the Security Agent (and not in any way for the benefit of the Obligor concerned) and generally do such things and take such other action as the Agent may reasonably consider necessary or desirable to prevent or remedy any breach of this Clause.
|
(i)
|
Except as provided below, the proceeds of any Insurances (other than the excluded proceeds referred to in paragraph (c)(i)(C) above) must together with all proceeds of insurances paid directly to the Agent, if a Default is continuing and the Agent so requires, be paid into the relevant Deposit Account for application in accordance with Clause 17.7 (Deposit Accounts).
|
(j)
|
If no Event of Default is continuing or to the extent required by the basis of settlement under any Insurances or under any Lease Document, each Obligor must apply moneys received under any Insurances in respect of a Property towards replacing, restoring or reinstating the relevant Property.
|
(k)
|
The proceeds of any loss of rent insurance, or business interruption cover, will be treated as Rental Income and applied in such manner as the Agent (acting reasonably) requires to have effect as if it were Rental Income received over the period of the loss.
|
(l)
|
Moneys received under liability policies held by an Obligor which are required by that Obligor to satisfy established liabilities of the Obligor to third parties must be used to satisfy these liabilities.
|
|
23.13
|
Compulsory purchase
|
(a)
|
Each Obligor must notify the Agent immediately if all or any part of a Property is compulsorily purchased or the applicable governmental agency or authority makes an order for the compulsory purchase of the same.
|
(b)
|
On receipt of such notice from an Obligor, the Agent will be entitled to request a revised Valuation of that Property (the cost of any such Valuation will be borne by the Obligors) ignoring that part being compulsorily purchased, for the purposes of Clause 21.1 (Loan to Value Ratio).
|
23.14
|
Environmental matters
|
(a)
|
Each Obligor must:
|
(i)
|
comply and use reasonable endeavours to procure that any relevant third party complies with all Environmental Law applicable to the relevant Property;
|
(ii)
|
obtain, maintain and comply in all material respects with all requisite Environmental Permits applicable to it or to a Property; and
|
(iii)
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law applicable to it or a Property,
|
(b)
|
Each Obligor must, promptly upon becoming aware, notify the Agent of:
|
(i)
|
any Environmental Claim started, or to its knowledge, threatened;
|
(ii)
|
any circumstances reasonably likely to result in an Environmental Claim; or
|
(iii)
|
any suspension, revocation or notification of any material Environmental Permit.
|
(c)
|
Each Obligor must indemnify each Finance Party against any loss or liability which that Finance Party incurs as a result of any actual or alleged breach of any Environmental Law relating to the relevant Property unless it is caused by that Finance Party's gross negligence or wilful misconduct.
|
23.15
|
Dutch Property
|
24.
|
EVENTS OF DEFAULT
|
|
24.1
|
Non-payment
|
(a)
|
its failure to pay is caused solely by:
|
(i)
|
administrative or technical error; or
|
(ii)
|
a Disruption Event; and
|
(b)
|
payment is made within three Business Days of its due date; or
|
(c)
|
its failure to pay is caused solely by default on the part of the Security Agent in applying proceeds standing to the credit of an Account in respect of which the Security Agent has sole signing rights in paying any such amount as required by this Agreement.
|
24.2
|
Financial Covenants
|
24.3
|
Other obligations
|
(a)
|
An Obligor does not comply with any term of:
|
(i)
|
Clause 4.3 (Conditions subsequent);
|
(ii)
|
Clause 17 (Bank Accounts) (unless any failure by any Obligor to perform or comply with that Clause is caused solely by the default on the part of the Agent in applying proceeds standing to the credit of an Account in respect of which the Agent has sole signing rights in paying any such amount as required by this Agreement);
|
(iii)
|
Clause 20.6 (Notification of default);
|
(iv)
|
Clause 22.3 (Negative pledge);
|
(v)
|
Clause 22.4 (Disposals);
|
(vi)
|
Clause 22.5 (Financial Indebtedness);
|
(vii)
|
Clause 22.7 (Merger);
|
(viii)
|
Clause 22.9 (Acquisitions);
|
(ix)
|
Clause 22.14 (Shares, units, dividends and share redemption); or
|
(x)
|
Clause 23.2 (Occupational Leases).
|
(b)
|
The Company fails to comply with Clause 20.2 (Compliance Certificate) unless the Compliance Certificate is delivered within 3 Business Days of the required date for delivery in accordance with Clause 20.2 (Compliance Certificate).
|
|
(c)
|
A Transaction Obligor does not comply with any provision of the Finance Documents to which it is a party (other than those referred to in Clause 24.1 (Non-payment), Clause 24.2 (Financial Covenants) and paragraphs (a) and (b) above).
|
(d)
|
No Event of Default under paragraph (c) above will occur if the failure to comply is capable of remedy in the opinion of the Agent and is remedied within 20 Business Days of the earlier of:
|
(i)
|
the Agent giving notice to the Obligors' Agent; and
|
(ii)
|
any Transaction Obligor becoming aware of the failure to comply.
|
24.4
|
Misrepresentation
|
(a)
|
Any representation or statement made or deemed to be made by a Transaction Obligor in the Finance Documents or any other document delivered by or on behalf of any Transaction 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.
|
(b)
|
No Event of Default under paragraph (a) above will occur if the circumstances giving rise to the misrepresentation or breach of warranty are capable of remedy and are remedied within 20 Business Days of the earlier of
|
(i)
|
the Agent giving notice to the Obligors' Agent; and
|
(ii)
|
any Transaction Obligor becoming aware of the failure to comply.
|
24.5
|
Cross-default
|
(a)
|
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b)
|
Any Financial Indebtedness of any Obligor 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 Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d)
|
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e)
|
For the purposes of this Clause 24.5, Financial Indebtedness shall not include any Financial Indebtedness which is Subordinated Debt.
|
24.6
|
Insolvency
|
(a)
|
A Transaction Obligor:
|
(i)
|
is unable or admits inability to pay its debts as they fall due;
|
(ii)
|
suspends or threatens to suspend making payments on any of its debts; or
|
|
(iii)
|
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.
|
(b)
|
A moratorium is declared in respect of any indebtedness of any Transaction Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
24.7
|
Insolvency proceedings
|
(a)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, examinership, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Transaction Obligor; or
|
(b)
|
a composition, compromise, assignment or arrangement with any creditor of any Transaction Obligor; or
|
(c)
|
the appointment of a liquidator, receiver, examiner, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Transaction Obligor or any of its assets; or
|
(d)
|
enforcement of any Security over any assets of any Transaction Obligor,
|
24.8
|
Creditors' process
|
(a)
|
Subject to paragraph (b) below, any expropriation, attachment, sequestration, distress, diligence or execution or any analogous process in any jurisdiction affects any asset or assets of a Transaction Obligor having an aggregate value of €250,000 (or its currency equivalent) or more and is not discharged within 21 days.
|
(b)
|
A Dutch executory attachment (
executoriaal beslag
) affects any asset or assets of a Transaction Obligor having an aggregate value of €250,000 (or its currency equivalent) or more and is not discharged within 10 Business Days.
|
24.9
|
Cessation of business
|
24.10
|
Unlawfulness and invalidity
|
(a)
|
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Transaction Documents or any Transaction Security created or expressed to be created or evidenced by the Security Documents ceases to be effective or any subordination created under a Subordination Agreement is or becomes unlawful and that unlawfulness individually or cumulatively materially and adversely affects the interests of the Finance Parties under the Finance Documents.
|
|
(b)
|
Any obligation or obligations of any Transaction Obligor under any Finance Documents are not (subject to the Legal Reservations and the Perfection Requirements) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Finance Parties under the Finance Documents.
|
(c)
|
Any Finance Document ceases to be in full force and effect or any Transaction Security or any subordination created under a Subordination 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 and the cessation individually or cumulatively materially and adversely affects the interests of the Finance Parties under the Finance Documents.
|
24.11
|
Repudiation and rescission of agreements
|
24.12
|
Compulsory purchase
|
(a)
|
All or any part of any Property is compulsorily purchased or is the subject of an order for its compulsory purchase or is otherwise nationalised or expropriated; and
|
(b)
|
taking into account the amount and timing of any compensation payable, such compulsory purchase has or will have a Material Adverse Effect.
|
24.13
|
Major damage
|
(a)
|
Any part of any Property is destroyed or damaged; and
|
(b)
|
taking into account the amount and timing of receipt of the proceeds of insurance effected in accordance with the terms of this Agreement, the destruction or damage has or will have a Material Adverse Effect.
|
24.14
|
Headlease
|
(a)
|
Forfeiture (
Heimfallanspruch
) or irritancy proceedings with respect to a Headlease are commenced or a Headlease is forfeited or irritated.
|
(b)
|
Paragraph (a) above shall not apply (without prejudice to any future forfeiture, forfeiture proceedings or irritancy proceedings) if:
|
(i)
|
in respect of forfeiture or irritancy proceedings, such proceedings are stayed, dismissed or otherwise discharged within 21 days of commencement; or
|
(ii)
|
the Company procures that an amount equal to the Allocated Loan Amount of the Property which is the subject of that Headlease is prepaid within 20 Business Days of:
|
(A)
|
in the case of forfeiture or irritancy proceedings, commencement of such proceedings; and
|
(B)
|
in the case of a forfeiture, such forfeiture.
|
|
24.15
|
Ownership of the Obligors
|
24.16
|
Material adverse change
|
24.17
|
Disposal or encumbrance of a German Property
|
(a)
|
A Borrower disposes of a German Property (or part thereof) if that disposal is not a Permitted Property Disposal or is only permitted pursuant to paragraph (b)(x)of 22.4 (Disposals) above.
|
(b)
|
A Borrower creates or allows to exist a Security or encumbrance over a German Property which is not a Permitted Property Disposal or is only permitted pursuant to paragraph (c)(viii)of Clause 22.3 (Negative pledge) above.
|
24.18
|
Acceleration
|
(a)
|
cancel the Total Commitments whereupon 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, whereupon they shall become immediately due and payable;
|
(c)
|
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders;
|
(d)
|
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents; and/or
|
(e)
|
in relation to a Dutch Obligor, by notice to the Dutch Obligor concerned, required that Dutch Obligor to give a guarantee or Security Interest in favour of the Finance Parties and/or the Agent and that Dutch Obligor must comply with that request.
|
24.19
|
Clean-Up Period
|
(a)
|
Notwithstanding any other provision of any Finance Document any breach of a Clean-Up Representation or a Clean-Up Undertaking by a Targetco will be deemed not to be a breach of representation or warranty, a breach of covenant (as the case may be) if:
|
(i)
|
it would have been (if it were not for this provision) a breach of representation or warranty, a breach of covenant only by reason of circumstances relating exclusively to any Targetco (or any obligation to procure or ensure in relation to any Targetco);
|
(ii)
|
it is capable of remedy and reasonable steps are being taken to remedy it; and
|
(iii)
|
the circumstances giving rise to it have not been procured by or approved by an Original Obligor.
|
|
(b)
|
If the relevant circumstances are continuing on or after the Clean-Up Date:
|
(i)
|
there shall be a breach of representation or warranty, breach of covenant as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties); and
|
(ii)
|
the 20 Business Day remedy periods referred to in Clause 24.3 (Other obligations) and Clause 24.4 (Misrepresentation) shall not apply to the relevant breach of representation or warranty, breach of covenant as the case may be.
|
25.
|
CHANGES TO FINANCE PARTIES
|
25.1
|
Assignments by the Lenders
|
(a)
|
assign any of its rights and benefits; or
|
(b)
|
transfer, by way of assignment, assumption and release, any of its rights, benefits and obligations,
|
25.2
|
Conditions of assignment
|
(a)
|
Subject to Clause 25.3 (Assignments by the Original French Facility Lender), an Existing Lender may only assign to any proposed New Lender its rights and obligations in respect of each of Facility A, Facility B, Facility C and each French Facility if, at the time of such assignment, an equal amount of each Facility is assigned to such New Lender.
|
(b)
|
An assignment or other disposal 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 Finance Parties as it would have been under if it was an Original Lender; and
|
(ii)
|
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 or other disposal to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.
|
(c)
|
If:
|
(i)
|
a Lender assigns or otherwise disposes of any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
|
(ii)
|
as a result of circumstances existing at the date the assignment, disposal 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 12 (Tax Gross-Up and Indemnities) or Clause 13 (Increased Costs),
|
(iii)
|
in respect of an assignment made in the ordinary course of the primary syndication of the Facility; or
|
(iv)
|
in respect of a payment made by a UK Borrower under Clause 12.2 (Tax gross-up), to a UK Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with subparagraph (i)(ii)(B) of Clause 12.2 (Tax gross-up) if the Obligor making the payment has not made a Borrower DTTP Filing in respect of that UK Treaty Lender.
|
(d)
|
Each New Lender, by executing the relevant Assignment Agreement 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 assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
(e)
|
Nothing in any Finance Document shall be construed as prohibiting a Lender from creating Security over any or all of its rights under the Finance Documents (including any Security created under the Finance Documents) in favour of any person at any time.
|
(f)
|
The New Lender will, at its costs, arrange for the assignment to be notified to each French Obligor by a bailiff (
huissier
) in accordance with article 1690 of the French Civil Code.
|
(g)
|
Notwithstanding the above, no assignment or sub-participation or sub-contracting may be effected in respect of advances made to the Facility B Borrower to a New Lender incorporated or acting through a Facility Office situated in a Non-Cooperative Jurisdiction.
|
(h)
|
No Lender may change its Facility Office to a Facility Office in a Non-Cooperative Jurisdiction, and a Lender must notify the Agent promptly following a change of Facility Office and the Agent shall notify the Company within five Business Days of its having received notice from any Lender of a change in that Lender’s Facility Office.
|
25.3
|
Assignments by the Original French Facility Lender
|
(a)
|
Except with the consent of all the Lenders (and excluding any assignment pursuant to the terms of the Security Documents), the Original French Facility Lender must not assign any of its rights in respect of any French Facility as long as the Facility B Loan is outstanding.
|
(b)
|
At the direction of the Lenders and to the extent the Facility B Loan has not already been paid and discharged in full, the Original French Facility Lender will assign all, but not part only, of its rights and obligations in respect of each French Facility which, at that time is outstanding, to any New Lender
|
|
(c)
|
Any assignment by the Original French Facility Lender must be made in accordance with the terms of this Agreement and each French Term Loan Agreement and must be made at par (unless the Original French Facility Lender and all the other Lenders otherwise consent).
|
(d)
|
Upon the assignment by the Original French Facility Lender of all of its rights and obligations under the French Term Loan Agreements to a New Lender or New Lenders, the Original French Facility Lender will direct such New Lender or New Lenders to pay the relevant purchase price directly to the Agent (for the benefit of the Facility B Lender).
|
(e)
|
Upon the assignment by the Original French Facility Lender of all of its rights and obligations under the French Term Loan Agreements to a New Lender or New Lenders, each Lender agrees to release, or instruct the Security Agent to release, without any consent, sanction authority or further confirmation from any Finance Party or Obligor, any Transaction Security which has been granted by the Original French Facility Lender over its rights in respect of the French Term Loan Agreements and any Transaction Security granted to secure the Facility B Loan only.
|
(f)
|
Notwithstanding the above, no assignment or sub-participation or sub-contracting may be effected by the Original French Facility Lender in respect of any French Facility to a New Lender incorporated or acting through a Facility Office situated in a Non-Cooperative Jurisdiction.
|
25.4
|
Assignment fee
|
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;
|
(ii)
|
the financial condition of any Transaction Obligor;
|
(iii)
|
the performance and observance by any Transaction 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,
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Transaction Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any
|
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of each Transaction 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-assignment from a New Lender of any of the rights assigned of 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 Transaction Obligor of its obligations under the Finance Documents or otherwise.
|
25.6
|
Procedure for assignment
|
(a)
|
Subject to the conditions set out in Clause 25.2 (Conditions of assignment) 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), 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 once it is satisfied it has complied with all necessary “know you customer” or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c)
|
Subject to Clause 25.9 (Pro rata interest settlement), on the Transfer Date:
|
(i)
|
the Existing Lender will assign absolutely to the New Lender the rights and obligations under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii)
|
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the
Relevant Obligations
) and expressed to be the subject of the release in the Assignment Agreement; and
|
(iii)
|
the New Lender shall become a Party as a
Lender
and will be bound by obligations equivalent to the Relevant Obligations.
|
(d)
|
Lenders may utilise procedures other than those set out in this Clause 25.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor, to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that
they comply with the conditions set out in Clause 25.2 (Conditions of assignment).
|
(e)
|
Transfer or assignment of the French Facility Loans shall be carried out in compliance with French law and the French Term Loan Agreements, and if necessary for perfecting such transfer or assignment
|
|
25.7
|
Copy of Assignment Agreement to Obligors' Agent
|
25.8
|
Security over Lender's rights
|
(a)
|
In addition to the other rights provided to Lenders under this Clause 25 and subject to paragraph (b) below, 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:
|
(i)
|
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(ii)
|
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,
|
(iii)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or other Security for the Lender as a party to any of the Finance Documents; or
|
(iv)
|
require any payments to be made by an Obligor other than or in excess of, 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.
|
(b)
|
Notwithstanding paragraph (a) above, as long as the Facility B Loan is outstanding, the Original French Facility Lender must only charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all its rights in respect of the French Term Loan Agreements and related Transaction Security in favour of the Security Agent in the manner contemplated by this Agreement and the relevant Security Documents.
|
25.9
|
Pro rata interest settlement
|
(a)
|
If the Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any assignment pursuant to Clause 25.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
|
(i)
|
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (
Accrued Amounts
) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
|
(ii)
|
the rights assigned by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(A)
|
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(B)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 25.9, have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(b)
|
In this Clause 25.9 references to
Interest Period
shall be construed to include a reference to any other period for accrual of fees.
|
25.10
|
Prohibition on Debt Purchase Transactions
|
25.11
|
Disenfranchisement of Sponsor Affiliates
|
(a)
|
For so long as a Sponsor Affiliate (including, for the avoidance of doubt, the Original French Facility Lender):
|
(i)
|
beneficially owns a Commitment; or
|
(ii)
|
has entered into a sub-participation agreement relating to a Commitment or other agreement or arrangement having a substantially similar economic effect and such agreement or arrangement has not been terminated,
|
(A)
|
the Majority Lenders; or
|
(B)
|
whether (I) any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; (II) or the agreement of any specified group of Lenders,
|
(b)
|
Each Lender shall, unless such Debt Purchase Transaction is an assignment, promptly notify the Agent in writing if it knowingly enters into a Debt Purchase Transaction with a Sponsor Affiliate (a
Notifiable Debt Purchase Transaction
), such notification to be substantially in the form set out in Part 1 of Schedule 11 (Forms of Notifiable Debt Purchase Transaction Notice).
|
|
(c)
|
A Lender shall promptly notify the Agent if a Notifiable Debt Purchase Transaction to which it is a party:
|
(i)
|
is terminated; or
|
(ii)
|
ceases to be with a Sponsor Affiliate,
|
(d)
|
Each Sponsor Affiliate that is a Lender agrees that:
|
(i)
|
in relation to any meeting or conference call to which all the Lenders are invited to attend or participate, it shall not attend or participate in the same if so requested by the Agent or, unless the Agent otherwise agrees, be entitled to receive the agenda or any minutes of the same; and
|
(ii)
|
in its capacity as Lender, unless the Agent otherwise agrees, it shall not be entitled to receive any report or other document prepared at the behest of, or on the instructions of, the Agent or one or more of the Lenders.
|
25.12
|
French Term Loan Agreements
|
(a)
|
No Lender under any French Term Loan Agreement:
|
(i)
|
may take any independent action to accelerate or enforce any French Facility or otherwise declare any French Facility prematurely due and payable; or
|
(ii)
|
independently enforce any Transaction Security which is granted to secure any French Facility; or
|
(iii)
|
will amend, vary, novate, forego or waive any provision, right or condition arising in or under a French Term Loan Agreement or agree to do any of those things,
|
(b)
|
Nothing in paragraph (a) above shall prevent any Lender under any French Term Loan Agreement voting in accordance with the provisions set out in this Agreement.
|
(c)
|
Each French Facility Lender will carry out any action in respect of each French Facility which the Agent requests it to do, provided that the Agent is authorised to make such request in accordance with the provisions of this Agreement.
|
26.
|
CHANGES TO THE OBLIGORS
|
26.1
|
Assignments and transfers by Obligors
|
|
26.2
|
Additional Borrowers
|
(a)
|
The Company must ensure that each French Facility Borrower will become an Additional Borrower on the first Utilisation Date.
|
(b)
|
Each French Facility Borrower will become an Additional Borrower upon the Agent notifying the other Finance Parties and the Company that it has received all of the documents and evidence listed in Part 1 of Schedule 3 (Conditions Precedent and Conditions Subsequent) in form and substance satisfactory to it unless waived by the Agent on such terms as the Lenders consider fit. The Agent shall notify the Obligors' Agent and the Lenders promptly upon being so satisfied.
|
(c)
|
The Company must ensure that the Additional German Propco will become an Additional Borrower on the second Utilisation Date.
|
(d)
|
The Additional German Proco will become an Additional Borrower upon the Agent notifying the other Finance Parties and the Company that it has received all of the documents and evidence listed in Part 3 of Schedule 3 (Conditions Precedent and Conditions Subsequent) in form and substance satisfactory to it unless waived by the Agent on such terms as the Lenders consider fit. The Agent shall notify the Obligors' Agent and the Lenders promptly upon being so satisfied.
|
26.3
|
Resignation of a Borrower
|
(a)
|
The Obligors' Agent may request that a Borrower ceases to be a Borrower by delivering to the Agent a Resignation Letter.
|
(b)
|
The Agent shall accept a Resignation Letter and notify the Obligors' Agent and the Lenders of its acceptance if:
|
(i)
|
no Default is continuing or would result from the acceptance of the Resignation Letter or that Default would cease to be continuing as a result (and the Obligors' Agent has confirmed this is the case);
|
(ii)
|
no payment is due by that Borrower under Clause 18 (Guarantee and Indemnity); and
|
(iii)
|
an Obligor is disposing of its Ownership Interests in that Borrower in accordance with Clause 22.4 (Disposals).
|
(c)
|
On acceptance by the Agent of a Resignation Letter the relevant Borrower shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents.
|
26.4
|
Additional Guarantors
|
(a)
|
The Company must ensure that each French Facility Borrower and the OPCI will become an Additional Guarantor on the first Utilisation Date.
|
(b)
|
Each French Facility Borrower and the OPCI will become an Additional Guarantor upon the Agent notifying the other Finance Parties and the Company that it has received all of the documents and evidence listed in Part 1 of Schedule 3 (Conditions Precedent and Conditions Subsequent) in form and substance satisfactory to it. The Agent shall notify the Obligors' Agent and the Lenders promptly upon being so satisfied.
|
|
(c)
|
The Company must ensure that the Additional German Propco will become an Additional Guarantor on the second Utilisation Date.
|
(d)
|
The Additional German Propco will become an Additional Guarantor upon the Agent notifying the other Finance Parties and the Company that it has received all of the documents and evidence listed in Part 3of Schedule 3 (Conditions Precedent and Conditions Subsequent) in form and substance satisfactory to it unless waived by the Agent on such terms as the Lenders consider fit. The Agent shall notify the Obligors' Agent and the Lenders promptly upon being so satisfied.
|
26.5
|
Resignation of a Guarantor
|
(a)
|
The Obligors' Agent 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 Obligors' Agent and the Lenders of its acceptance if:
|
(i)
|
no Default is continuing or would result from the acceptance of the Resignation Letter or that Default would cease to be continuing as a result (and the Obligors' Agent has confirmed this is the case);
|
(ii)
|
no payment is due by the Guarantor under Clause 18 (Guarantee and Indemnity); and
|
(iii)
|
an Obligor is disposing of its Ownership Interests in the Guarantor in accordance with Clause 22.4 (Disposals).
|
(c)
|
On acceptance by the Agent of a Resignation Letter the relevant Guarantor shall cease to be a Guarantor and shall have no further rights or obligations under the Finance Documents.
|
26.6
|
Release of security
|
(a)
|
If an Obligor has ceased to be a Guarantor in a manner allowed by this Agreement and has no further rights or obligations under the Finance Documents, any security created by that Obligor over its assets under the Security Documents will be released.
|
(b)
|
If a disposal of any asset subject to security created by a Security Document is made in the following circumstances:
|
(i)
|
the disposal is permitted by the terms of this Agreement;
|
(ii)
|
the Majority Lenders agree to the disposal;
|
(iii)
|
the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or
|
(iv)
|
the disposal is being effected by an enforcement of, or made pursuant to, a Security Document,
|
|
(c)
|
If the Security Agent is satisfied that a release is allowed under this Clause, (at the request and expense of the Obligors' Agent) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. Any release will not affect the obligations of any other Obligor under the Finance Documents.
|
26.7
|
Additional Subordinated Creditors
|
(a)
|
The Obligors' Agent may request that any person becomes a Subordinated Creditor, with the prior approval of the Agent, by delivering to the Agent:
|
(i)
|
a duly executed Subordination Agreement or Subordination Accession Letter;
|
(ii)
|
a duly executed Security Document creating Security over any Subordinated Debt to be owed to it by an Obligor; and
|
(iii)
|
such constitutional documents, corporate authorisations and other documents and matters as the Agent may reasonably require, in form and substance satisfactory to the Agent, to verify that the person's obligations are legally binding, valid and enforceable and to satisfy any applicable legal and regulatory requirements.
|
(b)
|
A person referred to in paragraph (a) above will become a Subordinated Creditor on the date the Agent enters into the Subordination Agreement and the relevant Security Document delivered under paragraph (a) above.
|
27.
|
ROLE OF THE AGENT, THE ARRANGER AND THE REFERENCE BANKS
|
27.1
|
Appointment of the Agent
|
(a)
|
Each of the Arranger and the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each of the Arranger and the Lenders authorises the Agent to perform the duties, obligations and responsibilities and 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.
|
27.2
|
Instructions
|
(a)
|
The Agent shall:
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders; and
|
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above.
|
(b)
|
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Agent may refrain from acting unless and until it receives those instructions or that clarification.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties save for the Security Agent.
|
(d)
|
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification, security or pre-funding that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
|
(e)
|
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
(f)
|
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (f) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
27.3
|
Duties of the Agent
|
(a)
|
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
Subject to paragraph (c) below, 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.
|
(c)
|
Without prejudice to Clause 25.7 (Copy of Assignment Agreement to Obligors' Agent), paragraph (b) above shall not apply to any Assignment Agreement.
|
(d)
|
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.
|
(e)
|
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.
|
(f)
|
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 Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g)
|
The Agent shall provide to the Obligors' Agent within five Business Days of a request by the Obligors' Agent (but no more frequently than once per calendar month), a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments, the address and fax number (and the department or officer, if any, for whose attention any communication
|
|
(h)
|
The Agent shall promptly forward to the Security Agent a copy of all notices issued pursuant to Clause 24.18 (Acceleration).
|
(i)
|
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
27.4
|
Role of the Arranger
|
27.5
|
No fiduciary duties
|
(a)
|
Nothing in any Finance Document constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.
|
(b)
|
Neither the Agent or the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
27.6
|
Business with the Obligors
|
27.7
|
Rights and discretions
|
(a)
|
The Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii)
|
rely on a certificate from any person:
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
|
(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); any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
|
(ii)
|
any notice or request made by the Borrowers or the Obligors' Agent (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 and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d)
|
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be desirable.
|
(e)
|
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f)
|
The Agent may act in relation to the Finance Documents through its officers, employees and agents and the Agent shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part, of any such person,
|
(g)
|
Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any information it reasonably believes it has received as Agent under this Agreement.
|
(h)
|
Without prejudice to the generality of paragraph (g) above, the Agent:
|
(i)
|
may disclose; and
|
(ii)
|
on the written request of the Company or the Majority Lenders shall, as soon as reasonably practicable, disclose,
|
(i)
|
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.
|
|
(j)
|
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
27.8
|
Responsibility for documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) provided by the Agent, the Arranger, any Transaction Obligor or any other person in or in connection with any Transaction or the Property Reports, or the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; or
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Finance Party or Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
27.9
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
(c)
|
whether any other event specified in any Finance Document has occurred.
|
27.10
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent, the provisions of paragraph (e) of Clause 32.11 (Disruption to payment systems etc.), the Agent shall not be liable including, without limitation, for negligence or any other category of liability whatsoever) for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction 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 Transaction Document or the Security Property; or
|
|
(iii)
|
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv)
|
without prejudice to the generality of sub-paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document and any officer, employee or agent of the Agent may rely on this Clause subject to Clause 1.8 (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:
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the Agent arising under or in connection with any Transaction Document or the Transaction Security shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
|
27.11
|
Lenders' indemnity to the Agent
|
(a)
|
Each Lender (other than the Original French Facility Lender) shall (in proportion to its share of the Non-French Total Commitments or, if the Non-French Total Commitments are then zero, to its share of the Non-French 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 Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 32.11 (Disruption to payment systems etc.) notwithstanding the Agent's 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).
|
(b)
|
Subject to paragraph (c) below, the Obligors' Agent shall immediately on demand reimburse any Lender for any payment that Lender makes to the Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Agent to an Obligor.
|
27.12
|
Resignation of the Agent
|
(a)
|
The Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the Lenders and the Obligors' Agent.
|
(b)
|
Alternatively the Agent may resign by giving 30 days' notice to the Lenders and the Obligors' Agent, in which case the Majority Lenders (after consultation with the Obligors' Agent) may appoint a successor Agent which shall not be incorporated or acting through an office situated in a Non-Cooperative Jurisdiction.
|
(c)
|
The Company may, on no less than 30 days’ prior notice to the Agent, replace the Agent by requiring the Lenders to appoint a replacement Agent if any amount payable under a Finance Document by a French Obligor becomes not deductible from the French Obligor 's taxable income for French tax purposes by reason of that amount (i) being paid or accrued to an Agent incorporated, domiciled, established or acting through an office situated in a Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name of that Agent in a financial institution situated in a Non-Cooperative Jurisdiction. In this case, the Agent shall resign and a replacement Agent, which shall not be incorporated or acting through an office situated in a Non-Cooperative Jurisdiction, shall be appointed by the Majority Lenders (after consultation with the Company) within 30 days after notice of replacement was given.
|
(d)
|
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 Obligors' Agent) may appoint a successor Agent (acting through an office in the United Kingdom).
|
(e)
|
If the Agent wishes to resign because (acting reasonably) it has concluded that it 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 with the proposed successor Agent amendments to this Clause 27 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with the current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable
|
|
(f)
|
The retiring Agent shall, 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. The Obligors' Agent shall, within three Business Days of demand, reimburse the retiring Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(g)
|
The Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(h)
|
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (f)) above but shall remain entitled to the benefit of Clause 27.11 (Lenders' indemnity to the Agent) and this Clause 27.12 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date. Any 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.
|
(i)
|
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (b) above) if on or after the date which is three Months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i)
|
the Agent fails to respond to a request under Clause 12.8 (FATCA Information) and the Obligors' Agent or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii)
|
the information supplied by the Agent pursuant to Clause 12.8 (FATCA Information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii)
|
the Agent notifies the Obligors' Agent and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
27.13
|
Replacement of the Agent
|
(a)
|
After consultation with the Obligors' Agent, 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 reasonably determined by the Majority Lenders) replace the Agent by appointing a successor Agent (acting through an office in the United Kingdom) which shall not be incorporated or acting through an office situated in a Non-Cooperative Jurisdiction.
|
(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 (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of Clause 27.11 (Lenders' indemnity to the Agent) and this Clause 27.13 (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.
|
27.14
|
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.
|
27.15
|
Relationship with the Finance Parties
|
(a)
|
Subject to Clause 25.9 (Pro rata interest settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender, acting through its Facility Office:
|
(i)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b)
|
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 34.6 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission 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 (or such other information), department and officer by that Lender for the purposes of Clause 34.2 (Addresses) and paragraph (a)(ii) of Clause 34.6 (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.
|
27.16
|
Credit appraisal by the Finance Parties
|
|
(a)
|
the financial condition, creditworthiness, condition, affairs, status and nature of each Transaction Obligor or the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction 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 Transaction Document or the Security Property;
|
(c)
|
whether that Finance 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 Transaction Document, the Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Transaction Document, the transactions contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Property.
|
27.17
|
Deduction from amounts payable by the Agent
|
28.
|
THE SECURITY AGENT
|
28.1
|
Appointment of the Security Agent
|
(a)
|
Each Finance Party (other than the Security Agent) appoints the Security Agent to act as its agent and trustee under the terms of this Agreement under or in connection with the Security Documents and authorises the Security Agent to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(b)
|
Nothing in this Clause 28.1 shall imply that the Security Agent is required to exercise any of its rights, powers, authorities and discretions specifically conferred on it under the Finance Documents in the absence of express written instructions from the Majority Lenders or all Lenders (where all Lender consent is expressly required) or the Agent (acting on the instructions of the Majority Lenders or all Lenders, as relevant). The Security Agent is only obliged to act on any instructions or directions so received to the extent that it, acting reasonably, considers these instructions or directions to be incidental to the exercise of the express rights and powers given to it under the Finance Documents.
|
|
28.2
|
Security Agent as holder of Transaction Security
|
(a)
|
Unless expressly provided to the contrary in any Finance Document, the Security Agent declares that it shall hold the Security Documents and all other rights, title and interests in, to and under the Finance Documents to which it is a party and expressed to be a trustee and all proceeds of enforcement of the Transaction Security and of such Finance Documents, on trust for the Finance Parties on the terms contained in this Agreement. Each of the Parties agrees that the Security Agent shall have only those duties, obligations and responsibilities expressly specified in this Agreement or in the Transaction Security Documents (and no others shall be implied).
|
(b)
|
Each of the Finance Parties (other than the Security Agent) (as “
mandant
”) appoints the Security Agent to act as (i) its agent (“
mandataire
” for the purposes of French law) under or in connection with the Finance Documents and (ii) as creditor of the Finance Party Claim under or in connection with the Finance Documents.
|
(c)
|
Each Finance Party (other than the Security Agent) (as
mandant
):
|
(i)
|
irrevocably and unconditionally appoints the Security Agent to act as agent (
mandataire
) (with full power to appoint and to substitute and to delegate) on its behalf to do anything upon the terms and conditions set out in this Agreement, under or in connection with Security Documents governed by French law, including, if need be, the appointment of a custodian which shall hold assets on its behalf (including, as may be the case, share certificates or share registries relating to shares in any Obligor) in custody under any Security Document governed by French law, and the Security Agent accepts such appointment;
|
(ii)
|
confirms its approval of the Security Documents governed by French law and any Transaction Security created or to be created pursuant thereto and irrevocably authorises (with power of delegation), empowers and directs the Security Agent (by itself or by such person(s) as it may nominate) to execute and deliver for and on its behalf each Security Document governed by French law, to perform the duties and to exercise the rights, powers and discretions that are specifically delegated to the Security Agent or any Finance Party under or in connection with the Security Documents governed by French law, together with any other rights, powers and discretions which are incidental thereto and to give a good discharge for any moneys payable under the Security Documents governed by French law;
|
(iii)
|
acknowledges that the Security Agent has been appointed by it to constitute, register, manage and enforce all Transaction Security created in its favour by any Security Documents governed by French law, and agrees that the Security Agent may exercise the rights and perform the obligations assumed by it pursuant to its nomination in accordance with applicable law from time to time;
|
(iv)
|
appoints the Security Agent to act as its agent and authorises the Security Agent to enter into legal transactions in the name of that Finance Party with the Security Agent in its own name or as agent of a third party and to grant sub-powers of attorney;
|
(v)
|
authorises the Security Agent to take any steps necessary and collect all information necessary or, in the Security Agent’s discretion, desirable for the preparation of any Security Documents governed by French law, the perfection, the preservation and/or the enforcement of any French Security; and
|
|
(vi)
|
irrevocably and unconditionally appoints the Security Agent to act as agent (mandataire) (with full power to appoint and to substitute and to delegate) on its behalf to release:
|
(A)
|
any Transaction Security created by any Security Document governed by French law; and
|
(B)
|
any Security Document governed by French law,
|
(C)
|
and to do anything to make such release effective in each case to the extent such release is permitted under this Agreement).
|
(d)
|
The Security Agent will act solely for itself (as a Finance Party) and as agent for the other Finance Parties in carrying out its functions as security agent under the relevant Security Documents governed by French law, the French Term Loan Agreement and this Agreement.
|
(e)
|
In relation to Security Documents governed by French law and unless provided otherwise therein, the relationship between the Secured Parties (other than the Security Agent) and the Security Agent is that of principal (
mandant
) and agent (
mandataire
) only.
|
(f)
|
In furtherance of this Clause 28, each Finance Party undertakes to the Security Agent that, promptly upon request, such Finance Party will ratify and confirm all transactions entered into and other actions by the Security Agent (or any of its substitutes or Delegates) in the proper exercise of the power granted to it hereunder.
|
28.3
|
Parallel Debt
|
(a)
|
Other than the security granted by the relevant French Obligor to the French Facility Lender and subject to the guarantee limitation provided in Clause 18.13 (Limitations: French Guarantors), each Obligor hereby irrevocably and unconditionally undertakes (such undertaking and the obligations and liabilities which are a result thereof, hereinafter being referred to as its
Parallel Debt
) to pay to the Security Agent an amount equal the aggregate amount payable by it to any Finance Party under any Finance Document (the
Principal Obligations
) in accordance with the terms and conditions of such Principal Obligations. The Parallel Debt of each Obligor shall become due and payable as and when its Principal Obligations become due and payable.
|
(b)
|
Each of the Parties acknowledges that:
|
(i)
|
the Parallel Debt of each Obligor constitutes an undertaking, obligation and liability of such Obligor to the Security Agent (in its personal capacity and not in its capacity as agent) which is separate and independent from, and without prejudice to, its Principal Obligations and represents the Security Agent's own claim to receive payment of such Parallel Debt from such Obligor; and
|
(ii)
|
the Security created under the Finance Documents to secure the Parallel Debt is granted to the Security Agent in its capacity as sole creditor of the Parallel Debt.
|
(c)
|
Each of the Parties agrees that:
|
(i)
|
the Parallel Debt of each Obligor shall be decreased if and to the extent that its Principal Obligations have been paid or in the case of guarantee obligations discharged or decreased (in each case in whole or in part and by the amount of such payment, discharge or decrease);
|
|
(ii)
|
the Principal Obligations of each Obligor shall be decreased if and to the extent that its Parallel Debt has been paid or in the case of guarantee obligations discharged or decreased (in each case in whole or in part and by the amount of such payment, discharge or decrease); and
|
(iii)
|
the amount payable under the Parallel Debt of each Obligor shall at no time exceed the amount payable under its Principal Obligations.
|
(d)
|
Each Parallel Debt is created on the understanding that the Security Agent must:
|
(i)
|
share the proceeds of each Parallel Debt with the other Finance Parties; and
|
(ii)
|
pay those proceeds to the Finance Parties,
|
(e)
|
The rights of the Finance Parties (other than the Security Agent) to receive payment of the Principal Obligations of each Obligor are several and separate and independent from, and without prejudice to, the rights of the Security Agent to receive payment under the Parallel Debt.
|
28.4
|
Enforcement through Security Agent only
|
28.5
|
Instructions
|
(a)
|
The Security Agent shall:
|
(i)
|
subject to paragraphs (c) and (d) below, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Agent (acting on behalf of the Majority Lenders or, as the case may be, all the Lenders); and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above.
|
(b)
|
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Agent as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives those instructions or that clarification.
|
(c)
|
Paragraph (a) above shall not apply:
|
(i)
|
where a contrary indication appears in a Finance Document;
|
(ii)
|
where this Agreement requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii)
|
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the Finance Parties including, without
|
|
(iv)
|
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A)
|
Clause 29.1 (Order of application);
|
(B)
|
Clause 29.2 (Prospective liabilities); and
|
(C)
|
Clause 29.5 (Permitted deductions).
|
(d)
|
If giving effect to instructions given by the Agent (acting on the instructions of the Majority Lenders) would (in the Security Agent's opinion) have an effect equivalent to an amendment or waiver which is subject to Clause 38 (Amendments and Waivers), the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent) whose consent would have been required in respect of that amendment or waiver.
|
(e)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i)
|
it has not received any instructions as to the exercise of that discretion; or
|
(ii)
|
the exercise of that discretion is subject to paragraph (c)(iv) above,
|
(f)
|
The Security Agent may refrain from acting in accordance with any instructions of the Agent, the Majority Lenders or any other group of Lenders until it has received any indemnification, security or pre-funding that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(g)
|
Without prejudice to the provisions of the remainder of this Clause 28.5, in the absence of instructions, the Security Agent may act (or refrain from acting) as it considers in its discretion to be appropriate.
|
(h)
|
At any time after receipt by the Security Agent of notice from the Agent directing the Security Agent to exercise all or any of its rights, remedies, powers or discretions under any of the Finance Documents, the Security Agent may, and shall if so directed by the Agent, take any action as in its sole discretion it thinks fit to enforce the Security Property.
|
28.6
|
Duties of the Security Agent
|
(a)
|
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
The Security Agent shall promptly forward to the Agent a copy of any document received by the Security Agent from any Transaction Obligor under any Finance Document.
|
|
(c)
|
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d)
|
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Agent.
|
(e)
|
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
28.7
|
No fiduciary duties to the Obligors
|
28.8
|
No duty to account
|
28.9
|
Business with the Obligors
|
28.10
|
Rights and discretions
|
(a)
|
The Security Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Agent, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents;
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(C)
|
if it receives any instructions to act in relation to the Security Property, that all applicable conditions under the Finance Documents for so acting have been satisfied; and
|
(iii)
|
rely on a certificate from any person:
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
|
(b)
|
The Security Agent shall be entitled to carry out all dealings with the Lenders through the Agent and may give to the Agent any notice or other communication required to be given by the Security Agent to the Lenders.
|
(c)
|
The Security Agent may assume (unless it has received notice to the contrary in its capacity as Security Agent for the Finance Parties) that:
|
(i)
|
no Default has occurred;
|
(ii)
|
any right, power, authority or discretion vested in any Party, any Lenders or any group of Lenders has not been exercised; and
|
(iii)
|
notice made by the Obligors' Agent is made on behalf of and with the consent and knowledge of all the Obligors.
|
(d)
|
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(e)
|
Without prejudice to the generality of paragraph (d) above or paragraph (f) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by any Finance Party) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(f)
|
The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Security Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(g)
|
The Security Agent, any Receiver and any Delegate may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(h)
|
Unless a Finance Documents expressly specifies otherwise, the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent and trustee under this Agreement.
|
(i)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not 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 any fiduciary duty or duty of confidentiality.
|
(j)
|
Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
|
28.11
|
Responsibility for documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, a Transaction Obligor or any other person in or in connection with any Finance Document or the Property Reports or the transactions contemplated in 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,
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance 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 Finance Document or the Security Property or
|
(c)
|
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise
|
28.12
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
(c)
|
whether any other event specified in any Finance Document has occurred.
|
28.13
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate), none of the Security Agent, any Receiver nor any Delegate will be liable for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising or not exercising any right, power, authority or discretion given to it by or in connection with any Finance 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 Finance Document or the Security Property;
|
(iii)
|
any shortfall which arises on the enforcement or realisation of the Transaction Security; or
|
(iv)
|
without prejudice to the generality of sub-paragraphs (i) to (iii) above, any damages, costs, losses, any diminution in value or any liability whatsoever arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party (other than the Security Agent, that Receiver or that Delegate (as applicable)) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, 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 Finance Document or any Transaction Security and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.8 (Third party rights) and the provisions of the Third Parties Act.
|
(c)
|
Nothing in any Finance Document shall oblige the Security Agent to carry out:
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party (other than the Security Agent),
|
(d)
|
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate, any liability of the Security Agent, any Receiver or Delegate arising under or in connection with any Finance Document or the Transaction Security shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or Delegate (as the case may be) or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Agent, Receiver or Delegate (as the case may be) at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Security Agent, Receiver or Delegate (as the case may be) has been advised of the possibility of such loss or damages.
|
28.14
|
Lenders' indemnity to the Security Agent
|
(a)
|
Each Lender (other than the Original French Facility Lender) shall in proportion to its share of the Non-French Total Commitments (or, if the Non-French Total Commitments are then zero, to its share of the Non-French Total Commitments immediately prior to their reduction to zero), indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under, or exercising any authority conferred under, the Finance Documents (unless the
|
|
(b)
|
Subject to paragraph (c) below, the Obligors' Agent shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
28.15
|
Resignation of the Security Agent
|
(a)
|
The Security Agent may resign and appoint one of its Affiliates as successor by giving notice to the Obligors' Agent and to the Agent on behalf of the Lenders.
|
(b)
|
Alternatively the Security Agent may resign by giving 30 days' notice to the other Parties (or the Agent on behalf of the Lenders), in which case the Majority Lenders may appoint a successor Security Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent (after consultation with the Agent) may appoint a successor Security Agent.
|
(d)
|
The retiring Security Agent shall make available to the successor Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents. The Obligors' Agent shall, within three Business Days of demand, reimburse the retiring Security Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(e)
|
The Security Agent's resignation notice shall only take effect upon:
|
(i)
|
the appointment of a successor; and
|
(ii)
|
the transfer of all the Transaction Security to that successor.
|
(f)
|
Upon the appointment of a successor, the retiring Security Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 28.26 (Winding up of trust) and paragraph (d) above) but shall remain entitled to the benefit of this Clause 28.15 and Clause 14.4 (Obligors' Indemnity to the Security Agent) (and any Security Agent fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date). Any 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 Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above.
|
28.16
|
Confidentiality
|
(a)
|
In acting as agent and trustee for the Finance Parties, the Security Agent shall be regarded as acting through its agency and 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 Agent, it may be treated as confidential to that division or department and the Security Agent shall not be deemed to have notice of it.
|
(c)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not 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 regulation or a breach of any fiduciary duty.
|
28.17
|
Information from the Lenders
|
28.18
|
Credit appraisal by the Finance Parties
|
(a)
|
the financial condition, status and nature of each Transaction Obligor;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance 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 Finance Document or the Security Property;
|
(c)
|
whether that Finance 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 Finance Document, the Security Property, 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 or the Security Property;
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Property.
|
28.19
|
Security Agent's additional remuneration
|
(a)
|
In the event of:
|
(i)
|
a Default; or
|
|
(ii)
|
the Security Agent being requested by a Transaction Obligor or the Lenders to undertake duties which the Security Agent and the Obligors' Agent agree to be of an exceptional nature or outside the scope of the normal duties of the Security Agent under the Finance Documents; or
|
(iii)
|
the Security Agent and the Obligors' Agent agreeing that it is otherwise appropriate in the circumstances,
|
(b)
|
If the Security Agent and the Obligors' Agent fail to agree upon the nature of the duties or upon the additional remuneration referred to in paragraph (a) above or whether additional remuneration is appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Agent and approved by the Obligors' Agent or, failing approval, nominated (on the application of the Security Agent) 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 Obligors' Agent) and the determination of any investment bank shall be final and binding upon the Parties.
|
28.20
|
No responsibility to perfect Transaction Security
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Security Assets;
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document 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 law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d)
|
take, or to require any Transaction Obligor to take, any step to perfect its title to any of the Security Assets or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e)
|
require any further assurance in relation to any Security Document.
|
28.21
|
Insurance by Security Agent
|
(a)
|
The Security Agent shall not be obliged:
|
(i)
|
to insure any of the Security Assets;
|
(ii)
|
to require any other person to maintain any insurance; or
|
(iii)
|
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
|
(b)
|
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of 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 the Agent requests it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
28.22
|
Custodians and nominees
|
28.23
|
Delegation by the Security Agent
|
(a)
|
Each of the Security Agent, 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 right, power, authority or discretion vested in it in its capacity as such.
|
(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 Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Finance Parties.
|
(c)
|
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of, any such delegate or sub-delegate.
|
28.24
|
Additional Security Agents
|
(a)
|
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate agent and trustee or as a co-agent or trustee jointly with it:
|
(i)
|
if it considers that appointment to be in the interests of the Finance Parties;
|
(ii)
|
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii)
|
for obtaining or enforcing any judgment in any jurisdiction,
|
(b)
|
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c)
|
The remuneration that the Security Agent 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
|
|
28.25
|
Acceptance of title
|
28.26
|
Winding up of trust
|
(a)
|
all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
(b)
|
no Finance Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents,
|
(i)
|
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Security Documents; and
|
(ii)
|
any Security Agent which has resigned pursuant to Clause 28.15 (Resignation of the Security Agent) shall release, without recourse or warranty, all of its rights under each Security Document.
|
28.27
|
Release
|
(a)
|
If a disposal of an asset which is subject to any Transaction Security is made to a person in the following circumstances:
|
(i)
|
the disposal is permitted pursuant to paragraph (c) or paragraph (d) of Clause 22.4 (Disposals); or
|
(ii)
|
the disposal is being made at the request of the Security Agent in circumstances where any Transaction Security has become enforceable; or
|
(iii)
|
the disposal is being effected by enforcement of the Transaction Security,
|
(A)
|
to:
|
I.
|
release the Transaction Security or any other claim over that asset and execute and deliver or enter into any release of that Transaction Security or claim and issue any consent to dealing that may, in the discretion of the Security Agent, be considered necessary or desirable; and/or
|
|
II.
|
agree to the transfer of any claim over that asset (and to accept such transfer on behalf of such member of the Group) and execute and deliver or enter into any document relating to such transfer that may, in the discretion of the Security Agent, be considered necessary or desirable, and
|
III.
|
if the assets which are disposed of consist of shares or other equity investments in the capital of an Obligor, subject to paragraph (b) below:
|
(B)
|
to release:
|
I.
|
that Obligor and any Subsidiary of that Obligor from all or any part of its Secured Liabilities;
|
II.
|
any Transaction Security granted by that Obligor or any Subsidiary of that Obligor over any of its assets; and
|
III.
|
any other claim of an Obligor over that Obligor’s assets or over the assets of any Subsidiary of that Obligor,
|
(C)
|
to agree to the transfer (and, if in favour of a member of the Group, to accept such transfer on behalf of such member of the Group), of:
|
I.
|
all or any part of any Secured Liabilities of that Obligor and any Subsidiary of that Obligor; and
|
II.
|
any other claim of an Obligor over that Obligor’s assets or over the assets of any Subsidiary of that Obligor,
|
(b)
|
If a disposal is not made, then any release relating to that disposal will have no effect, and the obligations of the Obligors under the Finance Documents will continue in full force and effect.
|
(c)
|
If and to the extent that the Security Agent is not entitled to do anything mentioned in paragraph (a) above or does not wish to do so, each Party must enter into any document and do all such other things which are reasonably required to achieve that release in accordance with paragraph (a) above. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. Any release will not affect the obligations of any other Obligor under the Finance Documents.
|
(d)
|
If a Property or another asset of an Obligor is the subject of a transaction permitted by the terms of the Finance Documents, the Security Agent shall, at the request and the cost of the Obligors, do all such acts or execute all such documents as may be reasonably required to facilitate and give effect to that transaction.
|
28.28
|
Powers supplemental to Trustee Acts
|
|
28.29
|
Disapplication of Trustee Acts
|
29.
|
APPLICATION OF PROCEEDS
|
29.1
|
Order of application
|
(a)
|
in discharging any sums owing to the Security Agent, any Receiver or any Delegate;
|
(b)
|
in payment of all costs and expenses incurred by the Agent or any Finance Party in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of this Agreement; and
|
(c)
|
in payment to the Agent, on behalf of the Finance Parties, for application in accordance with Clause 32.6 (Partial Payments)).
|
29.2
|
Prospective liabilities
|
(a)
|
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b)
|
any part of the Secured Liabilities,
|
|
29.3
|
Investment of proceeds
|
29.4
|
Currency Conversion
|
(a)
|
For the purpose of or pending the discharge of any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange.
|
(b)
|
The obligations of any Transaction 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.
|
29.5
|
Permitted deductions
|
(a)
|
to set aside by way of reserve amounts required to meet, and 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
|
(b)
|
to pay all Taxes which may be assessed against it in respect of any of the Security Assets or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
29.6
|
Good discharge of Secured Liabilities
|
(a)
|
Any payment to be made in respect of the Secured Liabilities by the Security Agent may be made to the Agent on behalf of the Finance Parties and any payment made in that way shall be a good discharge to the extent of that payment, by the Security Agent.
|
(b)
|
The Security Agent is under no obligation to make the payments to the Agent under paragraph (a) above in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
|
30.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(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.
|
31.
|
SHARING AMONG THE FINANCE PARTIES
|
31.1
|
Payments to Finance Parties
|
(a)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
(b)
|
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 32 (Payment Mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
31.2
|
Redistribution of payments
|
31.3
|
Recovering Finance Party's rights
|
31.4
|
Reversal of redistribution
|
(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.
|
|
31.5
|
Exceptions: sharing
|
(a)
|
This Clause 31 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 or the Shareholder.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
that 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.
|
32.
|
PAYMENT MECHANICS
|
32.1
|
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, 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 London with such bank as the Agent specifies.
|
32.2
|
Distributions by the Agent
|
32.3
|
Distributions to an Obligor
|
32.4
|
Clawback and pre-funding
|
(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)
|
Unless paragraph (c) below applies, 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
|
|
(c)
|
If the Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrowers before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrowers:
|
(i)
|
the Agent shall notify the Obligors' Agent of that Lender's identity and the Borrowers to whom that sum was made available shall on demand refund it to the Agent; and
|
(ii)
|
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrowers to whom that sum was made available, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
32.5
|
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 32.1 (Payments to the Agent) may instead either:
|
(i)
|
pay that amount direct to the required recipient(s); or
|
(ii)
|
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with a bank or financial institution which has a Requisite Rating within the meaning of paragraph (a) of the definition of
Requisite Rating
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 (the
Paying Party
) and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the
Recipient Party
or
Recipient Parties
).
|
(b)
|
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements.
|
(c)
|
A Party which has made a payment in accordance with this Clause 32.5 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 27.13 (Replacement of the Agent), each Paying Party shall (other than to the extent that that Party has given an instruction pursuant to paragraph (e) below) 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 to the relevant Recipient Party or Recipient Parties in accordance with Clause 32.2 (Distributions by the Agent).
|
(e)
|
A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
|
|
(i)
|
that it has not given an instruction pursuant to paragraph (d) above; and
|
(ii)
|
that it has been provided with the necessary information by that Recipient Party,
|
32.6
|
Partial payments
|
(a)
|
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents (or the provisions of this Clause are otherwise expressed to apply to such payment), the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the order set out in paragraphs (d)(i) to (d)(vii)] of Clause 17.4 (Rent Accounts).
|
(b)
|
The provisions of subparagraphs (d)(i) to (d)(vii)] of Clause 17.4 (Rent Accounts) and of paragraph (a) above will override any appropriation made by any Obligor.
|
32.7
|
No set-off by Obligors
|
(a)
|
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.
|
(b)
|
Paragraph (a) above shall not affect the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement or any repayment made pursuant to paragraph (c) of Clause 6.1 (Repayment).
|
32.8
|
Business Days
|
(a)
|
Except in relation to the Final Repayment Date, any payment under the Finance Documents 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)
|
Any payment under the Finance Documents which is due to be made on the Final Repayment Date and the Final Repayment Date is not a Business Day, such payment shall be made on the preceding Business Day.
|
(c)
|
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
32.9
|
Currency of account
|
(a)
|
Subject to paragraphs (b) and (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
Each payment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum must be made in the currency in which that Loan or Unpaid Sum is denominated, pursuant to this Agreement.
|
(c)
|
Each payment of interest must be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement.
|
|
(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 sterling.
|
32.10
|
Change of currency
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Obligors' Agent); and
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
|
(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 Obligors' Agent) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the London Interbank Market and otherwise to reflect the change in currency.
|
32.11
|
Disruption to payment systems etc.
|
(a)
|
the Agent may, and shall if requested to do so by the Obligors' Agent, consult with the Obligors' Agent with a view to agreeing with the Obligors' Agent 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 Obligors' Agent in relation to any changes mentioned in paragraph (a) above 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 Obligors' Agent 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 to any person, any diminution in value or any liability 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 32.11; and
|
|
(f)
|
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
33.
|
SET-OFF
|
34.
|
NOTICES
|
34.1
|
Communications in writing
|
34.2
|
Addresses
|
(a)
|
in the case of the Obligors' Agent that identified with its name in the execution pages to this Agreement;
|
(b)
|
in the case of each 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 Agent, that identified with its name in the execution pages to this Agreement,
|
34.3
|
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,
|
|
(b)
|
Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or the Security Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's or the Security Agent's signature below (or any substitute department or officer as the Agent or Security 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 Obligors' Agent 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 Agent shall be sent through the Agent.
|
(f)
|
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
34.4
|
Notification of address and fax number
|
34.5
|
Communication when Agent is an Impaired Agent
|
34.6
|
Electronic communication
|
(a)
|
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including without limitation by way of posting to a secure website) if those two Parties:
|
(i)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
|
(ii)
|
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
(b)
|
Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.
|
(c)
|
Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent or the Security Agent only if it is addressed in such a manner as the Agent or the Security Agent shall specify for this purpose.
|
(d)
|
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place in which the Party to whom the relevant communication is sent or made available
|
|
(e)
|
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 34.6.
|
34.7
|
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.
|
35.
|
CALCULATIONS AND CERTIFICATES
|
35.1
|
Accounts
|
35.2
|
Certificates and determinations
|
(a)
|
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
|
(b)
|
In respect of a French Term Loan Agreement, the entries made in the accounts maintained by a Finance Party (other than the Original French Facility Lender) are
prima facie
evidence of the matters to which they relate vis-a-vis the Original French Facility Lender.
|
35.3
|
Day count convention
|
36.
|
PARTIAL INVALIDITY
|
37.
|
REMEDIES AND WAIVERS
|
|
38.
|
AMENDMENTS AND WAIVERS
|
38.1
|
Required Consents
|
(a)
|
Subject to Clause 38.2 (All Lender matters) and paragraph (b) of Clause 38.3 (Other exceptions), any term of the Finance Documents may be amended or waived only in writing with the consent of the Majority Lenders and the Obligors' Agent on behalf of the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Agent, or in respect of the Security documents the Security Agent, may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 38.
|
(c)
|
Without prejudice to the generality of paragraphs (c), (d) and (e) of Clause 27.7 (Rights and discretions), the Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under any Finance Document.
|
(d)
|
Each Obligor agrees to any such amendment or waiver permitted by this Clause 38.1 which is agreed to by the Obligors' Agent; this includes any amendment or waiver which would, but for this paragraph (d), require the consent of all of the Obligors.
|
(e)
|
If a Lender fails to respond to a request for a consent, waiver or amendment of or in relation to any of the terms of any Finance Document or other vote of the Lenders under the terms of this Agreement within fifteen Business Days (unless the Company and the Agent agree to a longer period in relation to any request) of that request being made, its Commitment and/or participation will not be included for the purpose of calculating the Total Commitments or participations in the Loans when ascertaining whether any relevant percentage (including, for the avoidance of doubt unaminity) of Total Commitments and/or participations has been obtained to approve that request.
|
38.2
|
All Lender matters
|
(a)
|
Subject to Clause 38.4 (Replacement of Screen Rate) an amendment, waiver or (in the case of a Transaction Security Document) a consent of or in relation to, any term of any Finance Document that has the effect of changing or which relates to:
|
(i)
|
the definition of
Majority Lenders
in Clause 1.1 (Definitions);
|
(ii)
|
an extension to the date of payment of any amount under the Finance Documents;
|
(iii)
|
a reduction in the Margin or a reduction in the amount of any payment of principal, rate of interest, fees or commission payable (other than any reduction in the Margin payable to a Lender which that Lender has consented to in accordance with the terms of any Margin Letter);
|
(iv)
|
a change in currency of payment of any amount under the Finance Documents;
|
|
(v)
|
an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
(vi)
|
a change to an Obligor 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 7.2 (Change of control and minimum parameter mandatory prepayment events), Clause 7.4 (Mandatory prepayment), Clause 7.5 (Cash Trap Event mandatory prepayment), Clause 25 (Changes to Finance Parties), Clause 31 (Sharing Among the Finance Parties), this Clause 38, Clause 41 (Governing Law) or Clause 42.1 (Jurisdiction);
|
(ix)
|
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:
|
(A)
|
the guarantee and indemnity granted under Clause 18 (Guarantee and Indemnity);
|
(B)
|
the Security Assets or the Transaction Security; or
|
(C)
|
the manner in which the proceeds of enforcement of the Transaction Security are distributed,
|
(x)
|
the release of any guarantee or indemnity granted under Clause 17 (Bank Accounts) 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 the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document,
|
38.3
|
Other exceptions
|
(a)
|
An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent or the Arranger (each in their capacity as such) may not be effected without the consent of the Agent, the Security Agent or the Arranger, as the case may be.
|
(b)
|
The Obligors' Agent and the Agent, the Arranger or the Security Agent, as applicable, may amend or waive a term of a Fee Letter to which they are party.
|
38.4
|
Replacement of Screen Rate
|
(a)
|
Subject to Clause 38.3 (Other exceptions), if the Screen Rate is not available for sterling, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to sterling in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that benchmark rate) may be made with the consent of the Majority Lenders and the Obligors.
|
|
(b)
|
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within ten Business Days (unless the Obligors' Agent and the Agent agree to a longer time period in relation to any request) of that request being made:
|
(i)
|
its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
|
(ii)
|
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
38.5
|
Approvals by the Agent and Security Agent
|
(a)
|
consult with any rating agency that maintains (or is to maintain) a rating in connection with the Securitisation in relation to any consent or approval sought of it by the Obligors' Agent or any Obligor under any Finance Document; and/or
|
(b)
|
refuse or withhold any such consent or approval if the grant of the approval or consent would or could reasonably be expected to prejudice the rating (or prospective rating) of any notes issued (or to be issued) in connection with the Securitisation,
|
38.6
|
Excluded Commitments
|
(i)
|
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request; and
|
(ii)
|
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
38.7
|
Replacement of Lender
|
(a)
|
If any Lender becomes a Non-Consenting Lender (as defined in paragraph (d) below), then the Company may, on 10 Business Days’ prior written notice to the Agent and such Lender, replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 25 (Changes to Finance Parties) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity (a
Replacement Lender
) selected by the Company and which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 25 (Changes to Finance Parties) for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal
|
|
(b)
|
The replacement of a Lender pursuant to this Clause 38.7 shall be subject to the following conditions:
|
(i)
|
the Company shall have no right to replace the Agent or Security Agent;
|
(ii)
|
neither the Agent nor the Lender shall have an obligation to the Company to find a Replacement Lender;
|
(iii)
|
in the event of a replacement of a Non-Consenting Lender such replacement must take place not later than 10 Business Days after the date on which that Lender is deemed a Non-Consenting Lender;
|
(iv)
|
in no event shall the Lender replaced under this Clause 38.7 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and
|
(v)
|
the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.
|
(c)
|
A Lender shall perform the checks described in paragraph (b)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.
|
(d)
|
In the event that:
|
(i)
|
the Company or the Agent (at the request of the Company) has requested the Majority Lenders or all the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;
|
(ii)
|
the consent, waiver or amendment in question requires the approval of the Majority Lender or all the Lenders; and
|
(iii)
|
the Majority Lenders have consented or agreed to such waiver or amendment,
|
38.8
|
Disenfranchisement of Defaulting Lenders
|
(a)
|
For so long as a Defaulting Lender has any Available Commitment, in ascertaining:
|
(i)
|
the Majority Lenders; or
|
(ii)
|
whether:
|
(A)
|
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments under the relevant Facilities; or
|
|
(B)
|
the agreement of any specified group of Lenders,
|
(b)
|
For the purposes of this Clause 38.8, the Agent may assume that the following Lenders are Defaulting Lenders:
|
(i)
|
any Lender which has notified the Agent that it has become a Defaulting Lender;
|
(ii)
|
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b), (c) of the definition of
Defaulting Lender
has occurred,
|
38.9
|
Replacement of a Defaulting Lender
|
(a)
|
The Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 5 Business Days' prior written notice to the Agent and such Lender replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) assign or transfer pursuant to Clause 25 (Changes to Finance Parties) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity (a
Replacement Lender
) selected by the Company, which confirms its willingness to assume and does assume (in case of a transfer by way of assignment, assumption and release) all the obligations, or all the relevant obligations, of the transferring Lender in accordance with Clause 25 (Changes to Finance Parties) for a purchase price in cash payable at the time of assignment or transfer which is either:
|
(i)
|
in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents; or
|
(ii)
|
in an amount agreed between that Defaulting Lender, the Replacement Lender and the Company and which does not exceed the amount described in paragraph (i) above.]
|
(b)
|
Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 38.9 shall be subject to the following conditions:
|
(i)
|
the Company shall have no right to replace the Agent or Security Agent;
|
(ii)
|
neither the Agent nor the Defaulting Lender shall have any obligation to the Company to find a Replacement Lender;
|
(iii)
|
the transfer must take place no later than 5 Business Days after the notice referred to in paragraph (a) above;
|
|
(iv)
|
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and
|
(v)
|
the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer to the Replacement Lender.
|
(c)
|
The Defaulting Lender shall perform the checks described in paragraph (b)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.
|
39.
|
CONFIDENTIALITY
|
39.1
|
Confidential Information
|
39.2
|
Disclosure of Confidential Information
|
(a)
|
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 (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)
|
to any person:
|
(i)
|
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 or which succeeds (or which may potentially succeed) it as Agent or Security Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(ii)
|
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 person's Affiliates, Related Funds, Representatives and professional advisers;
|
(iii)
|
appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) 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 (b) of Clause 27.15 (Relationship with the Finance Parties));
|
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in subparagraph (i) or (ii) above;
|
(v)
|
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;
|
(vi)
|
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;
|
(vii)
|
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 25.8 (Security over Lenders' rights);
|
(viii)
|
to be provided to, or included in any information or materials prepared for the primary purpose of disclosure to, any person who is an investor or potential investor in any securitisation of that Finance Party's rights or obligations under the Finance Documents;
|
(ix)
|
to any person who is an agent or trustee of that Finance Party or in respect of a securitisation and any agent of or professional and financial advisor to, that person;
|
(x)
|
who is a Party, a member of the Group or any related entity of an Obligor; or
|
(xi)
|
with the consent of the Obligors' Agent,
|
(A)
|
in relation to subparagraphs (i), (ii) and (iii) 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 subparagraph (iv) 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; and
|
(C)
|
in relation to subparagraphs (v), (vi) and (vii) 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;
|
(c)
|
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) 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
|
|
(d)
|
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.
|
39.3
|
Entire agreement
|
39.4
|
Inside information
|
39.5
|
Notification of disclosure
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 39.2 (Disclosure of Confidential Information) 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
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 39.
|
39.6
|
Continuing obligations
|
(a)
|
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b)
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
|
40.
|
COUNTERPARTS
|
41.
|
GOVERNING LAW
|
42.
|
ENFORCEMENT
|
42.1
|
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 the consequences of its nullity or any non-contractual obligations arising out of or in connection with this Agreement) (a
Dispute
).
|
(b)
|
Each Obligor agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor shall argue to the contrary.
|
(c)
|
Notwithstanding paragraph (a)(a), any Finance Party may take proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties and Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
42.2
|
Service of process
|
|
Facility A Borrowers
|
Registered Number
|
Jurisdiction
|
Trias GER Immermannstraße – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192539
|
B 192539
|
Luxembourg
|
Trias GER Kirchheide – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192579
|
B 192579
|
Luxembourg
|
Trias GER Münsterstrasse – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192544
|
B 192544
|
Luxembourg
|
Trias GER Uhlandstrasse – T S.à.r.l, a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192581
|
B 192581
|
Luxembourg
|
Trias GER Rather Strasse – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192630
|
B 192630
|
Luxembourg
|
Trias GER Stuttgart – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192583
|
B 192583
|
Luxembourg
|
|
Facility A Borrowers
|
Registered Number
|
Jurisdiction
|
Trias GER Ludwigstrasse – T S.à.r.l, a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192548
|
B 192548
|
Luxembourg
|
Trias GER Bunte Kuh – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192584
|
B 192584
|
Luxembourg
|
Trias GER Kaygasse – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192561
|
B 192561
|
Luxembourg
|
Trias GER Pferdemarkt – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192585
|
B 192585
|
Luxembourg
|
Trias GER Bottrop – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192563
|
B 192563
|
Luxembourg
|
Trias GER Munich Airport T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192586
|
B 192586
|
Luxembourg
|
Trias GER Holzwickede – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192569
|
B 192569
|
Luxembourg
|
|
Facility A Borrowers
|
Registered Number
|
Jurisdiction
|
Trias GER Ibis Berlin – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192597
|
B 192597
|
Luxembourg
|
Trias GER Münster – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192568
|
B 192568
|
Luxembourg
|
Trias GER IC Berlin – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192631
|
B 192631
|
Luxembourg
|
Trias GER Werl – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192577
|
B 192577
|
Luxembourg
|
Trias GER Parexel – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192593
|
B 192593
|
Luxembourg
|
Trias NLD Rijswijk – T, BV
|
62583247
|
Netherlands
|
Trias NLD De Meern – T, BV
|
62583514
|
Netherlands
|
|
Facility C Borrowers
|
Registered Number
|
Jurisdiction
|
Trias UK Delta – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15.000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194335
|
B 194335
|
Luxembourg
|
Trias UK Gemini – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15.000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194339
|
B 194339
|
Luxembourg
|
Trias UK Edinburgh – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15.000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194364
|
B 194364
|
Luxembourg
|
Trias UK Sherard – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15.000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194345
|
B 194345
|
Luxembourg
|
Trias UK Centrium 1 – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15.000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194350
|
B 194350
|
Luxembourg
|
Trias UK The Building – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15.000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B194373
|
B 194373
|
Luxembourg
|
|
Original Guarantors
|
Registered Number
|
Jurisdiction
|
Trias Holdco C - T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192534
|
B 192534
|
Luxembourg
|
Trias Pool I – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 193460
|
B 193460
|
Luxembourg
|
Trias Pool III – T S.à r.l., private limited liability company (
société à responsabilité limitée
)incorporated and existing under the laws of Luxembourg, with a share capital of € 12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194829
|
B 194829
|
Luxembourg
|
Trias Pool III – TGP S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12.500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, in the course of being registered with the Luxembourg trade and companies register
|
in the course of being registered
|
Luxembourg
|
Trias Pool III – TLP S.C.A., a partnership limited by shares (
société en commandite par actions
) incorporated and existing under the laws of Luxembourg, with a share capital of € 31,000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, in the course of being registered with the Luxembourg trade and companies register
|
in the course of being registered
|
Luxembourg
|
Trias Pool VI – T S.à.r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194833
|
B 194833
|
Luxembourg
|
Trias Pool VIII – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194842
|
B 194842
|
Luxembourg
|
|
Original Guarantors
|
Registered Number
|
Jurisdiction
|
Trias GER Immermannstraße – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192539
|
B 192539
|
Luxembourg
|
Trias GER Kirchheide – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192579
|
B 192579
|
Luxembourg
|
Trias GER Münsterstrasse – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192544
|
B 192544
|
Luxembourg
|
Trias GER Uhlandstrasse – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192581
|
B 192581
|
Luxembourg
|
Trias GER Rather Strasse – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192630
|
B 192630
|
Luxembourg
|
Trias GER Stuttgart – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192583
|
B 192583
|
Luxembourg
|
Trias GER Ludwigstrasse – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192548
|
B 192548
|
Luxembourg
|
|
Original Guarantors
|
Registered Number
|
Jurisdiction
|
Trias GER Bunte Kuh – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192584
|
B 192584
|
Luxembourg
|
Trias GER Kaygasse – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192561
|
B 192561
|
Luxembourg
|
Trias GER Pferdemarkt – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192585
|
B 192585
|
Luxembourg
|
Trias GER Bottrop – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192563
|
B 192563
|
Luxembourg
|
Trias GER Munich Airport T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192586
|
B 192586
|
Luxembourg
|
Trias GER Holzwickede – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192569
|
B 192569
|
Luxembourg
|
Trias GER Ibis Berlin – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192597
|
B 192597
|
Luxembourg
|
|
Original Guarantors
|
Registered Number
|
Jurisdiction
|
Trias GER Münster – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192568
|
B 192568
|
Luxembourg
|
Trias GER IC Berlin – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192631
|
B 192631
|
Luxembourg
|
Trias GER Werl – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192577
|
B 192577
|
Luxembourg
|
Trias GER Parexel – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of €12,500, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 192593
|
B 192593
|
Luxembourg
|
Trias UK Delta – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15,000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194335
|
B 194335
|
Luxembourg
|
Trias UK Gemini – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15,000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194339
|
B 194339
|
Luxembourg
|
Trias UK Edinburgh – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15,000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194364
|
B 194364
|
Luxembourg
|
|
Original Guarantors
|
Registered Number
|
Jurisdiction
|
Trias UK Sherard – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15,000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194345
|
B 194345
|
Luxembourg
|
Trias UK Centrium 1 – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15,000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B 194350
|
B 194350
|
Luxembourg
|
Trias UK The Building – T S.à r.l., a private limited liability company (
société à responsabilité limitée
) incorporated and existing under the laws of Luxembourg, with a share capital of GBP15,000, with its registered office at 6A, route de Trèves, L-2633 Senningerberg, being registered with the Luxembourg trade and companies register under number B194373
|
B194373
|
Luxembourg
|
Trias NLD Rijswijk – T, BV
|
62583247
|
Netherlands
|
Trias NLD De Meern – T, BV
|
62583514
|
Netherlands
|
|
Name of Original Lender
|
Facility A Commitment
(EUR)
|
Facility B Commitment
(EUR)
|
Facility C Commitment
(GBP)
|
GE Real Estate Loans Limited as original facility A lender (the
Original Facility A Lender
)
|
€128,003,781
|
n/a
|
|
GE Real Estate Loans Limited as original facility B lender (the
Original Facility B Lender
)
|
n/a
|
€72,386,694
|
n/a
|
GE Real Estate Loans Limited as original facility C lender (the
Original Facility C Lender
)
|
n/a
|
n/a
|
26,080,076
|
Name of Original Lender
|
French Facility A Commitment
(EUR)
|
French Facility B Commitment
(EUR)
|
French Facility C Commitment
(EUR)
|
French Facility D Commitment (EUR)
|
Trias Pool III – TLP S.C.A. as original French facility lender (the
Original
French Facility Lender
)
|
25,294,694
|
7,992,000
|
30,100,000
|
9,000,000
|
|
No.
|
Property address and registered title number(s) (if applicable)
|
Freehold/Leasehold
|
Owner
|
Allocated Loan Amount (€)
|
1.
|
Rijnzathe 12, 3454PV De Meern, The Netherlands
|
Freehold
|
Trias NLD De Meern - T B.V.
|
2,400,000
|
2.
|
Rijswijk (ZH), Laan van Hoornwijck 55/65, 2289 DG
|
Freehold
|
Trias NLD Rijswijk - T B.V.
|
2,956,770
|
|
No.
|
Property address and registered title number(s) (if applicable)
|
Freehold/Leasehold
|
Owner
|
Allocated Loan Amount (£)
|
1.
|
The Sherard Building, Oxford Science Park, Grenoble Road, Sandford On Thames, Oxford
|
Leasehold
|
Trias UK Sherard - T S.à r.l.
|
5,214,090
|
2.
|
920 Aztec West, Almondsbury, Bristol BS32 4SR
|
Freehold
|
Trias UK Gemini - T S.à r.l.
|
3,967,795
|
3.
|
578/586 Chiswick High Road, Chiswick W4 5RP
|
Freehold
|
Trias UK The Building - T S.à r.l.
|
6,857,228
|
4.
|
1 Centrium Business Park, Griffiths Way, St Albans AL1 2RD
|
Freehold
|
Trias UK Centrium 1 - T S.à r.l.
|
3,179,323
|
|
No.
|
Property address and registered title number(s) (if applicable)
|
|
Owner
|
Allocated Loan Amount (£)
|
1.
|
Delta House, 46-54 West Nile Street, Glasgow G1 2NP
|
|
Trias UK Delta - T S.à r.l.
|
4,133,120
|
2.
|
3 Lochside View, Edinburgh, EH12 9DH
|
|
Trias UK Edinburgh - T S.à r.l.
|
2,728,520
|
|
No.
|
Property address and registered title number(s) (if applicable)
|
Freehold/Leasehold
|
Owner
|
Allocated Loan Amount (€)
|
1.
|
58 avenue Marceau and 23/25 rue de Bassano, 75008 Paris
|
Freehold
|
SAS 58 Avenue Marceau
|
30,100,000
|
2.
|
20/22 rue Joubert and 98 bis rue de la Victoire, 75009 Paris
|
Freehold (Co-Ownership)
|
SAS 20 rue Joubert
|
7,992,000
|
3.
|
Moimont II Industrial Zone (Zone d'activités de Moimont II), 95670 Marly-la-Ville
|
Freehold
|
SCI Trias FRA Marly - T
|
25,294,694
|
4.
|
121 rue d'Alésia, 75014 Paris
|
Freehold (Volume Division)
|
SAS 121 Rue d'Alésia
|
9,000,000
|
|
No.
|
Property address and registered title number(s) (if applicable)
|
Freehold/ Leasehold
|
Land Register Details
|
Owner
|
Allocated Loan Amount (€)
|
1.
|
Am Bahnhof Westend 3 and 15, 14059 Berlin
|
Freehold
|
Land register of Stadt Charlottenburg at the local court of Charlottenburg, folios 44790 and 8414, sub-district 4, land parcels 1182, 1185, 1194, 2689/13 and 1193
|
Trias GER Parexel - T S.à r.l.
|
27,215,005
|
2.
|
Münsterstraße 261, 40470 Düsseldorf
|
Freehold
|
Land register of Derendorf at the local court of Düsseldorf, folio 6940, sub-district 9, land parcel 80
|
Trias GER Münsterstrasse - T S.à r.l.
|
2,168,298
|
3.
|
Eichenstraße 11a – 11d, 81375 Munich
|
Freehold
|
Land register of Oberding at the local court of Erding, folio 4438, land parcel 5469/2
|
Trias GER Munich Airport - T S.à r.l.
|
3,000,000
|
4.
|
Rather Straße 49 d, 40476 Düsseldorf
|
Freehold
|
Land register of Derendorf at the local court of Düsseldorf, folio 21694, sub-district 4, land parcel 171
|
Trias GER Rather Strasse - T S.à r.l.
|
4,826,212
|
5.
|
Brückenstraße 6, Ludwigstr. 2, 6, 50667 Cologne
|
Freehold
|
Land register of Cologne at the local court of Cologne, folio 2731, sub-district 19, land parcels 1119, 1078 and 1118
|
Trias GER Ludwigstrasse - T S.à r.l.
|
17,231,931
|
6.
|
Konrad-Adenauer-Allee 2, Am Bahnhof, 27472 Cuxhaven
|
Freehold
|
Land register of Cuxhaven at the local court of Cuxhaven, folio 6074, sub-district 2, land parcels 243/2, 243/5, 257/2, 257/4, 258/3, 258/5, 259, 261/12 and sub-district 3, land parcels 1/40, 1/50 and 1/52
|
Trias GER Cuxhaven - T S.à r.l.
|
14,434,127
|
|
7.
|
Uhlandstraße 2, Sonnemannstraße 6, Oskar-von-Miller-Straße 20, 24, 26, 28, 60314 Frankfurt am Main
|
Freehold re land parcel 12/10
Joint condominium ownership (1/2 co-ownership share of 40/10,000 condominium share regarding parking spaces nos. 13 and 14), registered in folios 1725 and 1726
Joint condominium ownership (1/4 co-ownership share of 80/10,000 condominium share regarding parking spaces nos. 36, 37, 42, 44 and 1/2 co-ownership share of 20/10,000 condominium share regarding parking space no. 38), registered in folios 1679-1681, 1685 and 1687
|
Land register of Frankfurt Bezirk 14 at the local court of Frankfurt am Main, folio 1620, sub-district 170, land parcel 12/10
Co-ownership register of Frankfurt Bezirk 14 at the local court of Frankfurt am Main, folios 1726 and 1725, sub-district 172, land parcel 2/22
Co-ownership register of Frankfurt Bezirk 14 at the local court of Frankfurt am Main, folio 1679-1681, 1685 and 1687, sub-district 172, land parcel 2/13
|
Trias GER Uhlandstrasse - T S.à r.l.
|
10,428,180
|
8.
|
Robert-Bosch-Straße 2, 59439 Holzwickede
|
Freehold
|
Land register of Holzwickede at the local court of Unna, folio 5813, sub-district 3, land parcels 1111 and 1118
|
Trias GER Holzwickede - T S.à r.l.
|
2,816,880
|
9.
|
Birkenwaldstraße 149, 70191 Stuttgart
|
Freehold
|
Land register of Stuttgart at the local court of Stuttgart, folio 22178, sub-district 2708, land parcels 8801/18 and 8807/12
|
Trias GER Stuttgart - T S.à r.l.
|
2,570,424
|
10.
|
Korvettenstraße 69, 71, 73, 75, 23558 Lübeck
|
Freehold
|
Land register of Lübeck at the local court of Lübeck, folios 79242 and 8319, sub-district 19, land parcels 38, 40, 15/81 and 16/29
|
Trias GER Bunte Kuh - T S.à r.l.
|
1,260,000
|
|
11.
|
Brandenburgische Straße 11, 10713 Berlin
|
Freehold
|
Land register of Berlin-Wilmersdorf at the local court of Charlottenburg, folio 4640, sub-district 3, land parcel 178/22
|
Trias GER Ibis Berlin - T S.à r.l.
|
7,185,270
|
12.
|
Am Seegraben 2, 12526 Berlin
|
Freehold
|
Land register of Schönefeld at the local court of Königs-Wusterhausen, folio 2406, sub-district 2, land parcel 1359
|
Trias GER IC Berlin - T S.à r.l.
|
12,017,841
|
13.
|
Immermannstraße 15, 40210 Düsseldorf
|
Freehold
|
Land register of Pempelfort at the local court of Düsseldorf, folio 5582A, sub-district 6, land parcel 216
|
Trias GER Immermannstrasse-T S.à r.l.
|
3,840,622
|
14.
|
Kaygasse, 50676 Köln
|
Freehold
|
Land register of Cologne at the local court of Cologne, folio 41630, sub-district 9, land parcel 1655
|
Trias GER Kaygasse - T S.à r.l.
|
2,746,340
|
15.
|
Nevinghoff 8 and 10, 48147 Münster
|
Freehold
|
Land register of Münster at the local court of Münster, folios 28425 and 28426, sub-district 121, land parcels 58 and 59
|
Trias GER Münster - T S.à r.l.
|
4,731,633
|
16.
|
Neuer Markt 9, 10, 11, 12, 13, 59457 Werl
|
Partial Ownership
|
Co-ownership register of Werl at the local court of Werl, folio 5403, sub-district 37, land parcels 572, 24, 573 and 571
|
Trias GER Werl - T S.à r.l.
|
1,570,586
|
17.
|
Osterfelder Straße 9, 9A-C, Böckenhoffstraße 10A, 46236 Bottrop
|
Freehold
|
Land register of Bottrop at the local court of Bottrop, folio 3371, sub-district 72, land parcel 128
|
Trias GER Bottrop - T S.à r.l.
|
2,880,467
|
18.
|
Kirchheide 39-42, 28757 Bremen
|
Freehold
|
Land register of Vegesack at the local court of Bremen-Blumenthal, folio 1537, sub-district 1, land parcels 255/9 and 255/13
|
Trias GER Kirchheide - T S.à r.l.
|
769,396
|
|
|
No.
|
Property address and registered title number(s) (if applicable)
|
Freehold/Leasehold
|
Owner
|
Allocated Loan Amount (€)
|
1.
|
Rijnzathe 12, 3454PV De Meern, The Netherlands
|
Freehold
|
Trias NLD De Meern - T B.V.
|
2,400,000
|
2.
|
Rijswijk (ZH), Laan van Hoornwijck 55/65, 2289 DG
|
Freehold
|
Trias NLD Rijswijk - T B.V.
|
2,956,770
|
No.
|
Property address and registered title number(s) (if applicable)
|
Freehold/Leasehold
|
Owner
|
Allocated Loan Amount (£)
|
1.
|
The Sherard Building, Oxford Science Park, Grenoble Road, Sandford On Thames, Oxford
|
Leasehold
|
Trias UK Sherard - T S.à r.l.
|
5,214,090
|
2.
|
920 Aztec West, Almondsbury, Bristol BS32 4SR
|
Freehold
|
Trias UK Gemini - T S.à r.l.
|
3,967,795
|
3.
|
578/586 Chiswick High Road, Chiswick W4 5RP
|
Freehold
|
Trias UK The Building - T S.à r.l.
|
6,857,228
|
4.
|
1 Centrium Business Park, Griffiths Way, St Albans AL1 2RD
|
Freehold
|
Trias UK Centrium 1 - T S.à r.l.
|
3,179,323
|
No.
|
Property address and registered title number(s) (if applicable)
|
|
Owner
|
Allocated Loan Amount (£)
|
1.
|
Delta House, 46-54 West Nile Street, Glasgow G1 2NP
|
|
Trias UK Delta - T S.à r.l.
|
4,133,120
|
2.
|
3 Lochside View, Edinburgh, EH12 9DH
|
|
Trias UK Edinburgh - T S.à r.l.
|
2,728,520
|
|
No.
|
Property address and registered title number(s) (if applicable)
|
Freehold/Leasehold
|
Owner
|
Allocated Loan Amount (€)
|
1.
|
58 avenue Marceau and 23/25 rue de Bassano, 75008 Paris
|
Freehold
|
SAS 58 Avenue Marceau
|
30,100,000
|
2.
|
20/22 rue Joubert and 98 bis rue de la Victoire, 75009 Paris
|
Freehold (Co-Ownership)
|
SAS 20 rue Joubert
|
7,992,000
|
3.
|
Moimont II Industrial Zone (Zone d'activités de Moimont II), 95670 Marly-la-Ville
|
Freehold
|
SCI Trias FRA Marly - T
|
25,294,694
|
4.
|
121 rue d'Alésia, 75014 Paris
|
Freehold (Volume Division)
|
SAS 121 Rue d'Alésia
|
9,000,000
|
No.
|
Property address and registered title number(s) (if applicable)
|
Freehold/ Leasehold
|
Land Register Details
|
Owner
|
Allocated Loan Amount (€)
|
1.
|
Am Bahnhof Westend 3 and 15, 14059 Berlin
|
Freehold
|
Land register of Stadt Charlottenburg at the local court of Charlottenburg, folios 44790 and 8414, sub-district 4, land parcels 1182, 1185, 1194, 2689/13 and 1193
|
Trias GER Parexel - T S.à r.l.
|
27,215,005
|
2.
|
Münsterstraße 261, 40470 Düsseldorf
|
Freehold
|
Land register of Derendorf at the local court of Düsseldorf, folio 6940, sub-district 9, land parcel 80
|
Trias GER Münsterstrasse - T S.à r.l.
|
2,168,298
|
3.
|
Eichenstraße 11a – 11d, 81375 Munich
|
Freehold
|
Land register of Oberding at the local court of Erding, folio 4438, land parcel 5469/2
|
Trias GER Munich Airport - T S.à r.l.
|
3,000,000
|
4.
|
Rather Straße 49 d, 40476 Düsseldorf
|
Freehold
|
Land register of Derendorf at the local court of Düsseldorf, folio 21694, sub-district 4, land parcel 171
|
Trias GER Rather Strasse - T S.à r.l.
|
4,826,212
|
5.
|
Brückenstraße 6, Ludwigstr. 2, 6, 50667 Cologne
|
Freehold
|
Land register of Cologne at the local court of Cologne, folio 2731, sub-district 19, land parcels 1119, 1078 and 1118
|
Trias GER Ludwigstrasse - T S.à r.l.
|
17,231,931
|
|
|
10.
|
Brandenburgische Straße 11, 10713 Berlin
|
Freehold
|
Land register of Berlin-Wilmersdorf at the local court of Charlottenburg, folio 4640, sub-district 3, land parcel 178/22
|
Trias GER Ibis Berlin - T S.à r.l.
|
7,185,270
|
11.
|
Am Seegraben 2, 12526 Berlin
|
Freehold
|
Land register of Schönefeld at the local court of Königs-Wusterhausen, folio 2406, sub-district 2, land parcel 1359
|
Trias GER IC Berlin - T S.à r.l.
|
12,017,841
|
12.
|
Immermannstraße 15, 40210 Düsseldorf
|
Freehold
|
Land register of Pempelfort at the local court of Düsseldorf, folio 5582A, sub-district 6, land parcel 216
|
Trias GER Immermannstrasse-T S.à r.l.
|
3,840,622
|
13.
|
Kaygasse, 50676 Köln
|
Freehold
|
Land register of Cologne at the local court of Cologne, folio 41630, sub-district 9, land parcel 1655
|
Trias GER Kaygasse - T S.à r.l.
|
2,746,340
|
14.
|
Nevinghoff 8 and 10, 48147 Münster
|
Freehold
|
Land register of Münster at the local court of Münster, folios 28425 and 28426, sub-district 121, land parcels 58 and 59
|
Trias GER Münster - T S.à r.l.
|
4,731,633
|
15.
|
Neuer Markt 9, 10, 11, 12, 13, 59457 Werl
|
Partial Ownership
|
Co-ownership register of Werl at the local court of Werl, folio 5403, sub-district 37, land parcels 572, 24, 573 and 571
|
Trias GER Werl - T S.à r.l.
|
1,570,586
|
16.
|
Osterfelder Straße 9, 9A-C, Böckenhoffstraße 10A, 46236 Bottrop
|
Freehold
|
Land register of Bottrop at the local court of Bottrop, folio 3371, sub-district 72, land parcel 128
|
Trias GER Bottrop - T S.à r.l.
|
2,880,467
|
17.
|
Kirchheide 39-42, 28757 Bremen
|
Freehold
|
Land register of Vegesack at the local court of Bremen-Blumenthal, folio 1537, sub-district 1, land parcels 255/9 and 255/13
|
Trias GER Kirchheide - T S.à r.l.
|
769,396
|
|
18.
|
Pferdemarkt 6, 8 and Marlesgrube 9, 11, 13, 15, 23552 Lübeck
|
Freehold (Pferdemarkt)
Partial Ownership (Marlesgrube 9, 11, 13, 15)
|
Land register of Lübeck at the local court of Lübeck, folio 6184, sub-district 54, land parcels 58/9, 59/2 and 60/2
Co-ownership register of Lübeck at the local court of Lübeck, folio 40779, sub-district 54, land parcel 48/5
|
Trias GER Pferdemarkt - T S.à r.l.
|
953,797
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment and Restatement Agreement of 20 July 2015 to the Loan Agreement in the amount of up to EUR 248,000,000 of 25 September 2014
|
|
Preamble
|
3
|
1. Changes to the Existing Loan Agreement
|
4
|
2. Continued legal effect of the Security, Confirmation of Security Documents
|
4
|
3. Miscellaneous
|
5
|
Schedule 1 (New Version of the Loan Agreement)
|
6
|
Schedule 2 (Security Documents)
|
7
|
(1)
|
Geschäftshaus am Gendarmenmarkt GmbH
, c/o Hauck Schuchardt, Niedenau 61-63, 60325 Frankfurt am Main, having its registered seat in Frankfurt am Main, registered in the commercial register of the local court of Frankfurt am Main under no. HRB 82647 (the “
Borrower
” or “
GaG
”);
|
(2)
|
Landesbank Hessen-Thüringen Girozentrale
, with business address at Neue Mainzer Str. 52-58, 60311 Frankfurt am Main (the “
Lender
”).
|
(A)
|
The Borrower and the Lender entered into a loan agreement in an amount of up to EUR 248,000,000 on 25 September 2014 (the “
Existing Loan Agreement
”). The full loan amount available under the Existing Loan Agreement was drawn by and paid to the Borrower in 2014.
|
(B)
|
The shares in the Borrower have been sold under a share sale and purchase agreement dated 11/12 June 2015 (deed no. 519 of the notarial role of deed for the year 2015 of the notary public Dr. Christian Wicker in Frankfurt am Main - the “
SPA
”) to five limited liability companies established under Luxembourg law as further specified in such SPA (the “
Purchasers
”, and the shares in the Borrower purchased by the Purchasers the “
Purchased Shares
”).
|
(C)
|
The Lender is prepared to make available to the Borrower a loan, and the proceeds of such loan are to be distributed to the Purchasers with the view to partially refinance the purchase price already paid by the Purchasers for the Purchased Shares. The Parties have agreed to include in the Existing Loan Agreement a new tranche in the amount of EUR 82,000,000 to be made available to the Borrower (such tranche hereinafter referred to as “
Tranche 2
”, and the loan in the amount of EUR 248,000,000 advanced under the Existing Loan Agreement to the Borrower in 2014 hereinafter referred to as “
Tranche 1
”). In addition, the Parties have agreed to implement a number of other changes to the Existing Loan Agreement which are, inter alia, to reflect the acquisition of the Purchased Shares by the Purchasers, the new shareholder structure and the increase in the overall loan amount to EUR 330,000,000.
|
(D)
|
To implement the changes referred to under (C) above, the Parties have agreed to amend the Existing Loan Agreement by this amendment and restatement agreement (the “
Amendment Agreement
”) as follows.
|
1.
|
Changes to the Existing Loan Agreement
|
1.1
|
The Existing Loan Agreement shall be amended and reinstated (
insgesamt neu gefasst
) as set out in
Schedule 1 - New Version of the Loan Agreement
. The Existing Loan Agreement as amended by the Amendment Agreement is hereinafter referred to as the “
Amended Loan Agreement
”.
|
1.2
|
The amendments to the Existing Loan Agreement shall become binding upon entering into the Amendment Agreement subject to the following provision:
|
1.3
|
The Parties are in agreement that the amendments to the Existing Loan Agreement by the Amendment Agreement do not change the nature, scope and identity of the claims outstanding under the Existing Loan Agreement. These claims continue to be outstanding under the Amended Loan Agreement but will be governed by the terms and conditions of the Amended Loan Agreement from the day of this Amendment Agreement (unless otherwise agreed above).
|
2.
|
Continued legal effect of the Security, Confirmation of Security Documents
|
2.1
|
The Parties are in agreement that any security granted in connection with the Existing Loan Agreement shall not be affected by the amendments to the Existing Loan Agreement and that such security and in particular the agreements listed in
Schedule 2 - Security Documents
shall remain in full force and effect subject to the following paragraphs.
|
2.2
|
All references to the Existing Loan Agreement or to the term “Loan Agreement” in the Security Documents (as defined in the Existing Loan Agreement) and the other Finance Documents (as defined in the Existing Loan Agreement) shall be a reference to the Existing Loan Agreement as amended by the Amendment Agreement (i.e. to the Amended Loan Agreement); references to Finance Documents shall incorporate a reference to the Existing Loan Agreement as amended by the Amendment Agreement (i.e. to the Amended Loan Agreement).
|
2.3
|
The entering into of the documents listed in Schedule 2 is hereby confirmed (
bestätigt
). For the avoidance of doubt, such confirmation is made under implementation of the clarification set
|
2.4
|
The Parties are in agreement that the Security Purpose Agreement (as defined in Schedule 2) also applies to the second-ranking land charge in the nominal amount of EUR 82,000,000 granted or to be granted according to the terms and conditions of the Amended Loan Agreement, and any reference to the Land Charges (as defined in the Security Purpose Agreement) is to include a reference to the newly created land charge in the nominal amount of EUR 82,000,000.
|
2.5
|
Clause 2.1 above is without prejudice to any security granted or to be granted in connection with the Amended Loan Agreement or any amendment made to the existing Security Documents (as defined in the Existing Loan Agreement) in connection with the amendment of the Existing Loan Agreement. The Parties are in agreement that new and/or additional versions of the documents listed in Schedule 2 (other than the Global Assignment Agreement) will be entered into.
|
3.
|
Miscellaneous
|
3.1
|
This Amendment Agreement is a Finance Document (within the meaning of the Existing Loan Agreement and the Amended Loan Agreement).
|
3.2
|
Sections 21.1 (Applicable Law) to 21.4 (Enforceability), 21.8 (Waiver) of the Amended Loan Agreement shall apply correspondingly to this Amendment Agreement.
|
3.3
|
The Parties can enter into the Amendment Agreement also by exchanging signed copies by fax or as an electronic copy.
|
1.
|
Preamble and Definitions
|
1.1
|
GaG is the owner (
Eigentümer
) of the three building complexes as further described in
Schedule 1.1 – Property
(the “
Property
”). The Property was purchased on the basis of a purchase agreement between,
inter alia
, Blitz 07-202 AG and Blitz F07 dreihundertneun GmbH as purchaser and
|
1.2
|
Madison Trianon S.à r.l. (“
Madison
”), MSEOF Trianon S.à r.l. (“
MSEOF
”) and Wesselton GmbH & Co. KG are the sole shareholders (the “
Existing Shareholders
”) of GaG and Madison and MSEOF are the sole shareholders of GMS Gebäudemanagement und Service GmbH (“
GMS
”), a limited liability company established under the laws of the Federal Republic of Germany and registered under number HRB 36774 with the commercial register of the local court in Frankfurt am Main. Under a sale and purchase agreement (the “
SPA
”) dated 11/12 June 2015,
|
a)
|
the Existing Shareholders sold 100% of their shares in GaG to Symbol I - T S.à r.l., Symbol II - T S.à r.l., Symbol III - T S.à r.l., Symbol IV - T S.à r.l. and Symbol V - T S.à r.l. (the “
New Shareholders
”) as further specified in the SPA and
|
b)
|
Madison and MSEOF sold 100% of their shares in GMS to Symbol HoldCo C – T S.à r.l. (“
HoldCo
”),
|
1.3
|
This loan agreement (the “
Loan Agreement
”) was originally entered into on 25 September 2014 for the purpose of refinancing GaG’s existing bank debt. The parties to this Loan Agreement (the “
Parties
”) have agreed to amend the Loan Agreement to reflect the change of control as described in Section 1.2 above, to increase the loan amount to up to EUR 330,000,000 by adding a new tranche to the existing loan and to allow the Borrower to draw such additional tranche under the Loan Agreement.
|
1.4
|
In this Loan Agreement, the following terms shall have the following meaning:
|
1.5
|
Any reference to the singular of a term shall include a reference to the plural of such term and vice versa.
|
2.
|
Loan, Purpose
|
2.1
|
Loan Amount
|
a)
|
a tranche in the amount of EUR 248,000,000 which amount was fully drawn by and was fully advanced to the Borrower on 15 October 2014 (“
Tranche 1
”), and
|
b)
|
a tranche in the amount of EUR 82,000,000 which tranche can be drawn by the Borrower – subject to the terms and conditions of the Loan Agreement – (“
Tranche 2
”).
|
2.2
|
Purpose
|
3.
|
Shareholder Structure of the Borrower, Mandatory and Voluntary Prepayment
|
3.1
|
Shareholder Structure
|
3.2
|
Change of Control
|
(i)
|
the Sponsor and/or a Related Entity do/does not hold directly or indirectly more than 50% of the capital and the voting rights of the Borrower and GMS; and/or
|
(ii)
|
a third party (not being the Sponsor or a Related Entity) gains control (
beherrschender Einfluss
) over the Borrower or GMS within the meaning of section 290 (2) of the German Commercial Code (
Handelsgesetzbuch
) (or the corresponding provisions of a foreign law applicable to the Borrower).
|
a)
|
a Subsidiary (as defined below) of the Sponsor, or
|
b)
|
any legal entity (in the following the “
Entity
”) in relation to which all of the following statements are true:
|
(i)
|
no person holds 25% or more of the capital or the voting rights in the Entity;
|
(ii)
|
the Entity is not controlled by any person within the meaning of section 290 (2) of the German Commercial Code;
|
(iii)
|
the Entity is fully managed by the Sponsor, NorthStar Asset Management Group Inc. (“
NSAM
”) or a Subsidiary of the Sponsor or NSAM (the managing entity in the following the “
Fund
Manager
”), and for the purposes of this paragraph, “fully managed” means that the Fund Manager (A) either has concluded an asset management agreement with the Entity substantially similar to the one in place between the Sponsor and a subsidiary of NSAM as of the date hereof or (B) has the right to represent the Entity and the right to take certain investment and other business decisions (including decisions as to the day-to-day management of the Entity other than those reserved for the board of directors of the Entity) but in either case subject to any applicable laws and any other corporate requirement applicable to the Entity which provide that the responsibility for certain matters has to remain (or is taken back) under the control of the board or the shareholders of the Entity (it being understood that, if it is a corporate requirement that certain matters are not transferred to the Fund Manager then such matter is handled by the Entity itself and will not preclude it from being “fully managed”); and
|
(iv)
|
the Lender has reasonably been satisfied that the control of the Entity over the Borrower does not, as of the date when the Entity gains control over the Borrower, lead to additional material obligations of the Lender under the laws of the jurisdiction under which the Entity (or the Fund Manager) is incorporated or where its main management decisions are taken, due to the fact that the Lender is a party to the Finance Documents (in particular no material reporting and other information obligations); an obligation is material in this sense if, for example, compliance with such obligation would cause – in light of the business relationship between the Lender and the Borrower – exceptional additional expenses or unreasonably high extra management, organisational or operational time, for which the Lender does not receive adequate compensation from the Borrower.
|
c)
|
The parties are aware that the Sponsor intends to spin off its indirect shareholding in the Borrower ultimately into a newly established US REIT, the corporate organization of which is substantially similar to the one of the Sponsor. For this purpose, the Sponsor has already established “NorthStar Realty Europe Corp.” (in the following “
NRE
”) which currently exists as a subsidiary of the Sponsor. Upon clearance by the SEC and further steps to be accomplished, the Sponsor’s indirect shareholding in the Borrower will be contributed to “NRE” or a subsidiary hereof. Notwithstanding anything to the contrary in paragraph b) above, the Lender hereby agrees to the transfer of the Sponsor’s indirect shareholding in the Borrower to NRE provided that
|
(i)
|
no person holds 25% or more of the capital or the voting rights in NRE,
|
(ii)
|
NRE is not controlled by any person within the meaning of section 290 (2) of the German Commercial Code,
|
(iii)
|
NRE enters into an asset management agreement with the Sponsor, NSAM, or a Subsidiary (as defined above) of the Sponsor or NSAM on terms similar to the terms and conditions of the asset management agreement, dated 30 September 2014 and entered into by the Sponsor and NSAM J-NNRF, a subsidiary of NSAM.
|
3.3
|
Compulsory Purchase
|
3.4
|
Disposal of Property
|
a)
|
The outstanding amount of the Loan shall become immediately due and payable, if the Borrower disposes of the Property. A part disposal is not permissible. The Borrower shall instruct the buyer of the Property to pay the purchase price with discharging effect (
mit befreiender Wirkung
) onto the Deposit Account. The Borrower shall apply the proceeds from the sale of the Property in accordance with Section 14.5.
|
b)
|
The Lender will consent to the legal separation of the residential units in Klüberstrasse 6,8 and 10 (“
Klüberstrasse
”) from the Property and also agrees to a sale of Klüberstrasse provided that the amount paid into the Deposit Account is equal to or exceeds EUR 8,000,000 and such amount shall be used as follows: (i) in the amount of EUR 8,000,000 in prepayment of the Loan and (ii) to the extent that the net purchase proceeds deriving from the sale of Klüberstrasse exceed EUR 8,000,000 in payment to the General Account. All costs associated with the legal separation of Klüberstrasse from the Property shall be borne by the Borrower.
|
3.5
|
Recovery Claims from Third Parties
|
3.6
|
Illegality
|
a)
|
the Lender shall immediately notify the Borrower of becoming aware of such event;
|
b)
|
upon the Lender notifying the Borrower any undrawn amounts of the Loan will be immediately cancelled; and
|
c)
|
the Borrower shall repay the Loan on the next Interest Payment Date occurring after the Lender has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Borrower (being no earlier than the last day of any applicable grace period permitted by law).
|
3.7
|
Voluntary Prepayment
|
3.8
|
Payment of Interest and Costs in connection with a Prepayment
|
3.9
|
No Re-Borrowing
|
3.10
|
Mitigation
|
a)
|
The Lender shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which could result in any amount becoming payable under section 3.6 (
Illegality
) including transferring its rights and obligations under the Finance Documents to any of the Lender’s affiliates.
|
b)
|
Paragraph a) above does not in any way limit the obligations of the Borrower under the Finance Documents.
|
c)
|
The Borrower shall indemnify the Lender for all costs and expenses reasonably incurred by the Lender as a result of steps taken by the Lender under paragraph a) above.
|
d)
|
The Lender is not obliged to take any steps under paragraph a) above if, in the opinion of the Lender (acting reasonably) to do so might be prejudicial to it.
|
4.
|
Terms and Conditions
|
4.1
|
Interest
|
–
|
the Cost of Funds, plus
|
–
|
the Margin.
|
a)
|
the applicable EURIBOR for the longest period (for which that EURIBOR is available) which is less than the first Interest Period; and
|
b)
|
the applicable EURIBOR for the shortest period (for which that EURIBOR is available) which exceeds the first Interest Period.
|
4.2
|
Interest Period
|
4.3
|
Payment of Interest/ Interest Payment Date
|
4.3.1
|
The Borrower shall pay accrued interest on the Loan in respect of any Interest Period on the last day of such Interest Period (the “
Interest Payment Date
”).
|
4.3.2
|
If an Interest Period (or Repayment Date) would otherwise end on a day, which is not a Business Day, that Interest Period (or Repayment Date) 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).
|
4.4
|
Other Terms and Conditions
|
“
Amortisation
”:
|
Following the expiration of four years following the Drawdown Date, the Borrower shall repay the Loan on each Interest Payment Date (the first being 30 September 2019) in an amount equal to 0.625% of the aggregate Loan Amount advanced under this Loan Agreement (i.e. in the amount of EUR 2,062,500, if the full amount of the Loan (EUR 330,000,000) has been advanced). The Borrower is not required to make such repayment, if the Borrower evidences to the satisfaction of the Lender that LTV on the relevant Interest Payment Date is lower than 65%.
|
“
Repayment Date
”:
|
Save as otherwise provided for in this Loan Agreement, the amount of the Loan outstanding shall be repaid at the earlier of: (i) the end of its Term and (ii) the sale of the Property.
|
“
Term
”:
|
Eight years from the Drawdown Date.
|
“
Availability Period
”:
|
From the signing of this Loan Agreement until 31 August 2015.
|
5.
|
Fees, Costs
|
5.1
|
Arrangement Fee
|
5.2
|
Commitment Fee
|
5.3
|
Agency Fee
|
5.4
|
Breakage Costs
|
5.5
|
Costs
|
6.
|
Increased Costs
|
6.1
|
If a Finance Party’s refinancing costs should increase after the Relevant Date as a result of any change in the law or a regulation implemented after the Relevant Date, for example the introduction of a cash deposit or minimum liquidity reserves, or if increased costs are incurred by a Finance Party by reason of a change to liquidity or capital adequacy requirements introduced after the Relevant Date, the Borrower shall bear such additional costs from the commencement of the next Interest Period following the introduction of such measure, and after being notified thereof by the Lender together with a statement confirming and describing the amount of the increased costs.
|
6.2
|
Section 6.1 does not apply to the extent any such increased costs are:
|
(i)
|
attributable to the gross negligent or wilful breach by the relevant Finance Party or its affiliates of any law or regulation;
|
(ii)
|
attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurements 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 law or regulation enacted on or prior to the Relevant Date which implements Basel II (whether such implementation, application or compliance is by government, regulator or the relevant Finance Party); or
|
(A)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurements, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer”, published by the Basel Committee on Banking Supervision in December 2010;
|
(B)
|
the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011;
|
(C)
|
the rules for determination of the liquidity coverage ratio and monitoring of liquidity risks contained in “Basel III: The Liquidity Coverage Ratio and liquidity risk monitoring tools” published by the Basel Committee on Banking Supervision in January 2013;
|
(D)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”;
|
(E)
|
(a) any law and legislation transposing the following EU directives into national law: Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directive 2006/48/
|
6.3
|
In the event that the Lender requires the Borrower to pay increased costs in accordance with Section 6.1, the Borrower may prematurely terminate that portion of the Loan beneficially owned by the relevant Finance Party. Upon such premature termination, the portion of the Loan affected by the termination shall be repaid. The Borrower shall compensate the Lender for breakage costs (if any).
|
6.4
|
The Finance Party incurring increased costs shall, after consultation by the Lender with the Borrower for not less than three Business Days, take all reasonable steps to mitigate any circumstances which arise and which would result in any amounts becoming due and payable under or pursuant to any of Section 6 (
Increased Costs
), or clause 6 (
Tax
) of the Terms and Conditions of Loan including but not limited to transferring its rights and obligations under the Finance Documents to another affiliate or facility office. The preceding sentence does not in any way limit the obligations of the Borrower or any Security Provider under the Finance Documents.
|
6.5
|
The Borrower shall indemnify each Finance Party – via the Lender – for all costs and expenses incurred by that Finance Party (acting reasonably) as a result of steps taken by it according to Section 6.4. A Finance Party is not obliged to take any step under Section 6.4, if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it in any material respect.
|
6.6
|
The right to claim increased costs under this Section 6
(Increased Costs)
and the amount of such increased costs shall be established for the each Finance Party on an individual basis, i.e. on the basis of the Relevant Date and the regulatory environment applying to the relevant Finance Party.
“
Relevant Date
” means, in relation to the Lender, the date of this Loan Agreement and, in relation to any other Finance Party, the date on which such Finance Party has become a Finance Party under the Finance Documents.
|
6.7
|
For the avoidance of doubt, any Finance Party, other than the Lender, that wishes to make a claim for increased costs under this Section 6 must raise such claim via the Lender. Any restriction that may exist on such Finance Party under the Consortium Agreement to raise such claim remains unaffected.
|
7.
|
Security
|
7.1
|
The Borrower and the other Security Providers shall create the security listed in
Schedule 7.1 – Security
in favour of the Lender (the “
Security”,
and each of the agreements entered into over the Security, hereinafter the
“Security Documents
”).
|
7.2
|
The Lender shall release Klüberstrasse from all Security created over Klüberstraße upon irrevocable and unconditional repayment of the Loan in the amount set forth in Section 3.4 b) it being
|
8.
|
Conditions Precedent and Conditions Subsequent to Drawdown of Tranche 2
|
8.1
|
The Lender shall disburse Tranche 2 to the Borrower, as soon as all documentation/evidence listed in
Schedule 8.1 – Conditions Precedent
has been fulfilled to its satisfaction. The Borrower must submit an irrevocable utilisation request within the Availability Period which must be received at the latest three Business Days prior to the date the Lender is to make the disbursement (the date of scheduled disbursement the “
Drawdown Date
”).
|
8.2
|
The Loan must be drawn by submission of one utilisation request. The utilisation request must be in the form attached as
Schedule 8.2 – Form of Utilisation Request
. The Borrower can only submit the utilisation request after the Lender has confirmed in writing to the Borrower that all conditions precedent have been fulfilled to its satisfaction.
|
8.3
|
The Borrower shall provide
|
a)
|
within 30 Business Days after the entering into of this Loan Agreement the power of attorney to be granted to the Lender according to Schedule 7.1, authorising the Lender to declare the second-ranking land charge at any time immediately enforceable;
|
b)
|
promptly after the entering into of any interest hedging agreement (i) the legal opinion in relation to such document as further specified in Schedule 8.1 item 7 (i.e. capacity opinion from counsel to the Borrower) and (ii) if the interest hedging agreement has not been entered into with the Lender, a copy of such interest hedging agreement;
|
c)
|
within ten Business Days from the Drawdown Date the apostille in relation to the process agent letter (which letter itself has to be presented as a condition precedent pursuant to Schedule 8.1 item 8.4);
|
d)
|
within five Business Days from the Drawdown Date the confirmations from all account banks running a pledged account as to the receipt of the notice of pledge and the subordination of its own pledge agreement as further specified in the relevant account pledge agreements;
|
e)
|
promptly after registration of the second-ranking non-certificated land charge in the amount of EUR 82,000,000 certified (
beglaubigt
) land registry excerpts in relation to the Property;
|
f)
|
where a Finance Document has been signed on behalf of the Borrower by a managing director not registered as such in the commercial register yet, promptly after the registration of such managing director in the commercial register a confirmation/approval of the terms and conditions of such Finance Document by duly appointed and registered managing directors of the Borrower.
|
9.
|
Interest Hedging
|
9.1
|
Obligation to enter into Interest Hedging Arrangements
|
9.2
|
Appropriate Interest Hedging Agreement
|
9.3
|
Assignment
|
9.4
|
Subordination
|
9.5
|
Termination of an appropriate interest hedging agreement
|
10.
|
Representations and Warranties
|
10.1
|
The Borrower represents and warrants to the Lender in relation to itself and (whether it is addressed in the following as Borrower or Group Company) the other Group Companies, where relevant, in the form of an independent guarantee the following:
|
10.1.1
|
Due Incorporation
: Each Group Company is a corporation (or, in relation to the Borrower following the conversion of its legal form approved by the Lender in accordance with Section 12.22, a limited partnership (GmbH & Co. KG)) duly incorporated under the laws of its incorporation; the capital of each Group Company is fully paid up; there have been no repayments of capital and there has been no constructive equity contribution (
verdeckte Einlage
) or constructive equity contribution in kind (
verdeckte Sacheinlage
).
|
10.1.2
|
Actual Place of Administration
: Each Group Company has its actual place of administration and its centre of main interests (as such term is used in Art. 3 (1) of council regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings) in the jurisdiction of its incorporation.
|
10.1.3
|
Business Activity
: The Borrower is a corporation whose sole activity consists of the owning and administration of the Property. GMS is a corporation whose sole activity consists of renting parking space and certain parts of the Property treated – for tax purposes – as moveable asset (
Betriebsvorrichtungen
) from the Borrower, leasing the parking space and such parts to third parties and the provision of certain administrative services to the Borrower in relation to the Property. The Borrower does not own any assets other than the Property, office furniture and equipment, receivables and cash and GMS does not own any assets other than office furniture and equipment, receivables and cash. The Borrower and GMS have no employees.
|
10.1.4
|
Permits
: Each Group Company is in possession of all governmental authorisations and other authorisations (which shall include the agreement reached pursuant to the Public Law Contract) which are necessary for the operation of its business. Further, it has not breached any law or regulatory provision, nor any conditions attached to any authorisation, in a way which would cause the authorisation to be revoked or withdrawn.
|
10.1.5
|
Legal Obligations
: The obligations of the Borrowers and the Security Providers under the Finance Documents are, subject to the Legal Reservations, upon execution legally binding and the obligations incurred and disposals (
Verfügungen
) made by the Borrower and the Security Providers under the Finance Documents are binding and enforceable in accordance with their terms. All corporate and governmental authorisations the Borrower or a Security Provider requires to enter into the Finance Documents have been validly obtained.
|
10.1.6
|
No Conflict with other Obligations
: The execution of the Finance Documents and the performance of the obligations thereunder by the Borrower and the Security Providers do not constitute a breach of (i) the articles of association or partnership agreement of the Borrower or a Security Provider nor (ii) any applicable law and (iii) do not require the obtaining of any regulatory authorisation.
|
10.1.7
|
No Breach of Contract with a Third Party
: The entering into and performance of the Finance Documents will not result in the Borrower or a Security Provider breaching any obligation which
|
10.1.8
|
Pari Passu
: The payment obligations of the Borrower under the Finance Documents are at least equal in ranking with all other present and future unsecured and non-subordinated payment obligations of the Borrower, save for such payment obligations which have seniority by operation of law.
|
10.1.9
|
No Deductions and Amounts Retained
: Neither the Borrower nor a Security Provider is obliged to deduct or withhold amounts from payments to be made under the Finance Documents.
|
10.1.10
|
No Event of Default
: No Event of Default is continuing.
|
10.1.11
|
No Litigation
: Other than the administrative proceedings, which are the subject-matter of the Public Law Contract, the Borrower has no knowledge (after due enquiry) that it or GMS are involved in any legal dispute (including arbitration proceedings) or court (
gerichtliche
) or administrative (
behördliche
) proceedings where the amount in dispute individually or in the aggregate with other such disputes or proceedings amounts to more than EUR 250,000.
|
10.1.12
|
The Property
:
|
(A)
|
The Borrower is the legal and beneficial owner (
rechtlicher und wirtschaftlicher Eigentümer
) of the Property it being understood that such ownership relates, in relation to Zimmerweg, to a leasehold (
Erbbaurecht
).
|
(B)
|
Save for the security granted or to be granted under this Loan Agreement, no encumbrances exist over the Property other than those encumbrances listed in Part II of the land register of the Property and which are specified in
Schedule 10.1.12 (B) – Existing Charges
(the “
Existing Charges
”).
|
(C)
|
The existence of and use of the buildings on the Property do not violate any applicable planning or building laws and regulations in such a way that the value or use of the Property could be impaired more than insubstantially save for the existing technical fire protection defects, described in more detail in
Schedule 10.1.12 (C) – Defects
.
|
(D)
|
The Property is in good repair (
ordentlicher Zustand
) and has no defects or damage, which could impair more than insubstantially the value or use of the Property, save for the existing technical fire protection defects, described in more detail in Schedule 10.1.12 (C) – Defects.
|
(E)
|
The defects described in more detail in Schedule 10.1.12 (C) can be cured by using commercial reasonable efforts.
|
10.1.13
|
Lease Agreements
: All lease agreements entered into with a Material Tenant are legal, valid and binding in all material respects (including, without limitation, the lease payment obligations and the term of the lease agreement).
|
10.1.14
|
Insurance
: The insurance contracts entered into by the Borrower satisfy the requirements of the Loan Agreement. All due premiums have been paid and the Borrower has not breached any term of an insurance agreement.
|
10.1.15
|
Financial Indebtedness
: Save for any Financial Indebtedness permitted pursuant to the definition of Permitted Liabilities and any indemnity obligation regarding the Deka Guarantee, the Borrower has no Financial Indebtedness.
|
10.1.16
|
Documents about the Group Companies
: All documents and information provided to the Lender with regard to the Group Companies and the Sponsor (the “
Documents
”) are based on up-to-date information and are correct and complete in all material respects and are not misleading.
|
10.1.17
|
Accounts
: All accounts provided to the Lender have been compiled properly, carefully and correctly in accordance with applicable law and pursuant to generally recognised current accounting principles as consistently applied and reflect the actual circumstances, asset values, the finance, business and profit position of the Borrower at the time such accounts were drawn up. There has been no material adverse change in the Borrower’s assets, business or financial condition since the date of the accounts delivered pursuant to Section 8.1 (Conditions Precedent to Drawdown).
|
10.1.18
|
Tax Liabilities
: No tax claims have been levied against the Borrower, which, if levied, could impair the full satisfaction of the obligations of the Borrower under the Finance Documents in the contractually agreed manner. The Borrower has settled the taxes and levies payable in accordance with its last tax returns or assessments unless the tax assessment (
Steuerfestsetzung
) is contested on founded prospects of success, the relevant tax authority suspends the payment of such taxes and the Borrower has formed sufficient reserves to fulfil the tax assessment it has contested.
|
10.1.19
|
Arm’s Length Terms
: All legal transactions the Borrower has entered into with its respective shareholders, companies affiliated with the shareholders, or with third parties, have been entered into on arm’s length terms.
|
10.1.20
|
Acting for own Account
: The Borrower shall use all monies provided to it by the Lender pursuant to this Loan Agreement for its own account.
|
10.1.21
|
Ranking
: The Security has or will have first ranking priority on the Drawdown Date and it is not subject to any prior ranking or pari passu ranking security other than (i) the second ranking land charge to be granted pursuant to Schedule 7.1, (ii) the second-ranking account pledge to be granted by the Borrower pursuant to Schedule 7.1 and (iii) any account pledges arising under standard terms and conditions of the banks holding the accounts.
|
10.1.22
|
Environmental laws
: The Borrower is in compliance with all environmental laws and any environmental permit in its possession, no circumstances have occurred which would prevent compliance and no claim, proceeding, formal notice or investigation by any person in respect of environmental law has been commenced or threatened against it, in each case in a manner or to an extent which has or is reasonably likely to have a Material Adverse Effect.
|
10.1.23
|
No filing or stamp duties
: It is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority (except for the documents related to the Land Charge and the share pledge agreement in relation to the shares in the Borrower) or that any stamp, registration, notarial or similar taxes or costs be paid on or in relation to the Finance Documents (except for costs and fees to be paid in connection with the Land Charge and the notarisation of the share pledge agreement).
|
10.1.24
|
Insolvency
:
|
a)
|
No insolvency, bankruptcy, liquidation or similar proceedings have been initiated or threatened with respect to the Borrower or GMS or a moratorium declared in respect of any indebtedness of the Borrower or GMS;
|
b)
|
neither the Borrower nor GMS (i) is unable and does admit its inability to pay its debts as they fall due, (ii) has suspended or threatened to suspend making payments on any of its debt, (iii) has by reason of actual or anticipated financial difficulties, commenced negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness and (iv) has commenced an action under any law relating to bankruptcy, insolvency or any similar proceeding;
|
c)
|
with respect to the Borrower, the value of its assets is not less than its liabilities.
|
10.1.25
|
No Material Adverse Effect
: There is no circumstance which has a material adverse effect on
|
a)
|
the business, operation or financial condition of the Borrower;
|
b)
|
the ability of the Borrower to perform its payment obligations under the Finance Documents; or
|
c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security granted or purported to be granted pursuant to any of the Finance Documents, and if there is such an issue, such issue is, if capable of remedy, not remedied within 20 Business Days of the earlier of (i) the Borrower becoming aware thereof and (ii) the Lender giving notice to the Borrower,
|
10.1.26
|
All shares to be acquired by the New Shareholders and HoldCo under the SPA are legally and beneficially owned (directly or indirectly) by the New Shareholders (in relation to the shares in the Borrower) and HoldCo (in relation to the shares in GMS) and such shares are owned free from any encumbrances or other third party rights (except any rights under the Finance Documents).
|
10.1.27
|
There has been no amendment to or variation or waiver of the terms of the SPA and the Borrower (after due enquiry) has no knowledge (
Kenntnis
) of any fact or matter which would render the representations given by the vendor in the SPA untrue or inaccurate.
|
10.1.28
|
The acquisition of the shares in the Borrower and GMS is made in accordance with all laws, governmental and regulatory consents and clearances and third party consents.
|
10.2
|
Repeating Obligations
|
11.
|
Property-Related Undertakings
|
11.1
|
Condition and Use of the Property
|
11.2
|
Management of the Property
|
11.2.1
|
The Property must be managed properly, on market terms and conditions and by a property manager with sufficient experience in the management of similar properties to that of the Property. The Lender confirms that the existing Property Management Agreement complies with this provision.
|
11.2.2
|
The Borrower has appointed BNP Paribas Real Estate Property Management GmbH, Mainzer Landstraße 16, 60325 Frankfurt am Main (“
BNP Paribas
”) to manage the Property (this entity and any successor entity including any new property manager appointed in compliance with the terms of this Loan Agreement, the “
Property Manager
”). The Lender consents to the appointment of BNP Paribas as Property Manager. The Borrower shall enter into a written agreement on the management of the Property with the Property Manager (such agreement the “
Property Management Agreement
”). The Borrower may not agree to amendments to the Property Management Agreement with the Property Manager without the consent of the Lender, if such amendments adversely affect the interests of the Lender.
|
11.2.3
|
The Borrower may not change the Property Manager without the consent of the Lender. The Lender shall grant its consent, if all of the following conditions are met:
|
a)
|
The proposed property manager must have sufficient experience in the management of properties similar to that of the Property and it must have a good reputation.
|
b)
|
The proposed property manager enters into a written property management agreement with the Borrower. Such property management agreement must provide that, if the Property Manager breaches the Property Management Agreement and if such breach is reasonably likely to result in a material deterioration in the Lender’s risk position, the Lender can request that a new Property Manager is appointed (to which new appointment this Section 11.2.3 does apply).
|
c)
|
The proposed property manager enters into a written duty of care agreement with the Lender (the “
Duty of Care Agreement
”) in the form set out in Schedule 11.2.3.
|
d)
|
The proposed property manager has entered into a third party liability insurance with an insured cover amount of at least EUR 5,000,000.
|
e)
|
The proposed property manager has confirmed to the Lender that it has been informed of the Security.
|
11.2.4
|
If the Property Manager (other than BNP Paribas) breaches the Property Management Agreement and such breach is reasonably likely to result in a material deterioration in the Lender’s risk position, then the Lender can request that a new Property Manager is appointed.
|
11.3
|
Protection of the Environment and Health
|
11.3.1
|
The Borrower shall comply with all applicable environmental laws and environmental permits where failure to do so has or is reasonably likely to result in a Material Adverse Effect.
|
11.3.2
|
The Borrower shall inform the Lender promptly of
|
11.4
|
Lease Agreements
|
a)
|
may not agree to any amendment, waiver or surrender of or extension of or enter into any new lease agreement with respect to a Material Tenant without the consent of the Lender (such consent not to be unreasonably withheld). The Borrower shall within the framework of what is legally permissible ensure that the Material Tenants agree to the passing on of information in relation hereto;
|
b)
|
shall ensure, without prejudice to a) above, that all new lease agreements (whether with respect to existing tenants or new tenants) and extensions and amendments of existing lease agreements are entered into on the basis of and subject to German law, on arm’s lengths terms, in line with market conditions and with tenants of a quality and nature (including the nature of their business to be carried out in the Property) that does not have the potential of impairing the value of the Property;
|
c)
|
undertakes to make all commercially reasonable efforts to lease vacant parts of the Property;
|
d)
|
shall at all times act with the care of a prudent lessor (
mit der Sorgfalt eines ordentlichen Vermieters
);
|
e)
|
shall ensure within the scope of its possibilities that each tenant has, in the reasonable judgement of the Borrower, an acceptable creditworthiness;
|
f)
|
shall provide the Lender with copies of any lease agreement (except for lease agreements where the lease object is parking space only and for lease agreements regarding residential units, but, in relation to these, sample lease agreements have to be provided once changes have been made to the samples previously submitted to the Lender).
|
11.5
|
Insurance
|
11.5.1
|
The following insurances must be entered into under contracts subject to German law (or – provided that the choice of such law does not impair the cover pool eligibility (
Deckungsfähigkeit
) of any part of the Loan – English law) and maintained by the Borrower at its own cost:
|
a)
|
insurances of the Property including buildings, fixtures and plant and equipment, against damage from fire, storm, water and hail storm, all other risks against which are insured in normal business practice by a prudent company with the same business as the Borrower or to a reasonable scope requested by the Lender, on a full reinstatement basis including the costs of site clearance as well as any fees of architects, engineers, valuers or other fees in connection therewith (plus reserves for future developments in inflation);
|
b)
|
insurance to cover the loss of rent for a period of time of at least three years taking into account potential rent increases;
|
c)
|
liability insurance (
Haftpflichtversicherung
) and operating liability insurance (
Betriebshaftpflichtversicherung
);
|
d)
|
insurance against terrorism.
|
11.5.2
|
The requirements laid down in this Section 11.5 represent only the minimum requirements to be met by the contractual terms of the insurance covering the Property. This Section does not contain any recommendation or statement by the Lender as to whether such requirements are reasonable or not.
|
11.5.3
|
The Borrower shall provide the Lender with regard to (i) all insurances in relation to the Property with a cover note (
Deckungszusage/Deckungsbestätigung
) and (ii) with regard to all insurances in relation to the Property, a copy of the insurance policy.
|
11.5.4
|
At the date of this Agreement, all insurance companies must have a sufficient rating. A sufficient rating exists, if an insurance company has at least two investment grade credit ratings provided by reputable rating companies. Any insurer can only be replaced with another reputable insurer.
|
11.5.5
|
The Borrower shall provide the Lender for each insurance governed by German law with a security confirmation or security note (
Sicherungsschein
) and – in relation to any insurance entered into under foreign law – any similar document issued under such foreign law.
|
11.5.6
|
The Borrower shall ensure that the Lender receives all material information in relation to the insurances. Section 11.5.3 shall remain unaffected hereby. In particular, the Borrower must inform the Lender 30 days prior to the expiry of an insurance that such insurance is expiring and to inform the Lender of every extension or amendment and must promptly inform the Lender of any termination or threatened termination of an insurance.
|
11.5.7
|
If the Borrower fails to take out the insurances as required, after the Lender has informed the Borrower in writing that the insurances taken out do not meet the requirements of this Section 11.5 and further provided that the Borrower has not provided evidence to the satisfaction of the Lender
|
11.6
|
Public Law Requirements
|
11.7
|
Remedial Action
|
11.7.1
|
If the Borrower has not fulfilled an obligation under the Finance Documents with respect to the Property, the Lender shall be entitled, at the costs of the Borrower to
|
a)
|
access the Property (including the buildings on it);
|
b)
|
fulfil requests (
Aufforderungen
) of third parties addressed to the Borrower or object to such requests;
|
c)
|
take all actions which it reasonably considers to be necessary or expedient to prevent the breach of the obligation or to remedy it.
|
11.7.2
|
The Lender can exercise its rights under this Section 11.7 either itself or have them carried out through a third party. It shall notify the Borrower in advance of its intention to exercise its rights under this Section 11.7 with an appropriate notice period unless immediate action is required.
|
12.
|
General Duties
|
12.1
|
Authorizations
|
12.2
|
Compliance with the law
|
12.3
|
Third Party Liabilities
|
12.3.1
|
The Borrower may not enter into any liabilities vis-à-vis a third party without the consent of the Lender unless such liabilities are Permitted Liabilities. “
Permitted Liabilities
“ shall mean only those liabilities
|
a)
|
which are incurred under the Finance Documents or an interest hedging agreement entered into with a party other than the Lender in compliance with Section 9 (Interest Hedging),
|
b)
|
which are not Financial Indebtedness and, subject to the other undertakings under this Section 12, are entered into in the normal course of business,
|
c)
|
which the Borrower must enter into by reason of law or governmental/court order,
|
d)
|
which form subordinated liabilities pursuant to Section 12.5 (Subordinated Liabilities),
|
e)
|
which are Financial Indebtedness within the meaning of lit. (d), (h) and (j) of the definition of Financial Indebtedness, but are incurred in the course of spending or securing the payment of Capex Costs, or
|
f)
|
which constitute Financial Indebtedness not falling within the scope of paragraph e) above and has been incurred in the normal course of business, but subject to a maximum aggregate amount of EUR 5,000,000 for all Financial Indebtedness permitted under this paragraph f).
|
12.3.2
|
“
Financial Indebtedness
” means any indebtedness arising out of or in connection with (a) the entering into of loans or credits; (b) the issuance of bonds; (c) the acceptance of bills of exchange and the issuance of promissory notes; (d) deferred purchase agreements where payment is due more than 90 days after the day of supply; (e) leasing agreements in relation to which the lessee is classified, according to generally accepted accounting principles applicable to the lessee, as the economic owner of the leased assets (including sale and lease back arrangements); (f) recourse factoring, i.e. the purchase of receivables where the risk of bad debt remains with the seller of the
|
12.4
|
Security
|
a)
|
the security created under the Finance Documents,
|
b)
|
the Existing Charges,
|
c)
|
any lien arising by operation of law and in the ordinary course of business,
|
d)
|
any security arising under the general terms and conditions of banks or Sparkassen (
Allgemeine Geschäftsbedingungen der Banken und Sparkassen
) with whom the Borrower maintains a banking relationship in the ordinary course of business, and
|
e)
|
any security in favour of Commerzbank AG over the Coba Deposit Account,
|
12.5
|
Subordinated Liabilities
|
12.6
|
No VAT Group
|
12.7
|
No Cash Pooling
|
12.8
|
No Subsidiaries
|
12.9
|
Loans or credit
|
12.10
|
No guarantees or indemnities
|
12.11
|
Pari Passu
|
12.12
|
Payments (
Leistungen
) to shareholders
|
12.12.1
|
No acquisition of own shares and repayment of reserves: The Borrower undertakes not to acquire its own shares nor to issue or acquire financial investments, which entitles it or contains any obligation upon it to acquire its own shares.
|
12.12.2
|
No payments to shareholders or with respect to shareholder loans: The Borrower may not make a payment to a shareholder or a company affiliated with a shareholder or to a person closely connected with a shareholder unless such payment can be made out of amounts standing to the credit of the General Account and no Cash Trap Event has occurred that is continuing. The foregoing sentence does not apply to the distribution or lending of the loan proceeds under Tranche 2 to the New Shareholders in compliance with Section 2.2 (Purpose).
|
12.12.3
|
No granting of loans: The Borrower may not grant or obligate itself to grant a loan to any party unless such loan is granted to a Group Company and can be funded by amounts standing to the credit of the General Account and further provided that there is no Cash Trap Event which is continuing.
|
12.12.4
|
Other contracts: The Borrower may only enter into contracts with a shareholder, a company affiliated with a shareholder or with a person closely connected with a shareholder on arm’s length terms. Section 12.3 (Third Party Liabilities) shall remain unaffected hereby.
|
12.13
|
Business Activities
|
12.14
|
Employees
|
12.15
|
Disposals
|
a)
|
of assets (excluding the Property) in the normal course of business and on market terms and conditions; such parts of the Property that are treated for tax purposes as moveable assets (
Betriebsvorrichtungen
) can be disposed of in the normal course of business and on market terms and conditions provided that such part is transferred to GMS or a person that has leased any part of the Property);
|
b)
|
of the Property, provided the disposal proceeds after deduction of any taxes and transaction costs are sufficient to satisfy all amounts owed under the Finance Documents fully (including without limitation any amount of the Loan outstanding, any interest accrued, any fees and expenses due or which will be incurred as a result of the disposal and all costs in connection with the cancellation of any interest hedging);
|
c)
|
of assets (with the exception of the Property) which are replaced by assets of comparable or superior type within 6 months;
|
d)
|
of assets (with the exception of the Property) which are obsolete or redundant for the operation of business, provided that the relevant disposal is made on market standard terms and conditions;
|
e)
|
expressly permitted under a Finance Document (as is the case, for example, in relation to Klüberstrasse according to section 3.4 b));
|
f)
|
to which the Lender has provided its express written consent.
|
12.16
|
Purchase of assets
|
12.17
|
Deka Easement
|
12.17.1
|
The Lender is aware of the prior-ranking Deka Easement. Based on the information provided by the Borrower, the Lender considers that the Deka Easement does not impair the cover pool eligibility
|
12.17.2
|
If it should turn out that the cover pool eligibility is impaired, the Borrower agrees to enter into negotiations with Deka with the view to amend the Deka Easement, and shall use all reasonable (
zumutbare
) and commercially sensible (
wirtschaftlich sinnvoll
) efforts to procure that Deka will agree to such amendment, so that such easement no longer impairs the cover pool eligibility. Any notarial fees and land registry fees to be paid in connection with the amendment of the Deka Easement shall be borne by the Lender. For the avoidance of doubt, nothing in this Section 12.17.2 will require the Borrower to make any payments to Deka in consideration for Deka’s willingness to agree to an amendment to the Deka easement.
|
12.17.3
|
Without the prior written consent of the Lender, the Borrower shall not
|
a)
|
agree to change the maximum amount in accordance with Section 882 of the German Civil Code in relation to the Deka Easement;
|
b)
|
agree to any change or amendment to the Deka Easement, where such change or amendment is reasonably likely to adversely affect the interests of the Finance Parties, in particular the cover pool eligibility;
|
c)
|
agree to any creditor of a Land Charge or other right in rem in relation to the Property (
Grundpfandrechtsgläubiger
) obtaining priority over the Deka Easement;
|
d)
|
agree to any change in the lease rentals or the term of the lease agreement with Deka, where such change is reasonably likely to adversely affect the interests of the Finance Parties, in particular the cover pool eligibility.
|
12.18
|
Other contracts
|
12.18.1
|
The Borrower may not enter into or maintain any contracts except for
|
a)
|
the Finance Documents, the Property Purchase Agreement, the Property Management Agreement and the Public Law Contract;
|
b)
|
agreements with tenants provided Section 11.4 (Lease Agreements) is complied with;
|
c)
|
insurances provided Section 11.5 (Insurance) is complied with;
|
d)
|
any other contracts, which are necessary or expedient in the ordinary course of business in order to hold and manage the Property or required for operation of its business provided such contracts are entered into on market terms and conditions, including the agreement with Deka Immobilien GmbH as general contractor (
Generalübernehmervertrag
) dated 24 May 2011 (the “
General Contractor Agreement
”), the agreement with Deka and Deka Immobilien GmbH dated 19 December 2013 regarding certain aspects of the execution of the fire safety measures and the instruction to provide the Deka Guarantee;
|
e)
|
the Settlement Agreement;
|
f)
|
other agreements expressly permitted pursuant to this Loan Agreement; and
|
g)
|
agreements the conclusion of which the Lender has expressly agreed to in writing.
|
12.18.2
|
The Borrower or a Security Provider may not amend, cancel or terminate the Finance Documents nor agreements which require the consent of the Lender without the prior written consent of the Lender.
|
12.19
|
Taxes
|
12.20
|
Assignment of Rights
|
12.21
|
Exercise of rights
|
12.22
|
No Change of Legal Form
|
13.
|
Information undertakings
|
13.1
|
Status Report on the Property
|
a)
|
rental payments;
|
b)
|
the current development of operational costs (
Bewirtschaftungskosten
) as described in Section 14.2.3 no. 1;
|
c)
|
capital expenditure (
Erhaltungs-/Investitionskosten
) carried out and to be carried out and how this is to be refinanced;
|
d)
|
outstanding rental payments including the reasons for the payment default;
|
e)
|
asserted or notified set-offs against rental payments or notified reductions in rental payments, including the reasons;
|
f)
|
extent of the repair or maintenance costs (
Reparatur- oder Instandhaltungsaufwendungen
) carried out and to be carried out;
|
g)
|
insurance coverage, and any changes thereto;
|
h)
|
the occurrence of any events or circumstances which could have a negative effect on the value of the Property which is material to the risk position of the Lender; and
|
i)
|
target/actual comparison (
Soll/Ist – Vergleich
) of the figures in the Business Plan for the calendar year for which the Status Report is submitted to the actual figures of the calendar year for which the Status Report is submitted.
|
13.2
|
Quarterly Status Report on the Property
|
a)
|
the existing lease agreements (including name of the tenant, leased space, amount of rental payments, extraordinary termination rights, lease term and option to extend term, the exercise of termination rights and option rights);
|
b)
|
the extent of unused or vacant space;
|
c)
|
marketing activities in connection with the Property (including an overview of the currently existing negotiations and any negotiation success);
|
d)
|
the implementation of any fire protection measures or any measure to be implemented according to any enforceable order (
vollziehbarer Bescheid
) of any authority,
|
13.3
|
Financial Information concerning the Borrower
|
13.3.2
|
Provision and contents of Compliance Certificate
|
13.3.3
|
Disclosure of economic circumstances (
wirtschaftliche Verhältnisse
)
|
13.3.4
|
Information as to Cover Pool Eligibility
|
13.3.5
|
Continuous Application
|
13.4
|
Business and Liquidity Plan
|
13.5
|
Legal Disputes
|
13.6
|
Further notification requirements
|
a)
|
a Cash Trap Event,
|
b)
|
an Event of Default or an event or circumstance listed in Section 17 (Early Termination – Event of Default) which would, but for the expiry of a grace period or the giving of a notice or notification required under this Loan Agreement or a determination to be made pursuant to a Finance Document constitute an entitlement to terminate the Loan (a “
Potential Event of Default
”),
|
c)
|
the decision has been taken to sell, transfer or dispose of the Property (which the Lender can object to if not in accordance with Section 12.15 b) and any other provision of this Loan Agreement) or shares in the Borrower or GMS,
|
d)
|
a breach of the Property Management Agreement by the Property Manager or a future property manager in a way that the interests of the Finance Parties are adversely affected,
|
e)
|
the decision has been taken to change or amend the articles of association of the Borrower or GMS in any material respect.
|
13.7
|
Information Procurement in the case of Breach of Contract
|
13.8
|
Valuations
|
a)
|
on every anniversary of the date of the Initial Valuation it being understood that a full valuation will only be carried out on every second anniversary of the date of the Initial Valuation (and the valuations on the other anniversaries will be desktop valuations only) with the first full valuation (following the Initial Valuation) to be submitted on or about 1 December 2016,
|
b)
|
at any time the Lender, acting reasonably, has reason to assume that an Event of Default has occurred, and
|
c)
|
at any time when a material adverse change in the German real estate market for office space has occurred in the reasonable view of the Lender.
|
13.9
|
Material Changes
|
13.10
|
Information Undertakings in connection with the Closing of the SPA and Distribution
|
a)
|
promptly after the document is available: (i) the calculation of the final purchase price payable under the SPA, (ii) the “Preliminary Closing Date Accounts” and the binding “Closing Date Accounts” (each as defined in clause 6.1.2 of the SPA), (iii) evidence that the difference between the final purchase price and the initial purchase price has been paid.
|
b)
|
new shareholder list and up-to-date commercial register excerpt in relation to the Borrower once the changes to be registered following the closing under the SPA have been registered.
|
c)
|
promptly after distributing or otherwise up-streaming any amount drawn under Tranche 2: a written confirmation from the Borrower confirming the amount distributed or up-streamed, the recipient of such amount and whether the amount was distributed by means of corporate law or up-streamed by way of an up-stream loan.
|
14.
|
Undertakings in relation to Accounts
|
14.1
|
Bank Accounts
|
14.1.1
|
The Borrower:
|
a)
|
must hold a Rent Receipt Account, an Operating Account, a Cash Trap Account, a Deposit Account and a General Account; and
|
b)
|
may hold the following accounts: one or more Tenant Deposit Accounts (
Mietkautionskonto
), the Coba Deposit Account and a Capex Account,
|
14.1.2
|
Except for any Tenant Deposit Account and the Capex Account (if not existing at the date this Loan Agreement is entered into), the Borrower may not open any new accounts without the express written consent of the Lender (any new accounts opened together with the Transaction Accounts, hereinafter the “
Bank Accounts
”). The Borrower may only close a Bank Account (except for the Capex Account, the Coba Deposit Account and the Tenant Deposit Accounts) with the express written consent of the Lender. The Borrower shall inform the Lender of the opening of the Capex Account and any Tenant Deposit Account within five Business Days after such account has been opened.
|
14.1.3
|
The Borrower must hold all Bank Accounts in its own name.
|
14.1.4
|
All Bank Accounts (save for the Capex Account, any Tenant Deposit Account(s) and the Coba Deposit Account) must be pledged with a first-ranking pledge in favour of the Lender by way of an additional pledge agreement (in addition to the pledge created by the Lender’s General Terms and Conditions (
AGB
), if such Bank Accounts are held with the Lender). The first ranking requirement is also complied with, if a prior ranking pledge exists over a Bank Account by reason of the general terms and conditions (“
AGB Pfandrecht
”) of the bank maintaining the account, provided such bank agrees to subordinate its AGB Pfandrecht behind the (then first-ranking) pledge of the Lender; fees for operating the accounts can be excluded from the subordination.
|
14.1.5
|
All Bank Accounts must be held with Commerzbank AG, Frankfurt am Main, or any branch of any other bank approved by the Lender (such approval to be withheld only for an important reason (
aus wichtigem Grund
)), provided such branch is located in the Federal Republic of Germany. The Lender shall have online viewing rights with regard to all Bank Accounts not maintained with the Lender. With regard to the Cash Trap Account and the Deposit Account, the Lender shall only have joint signing rights with the Borrower in the sense that any disposal in relation to these accounts requires the consent of the Lender.
|
14.1.6
|
All Bank Accounts may only be managed on a credit balance basis (
auf Guthabenbasis geführt werden
).
|
14.1.7
|
If sums, that according to this Loan Agreement have to be transferred onto a specific designated Bank Account, are transferred onto another account, then the Borrower must transfer such sums promptly (
unverzüglich
) onto the Bank Account, to which such sum should have been transferred.
|
14.2
|
Rent Receipt Account
|
14.2.1
|
The Borrower undertakes to ensure that all rental payments (
Miet-/Pachteinnahmen
) arising from the Property, including ancillary payments (
Nebenkostenzahlungen
) and VAT payments, from the tenants and all other amounts to be paid by the tenants under the lease agreement (except the tenant deposit (
Mietkaution
)), as well as any other income arising out of or in connection with the Property (except for payments which are to be paid onto the Deposit Account in accordance with Section 14.5) and insurance payments made for loss of income shall be paid exclusively onto the Rent Receipt Account.
|
14.2.2
|
The Borrower shall apply the credit on the Rent Receipt Account in accordance with the Cash Flow Waterfall without the consent of the Lender, being necessary, until such authorisation is revoked. The Lender shall be entitled to revoke such authorisation, if the conditions under Section 17.1 (Cash Trap) are fulfilled.
|
14.2.3
|
The Borrower shall apply the credit on the Rent Receipt Account during an Interest Period in the order set out as follows (“
Cash Flow Waterfall
”):
|
1.
|
first, in payment of the on-going operating costs (
Bewirtschaftungskosten
) of the Property (excluding, for the avoidance of doubt, capital expenditures (
Investitionskosten
) and fees under an asset or the Property Management Agreement), including ground rent, non-recoverable expenses and property-related taxes;
|
2.
|
secondly, in payment to the Lender of any due and payable fees, costs and expenses under or in connection with the Loan Agreement;
|
3.
|
thirdly, in payment to the Lender of any interest due and payable under the Loan Agreement;
|
4.
|
fourthly, in payment to the Lender of any repayments due and payable in respect of the outstanding Loan;
|
5.
|
fifthly, in payment to a Hedging Counterparty of any payments due and payable under an interest hedging agreement entered into in relation to the Loan including any close-out payments due and payable in connection with the termination of such interest hedging agreement;
|
6.
|
sixthly, in payment of Capex Costs (to the extent not paid out of the fire protection escrow account established under clause 5.6.1 (b) of the SPA);
|
7.
|
seventhly, in payment of asset and property management fees payable under asset and Property Management Agreements entered into with entities not affiliated with the Borrower;
|
8.
|
eighthly, all costs arising in connection with leasing (e.g. tenant improvements, brokers fees) up to the amount foreseen in the Business Plan pre-agreed with the Lender (to the extent not paid out of the “Buba-Fit-Out Escrow” account established under clause 5.6.1 (c) of the SPA);
|
9.
|
ninthly, expenses for the administration of the Borrower subject to a cap of EUR 200,000 p.a. via payment to the General Account;
|
10.
|
tenthly, in case of a Cash Trap Event which is continuing in transfer to the Cash Trap Account;
|
11.
|
eleventhly, in payment of capital expenditures (other than Capex Costs) and other Property related and Borrower expenses;
|
12.
|
twelvthly, in payment to the General Account as free cash, which can be distributed as long as there is no Event of Default or Potential Event of Default which is continuing.
|
14.2.4
|
The Borrower may not apply the amounts on the Rent Receipt Account for any purpose other than as stated under this Section 14.2, without the express consent of the Lender.
|
14.3
|
Cash Trap Account
|
14.4
|
Operating Account
|
14.5
|
Deposit Account
|
14.6
|
General Account
|
14.7
|
Tenant Deposit Account
|
14.8
|
Capex Account
|
15.
|
Financial Covenant Interest Service Cover Ratio
|
15.1
|
Obligation to comply with the ISCR Level
|
–
|
the Projected Net Rental Income (as defined below) which is due for payment during the Test Period (as defined below),
|
–
|
the Projected Interest Service (as defined below) during the Test Period.
|
15.2
|
Test Date
|
15.3
|
Projected Net Rental Income
|
–
|
the annual rent (taking into account the principles set out in Section 15.3.2) payable to the Borrower from tenants with respect to lease agreements over the Property (excluding any (pre)payments for ancillary costs (
Nebenkosten
) and VAT payments by the tenants), insurance payments for loss of rent (but only to the extent the payment obligation is approved and accepted by the relevant insurer) and – provided such amount has been paid into the Deposit Account
|
–
|
the operating costs (
Bewirtschaftungskosten
), which are not payable by the tenants as well as any other costs not payable by the tenants in relation to the Property as further specified in Section 15.3.3 (Operating Costs)
|
–
|
payments from tenants, who are at least two months in arrears with rent at the relevant Test Date;
|
–
|
rent from lease agreements, which are not legally valid, binding and enforceable, subject to a condition precedent which has not yet occurred or grant rent-free periods in the future (but, for the avoidance of doubt, only in relation to the rent-free period);
|
–
|
payments, which are not rent income, but compensation or similar payment for lost rent (other than insurance payments for lost rent and compensation payments from a tenant for lost future rent, in each case to the extent to be considered as Projected Net Rental Income as specified above), late payment of rent or other contractual or statutory claims against the relevant tenants;
|
–
|
payments from Group Companies or companies affiliated therewith or pursuant to lease agreements that have been entered into with Group Companies or companies affiliated therewith, unless the lease is in line with market terms and conditions and the area leased is actually used in accordance with the lease agreement.
|
15.3.1
|
Termination of a Lease Agreement
|
(i)
|
a lease agreement expires, or
|
(ii)
|
it is possible to terminate the lease agreement legally or such termination has already been threatened
|
15.3.2
|
Rental Payments
|
15.3.3
|
Operating Costs
|
15.4
|
Interest
|
a)
|
the lower of (i) the Cost of Funds and (ii) the cap strike rate (to the extent the Loan is hedged with a cap),
|
b)
|
the swap rate (to the extent the Loan is hedged with a swap), or
|
c)
|
the higher of (i) the Cost of Funds and (ii) the Hedging Trigger Rate (to the extent the Loan is unhedged).
|
16.
|
Financial Covenant Loan to Value (“LTV”)
|
16.1
|
Obligation to comply with the LTV
|
(ii)
|
the “latest available market value” of the Property. The “latest available market value” means the market value determined by HIB by the most recent evaluation obtained according to Section 16.2 (Calculations) or Section 13.8 (Valuations).
|
16.2
|
Calculation
|
17.
|
Non-Compliance with Financial Covenants
|
17.1
|
Cash Trap
|
17.2
|
Cure Payment by the Borrower
|
17.3
|
Cash Sweep
|
18.
|
Early Termination – Event of Default
|
18.1
|
Events of Default
|
18.1.1
|
Default in payment
: the Borrower does not make the payments due to be made pursuant to the Finance Documents, unless the non-payment is due to administrative or technical reasons outside of the Borrower’s control and payment is made, despite such a mistake, no later than three (3) Business Days after the due date.
|
18.1.2
|
Misrepresentation
: one of the representations and warranties pursuant to Section 10 (Representations and Warranties) or Section 3.1 (Shareholder Structure) or a representation or warranty of the Borrower or a Security Provider in one of the Finance Documents is at the time such is issued or repeated, incorrect, incomplete or misleading in any material respect and this breach, to the extent remedying is possible, is not remedied within 20 Business Days upon request by the Lender or after the Borrower becoming aware of it.
|
18.1.3
|
Interest Service Cover Ratio
: the ISCR determined on a Test Date is less than 175%, unless such non-compliance can be cured and is cured in accordance with Section 17.2 (Cure Payment by the Borrower).
|
18.1.4
|
Loan to Value
: the LTV determined on a Test Date amounts to more than (i) 82.5% in the first five years after the Drawdown Date or (ii) 80.0% in any period thereafter, unless such non-compliance can be cured and is cured in accordance with Section 17.2 (Cure Payment by the Borrower).
|
18.1.5
|
Breach of Undertakings
: The Borrower or a Security Provider does not comply with one of the provisions under Section 11 (Property-Related Undertakings), Section 12 (General Duties), Section 13 (Information Undertakings), Section 14 (Undertakings in relation to Accounts) or any other provision under the Finance Documents (except for a breach of the ISCR Level or LTV and 18.1.1 (Default in Payment)) compliance of which is, in the reasonable view of the Lender, material, provided that – if such a breach of contract is capable of being remedied – such breach is not remedied within 20 Business Days from the respective notification of the Lender towards the Security Provider or the Borrower or after the Security Provider or Borrower becoming aware of such breach.
|
18.1.6
|
Cessation of Business/Liquidation
:
|
a)
|
suspends its business or announces it intends to suspend its business other than by a sale of the Property in compliance with Section 12.15 (Disposal) c) or
|
b)
|
enters into the status of liquidation.
|
18.1.7
|
Insolvency:
|
a)
|
is insolvent or over-indebted (within the meaning of the German Insolvency Code) (or fulfils comparable prerequisites for the opening of insolvency proceedings in a relevant foreign jurisdiction) or generally stops its payments;
|
b)
|
due to general financial difficulties, starts negotiations with creditors regarding a general deferment of payment; or
|
c)
|
applies for the opening of insolvency proceedings (or comparable proceedings in a relevant foreign jurisdiction) in respect of its assets, or its assets become subject to the control of a preliminary insolvency administrator, an administrative insolvency administrator (or another comparable administrator pursuant to a relevant foreign law jurisdiction).
|
18.1.8
|
Insolvency proceedings
: a Group Company or a third party files an application for insolvency proceedings (or similar proceeding in a foreign jurisdiction) to be opened over the assets of the Borrower, and such an application is not withdrawn or rejected by the court within 15 Business Days.
|
18.1.9
|
Cross Default
:
|
a)
|
Financial Indebtedness in the amount of more than EUR 1,000,000 is terminated against the Borrower on the ground of an event of default (howsoever defined in relation to such Financial Indebtedness);
|
b)
|
a third party is entitled to realise a security provided by the Borrower or to instigate enforcement proceedings in relation to Financial Indebtedness exceeding the amount of EUR 1,000,000.
|
18.1.10
|
Enforcement action
: Any enforcement action is issued or levied against all or any material part of the assets of the Borrower having an aggregate value of more than EUR 100,000 and such enforcement measures are not withdrawn within ten Business Days.
|
18.1.11
|
Repudiation of Finance Document
: The Borrower or a Security Provider repudiates or purports to repudiate a Finance Document.
|
18.1.12
|
Unlawfulness
: It is or becomes unlawful for the Borrower or a Security Provider to perform any of its obligations under the Finance Documents.
|
18.1.13
|
Litigation
: Proceedings before a court or administrative proceedings are opened against the Borrower or a Security Provider, which are reasonably likely to have a Material Adverse Effect.
|
18.1.14
|
Material Adverse Effect
: An event occurs which has a Material Adverse Effect.
|
18.1.15
|
Invalidity of Security Documents
: Any provision of a Security Document at any time after its execution ceases to be in full force and effect or the agreed ranking has not been obtained as provided for in the respective Security Document and such defect is not cured within 20 Business
|
18.1.16
|
Disposals over the Property
:
|
a)
|
The Borrower disposes over the Property or parts of it in non-compliance with this Loan Agreement;
|
b)
|
The Borrower encumbers the Property or part thereof, and the Encumbrance is only permitted because it cannot be prohibited pursuant to § 1136 of the German Civil Code (BGB).
|
18.1.17
|
Material damage
: The building erected on the Property is destroyed or materially damaged and it is apparent that a restoration of the building will take more than two years.
|
18.2
|
Measures in the case of an Event of Default
|
a)
|
terminate this Loan Agreement as a whole or in part by giving notice without any notice period to be complied with, and/or
|
b)
|
claim damages, including loss of profit, in accordance with statutory provisions,
|
c)
|
realise the Security (to the extent permissible under the respective Security Document).
|
18.3
|
Claim for breach of contract
|
18.4
|
Further Rights
|
19.
|
Information regarding the Money Laundering Act/”Know your Customer” checks and other information
|
19.1
|
The Borrower declares that it is acting on its own account in relation to all matters concerning the Loan.
|
19.2
|
The Borrower must at any time upon the request of the Lender immediately provide any information, documentation and evidence which is required for the fulfilment of the Finance Parties’ statutory obligations and internal regulations, in particular in relation to the German Money Laundering Act (
Geldwäschegesetz
), tax identification obligations and regulatory law.
|
19.3
|
The Borrower, promptly upon the request of the Lender, shall supply, or procure the supply of, such documentation and evidence as is requested by the Lender in order for the Finance Parties to carry out and be satisfied with the results of any “know your customer” or other similar checks required under all applicable laws and regulations or internal rules of the any Finance Party.
|
20.
|
Notices
|
20.1
|
All notices, communications or declarations, which are made under or in accordance with this Loan Agreement shall be made in writing, in the English language and shall be delivered in person, by mail, e-mail or fax to the attention of the persons named in Section 20.2. With the receipt of such notice, communication, declaration or document to be delivered to such person, the relevant document against the Lender or the Borrower is deemed to have been served.
|
20.2
|
Addresses: deliveries, notices and the surrender of documents may – subject to Section 20.3 – only be made at the following addresses:
|
(A)
|
If to the Lender:
|
(B)
|
If to the Borrower:
|
20.3
|
The Lender shall be informed of any change of address of the Borrower by prior written notice. The Borrower shall be informed of any change of address of the Lender by prior written notice. After such notice has been given deliveries, notices and handing over of documents may only be made at the changed address
.
|
20.4
|
Security documents which have to be filed with a German authority (in particular the land charge creation deed) shall be made in the German language.
|
21.
|
Miscellaneous
|
21.1
|
Applicable Law
|
21.2
|
Place of Venue
|
21.3
|
Written Form
|
21.4
|
Enforceability
|
21.5
|
Terms and Conditions of Loan/General Terms and Conditions (
AGB
)
|
21.6
|
Relationship between the Finance Documents
|
21.7
|
Publications
|
21.8
|
Waiver
|
21.9
|
Conclusion of this Loan Agreement
|
22.
|
Assignment, Syndication
|
22.1
|
No Transfer by Borrower and Security Provider
|
22.2
|
Transfer/Syndication by the Lender
|
22.3
|
[intentionally left blank]
|
22.4
|
Further Assignments
|
22.5
|
Beneficial Lenders and Syndication Structure
|
22.6
|
No Restrictions
|
22.7
|
Disclosure of Information
|
22.8
|
Taxes and Syndication
|
Geschäftshaus am Gendarmenmarkt GmbH (Borrower):
|
||||
Date:
|
20.07.2015
|
|
Date:
|
__________________________
|
|
/s/ Jonathan Farkas
|
|
|
__________________________
|
Name:
|
Jonathan Farkas
|
|
Name:
|
|
Position:
|
Managing Director
(Geschäftsfüh-rer)
|
|
Position:
|
Managing Director
(Geschäftsfüh-rer)
|
|
||||
Landesbank Hessen-Thüringen Girozentrale (Lender):
|
||||
Date:
|
20.07.2015
|
|
Date:
|
20.07.2015
|
|
/s/ Hederer
|
|
|
/s/ Hengler
|
Name:
|
Hederer
|
|
Name:
|
Hengler
|
Position:
|
|
|
Position:
|
|
|
|
NORTHSTAR REALTY EUROPE CORP.:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
INDEMNITEE
|
|
|
|
|
|
Name:
|
|
|
Address:
|
Entity Name
|
Formation Jurisdiction
|
NorthStar Realty Europe Limited Partnership
|
Delaware
|
Prime Holdco A–T S.à. r.l
|
Luxembourg
|
Prime Holdings-T (US), LLC
|
Delaware
|
Trias Holdco A–T S.à. r.l
|
Luxembourg
|
Trias Holdings-T (US), LLC
|
Delaware
|
Symbol Holdco A-T S.à. r.l
|
Luxembourg
|
Symbol Holdings - T (US), LLC
|
Delaware
|
/s/ Albert Tylis
|
/s/ Mario Chisholm
|
/s/ Judith A. Hannaway
|
/s/ Oscar Junquera
|
/s/ Wesley D. Minami
|
/s/ Charles W. Schoenherr
|