DEMIRE Gläubigerversammlung
Not for general distribution, directly or indirectly, in whole or in part, in or into the United States.This invitation to vote (the “ Invitation to Vote ” ) is neither an offer to purchase nor a solicitation of an offer to sell securities. The Invitation to Vote is not being made to holders of the Notes in any jurisdiction in which the Invitation to Vote would not be in compliance with the securities or other laws of such jurisdiction. The securities referred to herein have not been and will not be registered under the Securities Act of 1933, as amended (the “ Securities Act ”), and may not be offered or sold in the United States, unless registered under the Securities Act or unless an exemption from the registration requirements set forth in the Securities Act applies to them. No public offering of the securities will be made in the United States and the Issuer does not intend to make any such registration under the Securities Act. DEMIRE Deutsche Mittelstand Real Estate AGFrankfurt am Main1.875% Senior Notes due 2024ISIN: DE000A2YPAK1 / WKN A2YPAKINVITATION TO VOTE WITHOUT MEETINGbyDEMIRE Deutsche Mittelstand Real Estate AG,a stock corporation (Aktiengesellschaft) incorporated under the laws of the Federal Republic of Germany with its seat in Frankfurt am Main, registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main under HRB 89041 with its business address at Robert-Bosch-Straße 11, 63225 Langen, Germany (the “Issuer”) regarding the€600,000,000 (original principal amount)* 1.875% Senior Notes due 2024ISIN: DE000A2YPAK1 / WKN A2YPAK(the “Notes”).The Issuer hereby requests the holders of the Notes (the “Holders”) to participate in the vote without meeting (Abstimmung ohne Versammlung) within the voting period (the “Voting Period”)
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| • | to vote in favour of any amendments to implement the Consent Solicitation, including, for the avoidance of doubt, voting in favour of the Resolutions; |
| • | not to take, encourage, assist or support (or encourage, assist or support any other person taking, encouraging, assisting or supporting), directly or indirectly, any action which would, or would reasonably be expected to, breach the Lock-Up Agreement or frustrate, delay, impede or prevent the implementation or consummation of the Consent Solicitation; and |
| • | not to transfer any of their Locked-Up Debt, unless the relevant transferee is either already a consenting holder or has first agreed to be bound by the terms of the Lock-Up Agreement (subject to certain customary exceptions). |
The consenting Holders’ obligation to cast their votes in a holders’ meeting in accordance with the Lock-Up Agreement is, however, contingent on the occurrence of a voting obligation effective date (as further specified in the Lock-Up Agreement). This requires, in each case with regard to one or more aspects of the overall amend & extend transaction proposed by the Issuer, certain conditions being satisfied: (i) a certain confirmation to be issued by FTI-Andersch AG reflecting the refinancing process and confirming, in substance, that (x) the requirements developed by the German Federal Court of Justice for restructuring opinions are met if the refinancing is implemented and that (y) this will, based on the assumption of the implementation of the refinancing, be demonstrated in their independent business review of the Issuer’s business and business plan, (ii) a final copy of a certain tax memorandum with respect to the potential tax consequences of the implementation of all elements of the refinancing to be available, (iii) satisfactory drafts of certain long-form documents to be available, (iv) a confirmation by the Issuer regarding the implementation of certain measures with regard to the so-called “Limes portfolio” to be issued, and (v) a general meeting of the Issuer to, inter alia, approve the new collateral structure (partly as outlined below) to be invited for.
Pursuant to the Lock-Up Agreement, the Issuer committed to implement the Resolutions by way of the Consent Solicitation as set out in this Invitation to Vote.
The Issuer further agreed (subject to certain customary exceptions) to, inter alia, refrain from transferring any shares in any member of the DEMIRE Group, pay dividends or otherwise return capital in each case to any of its shareholders, sell, issue or otherwise dispose of any Notes, or wind up or dissolve any material group company (in each case subject to certain customary exceptions and other than as necessary in the ordinary course of business).
The Issuer also agreed to undertake certain preparatory measures for, and to conduct certain specified actions (including an application of a release proceeding (Freigabeverfahren)) in case of, contestation actions in connection with the Consent Solicitation.
The Lock-Up Agreement may be terminated by certain majorities of the Holders being party to the Lock-Up Agreement, in particular, inter alia, in case of non-compliance by the Issuer with its material obligations thereunder in a material respect (subject to a grace period), material misrepresentation, the occurrence of certain insolvency events, a legal impediment to the implementation of the transactions contemplated thereby arising or the occurrence of a material adverse effect after the date of the Lock-Up Agreement. The Lock-Up Agreement automatically terminates on 14 October 2024 or such later date as may be agreed in writing by certain majorities of holders of the Notes (depending on the term of any such extension, 31 December 2024 being the latest such extension date) that have signed the Lock-Up Agreement or acceded to it at a later time (as applicable).
The Lock-Up Agreement is governed by German law.
In addition, the Issuer has secured the support of a further significant group of Holders and who did not accede to the Lock-Up Agreement (the “Further Holders”). The Further Holders‘ support was, however, subject to certain amendments of the commercial terms outlined above, the details of which are explained in an ad hoc notification by the Issuer dated 2 July 2024 (the “Proposed Amendments”). The Further Holders have, subject to certain conditions, also committed to vote in favour of any amendments to implement the Consent Solicitation, including, for the avoidance of doubt, voting in favour of the Resolutions. As a result, together with the Holders that are parties to the Lock-Up Agreement, the restructuring is supported by more than 90% of the Holders.
Tender Offer and Backstop Commitments
In connection with the restructuring transaction, the Issuer intends to invite Holders to tender the Notes for purchase by the Issuer for cash pursuant to an unmodified reverse Dutch auction process with a maximum purchase price of 76.25% of the principal amount of a Note (as such will be reduced following the partial redemption of Notes in an amount of €49,900,000) for a total maximum purchase price (excluding interest accrued thereon in accordance with their terms) of €159,621,750.00, subject to additional terms and conditions to be contained in a separate tender offer memorandum (the “Tender Offer”). The Tender Offer is expected to commence on or about 9 September 2024 and expire on or about 8 October 2024. The Tender Offer will be backstopped by backstop commitments provided by certain Holders who have provided backstop commitments. As of the date of this Invitation to Vote a large part of the backstop has been committed. On 1 August 2024 the Issuer published an invitation to all Holders to provide backstop commitments by 15 August 2024.
B. Agenda
The Issuer submits the proposal for the following two (2) resolutions (together the “Resolutions”) to the Holders and puts the Resolutions to a vote.
The Issuer proposes to the Holders to consent to each of the following two Resolutions by exercising their voting rights with “yes” (the “ Consent ”) to each Resolution.
Resolution 1 (Comprehensive Resolution)
The Holders resolve as follows:
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| 1. | Dentons GmbH Wirtschaftsprüfungsgesellschaft Steuerberatungsgesellschaft (the “Holders’ Representative”) is appointed as common representative (gemeinsamer Vertreter) of the holders (the “Holders”) of the €600,000,000 (original principal amount) 1.875% Senior Notes due 2024 (ISIN: DE000A2YPAK1 / WKN A2YPAK) (the “Notes”) issued by DEMIRE Deutsche Mittelstand Real Estate AG (the “Issuer”). The Holders’ Representative shall have the duties and powers (i) provided by law (including in accordance with section 19 of the SchVG (as defined below)), (ii) specifically set forth in the terms and conditions of the Notes (as amended from time to time, and including the Amended Conditions of Issue (as defined below)) and (iii) granted to it under this resolution. | |
| The Holders’ Representative shall be exempt from the restrictions set forth in Section 181 of the German Civil Code (Bürgerliches Gesetzbuch). | ||
| The Issuer shall pay to the Holders’ Representative fees, costs, expenses and disbursements as separately agreed between the Issuer and the Holders’ Representative. | ||
| The Holders’ Representative shall be liable for the proper performance of its duties towards the Holders who shall be joint and several creditors (Gesamtgläubiger); in the performance of its duties it shall act with the diligence and care of a prudent business manager (ordentlicher und gewissenhafter Geschäftsleiter within the meaning of Section 7(3) the German Act on Debt Securities of 2009 as amended (Schuldverschreibungsgesetz – “SchVG”). | ||
| As soon as the Holders’ Representative is permitted to act in accordance with the SchVG, it shall: | ||
| (i) | agree the final terms of, and execute as notes representative, in its own name and acting in the interest of the Holders, a security trust and guarantee agreement among, inter alios, the Issuer, certain subsidiaries of the Issuer, Dentons GmbH Wirtschaftsprüfungsgesellschaft Steuerberatungsgesellschaft as common representative of the Holders and a certain subsidiary of Global Loan Agency Services GmbH as security trustee (the “Security Agent”) which implements substantially the terms set out in Annex 1 (New Security Trust and Guarantee Agreement) to this resolution and will be attached as Annex 1 to the Amended Conditions of Issue (as defined below) (the “New Security Trust and Guarantee Agreement”) including (a) the appointment of the Security Agent as trustee (Treuhänder) and administrator for the purpose of holding on trust, accepting, administering and enforcing the Security Interests (as defined in the New Security Trust and Guarantee Agreement) and as contemplated by the Amended Conditions of Issue (as defined below), and (b) the granting of guarantees by certain subsidiaries of the Issuer guaranteeing the obligations under the Notes for the benefit of the Holders; and | |
| (ii) | perform upon instruction by majority resolution of the Holders the duties set forth in the New Security Trust and Guarantee Agreement. | |
| 2. | If a Requisite Condition (as defined below) can in the opinion of the Issuer (acting reasonably) no longer be satisfied on or prior to 31 December 2024, the Issuer shall promptly notify the Holders’ Representative thereof by email (such notice a “Requisite Condition Failure Notice”), and the Holders’ Representative shall promptly notify the Holders thereof by letter, fax, email or other electronic means. | |
| 3. | The Holders’ Representative is instructed, empowered and authorised with effect for and against all Holders | |
| (i) | to waive the satisfaction of any of the Requisite Conditions (as defined below) (other than Requisite Conditions (f) and (l)) upon instruction (given by letter, fax or email) (including instructions received outside a meeting of the Holders or vote without meeting of the Holders in accordance with the terms of the SchVG) of Holders representing more than 75% of the aggregate principal amount of the Notes; | |
| (ii) | to issue a notice to terminate the envisaged implementation of the Amendments (the “End Date Notice”) upon instruction (given by letter, fax or email) (including instructions received outside a meeting of the Holders or vote without meeting of the Holders in accordance with the terms of the SchVG) of Holders representing not less than 75% of the aggregate principal amount of the Notes (x) within 30 calendar days after receipt by the Holders’ Representative of a Requisite Condition Failure Notice or (y) at any time after the Issuer should have issued a Requisite Condition Failure Notice in accordance with 2 above. | |
| 4. | If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to 15 October 2024 the Holders’ Representative is instructed, empowered and authorised to declare with effect for and against all Holders forbearance from exercising | |
| (i) | any termination right which may arise under § 10(1)(a) of the terms and conditions of the Notes (the “Conditions of Issue”) as a result of the non-payment of the principal amount and/or failure to redeem the Notes at their final redemption amount on 15 October 2024 as per § 6(1) of the Conditions of Issue, | |
| (ii) | any termination right which may arise under § 10(1)(b) of the Conditions of Issue as a result of a breach of the Issuer of § 11(6)(a) and/or § 11(6)(b) of the Conditions of Issue with respect to the Issuer not posting on its website its annual report with respect to the fiscal year 2023 and/or its quarterly reports for the first two or three, as the case may be, quarters of the fiscal year 2024 within the envisaged periods; and | |
| (iii) | any termination right which may arise as a result of the non-compliance with the notice period in connection with the Prepayment (as defined below) (the rights set forth under (i) through (iii), collectively, the “Relevant Rights”) | |
| until the End Date. Upon such declaration, the Holders shall not be entitled to exercise the Relevant Rights. If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to the End Date, each Holder shall have the right to exercise the Relevant Rights. | ||
| 5. | If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to 15 October 2024 the Holders’ Representative is instructed, empowered and authorised to declare with effect for and against all Holders to not seriously demand (nicht ernsthaftes Einfordern) payment of principal in respect of the Notes due on 15 October 2024 under Conditions of Issue until the End Date. Upon such declaration, the Holders shall not be entitled to demand payment of principal in respect of the Notes due on 15 October 2024. If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to the End Date, each Holder shall have the right to demand payment of principal in respect of the Notes due on 15 October 2024. | |
| 6. | The Holders waive the Relevant Rights (the “Waiver”). If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to the End Date, the Waiver shall become void (condition subsequent). If the Waiver becomes void each Holder may exercise the Relevant Rights. Any termination declared on the basis of the Relevant Rights before the waiver becomes void shall not have any effect. | |
| 7. | As soon as the Holders’ Representative is permitted to act under this resolution all its duties and powers as well as all instructions and authorizations shall be solely governed by this resolution, provided that any actions or declaration already made at the relevant time on the basis of the Appointment Resolution shall remain effective. | |
| 8. | The Conditions of Issue of the Notes are amended (the “Amendments”) as set forth in Annex 2 (Form of Amended Conditions of Issue) (the “Amended Conditions of Issue”), which lays out the text of the provisions of the conditions of issue of the Notes that will be added, deleted or amended. | |
| The Issuer may not implement (vollziehen im Sinne des § 21 SchVG) the Amendments unless the following conditions precedent have been fulfilled to the satisfaction of the Holders’ Representative or, with respect to any Requisite Condition (as defined below) other than Requisite Conditions (f) and (l), waived by the Holder’s Representative vis-à-vis the Issuer in writing (e-mail being sufficient): | ||
| (a) | the confirmation by the Issuer to the Holders’ Representative that the general meeting of the Issuer having been held and passed a resolution to approve, in substance, in accordance with the principles of the Holzmüller/Gelatine doctrine, the completion of the Corporate Reorganisation (as defined below) and the subsequent transfer of the Deferred Entities to a certain LuxInterCo (as defined below); | |
| (b) | the confirmation by the Issuer to the Holders’ Representative that the Corporate Reorganisation (as defined below) has been completed; | |
| (c) | the confirmation by the Issuer to the Holders’ Representative that the New Security Trust and Guarantee Agreement has been duly executed by the parties thereto and that the effectiveness of the New Security Trust and Guarantee Agreement is not subject to any conditions precedent other than the occurrence of the Amendment Date; | |
| (d) | the confirmation by the Issuer to the Holders’ Representative that the New Collateral Agreements (as defined below) have been duly executed by the parties thereto and that the effectiveness of the New Collateral Documents are not subject to any conditions precedent other than the occurrence of the Amendment Date; | |
| (e) | the confirmation by the Issuer to be provided to the Holders’ Representative no earlier than 10 business days prior to the date the Issuer expects the Amendment Date to occur confirming that in the period beginning on the date of the publication of the invitation to vote regarding this resolution and ending on the Amendment Date, (x) the Issuer has complied and will comply with the undertakings set forth in § 4 (Negative Pledge), § 12(3) (Limitation on Distributions and Payments), § 12(4) (Limitation on Sale of Certain Assets), § 12(5) (Restriction on Transactions with Affiliates), § 12(7) (Limitation on Acquisitions), § 12(8) (Merger), § 12(14) (Permitted Conversion and Reorganization) and §12(15) (Undertakings in relation to the Limes Sub-Group) of the Amended Conditions of Issue as if these undertakings had already been in effect and provided that any reference therein to the “Amendment Date” shall be construed as a reference to the date of the publication of the invitation to vote regarding this resolution, provided that compliance with the requirement set forth in § 12(4) (c) (Limitation on Sale of Certain Assets) of the Amended Conditions of Issue shall not be required for the sales processes of the assets located in (Flensburg, Hamburg, Leipzig GuGa & Kempten); and (y) no Event of Default as defined and set forth in § 11(1) (d), (e), and/or (f) of the Amended Conditions of Issue has occurred and is continuing or is expected by the Issuer (acting reasonably) to occur within 14 calendar days after the Amendment Date; | |
| (f) | the confirmation by the Issuer to the Holders’ Representative that the Issuer has been informed (email via the legal or financial advisor foreseen in the Lock-Up Agreement as the advisors of the ad hoc committee of Holders’ being sufficient) that the final extended Independent Business Review („IBR„) by FTI-Andersch AG (i) has been provided as foreseen in the Lock-Up Agreement to those Holders which are party to the Lock-up Agreement and have requested it and (ii) is in form and in substance reasonably satisfactory to the Majority Original Consenting Holders (as defined below), or (iii) that such requirements have been waived in accordance with the terms of the Lock-Up Agreement; | |
| (g) | the confirmation by the Issuer to the Holders’ Representative that financial resources in an amount of €120,000,000 which the Issuer had allocated to the development of certain Limes PropCos have been freed up and are available for the consummation of the Transaction (as defined below); | |
| (h) | the confirmation by the Issuer to the Holders’ Representative that a partial redemption of the Notes in an aggregate principal amount of €49,900,000 at par plus interest accrued thereon having been completed (the “Prepayment”); | |
| (i) | if the Amendment Date falls after 15 October 2024, the Issuer having paid to the Holders the interest accrued on the outstanding principal amount under the Notes to (but excluding) 15 October 2024; | |
| (j) | the confirmation by the Issuer to the Holders’ Representative that the Issuer has settled the purchase of Notes in the Tender Offer (as defined below) and/or under the Backstop Agreement (if applicable) in an aggregate principal amount of at least €148,000,000 (“Minimum Tender/Backstop Amount”); | |
| (k) | the Issuer has confirmed to the Holders’ Representative that (x) all Notes purchased in the Tender Offer and/or under the Backstop Agreement (as defined below) (if applicable) with respect to which settlement occurred on or prior to the Backstop Settlement Date (as defined below) have been cancelled and (y) Notes (including those referred to under (x)) in an aggregate principal amount at least equal to the Minimum Tender/Backstop Amount purchased in the Tender Offer and/or under the Backstop Agreement (if applicable) have been cancelled; and | |
| (l) | either (A) expiry of one month contestation period pursuant to section 20 para 3 sent. 1 of the SchVG without a contestation action having been filed, or (B) if one or more contestation actions have been filed pursuant to section 20 para 3 of the SchVG, for each such contestation action the settlement, withdrawal or other termination, or a clearance decision of the competent Higher Regional Court that the filing of the respective contestation action does not preclude the implementation of this resolution, | |
| (together, the “Requisite Conditions” and each a “Requisite Condition”). | ||
| “Amendment Date” shall mean the date on which the Amendments become effective in accordance with the terms of the SchVG. | ||
| “Appointment Resolution” shall mean the proposed “Resolution 2 (Appointment Resolution)” under Section B. (Agenda) of the invitation to vote without a meeting in relating to the Notes within the voting period beginning on 2 September, 00:00 CET and ending on 4 September 2024, 24:00 CET (end of day). | ||
| “Backstop Settlement Date” means the date determined by the Issuer for the settlement of the backstop commitments under the Backstop Agreement (i.e., the date on which the providers of the backstop commitments shall sell and transfer Notes in accordance with their commitments to the Issuer in accordance with the Backstop Agreement). | ||
| “Backstop Agreement” means the agreement between the Issuer and certain Holders regarding the commitments that certain Holders to sell and transfer Notes to the Issuer as a backstop for the Tender Offer. | ||
| “Corporate Reorganisation” shall mean the reorganisation of the corporate holding structure of the Issuer’s subsidiaries as follows: | ||
| (a) | interposition of a special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg (“LuxTopCo”) beneath the Issuer, 99.99% of whose shares are being held by the Issuer as limited partner and 0.01% of whose shares are being held by its general partner, a limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and which is a wholly owned subsidiary of the Issuer; | |
| (b) | interposition of two special limited partnerships (société en commandite spéciales) which are incorporated and have their centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg (each a “LuxInterCo”) beneath LuxTopCo, 99.99% of whose shares are, in each case, being held by LuxTopCo as limited partner and 0.01% of whose shares are being held by each of its general partners, and each of the two general partners being, a limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and which is a wholly owned subsidiary of LuxTopCo; | |
| (c) | transfer of 89.9% of DEMIRE Holding XI GmbH’s shares in DEMIRE Köln Glomsda Straße 4 GmbH, DEMIRE Aschheim Max Planckstraße GmbH and DEMIRE Essen Hatzper Str. Theodor-Althoff-Str. GmbH to DEMIRE Holding XIV GmbH whereas 10.1% of the shares currently held by DEMIRE Holding XI GmbH shall be retained by DEMIRE Holding XI GmbH (together the “Limes Transfer”); | |
| (d) | transfer of all of the Issuer’s shares in DEMIRE Holding XIII GmbH to a LuxInterCo, other than 10.1% of shares currently held by the Issuer which shall be retained by the Issuer; | |
| (e) | transfer of all of the Issuer’s shares in DEMIRE Holding I GmbH, DEMIRE Holding II GmbH, DEMIRE Holding III GmbH, DEMIRE Holding IV GmbH and DEMIRE Holding XI GmbH to the second LuxInterCo, other than 10.1% of shares in DEMIRE Holding II GmbH, DEMIRE Holding III GmbH, DEMIRE Holding IV GmbH and DEMIRE Holding XI GmbH currently held by the Issuer which shall be retained by the Issuer, transfer of all of the Issuer’s shares in DEMIRE Apolda Wurzen GmbH, DEMIRE HB HZ B HST GmbH, Sihlegg Investments Holding GmbH and Panacea Property Investment GmbH to such second LuxInterCo, other than 10.1% of shares in DEMIRE HB HZ B HST GmbH and Sihlegg Investments Holding GmbH currently held by the Issuer which shall be retained by the Issuer. | |
| “Deferred Entities” means the entities listed in Annex 7 to the Amended Conditions of Issue. | ||
| “End Date” means the earlier of (i) the date of the receipt by the Issuer of an End Date Notice and (ii) 5 January 2025. | ||
| “European Insolvency Regulation” means Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast). | ||
| “Guarantors” means the entities listed in Schedule 1 of the New Security Trust and Guarantee Agreement | ||
| “Limes PropCo” means the entities listed in Annex 8 to the Amended Conditions of Issue. | ||
| “Lock-Up Agreement” means the lock-up agreement in relation to the Notes dated 5 June 2024 initially entered into, among others, between the Issuer and certain Holders and as amended prior to the date of this Invitation to Vote. | ||
| “Majority Original Consenting Holders” means Holders which are original parties to the Lock-Up Agreement and which represent more than 50% by value of the Notes which are subject to the Lock-Up Agreement and held by the original parties to the Lock-Up Agreement. | ||
| “New Collateral Agreements” shall have the meaning given to the term “Collateral Agreement” it in the New Security Trust and Guarantee Agreement | ||
| “Tender Offer” shall mean a tender offer settled through the relevant clearing systems following the Prepayment, in which Holders of the Notes were invited to tender their Notes for purchase at a maximum price of 76.25% of the principal amount of a Note outstanding following the Prepayment subject to a total maximum purchase price (excluding interest accrued thereon in accordance with their terms) of €159,621,750.00, the purchase price to be paid for each Note validly tendered and accepted for purchase by the Issuer being determined pursuant to a (unmodified) reverse Dutch auction. | ||
| “Transaction” shall mean, collectively, the Amendments, the Prepayment, the Tender Offer, transactions pursuant to the Backstop Agreement, the Corporate Reorganisation, the entry into the New Security Trust and Guarantee Agreement, the New Collateral Agreements and the other transactions contemplated by the Lock-up Agreement. | ||
| Annex 1 (New Security Trust Agreement) | ||
| Will be identical to Annex 1 to this Invitation to Vote –New Security Trust Agreement | ||
| Annex 2 (Form of Amended Conditions of Issue) | ||
| Will be identical to Annex 2 to this Invitation to Vote –Amended Conditions of Issue to this Invitation to Vote | ||
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Resolution 2 (Appointment Resolution)
The Holders resolve as follows:
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| 1. | Dentons GmbH Wirtschaftsprüfungsgesellschaft Steuerberatungsgesellschaft (the “Holders’ Representative”) is appointed as common representative (gemeinsamer Vertreter) of the holders (the “Holders”) of the €600,000,000 (original principal amount) 1.875% Senior Notes due 2024 (ISIN: DE000A2YPAK1 / WKN A2YPAK) (the “Notes”) issued by DEMIRE Deutsche Mittelstand Real Estate AG (the “Issuer”). The Holders’ Representative shall have the duties and powers (i) provided by law (including in accordance with section 19 of the SchVG (as defined below)) and (ii) granted to it under this resolution. | ||
| The Holders’ Representative shall be exempt from the restrictions set forth in Section 181 of the German Civil Code (Bürgerliches Gesetzbuch). | |||
| The Issuer shall pay to the Holders’ Representative fees, costs, expenses and disbursements as separately agreed between the Issuer and the Holders’ Representative. | |||
| The Holders’ Representative shall be liable for the proper performance of its duties towards the Holders who shall be joint and several creditors (Gesamtgläubiger); in the performance of its duties it shall act with the diligence and care of a prudent business manager (ordentlicher und gewissenhafter Geschäftsleiter within the meaning of Section 7(3) the German Act on Debt Securities of 2009 as amended (Schuldverschreibungsgesetz – “SchVG”). | |||
| 2. | If a Requisite Condition (as defined below) can in the opinion of the Issuer (acting reasonably) no longer be satisfied on or prior to 31 December 2024, the Issuer shall promptly notify the Holders’ Representative thereof by email (such notice a “Requisite Condition Failure Notice”), and the Holders’ Representative shall promptly notify the Holders thereof by letter, fax, email or other electronic means. | ||
| 3. | The Holders’ Representative is instructed, empowered and authorised with effect for and against all Holders | ||
| (i) | to waive the satisfaction of any of the Requisite Conditions (as defined below) (other than Requisite Conditions (f) and (l)) upon instruction (given by letter, fax or email) (including instructions received outside a meeting of the Holders or vote without meeting of the Holders in accordance with the terms of the SchVG) of Holders representing more than 75% of the aggregate principal amount of the Notes; | ||
| (ii) | to issue a notice to terminate the envisaged implementation of the Amendments under the Comprehensive Resolution (the “End Date Notice”) upon instruction (given by letter, fax or email) (including instructions received outside a meeting of the Holders or vote without meeting of the Holders in accordance with the terms of the SchVG) of Holders representing not less than 75% of the aggregate principal amount of the Notes (x) within 30 calendar days after receipt by the Holders’ Representative of a Requisite Condition Failure Notice or (y) at any time after the Issuer should have issued a Requisite Condition Failure Notice in accordance with 2 above. | ||
| 4. | If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to 15 October 2024 the Holders’ Representative is instructed, empowered and authorised to declare with effect for and against all Holders forbearance from exercising | ||
| (i) | any termination right which may arise under § 10(1)(a) of the terms and conditions of the Notes (the “Conditions of Issue”) as a result of the non-payment of the principal amount and/or failure to redeem the Notes at their final redemption amount on 15 October 2024 as per § 6(1) of the Conditions of Issue, | ||
| (ii) | any termination right which may arise under § 10(1)(b) of the Conditions of Issue as a result of a breach of the Issuer of § 11(6)(a) and/or § 11(6)(b) of the Conditions of Issue with respect to the Issuer not posting on its website its annual report with respect to the fiscal year 2023 and/or its quarterly reports for the first two or three, as the case may be, quarters of the fiscal year 2024 within the envisaged periods; and | ||
| (iii) | any termination right which may arise as a result of the non-compliance with the notice period in connection with the Prepayment (as defined below) (the rights set forth under (i) through (iii), collectively, the “Relevant Rights”) | ||
| until the End Date. Upon such declaration, the Holders shall not be entitled to exercise the Relevant Rights. If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to the End Date, each Holder shall have the right to exercise the Relevant Rights. | |||
| 5. | If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to 15 October 2024 the Holders’ Representative is instructed, empowered and authorised to declare with effect for and against all Holders to not seriously demand (nicht ernsthaftes Einfordern) payment of principal in respect of the Notes due on 15 October 2024 under Conditions of Issue until the End Date. Upon such declaration, the Holders shall not be entitled to demand payment of principal in respect of the Notes due on 15 October 2024. If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to the End Date, each Holder shall have the right to demand payment of principal in respect of the Notes due on 15 October 2024. | ||
| 6. | The Holders waive the Relevant Rights (the “Waiver”). If the Amendments (as defined below) are not implemented (vollzogen im Sinne des § 21 SchVG) on or prior to the End Date, the Waiver shall become void (condition subsequent). If the Waiver becomes void each Holder may exercise the Relevant Rights. Any termination declared on the basis of the Relevant Rights before the waiver becomes void shall not have any effect. | ||
| 7. | As soon as the Holders’ Representative is permitted to act under the Comprehensive Resolution all its duties and powers as well as all instructions and authorizations shall be solely governed by the Comprehensive Resolution, provided that any actions or declaration already made at the relevant time on the basis of this resolution shall remain effective. | ||
| “Amendments” shall mean the “Amendments” as such term is defined in the Comprehensive Resolution. | |||
| “Comprehensive Resolution” shall mean the proposed “Resolution 1 (Comprehensive Resolution)” under Section B. (Agenda) of the invitation to vote without a meeting in relating to the Notes within the voting period beginning on 2 September 2024, 00:00 CET and ending on 4 September 2024, 24:00 CET (end of day). | |||
| “End Date” means the earlier of (i) the date of the receipt by the Issuer of an End Date Notice and (ii) 5 January 2025. | |||
| “Prepayment” shall mean the “Prepayment” as such term is defined in the Comprehensive Resolution. | |||
| “Requisite Condition” shall mean a “Requisite Condition” as such term is defined in the Comprehensive Resolution. | |||
| ” | |||
C. Consent of the Issuer to the Resolutions
The Issuer hereby declares its consent (Einwilligung) with the Resolutions and in particular the Amendments and agrees to the Requisite Conditions for the implementation of the Amendments.
D. Legal Basis for the Vote without Meeting, Quorum and Majority Requirements
The Conditions of Issue provide that in accordance with the German Act on Debt Securities of 2009 as amended (Schuldverschreibungsgesetz – “SchVG”), the Holders may in a vote without meeting pursuant to section 18 SchVG by majority resolution (i) agree with the Issuer on amendments of the Conditions of Issue with regard to matters permitted by the SchVG and (ii) appoint or dismiss a holders’ representative.
According to the Conditions of Issue, resolutions of Holders have to be passed by a simple majority of the voting rights participating in the vote, unless the proposed resolution materially changes the substance of the Conditions of Issue, in particular in the cases of section 5 para 3 sent. 1 numbers 1 through 9 of the SchVG. Such a resolution requires a majority of at least 75% of the voting rights participating in the vote.
As of the date of this Invitation to Vote, the aggregate principal amount of Notes issued and outstanding is €499,000,000 (following a repurchase and cancellation of Notes by the Issuer in an aggregate principal amount of €101,000,000 prior to the date of this Invitation to Vote). Each Holder shall participate in the Voting in accordance with the nominal amount of the Notes held by such Holder. Each Note in the specified denomination of €100,000 shall count as one vote.
Adoption of the Resolutions requires with respect to each Resolution the consent of Holders constituting a majority of at least 75% of the voting rights participating in the Voting (= 75% of the outstanding nominal amount of the Notes participating in the Voting and not held by the Issuer or its affiliates) (the “Requisite Consents”). In order to have a quorum, it is required under the SchVG that Holders representing at least 50% of the aggregate outstanding principal amount of the Notes participate in the Voting (the “Quorum”). For the avoidance of doubt, each of the Resolutions must individually receive the Requisite Consents and requires the participation of a Quorum in order to be adopted. In case both Resolutions meet the aforementioned requirements, both Resolutions are adopted.
The Issuer will publish the results of the Voting as soon as reasonably possible on its website, in the Federal Gazette (Bundesanzeiger) and on the website of the Luxembourg Stock Exchange (www.bourse.lu).
E. Legal Consequences in Case of an Adoption of the Resolutions
The implementation (Vollzug im Sinne des § 21 SchVG) of any material amendments to terms and conditions of issue of notes under the SchVG is subject to (i) the participation of the Quorum, (ii) the receipt of the Requisite Consents and (iii) the expiry of the statutory contestation period under the SchVG (provided that no contestation proceeding is pending with respect to the relevant consent solicitation under the SchVG or the resolutions at such time) or if one or more contestation action have been filed, for each such contestation action the settlement, withdrawal or other termination of such contestation action or a clearance decision of the competent Higher Regional Court that the filing of the respective contestation action does not preclude the implementation of the Amendments (together the “Consent Conditions”, see Requisite Condition (l) above).
The Holders’ Representative may not act under its authorisation prior to the satisfaction of the Consent Conditions with respect to the relevant resolution. The Issuer will procure that the New Security Trust and Guarantee Agreement and the New Collateral Agreements are entered into as soon as possible after satisfaction of the Consent Conditions with respect to Resolution 1 (Comprehensive Resolution). The effectiveness of the New Security Trust and Guarantee Agreement and the New Collateral Agreements will, however, be subject to the Amendments being implemented and becoming effective.
The Issuer will procure that the Amendments are implemented by filing the Resolution 1 (including, for the avoidance of doubt, the Amendments) with Clearstream Banking AG, Frankfurt am Main, Germany (“CBF”) and procuring that the Resolution 1 (including, for the avoidance of doubt, the Amendments) is physically attached to the global note representing the Notes by CBF as soon as possible after (but not before) (i) satisfaction of the Consent Conditions and (ii) the satisfaction or (if applicable) waiver of the Requisite Conditions. The Amendments will become effective once Resolution 1 has been filed with CBF and attached to the global note representing the Notes in accordance with section 21 SchVG.
If the Amendments or any other item of the Resolutions become effective, these will be binding on all Holders of Notes issued and outstanding under the Conditions of Issue and their successors and transferees, whether or not such Holders consented to the Resolutions or participated in the Voting at all.
The Issuer will make a public announcement within three business days after the Amendments have become effective, confirming the Amendment Date.
F. Voting Procedures
I. Voting Period; Termination
Holders may cast their Votes through the Tabulation Agent acting as their proxy (Stellvertreter) or cast their Votes directly to the Scrutineer. The Voting Period will begin on 2 September 2024, 00:00 CET and end on 4 September 2024, 24:00 CET (end of day). The Issuer reserves the right, in its sole discretion, subject to applicable law and certain contractual restrictions, at any time prior to the beginning of the Voting Period, to terminate the Voting for any reason.
The Issuer will promptly disclose such termination in a public announcement.
Without limiting the manner in which the Issuer may choose to make a public announcement of any termination of the Voting, the Issuer shall have no obligation to publish, advertise, or otherwise communicate any such public announcement, other than by making a timely announcement to Holders and complying with any applicable notice provisions of the Conditions of Issue and the SchVG.
II. Procedures for Voting
| 1. | Registration |
In accordance with section 18 para. 4 SchVG in connection with section 10 para. 3 SchVG and the Conditions of Issue, participation in the Voting is subject to the Holder’s registration (the “Registration”) and the submission of evidence of the Holder’s beneficial or legal ownership of its Notes. In order to register for the Voting, Holders will need to follow the procedures set out below.
Registration with the Tabulation Agent
Holders wishing to cast their Vote via the Tabulation Agent need to register by no later than 24:00 CET (end of day) on 30 August 2024 (the “Registration Deadline”) and provide the following information via https://deals.is.kroll.com/demire (the “Voting Platform”):
| • | the Holder’s name; |
| • | the Holder’s address; and |
| • | the aggregate principal amount and/or number of Notes credited to such Holder’s securities account on such date |
| (together, the “Holder Details”). |
Upon completion of the registration process, the Voting Platform will generate an email to the Holder confirming that the registration was successfully completed and specifying a “Unique Identifier Reference”.
Registration with the Scrutineer
Holders wishing to directly vote to the Scrutineer need to send their registration in the German or English language to the Scrutineer and must submit the following documents in text form (as defined in Section 126b of the BGB, e.g. via mail, fax or email) to the Scrutineer by the Registration Deadline:
| • | A special confirmation issued by the bank or other financial institution with which the Holder maintains a securities account in respect of the Notes (the “Custodian”) stating (i) the full name and address of the Holder and (ii) specifying the aggregate principal amount and/or the number of the Notes credited to such securities account on the date of such statement (the “Special Confirmation”); and |
| • | a blocking note issued by the Custodian stating that the respective Notes are not transferable during the period from the date of such blocking note until the last day (inclusive) of the Voting Period, i.e. 4 September 2024, 24:00 CET (end of day) (the “Blocking Note” and, if submitted in combination with the Special Confirmation, the “Special Confirmation and Blocking Note”). |
The contact details of the Scrutineer are set forth below under “Direct Voting to the Scrutineer”.
Providing the Special Confirmation and Blocking Note by the Registration Deadline implies registration.
A form of the Special Confirmation and Blocking Note can be downloaded under www.demire.ag/bondholder-info. Use of the form of Special Confirmation and Blocking Note is not mandatory. However, Holders who fail to provide a proper Special Confirmation and Blocking Note by the Registration Deadline will not be eligible to vote.
No separate Special Confirmation and Blocking Note is required from Holders registering with and casting their Vote through the Tabulation Agent in accordance with the procedures set out below since a special confirmation and blocking note is part of the Consent Instruction.
General
In order to participate in the Voting, the completion of the registration process is necessary, regardless of whether the Holder wishes to vote via the Tabulation Agent or via the Scrutineer. Votes of Holders who fail to register with the Tabulation Agent or the Scrutineer, as applicable, by the Registration Deadline will be disregarded and will be of no effect.
| 2. | Voting through the Tabulation Agent |
Holders who have registered via the Voting Platform may cast their Votes through the Tabulation Agent acting as their proxy (Stellvertreter) by instructing the Tabulation Agent to vote in favor of or against each of the Resolutions or abstain from voting via the Voting Platform by no later than the Registration Deadline. By submitting a valid Voting Instruction, the Holder will appoint the Tabulation Agent as proxy (Stellvertreter) to vote in the manner specified in their Voting Instruction at the Voting during the Voting Period.
In addition, Holders wishing to cast their votes via the Tabulation Agent must certify that they are:
| (1) | a non “U.S. Person” as defined in Regulation S under the U.S. Securities Act; |
| (2) | a “Qualified Institutional Buyer” (“QIB”) as defined under Rule 144A of the U.S. Securities Act; |
| (3) | an “Accredited Investor” as defined in Rule 501(a) under the U.S. Securities Act; or |
| (4) | none of (1) to (3) above |
(the “Certification as to Investor Status”).
Persons who certify that they are “none of (1) to (3) above” must provide the Tabulation Agent with their contact details (including telephone number and email address) as well as any other information reasonably requested by the Tabulation Agent in order to participate in the Voting through the Tabulation Agent.
In addition, a Holder must, by the Registration Deadline submit (or procure the submission of) an electronic voting instruction (including a special confirmation and blocking note) to Vote and to block the relevant Notes in CBF, Clearstream Banking, S.A. or Euroclear Bank S.A./N.V., as applicable (each a “Clearing System”), given in such form as is specified by the relevant Clearing System from time to time (a “Consent Instruction”) to the relevant Clearing System and procure that the Tabulation Agent receives such Consent Instruction via the Clearing System, by the Registration Deadline.
Each Consent Instruction must contain the following information:
| • | the Holder Details; |
| • | the aggregate nominal amount of the Notes in respect of which a Holder wishes the Tabulation Agent (or its nominee) to vote as its proxy (Stellvertreter) in respect of the Resolutions; |
| • | whether such Holder votes in favour of or against each of the Resolution or abstains from voting; |
| • | the name of person shown in the records of the Clearing Systems as a holder of the Notes (the “Direct Participant”) and the securities account number at the Clearing System in which the Notes are held; and |
| • | an instruction to immediately block the Notes which are the subject of the Consent Instruction in accordance with the procedures set out below under “-Procedures in respect of the Clearing System”. |
The Holder must also provide the Unique Identifier Reference as obtained from the Voting Platform to its Direct Participant, so that the Direct Participant can submit the Unique Identifier Reference to the Tabulation Agent as further described below under “-Further Details on Consent Instructions”.
By submitting a Consent Instruction, the Holder makes the representations and warranties set out in this Invitation to Vote. If the Holder has validly (i) registered on the Voting Platform and instructed the Tabulation Agent and (ii) submitted a Consent Instruction in due time before the Registration Deadline, the Tabulation Agent will cast the vote on behalf of the Holder as instructed in the Voting Instruction during the Voting Period.
Separate Consent Instructions must be submitted on behalf of each Holder.
Holders submitting Consent Instructions must also procure that the Clearing Systems block the Notes which are the subject of the Consent Instruction in accordance with the procedures set out in below in “-Procedures in respect of the Clearing System”.
Only Direct Participants may submit Consent Instructions to the Clearing System.
In case Holders wish to cast their vote via the Tabulation Agent, Holders need to provide a Consent Instruction prior to the Registration Deadline. Holders who fail to provide a Consent Instruction prior to the Registration Deadline will not be eligible to vote via the Tabulation Agent.
A Holder choosing to vote through the Tabulation Agent also authorises the Tabulation Agent to vote on a Countermotion (as defined in “Countermotions and Requests for Additional Resolution Items”) submitted by a Holder, (i) that is published by the Issuer in accordance with section 13 para. 4 SchVG no later than 24:00 CET (end of day) on 29 August 2024 and (ii) in respect of which the Issuer has announced its support, in accordance with the Holder’s voting instructions (yes, no or abstention) in relation to the Countermotion unless such Holder has amended or revoked its voting instruction as set forth in the second following paragraph. This means that the Tabulation Agent will cast the vote of a Holder, that has voted “yes” on the original Resolution with “yes” for such Countermotion and “no” for the original Resolution. If a Holder has instructed the Tabulation Agent to vote “no” or “abstention” in relation to the original Resolution the Tabulation Agent will cast such Holder’s vote on such Countermotion with “no” or “abstention”, as applicable, in relation to both the original Resolution and such Countermotion.
If a Countermotion is submitted that does not meet any of the requirements set out in the preceding paragraph, Holders will be given the option to vote either on the Issuer’s proposed Resolution or the Countermotion. Any Voting Instructions submitted in relation to the Issuer’s proposed Resolution prior to the filing of the Countermotion will remain valid unless revoked by the Holder and the Tabulation Agent will only cast a vote on behalf of a Holder if it has received an amended Voting Instruction as set forth in the following paragraph.
Holders may revoke or amend their Voting Instruction by sending a revocation or amendment to the Tabulation Agent at the contact details set forth in this Invitation to Vote (including via e-mail). Any such revocation or amendment of a previous Voting Instruction must be received (zugehen) by the Tabulation Agent prior to the start of the Voting Period.
Holders that are not Direct Participants
Each Holder that is not a Direct Participant must arrange for the Direct Participant through which it holds the Notes or for the nominee, custodian, intermediary or person acting in a similar capacity for the Holder through which it holds the Notes to arrange for their Direct Participant in the Clearing System to submit a Consent Instruction, as the case may be, on its behalf to the Clearing System prior to the deadline(s) specified by such Clearing System and so as to be received by the Tabulation Agent prior to the Registration Deadline. Holders that are not Direct Participants shall instruct their Custodian to submit a Consent Instruction in respect of the Resolutions, by submitting or arranging for the submission of a duly completed and valid Consent Instruction to the Clearing System in accordance with the requirements of the Clearing System.
Further Details on Consent Instructions
Receipt of such Consent Instruction by CBF from a Direct Participant will be acknowledged in accordance with the standard practices of CBF and will result in the blocking of the relevant Notes in the relevant Direct Participant’s account with CBF so that no transfers may be effected in relation to such Notes (see “-Procedures in respect of the Clearing System”).
In addition to the Consent Instruction to CBF, the Direct Participant must provide the Tabulation Agent with a detailed spreadsheet which includes the individual instructions from the underlying instructing Holders which include (i) the name of the Holder, (ii) the address of the Holder and (iii) the Unique Identifier Reference the Holder obtained from the Tabulation Agent when registering on the Voting Platform.
CBF will transmit the Consent Instructions received from Direct Participants, either acting for itself or on behalf of the Holders, electronically to the Tabulation Agent. Upon receipt of such electronic message from CBF, the Tabulation Agent will assess whether the Holder Details in such messages correspond to the Holder Details submitted by the Holder to the Tabulation Agent upon registration on the Voting Platform. If the Tabulation Agent, in its reasonable discretion, determines that the details correspond and that it is validly instructed to vote on behalf of the relevant Holder, the Tabulation Agent will cast the votes during the Voting Period on behalf of the Holder as instructed in the Voting Instruction in text form (as defined in Section 126b of the BGB, e.g. via mail, fax or email) to the Scrutineer.
Holders may submit, or procure the submission of, a Consent Instruction at any time prior to the Registration Deadline.
Holders are advised to check with any nominee, custodian, intermediary or person acting in a similar capacity for the Holder whether such nominee, custodian, intermediary or person acting in a similar capacity for the Holder would require receipt of instructions to participate in the Voting before the Registration Deadline. The deadlines set by the Clearing System for the submission of Consent Instructions may also be earlier than the relevant deadlines specified in this Invitation to Vote.
Procedures in respect of the Clearing System
A Holder will, upon submitting a Consent Instruction, or arranging for such Consent Instruction to be submitted by the Custodian, agree that its Notes (i) held in the relevant account of the relevant Custodian will be blocked from the date the relevant instruction is received by the Custodian and (ii) held in the relevant account in the Clearing System will be blocked from the date the relevant Consent Instruction is submitted, in each case until the earlier of (x) the date on which the relevant instruction and/or Consent Instruction is validly revoked, (y) the date on which the Consent Solicitation is terminated, withdrawn or otherwise not consummated and (z) the expiry of the Voting Period.
By submission of a Consent Instruction each Holder procures that its Notes subject to a Consent Instruction will be blocked in the securities account to which they are credited in the Clearing System with effect as from, and including, the day on which the Consent Instruction is submitted, so that no transfers of such Notes may be effected at any time after such date until the earlier of (i) the date on which the relevant instruction and/or Consent Instruction is validly revoked, (ii) the date on which the Consent Solicitation is terminated, withdrawn or otherwise not consummated and (iii) the expiry of the Voting Period. Such Notes should be blocked in accordance with the procedures of the Clearing System and the deadlines required by the Clearing System. The Tabulation Agent shall be entitled to treat the receipt of a Consent Instruction as a confirmation that such Notes have been so blocked. The Tabulation Agent may require the Clearing System to confirm in writing that such Notes have been blocked with effect as from the date of submission of the Consent Instruction. In the event that the Clearing System fails to provide such confirmation, the Tabulation Agent shall inform the Scrutineer, and the Scrutineer shall be entitled, but not obliged, to reject the Consent Instruction and if rejected, the Vote in respect thereof shall be treated as not having been made.
Direct Participants in CBF give authority to CBF to disclose their identity to the Tabulation Agent, the Scrutineer and their respective legal advisers upon submission of a Consent Instruction, and as long as such Consent Instruction has not been validly revoked in accordance with the terms herein prior to the provision of such details.
Additional Terms when voting through the Tabulation Agent
The following additional terms apply to all Holders who vote through the Tabulation Agent.
For the avoidance of doubt, these additional terms do not apply to Holders who cast their vote to the Scrutineer directly.
| 1. | All delivered Votes shall be deemed to be made on the terms set out in this Invitation to Vote. | |
| 2. | Each Holder who votes through the Tabulation Agent represents that it is not an affiliate (verbundenes Unternehmen) of the Issuer in the meaning of section 271 para. 2 of the German Commercial Code (Handelsgesetzbuch) and does not hold the Notes for the account of the Issuer or any of its affiliates. In accordance with the SchVG, voting rights are suspended with respect to Notes which are (i) attributable to the Issuer or an affiliate of the Issuer or (ii) held for the account of the Issuer or any of its affiliates. | |
| 3. | If Holders vote through the Tabulation Agent, the submission of a Consent Instruction to the Clearing System shall constitute an agreement, acknowledgement, undertaking, representation and warranty by the Holder and any Direct Participant submitting a Consent Instruction on such Holder’s behalf (if applicable) to each of the Issuer, the Tabulation Agent and the Scrutineer that at the time of submission of the Consent Instruction prior to the Registration Deadline: | |
| (a) | it acknowledges that it has received and reviewed, understands and accepts the terms, conditions offer and distribution restrictions and other considerations set out in this Invitation to Vote; | |
| (b) | in case of a Direct Participant, by blocking Notes in the Clearing System, it will consent and authorise the Clearing System to provide the Tabulation Agent, the Scrutineer and their respective legal advisers with details of the identity of the Direct Participant and as long as such Consent Instruction has not been withdrawn in accordance with the terms herein prior to the provision of such details; | |
| (c) | it acknowledges that none of the Tabulation Agent, the Scrutineer or any of their respective affiliates, directors or employees has made any recommendation as to whether (or how) to vote in respect of the Resolutions and it represents that it has made its own decision with regard to voting in respect of the Resolutions based on any legal, tax or financial advice that it has deemed necessary to seek; | |
| (d) | it acknowledges that none of the Issuer, the Tabulation Agent, the Scrutineer or any of their respective affiliates, directors or employees has given it any information with respect to the Voting save as expressly set out in this Invitation to Vote and any notice in relation thereto nor has any of the Tabulation Agent or the Scrutineer made any recommendation to it as to whether or how it should vote in respect of the Resolutions and it has made its own decision with regard to voting in respect of the Resolutions based on any legal, tax or financial advice it has deemed necessary to seek; | |
| (e) | it acknowledges that no information has been provided to it by the Issuer, the Tabulation Agent, the Scrutineer or any of their respective affiliates, directors or employees with regard to the tax consequences to Holders arising from the Resolutions; | |
| (f) | it has observed the laws of all relevant jurisdictions, obtained all requisite governmental, exchange control or other required consents, complied with all requisite formalities and paid any issue, transfer or other taxes or requisite payments due from it, in each respect, in connection with the Voting or submitting a Consent Instruction, in any jurisdiction and that it has not taken or omitted to take any action in breach of these representations or which will or may result in the Scrutineer or any other person acting in breach of the legal or regulatory requirements of any such jurisdiction in connection with the Voting or any votes; | |
| (g) | it has full power and authority to submit a Consent Instruction to vote; | |
| (h) | any Consent Instruction delivered by it in respect of the Resolutions is made upon the terms and subject to the conditions of the Invitation to Vote; | |
| (i) | in case of a Consent Instruction, it will, upon request, execute and deliver any additional documents and/or do such other things deemed by the Issuer to be necessary or desirable to effect delivery of the Consent Instructions related to such Notes or to evidence such power and authority; | |
| (j) | it is not a person from whom it is unlawful to seek approval of the Resolutions, to receive the Invitation to Vote or otherwise to participate in the Voting; | |
| (k) | in case of a Consent Instruction, the terms and conditions of the Invitation to Vote shall be deemed to be incorporated in, and form a part of, the Consent Instruction which shall be read and construed accordingly and that the information given by or on behalf of such Holder in the Consent Instruction is true and will be true in all respects at the time of the Voting; | |
| (l) | in case of a Consent Instruction, it holds and will hold, the Notes specified in the Consent Instruction in the account(s) specified in the Consent Instruction. It further hereby represents, warrants to the Issuer, the Tabulation Agent and the Scrutineer and undertakes that, in accordance with the procedures of CBF, and by the deadline required by CBF it has irrevocably instructed as the case may be to block such Notes with effect on and from the date of the Consent Instruction so that, at any time until the earlier of (i) the date on which the Voting is terminated, withdrawn or otherwise not consummated, (ii) the date on which the relevant Consent Instruction is validly revoked and (iii) the last day (inclusive) of the Voting Period, i.e. 4 September 2024, 24:00 (CET) (end of day), no transfers of such Notes may be effected; and it hereby represents, warrants and undertakes that it has delivered an individual, matching blocking instruction in respect of the relevant Notes specified in the Consent Instruction to CBF and has ensured that the relevant blocking instruction can be allocated to such Notes; and | |
| (m) | it is not a Sanctioned Person (as defined below). | |
If the relevant Holder wishing to vote through the Tabulation Agent is unable to give any of the representations and warranties described above, such Holder should contact the Tabulation Agent.
| 1. | Save as otherwise provided herein, any announcement given to a Holder who voted through the Tabulation Agent will be deemed to have been duly given if delivered by the Tabulation Agent for onward transmission through the Clearing System. All notices will be given or published in accordance with the Conditions of Issue. |
| 2. | Each Holder voting through the Tabulation Agent and submitting a Consent Instruction in accordance with its terms agrees to indemnify and hold harmless on an after-tax basis, the Issuer, the Tabulation Agent, the Scrutineer, and any of their respective affiliates, directors or employees against all and any losses, costs, claims, liabilities, expenses, charges, actions or demands which any of them may incur or which may be made against any of them as a result of any breach of any of the terms of, or any of the representations, warranties and/or undertakings given pursuant to, such Consent Instruction to vote by such Holder. |
| 3. | All questions as to the validity, form and eligibility of any Consent Instruction (including the time of receipt or the compliance of such Consent Instruction with all applicable laws and regulations, including any regulations published by a Sanctions Authority) or revocation or revision thereof or delivery of Consent Instructions will be determined by the Scrutineer, in its sole discretion, subject to applicable law, which determination will be final and binding. Subject to applicable law, the Scrutineer’s interpretation of the terms and conditions of and validity, form and eligibility of the Voting and any vote (including any instructions in the Consent Instruction) shall be final and binding. No alternative, conditional or (subject to the terms herein) contingent Consent Instructions will be accepted. Subject to applicable law, the Scrutineer may: (a) in its duly exercised discretion reject any Consent Instruction submitted by a Holder or (b) in its duly exercised discretion elect to treat as valid a Consent Instruction, in both cases, not complying in all respects with the terms of the Invitation to Vote or in respect of which the relevant Holder does not comply with all the subsequent requirements of these terms and such determination will be final and binding. |
| 4. | Unless waived by the Scrutineer any irregularities in connection with any Consent Instruction must be cured within such time as the Scrutineer shall in its absolute discretion determine, subject to applicable law. None of the Issuer, the Tabulation Agent, the Scrutineer or any of their respective affiliates, directors or employees or any other person will be under any duty to give notification of any defects or irregularities in such Consent Instruction, nor will any of such entities or persons incur any liability for failure to give such notification. |
| 5. | Any communication (whether electronic or otherwise) addressed to the Scrutineer or the Tabulation Agent is communicated on behalf of a Holder by an attorney-in-fact, custodian, trustee, administrator, director or officer of a corporation or any other person acting in a fiduciary or representative capacity (other than a Direct Participant in its capacity as such), that fact must be indicated in the communication, and a power of attorney or other form of authority, in a form satisfactory to the Scrutineer, must be delivered to the Tabulation Agent by the end of the Voting Period. Failure to submit such evidence as aforesaid may result in rejection of the acceptance. Neither the Scrutineer nor the Tabulation Agent shall have any responsibility to check the genuineness of any such power of attorney or other form of authority so delivered and may conclusively rely on, and shall be protected in acting in reliance upon, any such power of attorney or other form of authority. |
| 6. | None of the Issuer, the Tabulation Agent, the Scrutineer or any of their respective affiliates, directors or employees accepts any responsibility whatsoever for failure of delivery of any Consent Instruction or any other notice or communication or any other action required under these terms. The Scrutineer’s determination in respect of any Consent Instruction or any other notice or communication shall be final and binding. |
For purposes of this section “Additional Terms when voting through the Tabulation Agent”:
“Sanctions Authority” refers to (i) the United States government, (ii) the United Nations, (iii) the European Union (or any of its member states), (iv) the United Kingdom or (v) any other equivalent governmental or regulatory authority, institution or agency which administers economic, financial or trade sanctions, and the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Office of Foreign Assets Control of the U S Department of the Treasury, the United States Department of State, the United States Department of Commerce and His Majesty’s Treasury; and
“Sanctioned Person” refers to a person or entity (a “Person”) (i) that is organised or resident in a country or territory which is the target of comprehensive country sanctions administered or enforced by any Sanctions Authority, (ii) that is, or is directly or indirectly owned or controlled by a Person that is, described or designated in (a) the most current “Specially Designated Nationals and Blocked Persons” list (which as of the date hereof can be found at: https://www.treasury.gov/ofac/downloads/sdnlist.pdf) or (b) the Foreign Sanctions Evaders List (which as of the date hereof can be found at: http://www.treasury.gov/ofac/downloads/fse/fselist.pdf) or (c) the most current “Consolidated list of persons, groups and entities subject to EU financial sanctions” (which as of the date hereof can be found at: https://data.europa.eu/data/datasets/consolidated-list-of-persons-groups-and-entities-subject-to-eu-financial-sanctions?locale=en) or (iii) that is otherwise the subject of any sanctions administered or enforced by any Sanctions Authority, other than solely by virtue of their inclusion in: (a) the most current “Sectoral Sanctions Identifications” list (which as of the date hereof can be found at: https://www.treasury.gov/ofac/downloads/ssi/ssilist.pdf) (the “SSI List”), (b) Annexes 3, 4, 5 and 6 of Council Regulation No. 833/2014, as amended (the “EU Annexes”), or (c) any other list maintained by a Sanctions Authority, with similar effect to the SSI List or the EU Annexes.
| 3. | Direct Voting to the Scrutineer |
While Holders are encouraged (but not required) to cast Votes through the Voting Platform, each Holder may alternatively cast votes directly to the Scrutineer, either by acting as principal on its own behalf or by appointing a proxy (Stellvertreter), voting agent or other agent (other than the Tabulation Agent). A registration with the Scrutineer by no later than the Registration Deadline however is also necessary in this case (see above under “1. Registration”).
Holders may cast their Votes by sending a document in text form (as defined in Section 126b of the German Civil Code (Bürgerliches Gesetzbuch), e.g. via mail, fax or email), in the German or English language, setting out the Holder Details and the vote in favour or against each of the Resolutions or the abstaining vote (the “Voting Form”) during the Voting Period in text form in the German or English language to the following address of the Scrutineer:
| Notary public Dr. Christiane Mühe | ||
| Address: Taunusanlage 17, 60325 Frankfurt am Main, Federal Republic of Germany | ||
| Fax: | +49 69 7079 685 – 55 | |
| Email: | demire@fm-notare.com | |
The Voting Form must be received (zugehen) by the Scrutineer within the Voting Period.
Holders are requested to use the standard form for voting document which can be downloaded under www.demire.ag/bondholder-info. However, use of the standard form of voting document is not required to participate in the Voting.
In addition, Holders are requested (but not required) to provide a Certification as to Investor Status. Persons who certify that they are neither (1) a non-“U.S. Person” as defined in Regulation S under the U.S. Securities Act, (2) a “Qualified Institutional Buyer” (“QIB”) as defined under Rule 144A of the U.S. Securities Act nor (3) an “Accredited Investor” as defined in Rule 501(a) under the U.S. Securities Act in the Certification as to Investor Status must provide the Scrutineer with their contact details (including telephone number and email address) as well as any other information reasonably requested by the Scrutineer.
For the avoidance of doubt, Holders who cast their votes directly to the Scrutineer are not bound by the additional terms as set out under “ Additional Terms when voting through the Tabulation Agent ”.
Votes which are received by the Scrutineer prior to the beginning of or after the expiry of the Voting Period will be disregarded and will be of no effect.
| 4. | Additional terms |
The following additional terms apply to all Holders, regardless of whether they vote through the Tabulation Agent or cast their vote to the Scrutineer directly:
| 1. | All communications, notices, certificates, or other documents to be delivered to or by a Holder will be delivered by or sent to or by it at the Holder’s own risk. None of the Issuer, the Guarantors, the Security Agent, the Scrutineer or the Holders’ Representative shall accept any responsibility for failure of delivery of a notice, communication or any other document. |
| 2. | The Scrutineer may determine the validity of a registration or a delivery of Votes. |
| 3. | Holders are solely responsible for complying with all of the procedures for participating in the Voting, including timely registration and, if Holders vote through the Tabulation Agent, the submission of Consent Instructions to the Tabulation Agent or, if Holders cast their votes directly to the Scrutineer, the receipt of the Voting Form by the Scrutineer. To the extent the Scrutineer determines there are any defects or irregularities in connection with the registration or deliveries of Votes, these must be cured prior to the end of the Voting Period. None of the Scrutineer, the Issuer, or any other person shall be under any duty to give notification of any defects or irregularities in a registration or delivery of Votes, nor shall any of them incur any liability for failure to give such notifications. Such registration and delivery of such Votes may be deemed not to have been made until such irregularities have been cured. |
| 4. | Without limiting the manner in which the Issuer may choose to make any public announcement, the Issuer shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by making a timely announcement to Holders and complying with any applicable notice provisions of of the Conditions of Issue or the SchVG |
| 5. | Specified Denomination |
Votes, Voting Instructions and Consent Instructions may only be submitted in relation to the specified denomination of the Notes, being €100,000 (the “Specified Denomination”) and integral multiples thereof. Each Note in the Specified Denomination will carry one vote.
| 6. | Representation by Proxy |
When voting directly to the Scrutineer, each Holder may be represented by a proxy (Stellvertreter), voting agent or other agent. The power of attorney and any instructions given to the proxy (Stellvertreter) by the principal must be in text form (as defined in Section 126b of the BGB, e.g. via mail, fax or email). A form of a power of attorney can be downloaded under www.demire.ag/bondholder-info. However, use of the form of power of attorney is not required to participate in the Voting. The Scrutineer must receive (zugehen) the power of attorney by no later than the end of the Voting Period by submitting the power of attorney in text form (as defined in Section 126b of the BGB, e.g. via mail, fax or email). To the extent applicable, the power of representation of the person issuing the power of attorney shall also be received by the Scrutineer by no later than the end of the Voting Period. Votes cast by a proxy (Stellvertreter), voting agent or other agent (other than the Tabulation Agent) on behalf of a Holder without submitting a power of attorney by the end of the Voting Period may not be considered by the Scrutineer.
If Holders are represented by legal representatives (e.g. a child by its parents, a ward by its guardian) or by an official administrator (e.g., an insolvent debtor by its insolvency administrator), the legal representative or the official administrator are requested to prove their statutory power of representation in adequate form (e.g. by means of a copy of the civil status documents (Personenstandsunterlagen) or the warrant of appointment (Bestellungsurkunde)) in addition to providing proof that the person they represent is a Holder.
Holders that are corporations, partnerships or other legal entities under German law (e.g. a stock corporation (Aktiengesellschaft), a stock corporation limited by shares (KGaA), a Societas Europaea, a limited liability company (GmbH), a limited partnership (Kommanditgesellschaft), a general partnership (Offene Handelsgesellschaft), an entrepreneurial company (Unternehmergesellschaft) or a partnership under the Civil Code (Gesellschaft bürgerlichen Rechts)) or under foreign law (e.g. a limited company under English law) are requested to prove the power of representation of their legal representatives and authorised signatories by the end of the Voting Period, in addition to providing proof of the qualification as Holder of Notes of the entity or partnership they represent. This may be done by submitting a current excerpt from the relevant register (e.g. commercial register (Handelsregister), register of associations (Vereinsregister)) or by means of another, equivalent certification (e.g. certificate of incumbency, secretary certificate). Such proof of power of representation is not a condition for participating in the Voting.
All questions as to the form of documents and validity, form, eligibility (including time of receipt) and acceptance of a Vote will be determined by the Scrutineer, which determination shall be final and binding subject to applicable law.
| 7. | No General Revocation Rights |
Any Voting Forms received by the Scrutineer may generally not be revoked by Holders after the beginning of the Voting Period. A revocation of a cast Vote after receipt shall only be considered if there is good cause after the beginning of the Voting Period.
III. Countermotions and Requests for Additional Resolution Items
Each Holder is entitled to submit own resolution proposals regarding the resolution items to be voted on pursuant to this Invitation to Vote (the “Countermotions”). Any Countermotion submitted by a Holder prior to the beginning of the Voting Period will promptly be made available by the Issuer on its website (www.demire.ag) under www.demire.ag/bondholder-info to all Holders up to the end of the Voting Period.
In addition, one or more Holders holding together not less than 5% of the outstanding aggregate principal amount of the Notes may request that new items are published for resolution (the “Requests for Additional Resolution Items”).
Requests for Additional Resolution Items shall be submitted to the Scrutineer via post, facsimile or email at the contact details set forth above under “Direct Voting to the Scrutineer” prior to the commencement of the Voting Period. Requests for Additional Resolution Items should be submitted in a timely manner in accordance with the provisions of the SchVG in order to ensure that they are received by the Issuer so they can be published by the Issuer in the Federal Gazette (Bundesanzeiger) and delivered to the Clearing System for communication to the Holders in accordance with the Conditions of Issue no later than the third day before the start of the Voting Period, i.e. no later than 30 August 2024. Accordingly, Requests for Additional Resolution Items need to be received no later than 12:00 (noon) (CET) on 27 August 2024.
Countermotions and Requests for Additional Resolution Items should be accompanied by a Special Confirmation evidencing the status as Holder and (in the case of a Request for Additional Resolution Items) the 5% quorum.
IV. Voting Fees
No voting fee, participation fee, consent fee or similar fee or consideration will be paid to Holders in connection with the Voting (this shall not affect, for the avoidance of doubt, the Prepayment).
V. Tabulation Agent
The Issuer has retained Kroll Issuer Services Limited to act as Tabulation Agent in connection with the Voting.
The Tabulation Agent will answer questions from Holders in respect of the Registration, Voting Instructions and Consent Instructions. Questions may be directed to the Tabulation Agent at the following contact details:
Kroll Issuer Services Limited
The Shard
32 London Bridge Street
London SE1 9SG
United Kingdom
Telephone: +44 20 7704 0880
Attention: Paul Kamminga / Illia Vyshenskyi
E-mail: demire@is.kroll.com
https://deals.is.kroll.com/demire
The Tabulation Agent may contact Holders regarding the Consent Solicitation, the Registration and the Voting, and may, subject to the terms of this Invitation to Vote, request brokerage houses, custodians, nominees, fiduciaries and others to forward this Invitation to Vote, any notice in relation thereto and related materials to Holders. On 4 June 2024, the Issuer entered into an engagement letter with the Tabulation Agent, which contains certain provisions regarding payment of fees, expense reimbursement and indemnity arrangements relating to the Voting.
VI. Scrutineer
The Issuer has appointed the notary public Dr. Christiane Mühe, Taunusanlage 17, 60325 Frankfurt am Main, Federal Republic of Germany, to act as Scrutineer in connection with the Voting.
The Scrutineer will conduct the Voting. The Scrutineer will determine each Holder’s entitlement to vote on the basis of evidence presented and prepare a register of the Holders entitled to vote. The Scrutineer will also take minutes of the Voting. The Scrutineer will receive a statutory fee for its services.
The contact details of the Scrutineer are set forth above under “Direct Voting to the Scrutineer”.
VII. Expenses of the Voting
The Issuer will bear the costs of the Voting and pay all fees and expenses in connection with the Voting, except for any fees and expenses incurred by any individual Holder in connection with the Voting.
VIII. Requests for Assistance
Requests for assistance in completing and delivering Votes or any documents related to the Voting and requests for additional copies of this Invitation to Vote and other relevant documents may be directed to the Tabulation Agent at its contact details set forth above. Holders may also contact their broker, dealer, commercial bank, custodian, trust company or other nominee for assistance concerning the Voting.
G. Available Information
From the date of this Invitation to Vote until the end of the Voting Period, the following documents will be accessible to Holders on the Voting Platform and on the Issuer’s website at www.demire.ag/bondholder-info:
| (1) | this Invitation to Vote; |
| (2) | a standard Voting Form; |
| (3) | a standard Special Confirmation and Blocking Note; |
| (4) | a standard power of attorney; and |
| (5) | the current version of the Conditions of Issue. |
The Tabulation Agent will also furnish without charge to each Holder who has provided a Certification as to Investor Status additional copies of the documents listed above. Requests for such documents should be directed to the Tabulation Agent at its contact details set forth above under “Tabulation Agent”.
Langen, 15 August 2024
DEMIRE Deutsche Mittelstand Real Estate AG
The management board (Vorstand)
Annex 1-New Security Trust and Guarantee Agreement
Dated [__] 2024
between
DEMIRE DEUTSCHE MITTELSTAND REAL ESTATE AG
as Company and Issuer
[GLAS __________ GMBH]
as Security Agent
and others
SECURITY TRUST AND GUARANTEE AGREEMENT
HENGELER MUELLER
TABLE OF CONTENTS
Clause
|
1. |
Definitions and Interpretation |
|
2. |
Effectiveness |
|
3. |
Duties of the Security Agent |
|
4. |
Parallel Debt |
|
5. |
Guarantee and Indemnity |
|
6. |
Guarantee Limitations |
|
7. |
Guarantor Undertakings |
|
8. |
Asset Management |
|
9. |
Release of Notes Collateral and Guarantee |
|
10. |
Actions by the Security Agent |
|
11. |
Representations and Warranties |
|
12. |
Enforcement of Notes Collateral and Guarantee |
|
13. |
Priority of payments: Order of application of Proceeds |
|
14. |
Retaining Third Parties |
|
15. |
Reimbursement of Expenses |
|
16. |
Right to Indemnification |
|
17. |
Taxes |
|
18. |
Resignation and Revocation |
|
19. |
Transfer of Notes Collateral |
|
20. |
Standard of Care for Liability, Limitation of Liability |
|
21. |
General Provisions regarding the Security Agent |
|
22. |
Disclosure of Information |
|
23. |
Partial Invalidity and Further Assurance |
|
24. |
Notices |
|
25. |
Counterparts; Amendments |
|
26. |
Exemption |
|
27. |
Entire Agreement |
|
28. |
Applicable Law; Place of Jurisdiction |
|
29. |
Termination |
|
Schedule 1 Other Parties |
|
|
Schedule 2 Key Documents List |
|
|
Signature Pages |
|
This SECURITY TRUST AND GUARANTEE AGREEMENT1(the „Agreement„) is made on ____ 2024
BETWEEN:
| (1) | DEMIRE Deutsche Mittelstand Real Estate AG, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany („Germany„), having its registered office at Robert-Bosch-Straße 11, 63225 Langen, Germany, registered with the commercial register (Handelsregister) at the local court (Amtsgericht) of Frankfurt am Main, Germany, under the registration number HRB 89041 (the „Company“ and „Issuer„); |
| (2) | THE SUBSIDIARIES of the Company named in Part 1 (The Guarantors) of Schedule 1 (Other Parties) (the „Guarantors„); |
| (3) | THE SUBSIDIARIES of the Company named in Part 2 (The Security Grantors) of Schedule 1 (Other Parties) (the „Security Grantors„) (the Issuer, the Guarantors and the Security Grantors together the „Obligors„); |
| (4) | [DENTONS GMBH WIRTSCHAFTSPRÜFUNGSGESELLSCHAFT STEUERBERATUNGSGESELLSCHAFT] a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated and existing under the laws of the Federal Republic of Germany, having its registered office at Markgrafenstraße 33, 10117 Berlin, Germany and registered with the commercial register (Handelsregister) at the local court (Amtsgericht) of Berlin (Charlottenburg), Germany, under the registration number HRB 101036, as common representative (gemeinsamer Vertreter) of and for the Beneficiaries (as defined below) (the „Initial Holders‘ Representative„); |
| (5) | [GLAS __________ GMBH] a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated and existing under the laws of the Federal Republic of Germany, having its registered office at Bockenheimer Anlage 46, 60322 Frankfurt am Main, Germany and registered with commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main, Germany under register number [___] (in its capacity as security agent under this Agreement and any Collateral Agreement (as defined below), together with any assignees and successors from time to time in accordance with this Agreement, the „Security Agent„). |
| The persons under (1) to (4) are hereinafter each referred to as a „Party“ and, collectively, the „Parties„. |
WHEREAS:
| (A) | On or about the date hereof, the terms and conditions of the Notes (as defined below) issued by the Issuer will be amended and the claims under the Notes (as defined below) shall be secured by, inter alia, pledges over the shares in certain Subsidiaries of the Issuer and the other Security Grantors. |
| (B) | The Issuer, the other Security Grantors and the Security Agent will enter into certain Collateral Agreements (as defined below) in order to secure the claims of the Beneficiaries against the Issuer under the Notes. |
| (C) | Further, certain Subsidiaries of the Issuer shall guarantee the claims of the Beneficiaries against the Issuer under the Notes subject to the terms and conditions of this Agreement. |
| (D) | The Security Agent has agreed to act as trustee for the benefit of the Beneficiaries upon and subject to the terms and conditions of this Agreement in respect of the Collateral Agreements and the Guarantee (as defined below). |
NOW, THEREFORE, the Parties hereby agree as follows:
| 1. | Definitions and Interpretation | |||
| 1.1 | In this Agreement the following terms shall have the meanings ascribed to them in this Clause 1.1: | |||
| „Account Pledge Agreement“ has the meaning given to that term in the Notes Terms and Conditions. | ||||
| „Acceleration Event” means the Holders‘ Representative or any Beneficiary (or a group of Beneficiaries) (as the case may be) exercising any right to accelerate or otherwise declare prematurely due any Liabilities. | ||||
| „Appropriation“ means the appropriation (or similar process including any private sale under Luxembourg law) of the shares in the capital of any person subject to Notes Collateral by the Security Agent (or any other person appointed by the Security Agent) that is effected (to the extent permitted under the relevant Transaction Document and applicable law) by enforcement of the Notes Collateral. | ||||
| „Asset Documentation“ has the meaning given to it in Clause 8(a) (Asset Management). | ||||
| „Asset Management Service Agreements“ has the meaning given to it in Clause 8(c) (Asset Management). | ||||
| „Auditors‘ Determination“ has the meaning given to that term in Clause 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „Auditors“ has the meaning given to that term in Clause 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „Beneficiary“ means each holder of any of the Notes from time to time. | ||||
| „Business Day“ means a day on which banks are open for general business in Frankfurt am Main (Germany) and Luxembourg. | ||||
| „Cash Only Creditor“ has the meaning given to that term in Clause 12.9(b) (Alternative to Non-Cash Consideration). | ||||
| „Charged Property“ means all of the assets which from time to time are, or are expressed to be, the subject of the security created or evidenced or expressed to be created or evidenced under or pursuant to the Collateral Agreements. | ||||
| „Collateral Agreement“ means each of the Account Pledge Agreement, the Share Pledge Agreements, the Structural Assignment Agreements and the RETT Blocker Assignment Agreements. | ||||
| „Competitive Sales Process“ means: | ||||
| (a) | any auction or other competitive sales process conducted under the supervision of, and with the advice of a Financial Adviser appointed by, or approved by, the Security Agent pursuant to Clause 12.7 (Appointment of Financial Adviser); and | |||
| (b) | any enforcement of the security created or evidenced or expressed to be created or evidenced under or pursuant to any Collateral Agreement carried out by way of auction or other competitive sales process pursuant to requirements of applicable law. | |||
| „Data Transfer Agreement“ has the meaning given to it in clause 8(a) (Asset Management). | ||||
| „Distress Event“ means any of: | ||||
| (a) | an Acceleration Event; or | |||
| (b) | the enforcement of the security created or evidenced or expressed to be created or evidenced under or pursuant to the Collateral Agreements. | |||
| „Distressed Disposal” means a disposal of a Charged Property of a member of the Group which is | ||||
| (a) | being effected pursuant to a Holders‘ Representative Instruction (if a Holders‘ Representative has been appointed) or Holder Majority Decision in circumstances where the security created or evidenced or expressed to be created or evidenced under or pursuant to the Collateral Agreements has become enforceable; | |||
| (b) | being effected by enforcement of the security created or evidenced or expressed to be created or evidenced under or pursuant to the Collateral Agreements (including the disposal of any Charged Property of a member of the Group, the shares in which have been subject to an Appropriation); or | |||
| (c) | being effected, after the occurrence of a Distress Event, by the Company, a Guarantor or another Obligor to a person or persons which is, or are, not a member, or members, of the Group. | |||
| „Effective Date“ has the meaning given to that term in Clause 2 (Effectiveness). | ||||
| „Electronic Means“ has the meaning given to that term in Clause 21 (General Provisions regarding the Security Agent). | ||||
| „Eligible Institution“ has the meaning given to such term in Clause 18.1 (Resignation). | ||||
| „Enforcement Action“ means: | ||||
| (a) | in relation to any Liabilities: | |||
| (i) | the acceleration of any Liabilities or the making of any declaration that any Liabilities are prematurely due and payable (other than as a result of it becoming unlawful for a Secured Party to perform its obligations under, or of any voluntary or mandatory prepayment arising under, the Transaction Documents); | |||
| (ii) | the making of any declaration that any Liabilities are payable on demand; | |||
| (iii) | the making of a demand in relation to a Liability that is payable on demand or due and payable; | |||
| (iv) | the making of any demand against any Guarantor in relation to any Guarantee of that Guarantor; | |||
| (v) | the exercise of any right to require any member of the Group to acquire any Liability (including exercising any put or call option against any member of the Group for the redemption or purchase of any Liability other than in connection with an asset sale offer or a change of control offer (howsoever defined) as set out in any of the Transaction Documents); | |||
| (vi) | the exercise of any right of set-off, account combination or payment netting against any member of the Group in respect of any Liabilities other than the exercise of any such right which is otherwise expressly permitted under the Notes Terms and Conditions; and | |||
| (vii) | the suing for, commencing or joining of any legal or arbitration proceedings against any member of the Group to recover any Liabilities; | |||
| (b) | the taking of any steps to enforce or require the enforcement of any Notes Collateral (including by way of exercise of voting rights pertaining to any shares being subject to Notes Collateral); | |||
| (c) | the entering into of any composition, compromise, assignment or arrangement with any member of the Group which owes any Liabilities, or has given any Notes Collateral, Guarantee other assurance against loss in respect of the Liabilities; or | |||
| (d) | the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, judicial manager, administrator (including an insolvency administrator (Insolvenzverwalter) preliminary insolvency administrator (vorläufiger Insolvenzverwalter)), trustee (Sachwalter), preliminary trustee (vorläufiger Sachwalter) or similar officer) in relation to, the winding up, judicial management, dissolution, administration or reorganisation of any member of the Group which owes any Liabilities, or has given any Notes Collateral, Guarantee or other assurance against loss in respect of any of the Liabilities, or any of such member of the Group’s or any such assets or any suspension of payments or moratorium of any indebtedness of any such member of the Group, or any analogous procedure or step in any jurisdiction, | |||
| except that the following shall not constitute an Enforcement Action: | ||||
| (i) | the taking of any action falling within paragraphs(a)(ii), (a)(iii), (a)(iv), (a)(vii) or (d) above which is necessary (but only to the extent necessary) to preserve the validity, existence or priority of claims in respect of Liabilities, including the registration of such claims before any court or governmental authority and the bringing, supporting or joining of proceedings to prevent any immediately impending loss of the right to bring, support or join proceedings by reason of applicable limitation periods; | |||
| (ii) | a Beneficiary bringing legal proceedings against any person solely for the purpose of: | |||
| (A) | obtaining injunctive relief (einstweilige Verfügung) (or any analogous remedy outside Germany) to restrain any actual or putative breach of any Transaction Document to which it is party; | |||
| (B) | obtaining specific performance (other than specific performance of an obligation to make a payment) with no claim for damages; or | |||
| (C) | requesting judicial interpretation of any provision of any Transaction Document to which it is party with no claim for damages; or | |||
| (iii) | allegations of material misstatements or omissions made in reports or any exchange on which the Notes are listed by a member of the Group pursuant to the information and reporting requirements under the Notes Terms and Conditions. | |||
| „Enforcement Event“ has the meaning given to such term in the relevant Collateral Agreement. | ||||
| „Entitled Creditors“ has the meaning given to that term in Clause 12.9. (Alternative to Non-Cash Consideration). | ||||
| „Fairness Opinion“ means, in respect of a Distressed Disposal or a Liabilities Sale, an opinion (on a reliance basis) that the proceeds received or recovered in connection with that Distressed Disposal or Liabilities Sale are fair from a financial point of view taking into account all relevant circumstances, including, without limitation, the method of enforcement or disposal. | ||||
| „Financial Adviser“ means any: | ||||
| (a) | reputable independent international investment bank; | |||
| (b) | reputable independent international accountancy firm; or | |||
| (c) | other reputable independent professional services firm which is regularly engaged in providing valuations of businesses or financial assets or, where applicable, advising on competitive sales processes. | |||
| „Freely Disposable Amount“ has the meaning given to that term in paragraph (a)(ii) of Clause 6.3 (Guarantee limitations for Swiss Guarantors). | ||||
| „German Guarantor“ has the meaning given to that term in Clause 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „GmbH & Co. KG Guarantor“ has the meaning given to that term in 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „GmbH Guarantor“ has the meaning given to that term in Clause 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „GmbHG“ has the meaning given to that term in 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „Group“ means the Company and each of its Subsidiaries from time to time, but excluding the Limes Entities at any time. | ||||
| „Guarantee“ means each of the guarantees and indemnities granted by the Guarantors under Clause 5 (Guarantee and Indemnity). | ||||
| „Guarantee Demand Date“ means each date upon which the Security Agent makes a written demand upon the relevant Guarantor to make payment in respect of the Guarantee. | ||||
| „Guarantee Event“ means any amount of principal, interest, costs, expenses or other amount under or in connection with the Transaction Documents not having been fully and irrevocably paid by an Obligor when due (fällig). | ||||
| „HGB“ means the German Commercial Code (Handelsgesetzbuch). | ||||
| „Holder Majority Decision“ means the consent or instruction given to the Security Agent (given by letter, fax or e-mail or other electronic means, as applicable) by Beneficiaries representing more than 50 per cent of the then outstanding aggregate principal amount of the Notes in accordance with § 14(6) of the Notes Terms and Conditions. | ||||
| „Holders‘ Representative“ means the Initial Holders‘ Representative and any successor in the capacity as common representative (gemeinsamer Vertreter) appointed under the Notes from time to time. | ||||
| „Holders‘ Representative Instruction“ means the consent or instruction given to the Security Agent (by letter, fax or e-mail or other electronic means, as applicable) by the Holders‘ Representative acting on instructions of Beneficiaries representing more than 50 per cent of the aggregate principal of the Notes then outstanding and that expressly have instructed or rejected to give an instruction following a request to obtain an instruction submitted by the Holders‘ Representative to the Beneficiaries in accordance with § 14(5)(c) of the Notes Terms and Conditions in respect of any of the potential actions to be taken by the Security Agent. | ||||
| „Immediately Effective Provisions“ means Clauses 1 (Definitions and Interpretations), 2 (Effectiveness), 3 (Duties of the Security Agent) and 10 (Actions by the Security Agent) through to (and including) 29 (Termination). | ||||
| „Invitation to Vote“ means the invitation to a voting without a meeting (Abstimmung ohne Versammlung) in relation to the Notes which has been published in the Federal Gazette (Bundesanzeiger) on [●] 2024. | ||||
| „Key Documents List“ has the meaning given to it in paragraph (a) of Clause 8 (Asset Management). | ||||
| „Limes Entities“ means DEMIRE Köln Max-Glomsda-Straße 4 GmbH, DEMIRE Essen Hatzper Str. Theodor-Althoff-Str GmbH, DEMIRE Aschheim, Max-Planckstraße GmbH and DEMIRE Kassel Kölnische Str. Mauerstr. Spohrstr GmbH and any of their Subsidiaries. | ||||
| „Limitations on Enforcement“ has the meaning given to that term in Clause 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „Liabilities“ means all present and future liabilities and obligations at any time of any member of the Group under the Transaction Documents, both actual and contingent and whether incurred solely or jointly or as principal or surety or in any other capacity together with any of the following matters relating to or arising in respect of those liabilities and obligations: | ||||
| (a) | any refinancing, novation, deferral or extension; | |||
| (b) | any claim for breach of representation, warranty or undertaking or on an event of default or under any indemnity given under or in connection with any document or agreement evidencing or constituting any other liability or obligation falling within this definition; and | |||
| (c) | any claim for damages or restitution, | |||
| and any amounts which would be included in any of the above but for any discharge, non-provability, unenforceability or non-allowance of those amounts in any insolvency or other proceedings. | ||||
| „Liabilities Sale“ means any disposal of any Liabilities effected by an Enforcement Action. | ||||
| „Luxembourg Guarantor“ has the meaning ascribed to that term in paragraph (a) of Clause 6.2 (Guarantee Limitations for Luxembourg Guarantors). | ||||
| „Luxembourg Intra-Group Liabilities“ has the meaning ascribed to that term in paragraph (b) of Clause 6.2 (Guarantee Limitations for Luxembourg Guarantors). | ||||
| „Luxembourg“ means the Grand Duchy of Luxembourg. | ||||
| „Management Determination“ has the meaning given to that term in Clause 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „Mandated Service Providers“ has the meaning given to that term in paragraph (b) of Clause 8 (Asset Management). | ||||
| „New Asset Management Depository“ has the meaning given to that term in paragraph (a) Clause 8 (Asset Management). | ||||
| „New Security Agent“ has the meaning given to that term in Clause 18.1 (Resignation). | ||||
| „Non-Cash Consideration“ means consideration in a form other than cash. | ||||
| „Non-Cash Recoveries“ means any proceeds of an Appropriation and/or disposal which are, or is, in the form of Non-Cash Consideration. | ||||
| „Notes“ means the senior (initially unsecured) notes (Schuldverschreibungen) (ISIN: DE000A2YPAK1) issued by the Issuer on 15 October 2019 in an original aggregate principal amount of EUR 600,000,000 originally due on 15 October 2024 and originally bearing interest on their principal amount at the rate of 1.875 per cent. per annum, the terms of which have been amended by way of a resolution under the German Act on Debt Securities (Schuldverschreibungsgesetz) dated [●] August 2024. | ||||
| „Notes Collateral“ means the security interests established under each Collateral Agreement in favour of the Security Agent. | ||||
| „Notes Terms and Conditions“ means the terms and conditions (Anleihebedingungen) of the Notes from time to time. | ||||
| „Parallel Debt Obligations“ has the meaning given to that term in Clause 4.1 (Parallel Debt). | ||||
| „Principal Obligations“ has the meaning given to that term in Clause 4.1 (Parallel Debt). | ||||
| „Regulation“ has the meaning given to that term in paragraph (a)(i) of Clause 6.2 (Guarantee limitations for Luxembourg Guarantors). | ||||
| „Relevant Provisions“ has the meaning given to that term in Clause 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „Restricted Obligations“ has the meaning given to that term in paragraph (a)(ii) of Clause 6.3 (Guarantee limitations for Swiss Guarantors). | ||||
| „Retained Non-Cash“ has the meaning given to that term in Clause 12.9 (Alternative to Non-Cash Consideration). | ||||
| „RETT Blocker Assignment Agreements“ has the meaning given to that term in the Notes Terms and Conditions. | ||||
| „Secured Obligations“ means all present and future obligations (other than the Parallel Debt Obligations) of the Obligors to any of the Secured Parties at any time (including, for the avoidance of doubt, under the Guarantee), both actual and contingent and whether incurred solely or jointly or as principal, surety or in any other capacity, whether for principal, interest, costs or otherwise under or in connection with the Transaction Documents, as well as any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or tort (Delikt) arising to any Secured Party under or in connection with any Transaction Document. | ||||
| „Secured Party“ means each of the Security Agent, each Holders‘ Representative and each Beneficiary. | ||||
| „Security Agent’s Request“ has the meaning given to that term in Clause 6.1 (Limitations relating to a GmbH Guarantor). | ||||
| „Share Pledge Agreements“ has the meaning given to that term in the Notes Terms and Conditions.2 | ||||
| „Structural Assignment Agreements“ has the meaning given to that term in the Notes Terms and Conditions. | ||||
| „Subsidiary“ means any entity over which a person has direct or indirect control or owns directly or indirectly more than 50 per cent. of the voting capital or similar right of ownership, and „control“ for this purpose means the power to direct the management and the policies of the entity whether through the ownership of voting capital, by contract or otherwise within the meaning of section 17 of the German Stock Corporation Act (Aktiengesetz). | ||||
| „Swiss Accessory Security“ has the meaning given to that term in Clause 3.8 (Duties of the Security Agent). | ||||
| „Swiss Federal Tax Administration“ means the tax authorities referred to in article 34 of the Swiss Withholding Tax Act. | ||||
| „Swiss Guarantor“ means any Guarantor incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to article 9 of the Swiss Withholding Tax Act. | ||||
| „Swiss Withholding Tax“ means taxes imposed under the Swiss Withholding Tax Act. | ||||
| „Swiss Withholding Tax Act“ means the Swiss Federal Act on Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), together with the related ordinances, regulations and guidelines, all as issued, amended or replaced and applicable from time to time. | ||||
| „Transaction Documents“ means the Notes, the Notes Terms and Conditions, this Agreement and each Collateral Agreement. | ||||
| 1.2 | Unless otherwise stated therein or inconsistent therewith or the context requires otherwise, the following rules of interpretation shall apply to this Agreement: | |||
| (a) | Words denoting the singular shall also include the plural and vice versa; words denoting persons only shall also include firms and corporations and vice versa; | |||
| (b) | References to any statutory provision shall be deemed also to refer to any statutory modification, re-statement or re-enactment and to any statutory instrument, order or regulation made thereunder or under any statutory modification, re-statement or re-enactment thereof; | |||
| (c) | Reference to any document or agreement shall include reference to such document or agreement as amended, amended and restated, varied, supplemented, replaced, novated or otherwise modified from time to time and to any document or agreement expressed to be supplemental thereto or executed pursuant thereto; | |||
| (d) | Headings in this Agreement are for ease of reference only and are not intended to affect its interpretation. | |||
| 1.3 | Save where the contrary is indicated in this Agreement, any reference in this Agreement to a time of day shall be construed as a reference to time in Frankfurt am Main, Germany. | |||
| 1.4 | Where the Security Agent is referred to in this Agreement as acting „reasonably“ or in a „reasonable“ manner or as coming to an opinion or determination that is „reasonable“ (or any similar or analogous wording is used), this shall mean that the Security Agent shall, where it has in fact sought such instructions, be acting or coming to an opinion or determination on the instructions of the Beneficiaries or from the Holders‘ Representative (in case a Holders‘ Representative has been appointed) and that the Security Agent shall be under no obligation to determine the reasonableness of such instructions from Beneficiaries or from the Holders‘ Representative or whether in giving such instructions by the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) is acting in a reasonable manner. | |||
| 1.5 | Where agreement or approval, acceptability to or satisfaction with or approval of the Security Agent is referred to (or any similar or analogous wording is used) in relation to a matter not affecting the personal interests of the Security Agent, this shall mean the agreement or approval, acceptability to or satisfaction with or approval of, (or similar where similar or analogous wording is used, as applicable) the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) as notified by or on behalf of, the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) to the Security Agent. | |||
| 1.6 | Where the Security Agent is obliged to consult under the terms of the Transaction Documents, unless otherwise specified, the Security Agent shall carry out that consultation in accordance with the instructions (if any) it receives under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from Beneficiaries by Holder Majority Decision. The Security Agent should be under no obligation to determine the reasonableness of such circumstances or whether in giving such instructions the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) are acting in a reasonable manner. | |||
| 1.7 | In respect of paragraphs 1.4 to 1.6 above, the Security Agent shall not be responsible for any liability occasioned by any delay or failure on the part of the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) to give any such instructions or direction or to form any such opinion. | |||
| 1.8 | This Agreement is made in the English language and the English language version of this Agreement shall prevail over any possible translation of this Agreement. Where a German term has been used, it alone, and not the English term to which it relates, shall be authoritative for the interpretation of this Agreement. Where English terms are accompanied by German definitions, such definitions shall define how such terms are to be interpreted under the laws of Germany. | |||
| 1.9 | Terms capitalised, but not defined herein shall have the meaning given to them in the Notes Terms and Conditions. | |||
| 1.10 | In this Agreement, where it relates to a Luxembourg entity, a reference to: | |||
| (a) | a winding-up, administration, liquidation, insolvency, or dissolution includes, without limitation, bankruptcy (faillite), insolvency, voluntary dissolution or liquidation (dissolution or liquidation volontaire), court ordered liquidation (liquidation judiciaire) or reorganisation, reprieve from payment (sursis de paiement), judicial reorganisation (réorganisation judiciaire), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally; | |||
| (b) | a receiver, administrative receiver, administrator, liquidator, trustee, custodian or similar officer includes, without limitation, a juge délégué, commissaire, juge-commissaire, mandataire ad hoc, administrateur provisoire, liquidateur or curateur; | |||
| (c) | gross negligence is a reference to faute lourde and wilful misconduct is a reference to faute dolosive; | |||
| (d) | a security includes any hypothèque, nantissement, gage, privilège, sûreté réelle, droit de rétention, and any type of security in rem (sûreté réelle) or agreement or arrangement having a similar effect and any transfer of title by way of security; | |||
| (e) | a person being unable to pay its debts includes that person being in a state of cessation of payments (cessation de paiements) and a loss of its creditworthiness (ébranlement de crédit); | |||
| (f) | by-laws or constitutional documents includes its up-to-date (restated) articles of association (statuts coordonnés); | |||
| (g) | a director or a manager includes an administrateur and a gérant; | |||
| (h) | attachments or similar creditors process means an executory attachment (saisie exécutoire) or conservatory attachment (saisie arrêt); and | |||
| (i) | a set-off includes, for purposes of Luxembourg law, legal set-off. | |||
| 2. | EFFECTIVENESS | |||
| 2.1 | This Agreement (other than the Immediately Effective Provisions) shall only become effective upon implementation (Vollzug) within the meaning of section 21 German Act on Debt Securities (Schuldverschreibungsgesetz) of the amendments in relation to the Notes (in the form prior to the date of this Agreement) contemplated by the Invitation to Vote (the date of such occurrence, the „Effective Date„). | |||
| 2.2 | The Immediately Effective Provisions shall become effective on the date on which this Agreement has been duly executed by each of the original Parties. | |||
| 2.3 | The Company shall promptly upon the occurrence of the Effective Date notify the same to the Security Agent. | |||
| 3. | DUTIES OF THE SECURITY AGENT | |||
| 3.1 | The Security Agent shall hold and administer the Notes Collateral and exercise its rights in respect thereof and discharge its duties under the Transaction Documents as a trustee (Treuhänder) for the benefit of the Secured Parties. For the avoidance of doubt, the Security Agent does not act as a common representative (gemeinsamer Vertreter) within the meaning of the German Act on Debt Securities (Schuldverschreibungsgesetz). | |||
| 3.2 | This Agreement constitutes a genuine contract for the benefit of third parties (echter Vertrag zugunsten Dritter) pursuant to § 328 (1) of the German Civil Code (Bürgerliches Gesetzbuch) in respect of the obligations of the Security Agent contained herein to act as trustee (Treuhänder) for the benefit of the Beneficiaries which are not party to this Agreement. | |||
| 3.3 | This Agreement sets out the general rights and obligations of the Security Agent which govern the performance of its functions in respect of the Notes Collateral and the Guarantee, provided that the Security Agent shall only be obliged to perform the obligations, activities and services explicitly set out in this Agreement and no other duties shall be implied. | |||
| 3.4 | Subject to the provisions of this Agreement, the Security Agent shall exercise its duties under this Agreement with regard to the interests of and for the benefit of the Beneficiaries. If the Security Agent receives an instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries as per a Holder Majority Decision, the Security Agent shall act as instructed subject to Clause 21 (General Provisions regarding the Security Agent) below. | |||
| 3.5 | The Security Agent is not obliged to monitor the discharge by the Issuer of its payment and other obligations arising from the Notes or any other relevant Transaction Documents or to carry out duties which are the responsibility of the Issuer. | |||
| 3.6 | The Security Agent shall, unless otherwise provided for under Clause 3.4 above or elsewhere in this Agreement or any other Transaction Document, decide on any consents or approvals to be given by it pursuant to the Transaction Documents in its reasonable discretion in accordance with this Agreement (in particular Clause 21 (General Provisions regarding the Security Agent)). | |||
| 3.7 | The Security Agent, as long it is appointed hereunder, shall not render services to any other persons or carry out any business other than in connection with the Transaction Documents under this Agreement. | |||
| 3.8 | Without prejudice to the generality of the foregoing, for the purposes of any Notes Collateral governed by Swiss law: | |||
| (a) | The Security Agent shall: | |||
| (i) | hold and administer any non-accessory Notes Collateral (nicht-akzessorische Transaktionssicherheit) governed by Swiss law as indirect representative (indirekter Stellvertreter) in its own name, including as creditor of the Parallel Debt Obligations (as defined below), but on behalf and for the benefit of each Secured Party; and | |||
| (ii) | hold and administer any accessory Notes Collateral (akzessorische Transaktionssicherheit) (e.g. a right of pledge) governed by Swiss law (a „Swiss Accessory Security„) for itself and as direct representative (direkter Stellvertreter) in the name and on behalf of each Secured Party. | |||
| (b) | Each Secured Party (other than the Security Agent) hereby appoints the Security Agent as its direct representative (direkter Stellvertreter) and authorizes the Security Agent to: | |||
| (i) | accept, execute and deliver in its name and on its behalf as its direct representative (direkter Stellvertreter) any Collateral Agreements creating a Swiss Accessory Security; | |||
| (ii) | accept, execute and deliver in its name and on its behalf as its direct representative (direkter Stellvertreter) any amendments, confirmations and/or alterations to any Collateral Agreements creating a Swiss Accessory Security and to administer, exercise such rights, remedies, powers and discretions as are delegated to or conferred upon the Security Agent thereunder together with such powers and discretions as are reasonably incidental thereto; | |||
| (iii) | to effect in its name and on its behalf as its direct representative (direkter Stellvertreter) any release of any Swiss Accessory Security created under any Collateral Agreements in accordance with this Agreement; and | |||
| (iv) | to take such other action in its name and on its behalf as its direct representative (direkter Stellvertreter) as may from time to time be authorized under or in accordance with the Transaction Documents. | |||
| 4. | PARALLEL DEBT | |||
| 4.1 | Each Obligor hereby agrees and undertakes vis-á-vis the Security Agent by way of an abstract acknowledgement of debt (abstraktes Schuldanerkenntnis) that it shall pay to the Security Agent sums equal to, and in the currency of, any Secured Obligations owed by it to a Secured Party (other than the Security Agent) under any Transaction Document (the „Principal Obligations„) as and when the same fall due (fällig) for payment under the relevant Transaction Document (the „Parallel Debt Obligations„), it being understood that the amount which may become payable by each of the Obligors as its Parallel Debt pursuant to this Clause 1.2 shall never exceed the total of the amounts which are payable under or in connection with its Secured Obligations. | |||
| 4.2 | The right of the Security Agent to demand payment of the Parallel Debt Obligations shall be independent and several from the rights of the other Secured Parties to demand payment of the Principal Obligations provided that the payment by an Obligor of its Parallel Debt Obligations to the Security Agent in accordance with this Clause 4.2 shall also discharge (in the amount of the relevant payment) the corresponding Principal Obligations and vice versa the payment by that Obligor of its Principal Obligations in accordance with the provisions of the relevant Transaction Documents shall also discharge (in the amount of the relevant payment) the corresponding Parallel Debt Obligations. No Principal Obligation shall be discharged by a discharge of the Parallel Debt Obligations if such discharge of the Parallel Debt Obligations is effected by virtue of any set-off, counterclaim or similar defence invoked by the Issuer vis-à-vis the Security Agent other than in accordance with the terms of the relevant Transaction Document. | |||
| 4.3 | All monies received or recovered by the Security Agent by the enforcement of any Collateral Agreement, this Agreement or under the Guarantee granted to secure the Parallel Debt Obligations, shall be applied in accordance with this Agreement. | |||
| 5. | GUARANTEE AND INDEMNITY | |||
| 5.1 | Each Guarantor irrevocably and unconditionally jointly and severally (gesamtschuldnerisch): | |||
| (a) | guarantees (garantiert) by way of an independent payment obligation (selbständiges Zahlungsversprechen) to the Security Agent (but not vis-à-vis any other Secured Party) to pay to the Security Agent (for distribution by the Security Agent to the Beneficiaries in accordance with Clause 13 (Priority of payments: Order of application of Proceeds) any amount payable under the Secured Obligations and the Parallel Debt Obligations from time to time. Payment under this Guarantee shall be due (fällig) within three (3) Business Days of a written demand by the Security Agent stating the sum demanded from that Guarantor and that such sum is an amount of principal, interest, costs, expenses or other amount under or in connection with the Transaction Documents that has not been fully and irrevocably paid by an Obligor when due; and | |||
| (b) | undertakes vis-à-vis the Security Agent (but not vis-à-vis any other Secured Party) to indemnify (schadlos halten) any Secured Party against any cost, loss or liability suffered by that Secured Party if any obligation of an Obligor under or in connection with any Transaction Document or any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which the relevant Secured Party would otherwise have been entitled to recover (Ersatz des positiven Interesses) and that claim shall be due (fällig) within three (3) Business Days of a written demand by the Security Agent. | |||
| For the avoidance of doubt this guarantee and indemnity does not constitute a guarantee upon first demand (Garantie auf erstes Anfordern) and, in particular, receipt of such written demand shall not preclude any rights and/or defences the Guarantor may have with respect to any payment requested by the Security Agent under this guarantee and indemnity or the German Civil Code (Bürgerliches Gesetzbuch – BGB). | ||||
| 5.2 | This guarantee and indemnity is independent and separate from the obligations of any Obligor under any of the Transaction Documents and is a continuing guarantee and indemnity which will extend to the ultimate balance of sums payable by any Obligor to any Secured Party under the Transaction Documents, regardless of any intermediate payment or discharge in whole or in part. It shall extend to any additional obligations of an Obligor resulting from any amendment, novation, supplement, extension, restatement or replacement of any Transaction Document, including without limitation any extension of or increase in any facility or issuance amount, the addition of a new facility or a new issuance under any Transaction Document. | |||
| 5.3 | If any payment by an Obligor or any discharge given by the Security Agent (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: | |||
| (a) | the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and | |||
| (b) | the Security Agent shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred. | |||
| 5.4 | ||||
| (a) | The obligations of each Guarantor under this Clause 5 will not be affected by an act, omission, matter or thing which relates to the principal obligation (or purported obligation) of any Obligor (as the case may be) under the relevant Transaction Documents and which would reduce, release or prejudice any of its obligations under this Clause 5, including any personal defences of any Obligor (Einreden des Hauptschuldners), or any right of revocation (Anfechtung) or set-off (Aufrechnung) of any Obligor. | |||
| (b) | The obligations of each Guarantor under this Clause 5 are independent from any other security or guarantee which may have been or will be given to the Secured Parties. In particular, the obligations of each Guarantor under this Clause 5 will not be affected by any of the following: | |||
| (i) | the deferral of payment (Stundung), waiver or consent granted to, any other Obligor from or in respect of its obligations under or in connection with any Transaction Document; | |||
| (ii) | 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 any other person or any failure to realise the full value of any security; | |||
| (iii) | any incapacity or lack of power, authority or legal personality of or dissolution or a deterioration of the financial condition of any other Obligor; or | |||
| (iv) | any unenforceability, illegality or invalidity of any obligation of any other Obligor under any Transaction Document. | |||
| (c) | For the avoidance of doubt nothing in this Clause 5 shall preclude any defences that any Guarantor (in its capacity as Guarantor only) may have against the Security Agent that the guarantee and indemnity does not constitute its legal, valid, binding or enforceable obligations. | |||
| 5.5 | The Security Agent will not be required to proceed against or enforce any other rights or security or claim payment from any person before claiming from any Guarantor under this Clause 5. This applies irrespective of any provision of a Transaction Document to the contrary. | |||
| 5.6 | Until all amounts which may be or become payable by the Obligors under or in connection with the Transaction Documents have been irrevocably paid in full, the Security Agent may, subject to the terms of this Agreement: | |||
| (a) | refrain from applying or enforcing any other monies, security or rights held or received by it in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and | |||
| (b) | hold in an interest-bearing suspense account any monies received from any Guarantor or on account of any Guarantor’s liability under this Clause 5. | |||
| 5.7 | Until all amounts which may be or become payable by the Obligors under or in connection with the Transaction Documents have been irrevocably paid in full and unless the Security Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under any of the Transaction Documents or by reason of any amount being payable, or liability arising, under this Clause 5: | |||
| (a) | to be indemnified by an Obligor; | |||
| (b) | to claim any contribution from any other guarantor of any Obligor’s obligations under the Transaction Documents; | |||
| (c) | to exercise any right of set-off against any Obligor; and/or | |||
| (d) | to take the benefit (in whole or in part and whether by way of legal subrogation or otherwise) of any rights of the Secured Parties under the Transaction Documents or of any other guarantee or security taken pursuant to, or in connection with, the Transaction Documents by any Secured Party. | |||
| 5.8 | If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the Transaction Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Security Agent or as the Security Agent may direct. | |||
| 5.9 | This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Secured Party or the Security Agent for the benefit of the Beneficiaries. | |||
| 5.10 | The Security Agent shall be the only party entitled under the guarantees and indemnities granted under this Clause 5 provided that the Security Agent shall only be entitled to take any act or enforce its rights under this Clause 5 in accordance with the instruction procedure pursuant to Clause 12 (Enforcement of Transaction Security and the Guarantee). | |||
| 6. | GUARANTEE LIMITATIONS | |||
| 6.1 | Limitations relating to a GmbH Guarantor | |||
| (a) | For the purpose of this Clause 6.1: | |||
| „Auditors“ means the auditors of any relevant GmbH Guarantor. | ||||
| „German Guarantor“ means a Guarantor incorporated under the laws of Germany. | ||||
| „GmbH Guarantor“ means a German Guarantor which is a limited liability company (Gesellschaft mit beschränkter Haftung). | ||||
| „GmbH & Co. KG Guarantor“ means a German Guarantor incorporated as a limited liability partnership (Kommanditgesellschaft) with a limited liability company (Gesellschaft mit beschränkter Haftung) as a general partner (Komplementär) (GmbH & Co. KG). | ||||
| „GmbHG“ means the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung). | ||||
| „Guarantee Demand Date“ means each date on which the Security Agent issues a written demand upon the relevant Guarantor to make payment in respect of the Guarantee. | ||||
| „HGB“ means the German Commercial Code (Handelsgesetzbuch). | ||||
| (b) | In the case that the Guarantee is granted by a GmbH Guarantor and secures liabilities which are owed by direct or indirect shareholders of that GmbH Guarantor or Subsidiaries of such shareholders (such Subsidiaries not to include the GmbH Guarantor and the Subsidiaries which are also Subsidiaries of that GmbH Guarantor) („Up-Stream or Cross-Stream Guarantees„), the Security Agent agrees not to enforce the Guarantee in respect of such amount: | |||
| (i) | as is required to ensure that the amount of the relevant GmbH Guarantor’s net assets, calculated as the sum of the balance sheet positions shown under section 266 (2) (A), (B), (C), (D) and (E) HGB minus the sum of the balance sheet positions shown under section 266 (3) (B), (C), (D) and (E) HGB and any amounts not available for distribution to shareholders pursuant to section 253 (6) HGB, section 268 (8) HGB and section 272 (5) HGB and any similar provisions preventing distributions of amounts (Ausschüttungssperren) (hereinafter „Net Assets„), does not fall below the amount of its registered share capital (Stammkapital); or | |||
| (ii) | where the amount of the relevant GmbH Guarantor’s Net Assets already is below the amount of its registered share capital, as is required as to ensure that such amount is not further reduced. | |||
| The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) and be based on the same principles that were applied by the German Guarantor in the preparation of its most recent annual balance sheet (Jahresbilanz). | ||||
| (c) | The limits in paragraphs (b)(i) and (b)(ii) above will not apply: | |||
| (i) | to the extent any proceeds from the issuance of the Notes have been on-lent to, or otherwise been passed on to, the relevant GmbH Guarantor or any of its Subsidiaries to the extent that any such on-lent or passed-on amount has not been repaid by that GmbH Guarantor or any of its Subsidiaries at the Guarantee Demand Date and provided that, in such case, the Security Agent waives with binding effect on the Parties the restrictions set out in Clause 5.7 in respect of the GmbH Guarantor’s recourse claim (if any) arising as a result of the enforcement of the Guarantee so that it shall be permitted for the GmbH Guarantor to make use of its rights to (A) set off its recourse claim (if any) against the loan obligation in respect of the amounts on-lent to it or (B) otherwise use its recourse claim (if any) to settle or discharge this loan obligation. For the avoidance of doubt, the Security Agent may elect not to waive the restrictions set out in Clause 5.7 in respect of the GmbH Guarantor’s recourse claim (if any) arising as a result of the enforcement of the Guarantee against that GmbH Guarantor provided that if the Security Agent so elects the limits in paragraphs (b)(i) and (b)(ii) above apply in relation to any amounts which correspond to funds that have been borrowed under the Notes and have been on-lent to, or otherwise been passed on to, the relevant GmbH Guarantor or any of its Subsidiaries; | |||
| (ii) | following the Guarantee Demand Date, the relevant GmbH Guarantor does not provide financial statements in accordance with paragraphs (e) and (f) below; | |||
| (iii) | if, on the Guarantee Demand Date, the relevant GmbH Guarantor as dominated entity (beherrschtes Unternehmen) is party to a domination and/or profit and loss transfer agreement (Beherrschungs- und/oder Gewinnabführungsvertrag) with its (indirect) shareholder either directly or through an unbroken chain of domination and/or profit transfer agreements being the Issuer as the primary obligor of the relevant guaranteed obligations, as dominating entity (beherrschendes Unternehmen) | |||
| (A) | unless the GmbH Guarantor has proven by way of a final (rechtskräftig) court judgment that the existence of a profit and loss transfer agreement and/or domination agreement is not sufficient to disapply Section 30 sentence 1 GmbHG and any other provision of statutory law of the GmbHG, the German Stock Corporation Act (Aktiengesetz), the German Criminal Code (StGB) or mandatory provisions of the German Civil Code (Bürgerliches Gesetzbuch) (together, the „Relevant Provisions„), the breach of which would result in a personal or criminal liability of the managing directors of the GmbH Guarantor which has its basis (Ursprung) in the granting of Up-Stream or Cross-Stream Guarantees, and that payment under the Guarantee would result in a breach of section 30 sentence 1 or 31 GmbHG or otherwise result in a personal or criminal liability of the managing directors of the GmbH Guarantor as a result of breach of statutory obligations under any of the Relevant Provisions, which has its basis (Ursprung) in the granting of Up-Stream or Cross-Stream Guarantees. The Security Agent agrees that if such court proceedings to obtain a final judgment in that respect has been initiated (anhängig) by the GmbH Guarantor against the Security Agent no later than twenty (20) Business Days after the Guarantee Demand Date (and does not terminate such proceedings itself), the Security Agent will only enforce the Guarantees subject to the limitations set out in this Clause 6.1 (the „Limitations on Enforcement„) until such proceedings have been settled by a final court judgment on the merit (Begründetheit), provided that if a judgment is rendered which is not based on merit (Begründetheit), the Limitations on Enforcement with respect to the Security Agent shall only continue to be applicable if the relevant GmbH Guarantor initiates new court proceedings against the Security Agent within twenty (20) Business Days of such judgment. | |||
| (B) | Irrespective of the preceding sentences, a decision of the Federal Supreme Court (Bundesgerichtshof) ruling on whether the existence of a profit and loss transfer agreement and/or a domination agreement is sufficient to disapply section 30 sentence 1 and 31 GmbHG and any other Relevant Provisions to avoid any personal or criminal liability of the managing directors of the GmbH Guarantor in respect of the taking out of a guarantee or surety or providing of security interests for debt of the parent entity of the guarantor, the surety company or the security provider, respectively, or its direct or indirect subsidiaries, if these subsidiaries are not subsidiaries of the guarantor, surety company or security provider, respectively, shall be deemed as sufficient evidence as between the Parties to this Agreement in respect of that question. In any case, however, the GmbH Guarantor may only rely on this paragraph (iii) if and to the extent the GmbH Guarantor confirms in the Management Determination (and the Auditors confirm in any Auditors‘ Determination) that the GmbH Guarantor’s claims for the reimbursement of losses (and indemnity claims which would arise following payment under the Guarantee) against its direct or indirect shareholders would not be of substance (nicht werthaltig); or | |||
| (iv) | if and to the extent the relevant GmbH Guarantor holds on the Guarantee Demand Date a fully recoverable indemnity claim or claim for consideration or return (vollwertiger Gegenleistungs- oder Rückgewähranspruch) against its shareholder that can be accounted for in the balance sheet of the relevant GmbH Guarantor at full value (vollwertig). | |||
| (d) | For the purpose of the calculation of the Net Assets of the relevant GmbH Guarantor, the following balance sheet items shall be disregarded: | |||
| (i) | the amount of any increase of the relevant GmbH Guarantor’s registered share capital after the date of this Agreement (A) if and to the extent it has been effected without the prior written consent of the Security Agent, or (B) if and to the extent that it is not fully paid up provided that the corresponding claim against the shareholders is not accounted for as an asset in the balance sheet at full value (vollwertig) of the GmbH Guarantor at the Guarantee Demand Date; and | |||
| (ii) | loans provided to the relevant GmbH Guarantor by a member of the Group if such loans are subordinated (for the benefit of its creditors in general) or are considered subordinated in an insolvency proceeding over its assets pursuant to section 39 (1) no. 5 of the German Insolvency Code (Insolvenzordnung), unless extinguishing the loan (e.g. by assignment to the borrower under that loan) would (x) violate mandatory legal restrictions applicable to the relevant member of the Group; (y) violate any of the terms of any of the Transaction Documents; and/or (z) trigger or increase the risk of any managing director or other officer or representative of any member of the Group of becoming personally and/or criminally liable as a result thereof and it being understood that, if such member of the Group is a Guarantor and/or a grantor of Notes Collateral, the corresponding amount of the payment claim of that member of the Group shall be disregarded when calculating the Net Assets (if applicable) of that member of the Group in connection with the enforcement of the Guarantee or Notes Collateral created by that member of the Group. The first sentence of this paragraph (ii) shall not apply if the Security Agent notifies the respective GmbH Guarantor that it elects to enforce the Guarantee and/or Notes Collateral against that other member of the Group and the aforementioned payment claim is taken into account when calculating that other member of the Group’s Net Assets (if applicable) available for such enforcement; and | |||
| (iii) | loans or other liabilities incurred in wilful or gross negligent violation of the provisions of any of the Transaction Documents. | |||
| (e) | The relevant GmbH Guarantor shall deliver (within fifteen (15) Business Days following the Guarantee Demand Date) to the Security Agent a notification stating that and to which extent the amount payable in respect of the Guarantee shall be limited in accordance with paragraphs (b)(i) and (b)(ii) above and taking into account the adjustments in paragraph (d) above, if any, such notification to be supported by evidence reasonably satisfactory to the Security Agent, i.e. interim financial statements (Stichtagsbilanz) showing the balance sheet positions mentioned in paragraph (b)(i) above (taking into account the adjustments in paragraph (d) above, if any) as of the date on which the enforcement of the obligations under this Clause 6.1 is sought (as set forth above, the „Management Determination„). | |||
| (f) | Following the Security Agent’s receipt of the Management Determination, upon the Security Agent’s request (acting upon a corresponding prior instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, and in each case acting reasonably and in good faith) (the „Security Agent’s Request„), the relevant GmbH Guarantor will deliver (within forty (40) Business Days following receipt of the Security Agent’s Request) to the Security Agent an up-to-date balance sheet drawn-up by the Auditors together with a determination of the Net Assets. Such balance sheet and determination of Net Assets shall be prepared in accordance with accounting principles pursuant to the HGB, be based on the same principles that were applied when establishing the previous year’s balance sheet and take into account the adjustments in paragraph (d) above, if any. The determination by the Auditors (as set forth above, the „Auditors‘ Determination„) pertaining to the relevant GmbH Guarantor shall be prepared as of the Guarantee Demand Date. | |||
| (g) | The Security Agent shall be entitled to demand payment under the Guarantee in an amount which would, in accordance with the Management Determination or, if applicable and taking into account any previous enforcement in accordance with the Management Determination, the Auditors‘ Determination, not cause the relevant GmbH Guarantor’s Net Assets to be reduced below the registered share capital of the relevant GmbH Guarantor or further reduced if already below such registered share capital. If (i) and to the extent the Net Assets as determined by the Auditors‘ Determination are lower than the Net Assets as determined by the Management Determination or (ii) any amounts in respect of the Guarantee have been enforced without regard to the limitations set out in (b)(i) and (b)(ii) above because (A) the Management Determination was not delivered within the relevant time frame or (B) the Auditors‘ Determination was not delivered within the relevant time frame but has been delivered within ten (10) Business Days following the due date for the delivery of the Auditors‘ Determination, the Security Agent shall without undue delay repay to the relevant GmbH Guarantor upon written demand of the relevant GmbH Guarantor any amount (if and to the extent already paid to the Security Agent) in the case of (i) equal to the difference between the amount paid and the amount payable resulting from the Auditors‘ Determination, and in the case of (ii), which the Security Agent would not have been entitled to enforce had the Management Determination and the Auditors‘ Determination been delivered in time provided such demand for repayment is made to the Security Agent within six (6) months (Ausschlussfrist) from the date the Guarantee is enforced. The Security Agent may withhold any amount received pursuant to an enforcement of this Guarantee until final determination of the amount of the Net Assets pursuant to the Auditors‘ Determination. | |||
| (h) | If pursuant to the Auditors‘ Determination the amount of the available Net Assets is higher than that set out in the Management Determination, the relevant GmbH Guarantor shall pay such amount to the Security Agent within five (5) Business Days after receipt of the Auditors‘ Determination. | |||
| (i) | In a situation where the relevant GmbH Guarantor does not have sufficient Net Assets to maintain its registered share capital, the relevant GmbH Guarantor shall within three (3) months after a written request by the Security Agent, to the extent commercially justifiable, dispose of all assets which are not necessary for its business (nicht betriebsnotwendig) where the relevant assets are shown in the balance sheet of the relevant GmbH Guarantor with a book value which (in the reasonable opinion of the Security Agent) is significantly lower than the market value of such assets. After the expiry of such three (3) Months period, the GmbH Guarantor shall, within three (3) Business Days, notify the Security Agent of the amount of the net proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets of the relevant GmbH Guarantor taking into account such proceeds. Such calculation shall, upon the Security Agent’s request (acting reasonably), be confirmed by one of the Auditors of the relevant GmbH Guarantor within a period of twenty (20) Business Days following the request. | |||
| (j) | The limits set out in paragraphs (b)(i) and (b)(ii) above do not affect the rights of the Security Agent to claim any outstanding amount again at a later point in time if any to the extent that paragraphs (b)(i) and (b)(ii) above would allow this at that later point. | |||
| (k) | Paragraphs (b) to (j) of this Clause 6.1 shall apply mutatis mutandis if the Guarantee is granted by a GmbH & Co. KG Guarantor in relation to the limited liability company (GmbH) as general partner (Komplementär) of that GmbH & Co. KG Guarantor. | |||
| 6.2 | Guarantee limitations for Luxembourg Guarantors | |||
| (a) | Notwithstanding any other provision of this Agreement or any other Transaction Document, to the extent that the Guarantee is granted by a guarantor existing under the laws of Luxembourg (the „Luxembourg Guarantor„), the aggregate maximum liability of a Luxembourg Guarantor under this Agreement and any other Transaction Document for the obligations of any Obligor which is not a direct or indirect Subsidiary of the Luxembourg Guarantor shall be limited to an amount not exceeding the greater of: | |||
| (i) | 95 per cent. of the Luxembourg Guarantor’s own funds (capitaux propres), as referred to in annex I to the grand-ducal regulation dated 18 December 2015 defining the form and content of the presentation of balance sheet and profit and loss account, and enforcing the Luxembourg law dated 19 December 2002 concerning the trade and companies register and the accounting and annual accounts of undertakings (the „Regulation„) as increased by the amount of any subordinated debt (including any Luxembourg Intra-Group Liabilities (as defined below)) each as reflected in the Luxembourg Guarantor’s latest duly approved annual accounts and other relevant documents available to the Security Agent at the date of this Agreement; or | |||
| (ii) | 95 per cent. of the Guarantor’s own funds (capitaux propres), as referred to in the Regulation as increased by the amount of any subordinated debt (including any Luxembourg Intra-Group Liabilities (as defined below)) each as reflected in the Luxembourg Guarantor’s latest duly approved annual accounts. | |||
| (b) | Any payment made by the Luxembourg Guarantor with respect to the Agreement and any other Transaction Document will be made without withholding or deduction for or on account of taxes in Luxembourg unless required by Luxembourg law. If the Luxembourg Guarantor is required by Luxembourg law to withhold or deduct amounts for or on account of tax with respect to a payment to the Security Agent, the Luxembourg Guarantor will pay the additional amounts necessary so that the net amount received by the Security Agent after the withholding or deduction is not less than the amount that it would have received in the absence of the withholding or deduction. For the avoidance of doubt, paragraph (a) above shall prevail to this paragraph (b) which shall not lead to the aggregate maximum liability of a Luxemburg Guarantor described therein being exceeded. | |||
| (c) | For the purposes of this Clause 6.2, „Luxembourg Intra-Group Liabilities“ means all existing liabilities owed by a Luxembourg Guarantor to any other member of the Group that are not financed by a borrowing under any Transaction Document. | |||
| (d) | The above limitation shall not apply to any amounts borrowed by, or made available to, in any form whatsoever, the Luxembourg Guarantor or any of its direct or indirect present or future Subsidiaries under any Transaction Documents (or any document entered into in connection therewith). | |||
| (e) | The obligations and liabilities of any Luxembourg Guarantor shall not include any obligation which, if incurred, would constitute a breach of the provisions of financial assistance under Luxembourg law (to the extent applicable). | |||
| (f) | Where, for the purpose of calculating any amount under paragraph (a) above: | |||
| (i) | no duly established annual accounts are available for the relevant reference period (which will include a situation where, in respect of the determinations to be made above, no final annual accounts have been established in due time in respect of the then most recently ended financial year); or | |||
| (ii) | the relevant annual accounts do not adequately reflect the status of the Luxembourg Guarantor’s subordinated debt or the Luxembourg Guarantor’s own funds (capitaux propres) as envisaged above; or | |||
| (iii) | the Luxembourg Guarantor has taken corporate or contractual actions which have resulted in the increase of its own funds or subordinated debt since the close of its last financial year, | |||
| the Security Agent (upon a corresponding prior instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, in each case, acting reasonably and in good faith), may designate a person to make the determination of the relevant Luxembourg Guarantor’s own funds and subordinated debt amounts, based on such available elements and facts as deemed relevant by such person at such time in accordance with the Luxembourg accounting principles applicable to the Luxembourg Guarantor. | ||||
| 6.3 | Guarantee limitations for Swiss Guarantors | |||
| (a) | If and to the extent that: | |||
| (i) | a Swiss Guarantor under this Agreement or any other Transaction Document guarantees, indemnifies and/or secures obligations other than obligations of one of its wholly-owned direct or indirect subsidiaries; and | |||
| (ii) | a guarantee payment in fulfilling such obligations would, under Swiss law then applicable, constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Guarantor or would otherwise be restricted under Swiss corporate law, („Restricted Obligations„), such Restricted Obligations (and the amount of any payment in relation thereto) shall from time to time be limited to the maximum amount permitted to be paid under Swiss law then applicable, provided that, such amount shall at no time be less than the maximum amount of freely disposable equity of such Swiss Guarantor (the „Freely Disposable Amount„) at the time or times payment under or pursuant to the Guarantee or otherwise under this Agreement or any other Transaction Document is requested from such Swiss Guarantor and further provided that such limitation (as may apply from time to time or not) shall only apply to the extent it is a requirement under applicable law at the time the respective Swiss Guarantor is required to perform Restricted Obligations under this Agreement or any other Transaction Document and shall not (generally or definitively) free such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date thereof until such times as payment is again permitted notwithstanding such limitation. | |||
| (b) | In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under this Agreement is obliged to withhold Swiss Withholding Tax in respect of such payment, such Swiss Guarantor shall: | |||
| (i) | use best efforts to ensure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax; | |||
| (ii) | if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; | |||
| (iii) | promptly notify the Security Agent that such notification, or as the case may be, deduction has been made and provide the Security Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration; | |||
| (iv) | in the case of a deduction of Swiss Withholding Tax, use best efforts to ensure that any person other than the Security Agent, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and pay to the Security Agent upon receipt any amounts so refunded or (B) if the Security Agent or a Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment and if requested by the Security Agent, provide to the Security Agent or the Secured Party such documents that are required by law or applicable tax treaties (or otherwise useful to file a claim) to enable the Security Agent or Secured Party to prepare a claim for and get a refund of Swiss Withholding Tax; | |||
| (v) | to the extent such a deduction is made, not be obliged to either gross-up or indemnify in accordance with the terms of any Transaction Document, or otherwise pay for such deductions in relation to any such payment made by it in respect of any Restricted Obligations unless such payment is permitted under the laws of Switzerland then in force. This subsection (v) is without prejudice to the gross-up or indemnification obligations of any Obligor other than such Swiss Guarantor. | |||
| (c) | If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with paragraph (b) above, the Security Agent shall be entitled to further request payment under the Guarantee as per Clause 5 (Guarantee and Indemnity) and any other guarantee, security or indemnity granted to it under this Agreement or any other Transaction Document and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax was required, whereby such further payments shall always be limited to the maximum amount of the Freely Disposable Amount. In case the proceeds irrevocably received by the Security Agent and the Secured Parties pursuant to paragraph (b)(iv) (refund) above and this paragraph (additional enforcements) have the effect that the proceeds received by the Security Agent and the Secured Parties exceed the guaranteed obligations, then the Security Agent or the relevant Secured Party shall return such overcompensation to the relevant Swiss Guarantor. | |||
| (d) | If and to the extent requested by the Security Agent and permitted by applicable law in order to allow the Security Agent (and the Secured Parties) to obtain a maximum benefit under the Transaction Documents and, in particular, this Clause 6.3, a Swiss Guarantor shall promptly implement, and any shareholder of a Swiss Guarantor which is a party to this Agreement or any other Transaction Document shall procure that such Swiss Guarantor shall implement and cause to be implemented within such period, the following: | |||
| (i) | the preparation of an up-to-date audited (interim) balance sheet of such Swiss Guarantor; | |||
| (ii) | the provision of a determination by such Swiss Guarantor of the Freely Disposable Amount based on such audited (interim) balance sheet; | |||
| (iii) | the confirmation of the auditors of such Swiss Guarantor that a payment of the relevant amount corresponding to (the maximum of) the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserve; | |||
| (vi) | the prompt convening of a meeting of the shareholders of such Swiss Guarantor which will approve, or the passing of any shareholders‘ resolution approving the payment or other performance under this Agreement or any other Transaction Document, as applicable; | |||
| (v) | if the enforcement of any Restricted Obligations would be limited as a result of any matter referred to in this Clause 6.3, such Swiss Guarantor shall, to the extent permitted by applicable law, (A) write up or realise any of its assets shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realisation, however, only if such assets are not necessary for such Swiss Guarantor’s business (nicht betriebsnotwendig) and/or (B) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Transaction Documents; and | |||
| (vi) | all such other measures reasonably necessary and/or to promptly procure the fulfilment of all prerequisites reasonably necessary to allow such Swiss Guarantor and relevant parent company to promptly make the payments and perform the obligations agreed hereunder from time to time with a minimum of limitations. | |||
| 7. | GUARANTOR UNDERTAKINGS | |||
| Each Guarantor undertakes to comply with any and all undertakings (directly or indirectly) imposed or expressed to be imposed on it as „Guarantor“ in the Notes Terms and Conditions, including, but not limited to, the undertakings pursuant to § 4(1) (Negative Pledge) of the Notes Terms and Conditions not to create or permit to subsist any security interest and the undertakings included in § 12 (Covenants) of the Notes Terms and Conditions, which are (directly or indirectly) imposed or expressed to be imposed on it as „Guarantor“. | ||||
| 8. | ASSET MANAGEMENT | |||
|
(a) |
The Issuer shall transfer (and shall procure (dafür einstehen) that the relevant member of the Group will transfer) all electronic data, documents and information related to the Group’s asset management, property management, facility management and properties (including the documents and information specified in the „Key Documents List“ attached as Schedule 2 (Key Documents List) that are held by the Issuer or any other member of the Group (the „Asset Documentation„) (be it on servers owned by the Issuer or the member of the Group or servers to which the Issuer or such member of the Group has otherwise access to) within three (3) Business Days after the Amendment Date to [GP InterCo [●] S.á r.l.] or a wholly-owned subsidiary of [GP InterCo [●] S.á r.l.] (such entity, the „New Asset Management Depository„) by transferring the legal ownership and possession of the Issuer’s or the Group member’s respective servers and the Asset Documentation to the New Asset Management Depository and/or servers owned by the New Asset Management Depositary under a data transfer agreement („Data Transfer Agreement„). The Issuer shall procure that (i) any newly created or received Asset Documentation shall henceforth be stored on servers owned by the New Asset Management Depository and (ii) no databases or software tools except for the ones transferred to and owned by the New Asset Management Depository will be used to file or manage Asset Documentation, it being acknowledged that (i) certain data (in particular personal data regarding employees of the Issuer), which are not relevant for the asset management, property management or facility management may not be transferred to the New Asset Management Depository due to data protection law restrictions, and (ii) the Data Transfer Agreement will include provisions under which the New Asset Management Depository will be obliged to re-transfer certain not required data to the Issuer or such other member of the Group in case the Issuer or member of the Group is no longer affiliated with the New Asset Management Depository. |
|||
| (b) | The Issuer hereby represents that, to its best knowledge, all actually present and available physical documents specified in the Key Documents List are in the actual possession of the member of the Group for which they are relevant to conduct its asset management or stored at third party service providers mandated by the respective member of the Group („Mandated Service Providers„); provided that if the Issuer becomes aware that a member of the Group or a Mandated Service Provider is not in possession of such relevant physical documents, the Issuer shall ensure that such physical documents be transferred into the possession of that member of the Group or (as the case may be) a Mandated Service Provider within 10 Business Days. | |||
| (c) | In addition, the Issuer shall amend (and shall procure (dafür einstehen) that the relevant members of the Group will agree to amend) all asset management, property management and facility management service agreements between the Issuer and any of member of the Group or Participations („Asset Management Service Agreements„), such that | |||
| (i) | the relevant Asset Management Service Agreement can be terminated by the counterparty in case of a change of control in the relevant counterparty or any direct or indirect shareholder of the counterparty, including where such change of control occurs or is reasonably likely to occur upon an enforcement of the related Collateral; and | |||
| (ii) | the parties to the Asset Management Service Agreements shall (subject to mandatory data protection law) reasonably cooperate to effect the transfer of the asset management, property management and facility management team, including the obligation to transfer any employee-related data (e.g., employment agreements, personnel files, payroll data, insurance contracts, etc.) of such persons and any other information reasonably required for notification pursuant to section 613a (5) BGB upon termination of the respective Asset Management Agreement following an enforcement of the related Collateral unless such obligation is waived by the Security Agent (acting upon a corresponding prior instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, in each case acting reasonably and in good faith). | |||
| 9. | RELEASE OF NOTES COLLATERAL AND GUARANTEE | |||
| (a) | As soon as (i) the Security Agent is satisfied that the Issuer has fully and finally discharged all Secured Obligations or (ii) the Security Agent received a corresponding instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, the Security Agent shall, to the extent the Notes Collateral and the Guarantee has not been previously released in accordance with the relevant Collateral Agreement or this Agreement, promptly re-transfer or release to the Issuer or to the Issuer’s order the Notes Collateral transferred or pledged to it and release the Guarantee. | |||
| (b) | The Security Agent shall further be authorised (but not obliged to, unless satisfied that the relevant requirements have been met) to release and/or re-transfer Collateral and/or the Guarantee in the cases and to the extent set out in the Notes Terms and Conditions. | |||
| 10. | ACTIONS BY THE SECURITY AGENT | |||
| 10.1 | If the Security Agent in the course of its activities, subject to Clause 3.5 above, is notified (without implying any obligation on the Security Agent to investigate) that the existence of the Notes Collateral or the Guarantee is at risk, the Security Agent shall: | |||
| (a) | promptly notify the Holders‘ Representative about such event; and | |||
| (b) | subject to Clause 10.2 below, take or initiate all required actions in accordance with a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision. | |||
| 10.2 | The Security Agent shall only be obliged to perform any action hereunder, including, without limitation, intervene in accordance with paragraph (b) of Clause 10.1 above if, and to the extent that: | |||
| (a) | it has received a corresponding prior instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision; and | |||
| (b) | it is satisfied that it will be fully secured, pre-funded or indemnified (either by reimbursement or in any other way it deems appropriate including payment in advance) against all charges, fees, costs and expenses resulting from its activities (including fees for retaining counsel, banks, auditors or other experts as well as the expenses of retaining third parties to perform certain duties). | |||
| 11. | REPRESENTATIONS AND WARRANTIES | |||
| Each Obligor hereby represents to the Secured Parties that it has the legal capacity, is in a position to perform and has obtained all authorisations, registrations and licences required for the performance of its duties and obligations under the Transaction Documents. | ||||
| 12. | ENFORCEMENT OF NOTES COLLATERAL AND GUARANTEE | |||
| 12.1 | Enforcement Event | |||
| The Notes Collateral may be exercised, collected, claimed and enforced exclusively by the Security Agent in accordance with the provisions of this Agreement and the relevant Collateral Agreements. Each Notes Collateral may be enforced independently from the other Notes Collateral if and when an Enforcement Event as set out in the relevant Collateral Agreement has occurred. | ||||
| 12.2 | Guarantee Event | |||
| The Guarantee may be exercised, collected, claimed and enforced exclusively by the Security Agent in accordance with the terms of Clause 5 (Guarantee and Indemnity) and this Clause 12. | ||||
| 12.3 | Enforcement through Security Agent | |||
| For the avoidance of doubt, the Secured Parties shall not have any independent power to enforce, or have recourse to, any Guarantee or security created under the Collateral Agreements (or to exercise any right, power, authority or discretion arising under the Collateral Documents or the Guarantees) except through the Security Agent. | ||||
| 12.4 | Manner of Enforcement | |||
| (a) | As soon as reasonably practicable, and in any event within five (5) Business Days of the Security Agent obtaining actual knowledge of the occurrence of an Enforcement Event and/or a Guarantee Event or having been informed accordingly by the Holders’ Representative or any Beneficiary to do so, the Security Agent shall give notice to the Beneficiaries and request from the Holders‘ Representative (or, in case a Holders‘ Representative has not been appointed, from the Beneficiaries) instructions as to whether and in which manner the Notes Collateral and/or the Guarantee shall be enforced or any other Enforcement Action taken. | |||
| (b) | Upon having obtained or received a Holders‘ Representative Instruction (or, in case a Holders‘ Representative has not been appointed, from the Beneficiaries by Holder Majority Decision) the Security Agent shall proceed with any Enforcement Action as per the relevant instruction. The Security Agent shall not incur any liability vis-à-vis the Issuer or any Beneficiary or the Holders‘ Representative by following any such instruction. | |||
| (c) | In the event that the Security Agent has not received any instructions in accordance with paragraph (b) above or unclear or unequivocal instructions have been provided to the Security Agent, the Security Agent may refrain from enforcing the Notes Collateral and/or Guarantee or any other Enforcement Action until it receives an enforcement instruction under a Holders‘ Representative Instruction (or, in case a Holders‘ Representative has not been appointed, from the Beneficiaries by Holder Majority Decision) and shall be free to decide in its own discretion whether and what action to take or not to take (without incurring any liability). | |||
| 12.5 | Appropriation | |||
| (a) | Without prejudice to the requirements set out in Clause 12.4 (Manner of Enforcement) as to a Holders‘ Representative Instruction or Holder Majority Decision, if the Security Agent enforces any Notes Collateral by way of Appropriation, to the extent any of the Secured Obligations are, or are deemed to be, discharged as a consequence of such Appropriation but no payments have been made to the Secured Parties, the Parties agree that for the benefit of the Secured Parties (other than the Security Agent and a Holders‘ Representative) such discharge shall be allocated among the relevant Secured Parties in the second rank in the payment waterfall set out in Clause 13 (Priority of payments: Order of application of Proceeds), provided that any such discharge shall be disregarded for the purpose of the calculation and payment of any applicable interest. | |||
| (b) | In the case of paragraph (a), the Security Agent shall, if so instructed under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, sell any asset subject to an Appropriation (or, if such assets comprise shares in a holding company, sell the assets directly or indirectly held by such holding company) as soon as reasonably practicable. To the extent that the Security Agent sells or otherwise realises the assets subject to the Appropriation (or, if such assets comprise shares in a holding company, the assets directly or indirectly held by such holding company), the resulting proceeds shall be distributed in accordance with Clause 13 (Priority of payments: Order of application of Proceeds) and as if any discharge pursuant to paragraph (a) above had not occurred. | |||
| 12.6 | Fair value | |||
| (a) | Without prejudice to the requirement to take and act on instructions pursuant to Clause 12.4 (Manner of Enforcement) above, in the case of: | |||
| (i) | a Distressed Disposal; or | |||
| (ii) | a Liabilities Sale, | |||
| effected by, or at the request of, the Security Agent, the Security Agent shall take reasonable care to obtain a fair market price having regard to the prevailing market conditions. | ||||
| (b) | The requirement in paragraph (a) above shall be satisfied (and as between the Beneficiaries, the Holders’ Representative, the Company and the Guarantors shall be conclusively presumed to be satisfied) and the Security Agent will be deemed to have discharged all its obligations in this respect under this Agreement and the other Transaction Documents and generally at law if: | |||
| (i) | that Distressed Disposal or Liabilities Sale is made pursuant to any process or proceedings approved or supervised by or on behalf of any court of law; | |||
| (ii) | that Distressed Disposal or Liabilities Sale is made by, at the direction of or under the control of, a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer (or any analogous officer in any jurisdiction) appointed in respect of a member of the Group or the assets of a member of the Group; | |||
| (iii) | that Distressed Disposal or Liabilities Sale is made pursuant to a Competitive Sales Process; or | |||
| (iv) | a Financial Adviser appointed by the Security Agent pursuant to Clause 12.7 (Appointment of Financial Adviser) has delivered a Fairness Opinion to the Security Agent in respect of that Distressed Disposal or Liabilities Sale. | |||
| 12.7 | Appointment of Financial Adviser | |||
| (a) | Without prejudice to Clause 3 (Duties of the Security Agent), the Security Agent may engage, or approve the engagement of, (in each case on such terms as it may consider appropriate, and the extent to which the Security Agent may rely on any advice, valuation or opinion are agreed) pay for and rely on the services of a Financial Adviser to provide advice, a valuation or an opinion in connection with: | |||
| (i) | a Distressed Disposal or a Liabilities Sale; or | |||
| (ii) | the application or distribution of any proceeds of a Distressed Disposal or a Liabilities Sale; | |||
| (b) | For the purposes of paragraph (a) above, the Security Agent shall act: | |||
| (i) | in accordance with a Holders‘ Representatives Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision; or | |||
| (ii) | in the absence of any such instructions, as the Security Agent sees fit. | |||
| 12.8 | Non-Cash Recoveries | |||
| (a) | Without prejudice to the requirements set out in 12.4 (Manner of Enforcement) as to a Holders‘ Representative Instruction or Holder Majority Decision, if the Security Agent enforces any Notes Collateral in any way to receive any Non-Cash Recoveries, it shall distribute those Non-Cash Recoveries pursuant to Clause 13 (Priority of payments: Order of application of Proceeds) as if they were cash proceeds, provided that it must be ensured that any cash proceeds directly generated by such Non-Cash Recoveries after the distribution of such Non-Cash Recoveries will be allocated among the Secured Parties in accordance with Clause 13 (Priority of payments: Order of application of Proceeds). | |||
| (b) | The Security Agent may (i) hold, manage, exploit, collect, realise and dispose of those Non-Cash Recoveries, including the contribution or transfer of such Non-Cash Recoveries to a separate enforcement entity, the shares, notes or other securities issued by which shall constitute new Non-Cash Recoveries and (ii) hold, manage, exploit, collect, realise and distribute any resulting cash proceeds. | |||
| (c) | No disposal and/enforcement may be made in whole or part (and the Security Agent shall not be required to follow any Holders‘ Representative Instruction or Holder Majority Decision in such case) for Non-Cash Consideration if the Security Agent has reasonable grounds for believing that its receiving, distributing, holding, managing, exploiting, collecting, realising or disposing of that Non-Cash Consideration would have an adverse effect on it. | |||
| 12.9 | Alternative to Non-Cash Consideration | |||
| (a) | If any Non-Cash Recoveries are to be distributed pursuant to Clause 12.8 (Non-Cash Recoveries), the Security Agent shall (prior to that distribution and taking into account the Liabilities then outstanding and the cash value of those Non-Cash Recoveries) notify the Secured Parties entitled to receive those Non-Cash Recoveries pursuant to that distribution (the „Entitled Creditors„). | |||
| (b) | If: | |||
| (i) | it would be unlawful for an Entitled Creditor to receive such Non-Cash Recoveries (or it would otherwise conflict with that Entitled Creditor’s constitutional documents for it to do so); and | |||
| (ii) | that Entitled Creditor promptly so notifies the Security Agent and supplies such supporting evidence as the Security Agent may reasonably require, | |||
| that Secured Parties shall be a „Cash Only Creditor“ and the Non-Cash Recoveries to which it is entitled shall be „Retained Non-Cash„. | ||||
| (c) | To the extent that, in relation to any distribution of Non-Cash Recoveries, there is a Cash Only Creditor: | |||
| (i) | the Security Agent shall not distribute any Retained Non-Cash to that Cash Only Creditor but shall otherwise treat the Non-Cash Recoveries in accordance with this Agreement; | |||
| (ii) | if that Cash Only Creditor is represented by a Holders‘ Representative (in case a Holders‘ Representative has been appointed), the Security Agent shall notify the Holders‘ Representative of that Cash Only Creditor’s identity and its status as a Cash Only Creditor; and | |||
| (iii) | to the extent notified pursuant to paragraph (ii) above, the Holders‘ Representative shall not distribute any of those Non-Cash Recoveries to that Cash Only Creditor. | |||
| (d) | The Security Agent shall hold any Retained Non-Cash and shall, acting on the instructions of the Cash Only Creditor entitled to it, manage, exploit, collect, realise and dispose of that Retained Non-Cash for cash consideration and shall distribute any Cash Proceeds of that Retained Non-Cash to that Cash Only Creditor in accordance with Clause 13 (Priority of Payments: Order of Application of Proceeds). | |||
| (e) | On any such distribution of Cash Proceeds which are attributable to a disposal of any Retained Non-Cash, the extent to which such distribution is treated as discharging the Liabilities due to the relevant Cash Only Creditor shall be determined by reference to the valuation which determined the extent to which the distribution of the Non-Cash Recoveries to the other Entitled Creditors discharged the Liabilities due to those Entitled Creditors. | |||
| 13. | PRIORITY OF PAYMENTS: ORDER OF APPLICATION OF PROCEEDS | |||
| All amounts from time to time received or recovered by the Security Agent in connection with the realisation or enforcement of any Notes Collateral and/or Guarantee shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law in the following order of priority: | ||||
| (a) | first, to discharge any sums owing to or incurred in connection with this Agreement or the Notes by the Security Agent and, if a Holders‘ Representative has been appointed, the Holders‘ Representative, on a pro rata basis; | |||
| (b) | second, ranking equally amongst themselves and on a pro rata basis, in payment or distribution to the Beneficiaries (as the case may be via payment to the paying agent under the Notes towards the discharge of the liabilities under the Notes) in accordance with the Notes Terms and Conditions; and | |||
| (c) | third, any remainder to the relevant provider of the Notes Collateral and/or Guarantee. | |||
| 14. | RETAINING THIRD PARTIES | |||
| 14.1 | The Security Agent may, where necessary, at reasonable market prices (if appropriate, after obtaining several offers), retain the services of a suitable law firm, accounting firm and/or credit institution or seek information and advice from legal counsel, financial consultants, banks and other experts (and irrespective of whether such persons are already retained by the Security Agent, the Issuer or a Beneficiary), to assist it in performing the duties, rights or powers assigned to it under this Agreement and the other Transaction Documents, in particular in respect of the following actions: | |||
| (a) | the taking of specific measures under Clause 10 (Actions by the Security Agent); | |||
| (b) | enforcement of Notes Collateral pursuant to Clause 12 (Enforcement of Notes Collateral); | |||
| (c) | any amendment, supplement or waiver of, under or in relation to any Transaction Document; or | |||
| (d) | any other duty, right or power of the Security Agent under the Transaction Documents. | |||
| Any properly and reasonably incurred fees, costs, charges and expenses, indemnity claims and any other amounts payable by the Security Agent to such third parties or advisers shall be promptly reimbursed by the Issuer. | ||||
| 14.2 | The Security Agent may rely on such third parties retained pursuant to Clause 14.1 and any information and advice obtained therefrom without having to make its own investigations, and the Security Agent shall not be liable for any wilful misconduct (Vorsatz) or negligence (Fahrlässigkeit) of such persons. The Security Agent shall not be liable for any damages to, costs or losses of, any person, any diminishing of value or any liability whatsoever arising as a result of such reliance and shall only remain liable for diligently selecting (ordnungsgemäße Auswahl) such third parties retained pursuant to Clause 14.1 in accordance with Clause 20 (Standard of Care for Liability). | |||
| 14.3 | The Security Agent may sub-contract or delegate the performance of some (but not all) of any of its duties and obligations not specifically referred to in Clause 14.1. Any breach in the performance of the delegated obligations by such sub-contractor or delegate shall not be treated as a breach of obligation by the Security Agent pursuant to Section 278 of the German Civil Code (Bürgerliches Gesetzbuch) and the Security Agent shall only remain liable for diligently selecting (ordnungsgemäße Auswahl) such sub-contractors and delegates in accordance with Clause 20 (Standard of Care for Liability). | |||
| 15. | REIMBURSEMENT OF EXPENSES | |||
| In addition to the remuneration of the Security Agent (which may be agreed between the Issuer and the Security Agent (or any of its affiliates) by means of a separate fee letter), the Issuer shall promptly pay out-of-pocket costs, charges and expenses which the Security Agent properly and reasonably incurs in relation to any action taken by it under or in relation to this Agreement or the other Transaction Documents. | ||||
| 16. | RIGHT TO INDEMNIFICATION | |||
| 16.1 | The Issuer shall indemnify the Security Agent in respect of all proceedings (including claims and liabilities in respect of taxes other than on the Security Agent’s own overall net profits, income or gains and subject to Clause 17 (Taxes)), losses, claims and demands and all costs, charges, expenses, and liabilities to which the Security Agent (or any third party pursuant to Clause 14 (Retaining Third Parties)) may be or become liable or which may be incurred by the Security Agent (or any such third party) in respect of anything done or omitted in relation to this Agreement and any of the other Transaction Documents, unless such costs and expenses have been incurred by the Security Agent due to a wilful or grossly negligent breach of the duty of care provided for in Clause 20 (Standard of Care for Liability). | |||
| 16.2 | Any indemnities shall be owed by the Issuer and the Security Agent has no right of indemnification against the Beneficiaries hereunder, save for any indemnity provided by any Beneficiary in accordance with any instructions received by the Security Agent from a Beneficiary. | |||
| 16.3 | The indemnity set out in Clause 16.1 shall survive the termination of this Agreement and the appointment of the Security Agent. | |||
| 17. | TAXES | |||
| 17.1 | The Issuer shall bear all stamp duties, transfer taxes and other similar taxes, duties or charges which are imposed on or in connection with: | |||
| (a) | the creation of, holding of, or enforcement of the Notes Collateral and/or Guarantee; | |||
| (b) | any action taken by the Security Agent pursuant to any Transaction Document; or | |||
| (c) | the entry by the Security Agent into any Transaction Document. | |||
| 17.2 | All payments of fees and reimbursements of expenses to the Security Agent shall include any turnover taxes, VAT or similar taxes (other than taxes on the Security Agent’s net profits, overall income or gains, which are imposed in the future on the services of the Security Agent). | |||
| 18. | RESIGNATION AND REVOCATION | |||
| 18.1 | Resignation | |||
| The Security Agent may resign from its office as Security Agent at any time by giving 30 (thirty) calendar days prior written notice to the Issuer, provided that such resignation only becomes effective as soon as another reputable financial institution or financial services provider or security agency services provider in Germany or Luxembourg which is experienced in the business of security trusteeship and which has obtained any required authorisations, registrations and licences (an „Eligible Institution„) has been appointed by the Issuer as successor security trustee and has accepted such appointment (the „New Security Agent„) hereunder and the other Transaction Documents and which has been furnished with all authorities and powers and assumed all rights and obligations of the Security Agent under this Agreement (including under Clause 4 (Parallel Debt) hereof) that have been granted to the Security Agent. The Security Agent shall as soon as reasonably practicable notify the Issuer in advance and in writing of its intention to resign or terminate this Agreement. | ||||
| 18.2 | Appointment of New Security Agent | |||
| (a) | The Issuer shall, upon receipt of a written notice of resignation by the Security Agent in accordance with Clause 18.1 (Resignation), promptly appoint an Eligible Institution as New Security Agent under the Transaction Documents and procure that such New Security Agent accedes to all Transaction Documents to which the Security Agent is a party. The Security Agent shall have the right (but no obligation) to nominate a New Security Agent for appointment by the Issuer. The Issuer shall have the right to veto any nomination of a New Security Agent by the resigning Security Agent if such New Security Agent is not an Eligible Institution or if any other Eligible Institution has been appointed by the Issuer to be the New Security Agent and such Eligible Institution has accepted such appointment under the Transaction Documents and agreed to accede to all Transaction Documents. The proposed appointment of the New Security Agent shall further be subject to Clause 18.3 (Revocation). | |||
| (b) | If the Security Agent exercises a right to terminate this Agreement for cause (aus wichtigem Grund), the Issuer shall within 10 (ten) Business Days after receipt of the termination notice either (i) accept and confirm the nomination by the Security Agent of an Eligible Institution that has confirmed in writing that it agrees to the appointment effective as of the termination date or (ii) appoint another Eligible Institution as New Security Agent effective as of the termination date. If the Issuer fails to comply with either of (i) or (ii) above, any new security agent nominated (by way of Holders‘ Representative Instruction or Holder Majority Decision) shall be the New Security Agent effective as of the termination date. | |||
| 18.3 | Revocation | |||
| The Issuer and the Beneficiaries (by instructing the Holders‘ Representative, as applicable) shall be authorised to revoke the appointment of the Security Agent as security agent under this Agreement for cause (aus wichtigem Grund). | ||||
| 18.4 | Effects of Resignation or Revocation | |||
| Any termination or revocation of the appointment of the Security Agent by it shall not become effective unless the requirements set out in Clause 18.1 or 18.2 (as the case may be) have been met, and all agreed and due fees for the Security Agent services, as well any out-of-pocket costs, charges and expenses payable pursuant Clause 13 (Expenses), have been paid to the Security Agent or (any of its affiliates, as specified by the Security Agent). | ||||
| 18.5 | Continuation of Rights and Obligations | |||
| Notwithstanding a resignation pursuant to Clause 18.1 (Resignation) or revocation pursuant to Clause 18.3 (Revocation), the rights and obligations of the Security Agent under the Transaction Documents shall continue until the appointment of the New Security Agent has become effective and the assets and rights have been assigned to it pursuant to Clause 19 (Transfer of Notes Collateral), provided that any claims against the Security Agent which have accrued until such point in time shall not be affected thereby. The retiring Security Agent shall make available to the New Security Agent such documents and records and provide such assistance as the New Security Agent may reasonably request for the purposes of performing its functions as Security Agent. However, none of the provisions of this Clause 18 shall affect the right of the Security Agent to resign from its office for cause (aus wichtigem Grund) with immediate effect hereunder. Upon the appointment of the New Security Agent, the retiring Security Agent shall be discharged from any further obligation in respect of the Transaction Documents but shall remain entitled to the benefit of Clause 16 (Right to Indemnification) and any Security Agency fee for the account of the retiring Security Agent shall be payable on that date. | ||||
| 19 | TRANSFER OF NOTES COLLATERAL | |||
| 19.1 | Transfer of Notes Collateral | |||
| In case of a replacement of the Security Agent pursuant to Clause 18 (Resignation and Revocation), the Security Agent shall forthwith transfer the Notes Collateral, the Parallel Debt Obligations and other assets and other rights it holds as fiduciary (Treuhänder) or trustee (as applicable) under any Transaction Document (including, for the avoidance of doubt, the Guarantee) to the New Security Agent. For the avoidance of doubt, any transfer of the Guarantee, the Parallel Debt Obligations and/or the Notes Collateral shall only occur if the New Security Agent accepts the applicable limitations set out in Clause 6 (Guarantee Limitations) above. | ||||
| 19.2 | Assumption of Obligations | |||
| In the event of a replacement of the Security Agent pursuant to Clause 18 (Resignation and Revocation), the Security Agent shall use its best efforts to reach an agreement with the New Security Agent that the New Security Agent assumes the obligations of the Security Agent’s under the relevant Collateral Agreement and under this Agreement (including, for the avoidance of doubt, in respect of the Guarantee). If requested by the Security Agent, the Issuer shall reasonably assist the Security Agent reaching such agreement with the New Security Agent. | ||||
| 19.3 | Costs for replacement of Security Agent | |||
| The costs incurred in connection with replacing the Security Agent pursuant to Clause 18 (Resignation and Revocation) shall be borne by the Issuer. | ||||
| 19.4 | Accounting and Records | |||
| The Security Agent shall be obliged to account to the New Security Agent for its activities under or with respect to any Collateral Agreement. The Security Agent shall deliver to the New Security Agent, subject to any applicable law (in particular, data protection legislation), all relevant contracts, correspondence, files and other documents, books, books of accounts, registers, records and other information and documents relating to the performance of its obligations under the Transaction Documents. Notwithstanding Clause 15 (Reimbursement of Expenses), all reasonably incurred costs and expenses related to this shall be borne by the Issuer. | ||||
| 19.5 | Preservation of security | |||
| In the event that a transfer or assignment by the Security Agent of its rights and/or obligations under this Agreement (and any relevant Transaction Documents) occurred or was deemed to occur by way of novation, the Parties explicitly agree that all securities and guarantees created under any Transaction Documents shall be preserved for the benefit of the new Security Agent and the other beneficiaries, and in respect of their rights and/or obligations governed by Luxembourg law, in accordance with the provisions of article 1278 of the Luxembourg civil code. | ||||
| 20. | STANDARD OF CARE FOR LIABILITY, LIMITATION OF LIABILITY | |||
| 20.1 | The Security Agent shall in the performance of its obligations and duties under the Transaction Documents meet the due care and diligence of a prudent business person (Sorgfalt eines ordentlichen Kaufmannes). | |||
| 20.2 | The Security Agent under no circumstances be liable to any person for any losses, liability, claims, damages or expenses arising out of any acts or omissions by it in the exercise of its rights or the performance or non-performance of its obligations and duties under the Transaction Documents except in the case of any such loss, liability, claim, damage or expense being directly caused by gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz) of the Security Agent. In no event shall the Security Agent have any liability for indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, loss of business, goodwill, opportunity, reputation, anticipated savings or profits (Section 252 German Civil Code (Bürgerliches Gesetzbuch)). | |||
| 20.3 | Limitation of Holders‘ Representative Liability | |||
| (a) | It is expressly understood and agreed by the Parties that this Agreement is executed and delivered by the Holders‘ Representative not individually or personally but solely in its capacity as a Holders‘ Representative in the exercise of the powers and authority conferred and vested in it hereunder and under the Notes Terms and Conditions. It is further understood by the Parties that in no case shall the Holders‘ Representative be (i) responsible or accountable in damages or otherwise to any other Party for any loss, damage or claim incurred by reason of any act or omission performed or omitted by it in good faith in accordance with this Agreement or the Notes Terms and Conditions, as applicable, and in a manner that the Holders‘ Representative believed to be within the scope of the authority conferred on it by this Agreement and/or the Notes Terms and Conditions or by law, or (ii) personally liable for or on account of any of the statements, representations, warranties, covenants or obligations stated to be those of any other Party, all such liability, if any, being expressly waived by the Parties and any person claiming by, through or under such Party, provided however, that a Notes Representative shall be personally liable under this Agreement for its own gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz). It is also acknowledged that a Notes Representative shall not have any responsibility for the actions of any individual Holder. | |||
| (b) | The Holders‘ Representative is not liable for, nor is required to procure payment or take any other action in respect of, any payments or other actions which are so required to be made or taken by or on behalf of the Beneficiaries. | |||
| 20.4 | Holders‘ Representative not fiduciary for other Beneficiaries | |||
| The Holders‘ Representative shall not be deemed to owe any fiduciary duty to any of any Beneficiaries, other than where specifically set forth in or on the basis of this Agreement and/or the Notes Terms and Conditions and/or under mandatorily applicable law, the Company or any member of the Group and shall not be liable to the Company or any member of the Group if the Holders‘ Representative or anyone in connection with its instruction under any relevant Transaction Documents shall in good faith mistakenly pay over or distribute to the Beneficiaries or to any other person cash, property or securities to which any Beneficiary shall be entitled by virtue of this Agreement or otherwise. With respect to the Beneficiaries the Holders‘ Representative undertakes to perform or to observe only such of its covenants or obligations, if any, as are specifically set forth in this Agreement and/or the Notes Terms and Conditions, and no implied covenants or obligations with respect to Beneficiaries shall be read into this Agreement or the Notes Terms and Conditions against a Holders‘ Representative. | ||||
| 20.5 | Reliance on certificates | |||
| The Holders‘ Representative may rely without enquiry on any notice, consent or certificate of the Security Agent, or any other agent or service provider involved in accordance with this Agreement and/or the Notes Terms and Conditions as to the matters certified therein. | ||||
| 20.6 | Further provisions regarding the Holders‘ Representative | |||
| In acting under and in accordance with this Agreement and/or the Terms and Conditions the Holders‘ Representative shall act in accordance with the relevant Transaction Documents and shall seek any necessary instruction from the Beneficiaries, to the extent provided for, and in accordance with, the relevant Transaction Documents, and where it so acts on the instructions of the Beneficiaries, the Holders‘ Representative shall not incur any liability to any person for so acting other than in accordance with the Transaction Documents. Furthermore, prior to taking any action under this Agreement or the relevant Transaction Documents, as the case may be, the Holders‘ Representative may reasonably request and rely upon an opinion of counsel or opinion of another qualified expert, at the Company’s expense, as applicable. | ||||
| 20.7 | Holders‘ Representative; reliance and information | |||
| (a) | The Holders‘ Representative may rely and shall be fully protected in acting or refraining from acting upon any notice or other document reasonably believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person. | |||
| (b) | The Holders‘ Representative is entitled to assume that: | |||
| (i) | any payment or other distribution made in respect of the obligations under or in connection with this Agreement and/or the Notes Terms and Conditions, respectively, has been made in accordance with the provisions of this Agreement; | |||
| (ii) | any security granted in respect of any the obligations under or in connection with this Agreement and/or the Notes Terms and Conditions is in accordance with this Agreement; and | |||
| (iii) | no default of any kind has occurred; | |||
| unless it has actual notice to the contrary. The Holders‘ Representative is not obliged to monitor or enquire whether any such default has occurred. | ||||
| 20.8 | No action | |||
| The Holders‘ Representative shall not have any obligation to take any action under this Agreement unless it is indemnified or secured to its satisfaction (whether by way of payment in advance or otherwise) by the Obligors (or, as applicable, by the Beneficiaries in accordance with the Notes Terms and Conditions). | ||||
| 20.9 | Security Agent and the Holders‘ Representative | |||
| (a) | The Holders‘ Representative is not responsible for the appointment or for monitoring the performance of the Security Agent. | |||
| (b) | The Holders‘ Representative shall be under no obligation to instruct or direct the Security Agent to take any Security enforcement action unless it shall have been instructed to do so by the Beneficiaries in accordance with the Notes Terms and Conditions and this Agreement, and has been indemnified and/or secured to its satisfaction. | |||
| (c) | The Security Agent acknowledges and agrees that it has no claims for any fees, costs or expenses from, or indemnification against, the Holders‘ Representative. | |||
| 20.10 | Illegality | |||
| The Holders‘ Representative may refrain from doing anything (including disclosing any information) which might, in its opinion, constitute a breach of any law or regulation and may do anything which, in its opinion, is necessary or desirable to comply with any law or regulation. | ||||
| 21. | GENERAL PROVISIONS REGARDING THE SECURITY AGENT | |||
| 21.1 | The Security Agent shall not be liable for: | |||
| (a) | any action or failure to act of the Issuer or of other parties to the Transaction Documents; | |||
| (b) | the Transaction Documents (including any security interest created thereunder) not being legal, valid, binding or enforceable, or for the fairness or practicability of the provisions of the Transaction Documents; or | |||
| (c) | any action or failure to act by it if such action or failure to act, as the case may be, was in compliance with a Holders‘ Representative Instruction or Holder Majority Decision, as the case may be. | |||
| 21.2 | The Security Agent shall (save as otherwise expressly provided in any Transaction Document), have discretion as to the exercise or non-exercise of any and all the powers, authorities and discretions vested in it by or pursuant to this Agreement and/or any other Transaction Document to which the Security Agent is a party or conferred upon the Security Agent by operation of law (the exercise of which, as between the Security Agent and the Beneficiaries, shall be conclusive and binding on the Beneficiaries), and provided it shall not have acted in violation of its standard of care as set out in in Clause 20 (Standard of Care for Liability), the Security Agent shall not be responsible for any loss, costs, damages, expenses or inconvenience that may result from the exercise or non-exercise thereof. | |||
| 21.3 | The Security Agent, as between itself and the Beneficiaries, shall have full power to undertake any calculations (including, without limitation, any necessary currency conversions) in relation to any of the provisions of any Transaction Document and determine all questions and doubts arising in relation to any of the provisions of any Transaction Document and every such calculation or determination, whether made upon a question actually raised or implied in the acts or proceedings of the Security Agent, shall be conclusive and shall bind the Security Agent and the Beneficiaries. | |||
| 21.4 | Any consent given by the Security Agent for the purposes of any Transaction Document may be given on such terms and subject to such conditions (if any) as the Security Agent thinks fit in its discretion and, notwithstanding anything to the contrary contained in any Transaction Document, may be given retrospectively. | |||
| 21.5 | The Security Agent shall not be responsible for recitals, statements, warranties or representations of any party (other than those relating to or provided by it) contained in any Transaction Document or other document entered into in connection therewith and may rely on the accuracy and correctness thereof (absent actual knowledge to the contrary) and shall not be responsible for the execution, legality, effectiveness, adequacy, genuineness, validity or enforceability or admissibility in evidence of any such agreement or other document or security thereby constituted or evidenced. The Security Agent may accept without enquiry, requisition or objection such title as the Issuer may have to the Notes Collateral or any part thereof from time to time and shall not be bound to investigate or make any enquiry into the title of the Issuer to the Notes Collateral or any part thereof from time to time. | |||
| 21.6 | No provision of this Agreement or any other Transaction Document shall require the Security Agent to do anything which may be illegal, contrary to any applicable law or regulation, court order or order by a regulator, a breach of fiduciary duty or duty of confidentiality or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers or otherwise in connection with any Transaction Document (including, without limitation, forming any opinion or employing any legal, financial or other adviser), if it determines in its reasonable discretion that repayment of such funds or adequate indemnity against such risk or liability is not assured to it. In particular, and for the avoidance of doubt, nothing in this Agreement shall be construed so as to constitute an obligation of the Security Agent to perform any services which it would not be entitled to render pursuant to the provisions of the German Act on Rendering Legal Services (Rechtsdienstleistungsgesetz) or pursuant to the provisions of the German Tax Advisory Act (Steuerberatungsgesetz) or any other services that require an express official approval, licence or registration. The Security Agent shall be entitled to refrain without liability from any actions or undertake measures, when this is, in its opinion, necessary in order to comply with any applicable law, directive or regulation at any time, including for the avoidance of doubt, applicable law relating to the funding of terrorist activities or money laundering. | |||
| 21.7 | The Security Agent shall not be responsible for the genuineness, validity, effectiveness or suitability of any Transaction Document or any other documents entered into in connection therewith or any other document or any obligation or rights created or purported to be created thereby or pursuant thereto or any security or the priority thereof constituted or purported to be constituted thereby or pursuant thereto, nor shall it be responsible or liable to any person because of any invalidity of any provision of such documents or the unenforceability thereof, whether arising from statute, law or decisions of any court and (without prejudice to the generality of the foregoing) the Security Agent shall not have any responsibility for or have any duty to make any investigation in respect of or in any way be liable whatsoever for: | |||
| (a) | the nature, status, creditworthiness or solvency of the Issuer or any other person or entity who has at any time provided any security or support whether by way of guarantee, charge or otherwise in respect of any advance made to the Issuer; | |||
| (b) | the execution, legality, validity, adequacy, admissibility in evidence or enforceability of any Transaction Document or any other document entered into in connection therewith; | |||
| (c) | the scope or accuracy of any representations, warranties or statements made by or on behalf of the Issuer or any other person or entity who has at any time provided any Transaction Document or in any document entered into in connection therewith; | |||
| (d) | the performance or observance by the Issuer or any other person of any provisions or stipulations relating to the Notes or any Transaction Document or in any document entered into in connection therewith or the fulfilment or satisfaction of any conditions contained therein or relating thereto or the supervision of the Issuer or such other person in respect thereof or as to the existence or occurrence at any time of any default, event of default or similar event contained therein or any waiver or consent which has at any time been granted in relation to any of the foregoing; | |||
| (e) | the existence, accuracy or sufficiency of any legal or other opinions (irrespective of any monetary or other limitation), searches, reports, certificates, valuations, calculations or investigations delivered or obtained or required to be delivered or obtained at any time in connection with the Transaction Documents; | |||
| (f) | the failure by the Issuer or any other party to the Transaction Documents (other than the Security Agent) to obtain or comply with any licence, consent or other authority in connection with the Notes Collateral or the Transaction Documents or the failure to effect or procure registration of or to give notice to any person in relation to or otherwise perfect or protect the security created or purported to be created by or pursuant to any of the Notes Collateral or the Transaction Documents or other documents entered into in connection therewith; or | |||
| (g) | any accounts, books, records or files maintained by the Issuer or any other person in respect of any of the Notes Collateral or the Transaction Documents. | |||
| 21.8 | The Security Agent may, in the absence of actual knowledge to the contrary, assume without enquiry that the Issuer and each of the other parties to the Transaction Documents is duly performing and observing all of the provisions of those documents binding on or relating to it and that no event has happened which constitutes an Enforcement Event. | |||
| 21.9 | In no event shall the Security Agent be liable for any losses arising from the Security Agent receiving or transmitting any data to the Issuer (or any authorised person) or acting upon any notice, instruction or other communications via any Electronic Means by the Issuer or any authorised person other than losses deriving from the Security Agent’s gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz). If the Security Agent is requested to act on instructions or directions delivered by fax, email or any other unsecured method of communication or any Electronic Means used to submit instructions, the Security Agent shall have no duty or obligation to verify or confirm that the person who sent such instructions or directions is, in fact, a person authorised to give instructions or directions on behalf of the Issuer, and no liability for any losses, liabilities, costs or expenses incurred or sustained by the Issuer as a result of the Security Agent’s reliance upon or compliance with such instructions or directions. The Issuer agrees that the security procedures, if any, to be followed in connection with a transmission of any such notice, instructions or other communications, provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances. | |||
| 21.10 | „Electronic Means“ shall mean the following communications methods: | |||
| (a) | non-secure methods of transmission or communication such as e-mail and facsimile transmission; | |||
| (b) | secure electronic transmission containing applicable authorisation codes, passwords and/or authentication keys issued by the Security Agent; and | |||
| (c) | any other method or system specified by the Security Agent as available for use in connection with its services hereunder. | |||
| 21.11 | The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Beneficiaries and, if a Holders‘ Representative has been appointed, from the Holders‘ Representative, 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. | |||
| 22. | DISCLOSURE OF INFORMATION | |||
| 22.1 | None of the Parties may, during the continuance of this Agreement or after its termination, disclose to any person whatsoever (except with the written approval of the other Party (such approval not to be unreasonably withheld or delayed)) any information which such Party has received under or in connection with this Agreement other than disclosure: | |||
| (a) | to the parties to any of the Transaction Documents or any person intending to accede thereto or to acquire any rights and/or obligations thereunder or interests therein by way of assignment, transfer or participation or otherwise, in accordance with the Transaction Documents; | |||
| (b) | to its shareholders; | |||
| (c) | to the holders of the Notes; | |||
| (d) | to the court or the auditors or legal or other professional advisers (provided that such advisers are subject to a professional duty of confidentiality or execute an undertaking of confidentiality) in connection with any proceedings arising out of or in connection with this Agreement or any other Transaction Document or the preservation or maintenance of its rights thereunder; | |||
| (e) | if required to do so by: | |||
| (i) | an order of a court of competent jurisdiction whether in pursuance of any procedure for discovering documents or otherwise or of any competent judicial, governmental, supervisory or regulatory body; or | |||
| (ii) | the rules of any stock exchange on which securities of any member of such party’s group are listed; | |||
| (f) | pursuant to any law or regulation or requirement of any governmental agency or regulator or banking or taxation authority of competent jurisdiction, in accordance with which that party is required or accustomed to act; | |||
| (g) | to the auditors or legal or other professional advisers (provided that such advisers are subject to a professional duty of confidentiality or execute an undertaking of confidentiality) of any entity mentioned in sub-paragraphs (a), (b) or (c) above; | |||
| provided that the above restriction shall not apply to: | ||||
| (i) | employees, officers or agents of the parties referred to in sub-paragraph (a) above any part of whose functions are or may be related in any way to this Agreement; | |||
| (ii) | information which has become known to the recipient otherwise than in breach of this Clause 22; | |||
| (iii) | information which has been received from another source upon conditions not requiring that the information to be kept confidential; and | |||
| (iv) | information which is or becomes available to the general public otherwise than in breach of this Clause 22. | |||
| 22.2 | The provisions of Clause 22.1 shall survive the termination of this Agreement. | |||
| 23. | PARTIAL INVALIDITY AND FURTHER ASSURANCE | |||
| 23.1 | If any provision of this Agreement is or becomes invalid or unenforceable under any jurisdiction, such invalidity or unenforceability shall not render invalid or unenforceable any other provision of this Agreement in such jurisdiction and the validity and enforceability of the relevant provision and all other provisions in any other jurisdiction. Such invalid or unenforceable provision shall be replaced by the Parties with a provision which comes as close as possible to the commercial intention of the invalid provision and the invalid provision itself. In case of a gap in the provisions of this Agreement, the Parties shall agree on a provision, which comes legally as close as possible to the commercial intention. | |||
| 23.2 | This Agreement shall not be affected by the invalidity, illegality or unenforceability with respect to any provision in any jurisdiction or with respect to any party of any other Transaction Document or amendment agreement thereto. | |||
| 24. | NOTICES | |||
| 24.1 | Any notice, declaration or other communication under or in connection with this Agreement shall be made in writing or text form. Unless otherwise agreed in this Agreement, fax or email is sufficient. Any declaration or notice which is delivered by fax or email shall be immediately confirmed by letter (in particular any notice regarding the termination of this Agreement or the resignation of the Security Agent pursuant to Clause 18 (Resignation and Revocation)); the validity of the original fax notice or email is not affected by such confirmation not being sent or received, as long as such notice or email has been received. | |||
| 24.2 | Subject to any written notification given fifteen (15) calendar days in advance of any change of address, all notices, declaration and other communication under this Agreement or any Collateral Agreement shall be sent to the following address of such party: | |||
| Notices to the Issuer: | ||||
| DEMIRE Deutsche Mittelstand Real Estate AG Robert-Bosch-Straße 11 63225 Langen (Hessen) Attn: Frank Nickel; Tim Brückner E-Mail: nickel@demire.ag ; brueckner@demire.ag |
||||
| Notices to the Security Agent: | ||||
| [GLAS __________ GmbH c/o Global Loan Agency Services GmbH Bockenheimer Anlage 46 60322 Frankfurt am Main, Germany Attn: TMG / „Sun”[E-Mail: tmg.frankfurt@glas.agency] |
||||
| Notices to the Initial Holders‚ Representative: | ||||
| Dentons GmbH Wirtschaftsprüfungsgesellschaft, Steuerberatungsgesellschaft Markgrafenstraße 33 10117 Berlin Attn: Andreas Ziegenhagen Phone: +49 30 26 47 3 207 E-Mail: andreas.ziegenhagen@dentons.com |
||||
| 24.3 | Each notice, declaration or other communication under or in connection with this Agreement shall be provided in English. | |||
| 25. | COUNTERPARTS; AMENDMENTS | |||
| 25.1 | This Agreement may be executed in one or more counterparts (Ausfertigungen), all of which taken together shall constitute one and the same contract, and may also be executed by facsimile or by email-scan. | |||
| 25.2 | Amendments, supplements and other modifications to this Agreement (including this Clause 25.2) shall only be effective, if they are in writing and signed by all Parties and, if such amendment, supplement or other modification adversely affects, in the opinion of the Security Agent, the Beneficiaries, after a Holders‘ Representative Instruction or Holder Majority Decision has been obtained. The Parties agree that no variation, change, amendment, annulment and/or termination of this Agreement shall constitute a novation thereof. | |||
| 25.3 | Neither any failure to exercise nor any delay in exercising, on the part of any Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. | |||
| 25.4 | The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law or any other Transaction Document. | |||
| 26. | EXEMPTION | |||
| The restrictions set forth in Section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and any similar restrictions contained in any laws of any other jurisdiction shall not apply to any Party to the fullest extent permitted under applicable law in respect of its rights and obligations hereunder. | ||||
| 27. | ENTIRE AGREEMENT | |||
| This Agreement constitutes the entire agreement and understanding between the Parties in relation to the subject matter hereof and cancels, replaces and modifies any other agreement or understanding in relation thereto. | ||||
| 28. | APPLICABLE LAW; PLACE OF JURISDICTION | |||
| 28.1 | This Agreement (including, without limitation, any non-contractual obligation arising out of it) shall be governed by, and construed in accordance with, the laws of Germany. | |||
| 28.2 | The courts of Frankfurt am Main, Germany shall have non-exclusive jurisdiction over disputes arising out of or in connection with this Agreement. | |||
| 29. | TERMINATION | |||
| This Agreement shall terminate upon the release of the security interest created under all Collateral Agreements. | ||||
1 NTD: Any shareholder loan provided by Apollo to be deeply subordinated (qualifizierter Nachrang) in the shareholder loan agreement for the benefit of the Secured Party with an ability /consent right of the Security Agent to agree to any amendments.
2 NTD: To cover pledges over GP interests in each LuxCo, pledges over the shares in each GP (S.á r.l.) and minority shares the Issuer will hold after the completion of the restructuring.
SCHEDULE 1
OTHER PARTIES
Part I – The Guarantors
[Subject to final LuxCo structure and collateral package.]| Name of Original Guarantor | Registration Details |
| [LuxTopCo scsp3] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by the Issuer as limited partner and 0.01% of whose shares are being held by GP TopCo S.á r.l. (as defined below) as general partner] |
| [GP TopCo S.á r.l.]4 | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, which is a wholly-owned subsidiary of the Issuer] |
| [LuxInterCo 1 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 1 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 1 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 2 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 2 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 2 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 3 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 3 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 3 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 4 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 4 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 4 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 5 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 5 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 5 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| DEMIRE Bad Vilbel Konrad Adenauer Allee 1-11 GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 113516 |
| DEMIRE Bayreuth Nürnberger Straße 38 GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 127674 |
| DEMIRE BT HB DO H CLZ KS KO GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 118631 |
| DEMIRE Düsseldorf Wiesenstraße 70 GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 101226 |
| DEMIRE Eschborn Frankfurter Straße GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 101207 |
| DEMIRE HB HZ B HST GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 118507 |
| DEMIRE Kempten Bahnhofstr. Hirschstr. Alpenstr. GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 110358 |
| DEMIRE Leonberg Neue Ramtelstraße GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 119920 |
| DEMIRE Meckenheim Merl GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 99182 |
| DEMIRE Neuss Breslauer Straße GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 114092 |
| Sihlegg Investments Holding GmbH | (CH) UID CHE-335.238.408, Zug |
3 Lux TopCo and Lux InterCos to be established in the form of an scsp.
4 GP to be established in the form of an S.á r.l.
Part II – The Security Grantors
[Subject to final LuxCo structure and collateral package.]| Name of Security Grantor | Registration Details |
| Company (in respect of Share Pledges, Account Pledge, IC Loan Receivables) | a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany („Germany„), having its registered office at Robert-Bosch-Straße 11, 63225 Langen, Germany, registered with the commercial register (Handelsregister) at the local court (Amtsgericht) of Frankfurt am Main, Germany, under the registration number HRB 89041 |
| [LuxTopCo scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by the Issuer as limited partner and 0.01% of whose shares are being held by GP TopCo S.á r.l. (as defined below) as general partner] |
| [GP TopCo S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, which is a wholly-owned subsidiary of the Issuer] |
| [LuxInterCo 1 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 1 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 1 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 2 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 2 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 2 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 3 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 3 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 3 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 4 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 4 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 4 S.á r.l] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 5 scsp] | [a certain to-be-established or to-be-acquired special limited partnership (société en commandite spéciale) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 5 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 5 S.á r.l] | [a certain to-be-established or to-be-acquired limited liability company (société à responsabilité limitée) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| FVR Beteiligungsgesellschaft Erste mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42460 |
| FVR Beteiligungsgesellschaft Zweite mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42458 |
| FVR Beteiligungsgesellschaft Dritte mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42440 |
| FVR Beteiligungsgesellschaft Vierte mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42439 |
| FVR Beteiligungsgesellschaft Fünfte mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42435 |
| FVR Beteiligungsgesellschaft Sechste mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42436 |
| FVR Beteiligungsgesellschaft Siebte mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42437 |
| FVR Beteiligungsgesellschaft Achte mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42434 |
| FVR Beteiligungsgesellschaft Neunte mbH & Co. KG | Local court (Amtsgericht) of Offenbach am Main under register number (Handelsregister) HRA 42609 |
| DEMIRE Holding II GmbH | Local court (Amtsgericht) of Frankfurt am Main under register number (Handelsregister) HRB 84192 |
| DEMIRE Holding IX GmbH | Local court (Amtsgericht) of Frankfurt am Main under register number (Handelsregister) HRB 100179 |
| DEMIRE Holding VIII GmbH | Local court (Amtsgericht) of Frankfurt am Main under register number (Handelsregister) HRB 100246 |
| DEMIRE Holding XI GmbH | Local court (Amtsgericht) of Frankfurt am Main under register number (Handelsregister) HRB 102585 |
| [I/C Loan Assignors (other than Issuer): any direct or indirect Subsidiary or Participation of the Issuer which is not a Subsidiary or Participation of LuxTopCo] | [__] |
| [RETT Blocker Receivables Assignors: any member of the Group holding claims against RETT blocker entities)] | [__] |
SCHEDULE 2
KEY DOCUMENTS LIST5
| 1. | KEY PROPERTY DOCUMENTS, including | ||
| a. | Any (intra-group) asset management agreement(s) and any other data, documentation, information or item relating to the asset management; | ||
| b. | Property management agreements and any other data, documentation, information or item relating to the property management; | ||
| c. | Facility management agreements and any other data, documentation, information or item relating to the facility management; | ||
| d. | Tenant lists and tenant contact details; | ||
| e. | Existing correspondences with tenants; | ||
| f. | Lease agreements, lists of lease agreements and any other data, documentation, information or item (including any security or documentation relating thereto) relating to the lease or sub-lease of the relevant Charged Properties; | ||
| g. | Building permits, approvals of change of use (Nutzungsänderungsgenehmigungen) building applications, applications for change of use and amendments as well as pertaining appendices, including but not limited to fire protection certificates, parking space evidence, fire protection concepts, approval of applications for deviations and other relevant building law documents; | ||
| h. | Construction plans; | ||
| i. | Architectural, engineering agreements and general contractor agreements; | ||
| j. Warranty bonds with respect to the relevant Charged Properties, in particular pertaining to general contractor agreements (Bürgschaften); | |||
| k. | Acceptance protocols (Abnahmeprotokolle) regarding general contractor agreements; | ||
| l. | Any documentation relating to the safety of the relevant Charged Properties and other building documentation (in particular, TÜV and inspection reports); | ||
| m. | Maintenance contracts; | ||
| n. | Utility and disposal agreements (Ver- und Entsorgungsverträge); | ||
| o. | Connection contracts (Anschlussverträge) [If applicable]; | ||
| p. | Care and maintenance manuals; [If applicable] | ||
| q. | Inspection log books; | ||
| r. | Lock plan (Schließplan), master keys and security cards; passwords, intrusion detection system; all existing keys for the relevant Charged Properties; | ||
| s. | Energy certificates; | ||
| t. | Any documentation relating to the insurance of the relevant Charged Properties, including insurance agreements; | ||
| u. | All employee-related data (employment agreements, personnel filed, payroll data, insurance contracts etc.) with respect to employees dedicated to or engaged in, whether exclusively or not, the asset management, property management or facility management; | ||
| v. | Documents on past, current or impending legal disputes relating to the relevant Charged Properties. | ||
| 2. | KEY TAX & ACCOUNTING DOCUMENTS | ||
| a. | Latest assessments (Bescheide) with respect to property-based taxes and expenses and financial statements; | ||
| b. | General ledgers; | ||
| c. | Tax and VAT registration certificates issued by the Germany tax authorities; | ||
| d. | All final and signed tax and VAT returns filed (originals together with any appendixes); | ||
| e. | All supporting calculation, records and documentation related to the tax and VAT returns including all invoices issued and received declared in the VAT returns; | ||
| f. | All tax and VAT assessments, extracts of VAT account, as well as tax and VAT authority correspondence received from the German tax authorities (originals together with any appendixes); | ||
| g. | All final and signed withholding tax returns filed; | ||
| h. | All documents and correspondence with the German tax authorities in the context of the ongoing tax audits as well as closed tax audits; | ||
| i. | Sec. 15a German VAT Act register / documentation; | ||
| j. | Real Estate Transfer Tax relevant documentation with respect to share transfers; | ||
| k. | Any other Tax related documentation, including any information and appropriate documentation (in particular meeting format and standards required by the tax authorities and any other relevant authority) which is required for the due and complete preparation and timely filing of any Tax declarations. | ||
5 In each case, the original document as well as electronic copies should be transferred into the possession of the asset management SPV.
[Further Schedules to Be Added as Needed]
SIGNATURE PAGES
[______]Annex 2-Form of Amended Conditions of Issue
| Legend: | |
| [Insertion] | |
|
[Deletion] |
TERMS AND CONDITIONS OF THE NOTES
§ 1
CURRENCY, DENOMINATION, FORM, CERTAIN DEFINITIONS
|
(1) |
Currency; Denomination. This issue of notes (the „Notes„) of DEMIRE Deutsche Mittelstand Real Estate AG (the „Issuer„), [is being][was originally] issued in the aggregate principal amount of [€][EUR] 600,000,000 (in words: Euro six hundred million) in a denomination of [€][EUR] 100,000 each (the „Specified Denomination„) on 11 October 2019 (the „Issue Date„). |
| [By resolution of the Holders dated [ • ] 2024, these Terms and Conditions were amended with effect as of the Amendment Date to read as set out herein. „Amendment Date“ means the date on which the resolution of the Holders to amend the Terms and Conditions in accordance with the invitation to vote dated 15 August 2024 has been implemented (vollzogen) in accordance with section 21 SchVG. | |
| As of the Amendment Date, the outstanding principal amount of each Note will be as shown in the records of Clearstream Banking AG, Frankfurt am Main („CBF“ or „Clearing System“). The Issuer will publish a press release and give notice to the Holders in accordance with § 15 within three (3) Business Days of the Amendment Date having occurred confirming the Amendment Date and the outstanding aggregate principal amount of the Notes as of the Amendment Date.] | |
| (2) | Form. The Notes are represented by one global note payable to bearer without interest coupons (the „Global Note„). The Global Note shall be signed manually by one or more authorised signatory/ies of the Issuer and shall be authenticated by or on behalf of the Paying Agent. |
| Definitive notes and interest coupons shall not be issued. The right of the Holders to require the issue and delivery of definitive notes or interest coupons is excluded. | |
|
(3) |
Clearing System. The Global Note representing the Notes shall be deposited with [Clearstream Banking AG, Frankfurt am Main („]CBF[“ or „Clearing System“)], until the Issuer has satisfied and discharged all of its obligations under the Notes. |
| Pursuant to the book-entry registration agreement between the Issuer and CBF, the Issuer has appointed Clearstream Frankfurt as its book-entry registrar in respect of the Notes, and CBF has agreed to maintain a register showing the aggregate number of the Notes represented by the Global Note under its own name. CBF has agreed, as agent of the Issuer, to maintain records of the Notes credited to the accounts of the accountholders of CBF for the benefit of the holders of the co-ownership interests in the Notes represented by the Global Note, and the Issuer and CBF have agreed that the actual number of Notes from time to time shall be evidenced by the records of CBF. | |
| (4) | Holder of Notes. „Holder“ means any holder of a proportionate co-ownership or another beneficial interest or right in the Notes. |
| (5) | Transferability. The Holders shall receive proportional co-ownership participations or similar rights in the Global Note that are transferable in accordance with applicable law and applicable rules of the Clearing System. |
| (6) | United States. For the purposes of these Terms and Conditions, „United States“ means the United States of America (including the States thereof and the District of Columbia) and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana Islands). |
§ 2
STATUS[; GUARANTEE; COLLATERAL]
|
[(1) |
Status .] The obligations under the Notes constitute direct, unconditional[, unsecured][senior and, in accordance with paragraph (3), secured] and unsubordinated obligations of the Issuer ranking pari passu among themselves and[, subject to the Collateral,] pari passu with all other [unsecured and] unsubordinated obligations of the Issuer, unless such obligations are accorded priority under mandatory provisions of statutory law. |
||
| [(2) | Guarantee; Release . | ||
| (a) | Granting of Guarantees . Pursuant to guarantees granted under the Security Trust Agreement (the „Guarantees“), LuxTopCo, LuxTopCo GP, the LuxInterCos, the LuxInterCo GPs and the Additional Guarantors (each a „Guarantor“ and, together with any other Subsidiary of the Issuer that guarantees the Notes from time to time, the „Guarantors“) and a certain subsidiary of Global Loan Agency Services GmbH (the „Security Agent“) agreed for the benefit of the Holders that the Guarantors jointly and severally ( gesamtschuldnerisch ) and unconditionally and irrevocably guarantee as of the Amendment Date the payment of principal, interest and all other amounts payable by the Issuer under the Notes (in each case, subject to certain limitations as set out in the Security Trust Agreement). The Guarantees constitute direct and unsubordinated obligations of the Guarantors, ranking at least pari passu with all other present and future unsubordinated obligations of the Guarantors, unless such obligations are accorded priority under mandatory provisions of statutory law. Upon discharge of any payment obligation of a Guarantor subsisting under the Guarantee by payment to any Holder via the Clearing System, the relevant guaranteed right of such Holder under the Notes will cease to exist. | ||
| (b) | No direct enforcement rights of Holders . The Guarantees shall not give rise to the right of any Holder to require performance of the Guarantee directly from any of the Guarantors and to enforce the Guarantee directly against any Guarantor. Only the Security Agent is entitled to claim performance of the Guarantees directly from the relevant Guarantors and the enforcement of the Guarantees (including the application of proceeds from such enforcement) is exclusively governed by, and subject to the terms of, the Security Trust Agreement. | ||
| (c) | Administration of Guarantees . The Security Agent shall be irrevocably authorized to release any of the Guarantees (at the cost of the Issuer and without any consent, sanction, authority or further confirmation from any Holder) in accordance with the terms of the Security Trust Agreement (i) in connection with any (direct or indirect) sale, assignment, transfer, merger, consolidation, conveyance or other disposition of the relevant Guarantor to a person that is not the Issuer or any other member of the Group, including the sale of capital stock of such Guarantor or any other transaction that results in such Guarantor ceasing to be a member of the Group if such sale, disposition or other transaction occurs in accordance with § 12(4), (ii) upon instruction of the Holders‘ Representative to the Security Agent to release such Guarantee, (iii) upon a solvent winding up or dissolution of the relevant Guarantor, provided that at the time of dissolution or winding up such entity has substantially no assets, (iv) if the obligations under the Notes and any other obligations guaranteed by the Guarantees have been satisfied in full, or (v) if the release of any Guarantee is otherwise permitted by these Terms and Conditions or the terms of the Security Trust Agreement (including upon an enforcement sale). | ||
| (3) | Collateral; Release; Administration; Security Trust Agreement . | ||
| (a) | Collateral . The following security interests will be provided in order to secure the Issuer’s obligations under the Notes for the benefit of the Holders as of the Amendment Date, in each case subject to and in accordance with the Security Trust Agreement (together, the „Collateral“): | ||
| (i) | (x) pledges over all existing and future shares and limited partnership interests, as the case may be, held by the Issuer or another member of the Group in LuxTopCo, LuxTopCo GP, each LuxInterCo, each LuxInterCo GP, FVR-AG and the Additional Pledged Companies, and (y) pledges over all existing and future shares held by the Issuer in DEMIRE HB HZ B HST GmbH (the „Share Pledge Agreements“); | ||
| (ii) | pledge over an account (the „Pledged Account“) of the Issuer as set out in Annex 4 ( Pledged Account ) (the „Account Pledge Agreement“); | ||
| (iii) | security assignment of certain receivables under intragroup loans covering all “structural” intragroup loans, i.e. all intragroup loan receivables from entities which are a member of the Group, but not a direct or indirect Subsidiary of LuxTopCo against entities which are (i) a member of the Group and direct or indirect Subsidiaries of LuxTopCo or (ii) a member of the DEMIRE XII Sub-Group, including the receivables under loans granted by the Issuer and listed in Annex 5 ( IC Loan Receivables ) (the „Structural Assignment Agreements“); and | ||
| (iv) | security assignment of certain receivables of the Issuer or other members of the Group against certain RETT blocker entities set out in Annex 6 ( RETT Blocker Receivables ) (the „RETT Blocker Assignment Agreements“). | ||
| Any security interest referred to above or additional security interests that may be granted following the Amendment Date as specified in the Security Trust Agreement, and any further security interests that may in the future be granted to secure obligations under the Notes and the Guarantee, will also constitute „Collateral“. | |||
| (b) | Administration of Collateral . The Collateral shall be granted in favor of the Security Agent for the benefit of the Holders and no Holder may directly and independently enforce or otherwise realize ( verwerten ) the Collateral as set out in the Security Trust Agreement. The Security Agent shall be irrevocably authorized to release any Collateral (at the cost of the Issuer and without any consent, sanction, authority or further confirmation from any Holder) in accordance with the terms of the Security Trust Agreement (i) in connection with any sale, assignment, merger, consolidation, transfer, conveyance or other disposition of such property or assets to a person that is not the Issuer or any other member of the Group if such sale, disposition or other transaction occurs in accordance with § 12(4), (ii) upon instruction of the Holders‘ Representative to the Security Agent to release such Collateral, (iii) upon a solvent winding up or dissolution of the entity providing or holding such collateral, provided that at the time of dissolution or winding up such entity has substantially no assets, (iv) if the obligations under the Notes and any other obligations secured by the Collateral have been satisfied in full or (v) if the release of such Collateral is otherwise permitted by these Terms and Conditions or is expressly permitted by the terms of the Security Trust Agreement (including upon an enforcement sale). | ||
| (c) | Protection of Collateral . The Issuer will not, and will not cause or permit any other member of the Group to, take or knowingly omit to take, any action which action or omission might or would have the result of materially impairing the security interest with respect to the Collateral or the assets subject to Collateral for the benefit of the Holders, and the Issuer will not, and will not cause or permit any member of the Group to, grant to any person other than the Security Agent, for the benefit of the Holders and any other beneficiaries described in the Security Trust Agreement, any interest whatsoever in any of the Collateral; provided that (a) in respect of any security interest with respect to the Collateral or the assets subject to Collateral for the benefit of the Holders provided by, or over, any member of the DEMIRE XII Sub-Group, any disposal, release or other action in connection with any insolvency proceeding or liquidation proceeding (whether on a solvent or insolvent basis) over any member of the DEMIRE XII Sub-Group, provided that with respect to DEMIRE Betriebsvorrichtungen Nr. 2 GmbH or Cielo BVO GmbH the foregoing shall only apply upon the occurrence of a DEMIRE XII Trigger Event shall under no circumstances be deemed to impair such security interests, (b) nothing in this provision shall restrict the discharge or release of the Collateral in accordance with these Terms and Conditions or the Security Trust Agreement; and (c) at the direction of the Issuer and without the consent of any Holder, the Security Agent may from time to time enter into one or more amendments to the security documents or the Security Trust Agreement to: (i) cure any ambiguity, omission, defect or inconsistency therein; and (ii) add further assets to the Collateral. | ||
§ 3
COLLATERAL AND ASSET-RELATED UNDERTAKINGS;
USE OF BALANCE SHEET CASH; UNDERTAKING TO MARKET
| (1) | Deferred Entities. The Issuer shall ensure that the shares in the Deferred Entities are transferred to LuxInterCo 2, LuxInterCo 3 and LuxInterCo 4 as Subsidiaries of LuxTopCo (in a form as agreed with the Holders‘ Representative (acting upon Majority Holder Instruction) in good faith and taking into account tax considerations (such transfer, the „Deferred Entities Transfer“)) in accordance with this paragraph (1). If, by the Amendment Date, change of control waivers required to permit the Deferred Entities Transfer under external financings of the Group („CoC Waivers“) and any exemptions from any obligation to make a mandatory takeover offer with respect to the Deferred Entities Transfer under the German Securities Acquisition and Takeover Act ( Wertpapiererwerbs- und Übernahmegesetz – WpÜG) (“MTO Waivers”) have been obtained, the Deferred Entities Transfer shall be completed by no later than 31 December 2024. If the CoC Waivers and/or MTO Waivers have not been obtained by the Amendment Date, the Issuer shall use commercially reasonable efforts to ensure that the Deferred Entities Transfer is completed as soon as possible after the Amendment Date (including, but not limited to, use commercially reasonable efforts for obtaining of any CoC Waivers required for such completion at the time of the execution of any refinancing or extension with respect to the financing providing for the requirement of the CoC waivers). Subject to having obtained the CoC Waivers and MTO Waivers, the Issuer shall ensure that at the latest at the time of the Deferred Entities Transfer LuxInterCo 2, LuxInterCo 3, LuxInterCo 4, LuxInterCo GP 2, LuxInterCo GP 3 and LuxInterCo GP 4 (together, the “FVR-LuxCos”) have acceded to the Security Trust Agreement as guarantors and all shares in the FVR-LuxCos have been pledged for the benefit of the Holders in accordance with § 2(3)(a)(i)(x) on the same terms as under the Share Pledge Agreements to secure the obligations under the Notes and the Guarantee. | ||
| (2) | Acquisitions, Cash Reserves. The Issuer shall ensure that | ||
| (a) | any new acquisition of Real Estate Properties (either directly or through entities holding such Real Estate Property) by a member of the Group will only be made by a LuxInterCo or one or more (direct or indirect) Subsidiaries of a LuxInterCo which are members of the Group (other than (i) a LuxInterCo which holds (directly or indirectly) any shares in DEMIRE Holding XIII GmbH, (ii) DEMIRE Holding XIII GmbH, or (iii) a Subsidiary of DEMIRE Holding XIII GmbH); provided that nothing in this provision shall restrict from using customary RETT blocker structures in connection with such acquisition; and | ||
| (b) | all Cash Reserves are transferred and thereafter held on the Pledged Account or held by LuxTopCo or any other Guarantor; provided that nothing in this provision shall restrict the relevant holder of the Cash Reserves from making use of such cash or transferring cash to other members of the Group to meet liquidity needs in the ordinary course of business. | ||
| (3) | Use of balance sheet cash. The Issuer shall apply an amount of EUR 59,621,750 minus the amount paid by the Issuer (disregarding any payments funded by a direct or indirect shareholder or an Affiliate of such shareholder for this purpose) for the purchase of Notes by way of the tender offer (and the related backstop agreement) launched in 2024 prior to the Amendment Date (the „Tender Offer“) (excluding any payments of (i) interest accrued and (ii) any backstop commitment fee payable in connection with the Tender Offer) (such resulting amount, the „Earmarked Amount“) towards a (partial) redemption or purchase and cancellation of Notes in accordance with these Terms and Conditions or, if not cancelled following the purchase, not transferred to any person which is not (x) a member of the Group and (y) a Subsidiary of LuxTopCo, provided that any part of the Earmarked Amount not used pursuant to the foregoing within twelve (12) months after the Amendment Date must be used for a (partial) redemption of the Notes on the basis of § 7 below promptly after expiry of such twelve (12) month period . | ||
| (4) | Undertaking to market . The Issuer shall (directly or indirectly) market Real Estate Property owned by a member of the Group (either through a direct sale of such assets or of the shares or other interest in the members of the Group owning the assets or otherwise) on a best efforts basis (as defined below) in a volume that is expected to generate net proceeds (post tax, costs and financing) in an amount of at least (i) EUR 50,000,000 in the period from (and including) the Amendment Date to (and including) 31 December 2025 and (ii) EUR 50,000,000 in the calendar year 2026 (such amounts, each a „Yearly Target Sum“, and together the „Yearly Target Sums“) . | ||
| „ best effortsbasis“ means | |||
| (i) | in case of an asset with a book value according to the respective Issuer’s latest Consolidated Financial Statements („Prevailing Book Value“) of more than EUR 20,000,000: that the Issuer must involve one or more brokers (including the collecting of pricing opinions on the basis of the same short fact sheets) with at least one nationwide active broker (CBRE, JLL, Colliers, BNP, Savills or any other nationwide active broker of high repute); | ||
| (ii) | in case of an asset with a Prevailing Book Value of EUR 10,000,000 to EUR 20,000,000: that the Issuer must involve one or more brokers (including the collecting of pricing opinions on the basis of the same short fact sheets); and | ||
| (iii) | in case of an asset with a Prevailing Book Value below EUR 10,000,000: that no marketing through a formal or structured process is required, but the sale is subject to approval by the Issuer’s supervisory board. | ||
| The sales processes of each of the assets located in (Flensburg, Hamburg, Leipzig GuGa & Kempten), as applicable, shall each be excluded from this „best efforts basis“ procedure if the respective sales process is ongoing as of the Amendment Date. For the avoidance of doubt, any expected net proceeds from such ongoing sales processes shall count against the Yearly Target Sum for the period from (and including) the Amendment Date to (and including) 31 December 2025, and any sales process that ceases to be ongoing on or before the Amendment Date shall be subject to the „best efforts basis“ procedure. The Issuer shall have flexibility how to reach the Yearly Target Sums (subject to the requirements set out herein). | |||
| In case Notes in an aggregate principal amount at least equal to the applicable Yearly Target Sum plus the Earmarked Amount (if any, and in relation to the calendar year 2026 only if and to the extent any Earmarked Amount has not been applied as set forth in § 3(3) above before 1 January 2026 in addition to the Yearly Target Sum applicable for the prior period) are redeemed or purchased in accordance with the Terms and Conditions in the relevant period, the undertaking to market pursuant to this § 3(4) shall be deemed discharged and satisfied for such period. In case Notes in an aggregate principal amount exceeding the applicable Yearly Target Sum plus the Earmarked Amount (if any) are (partially) redeemed in accordance with § 7 or § 11 or purchased in accordance with § 13(2) or otherwise discharged and cancelled (or, if not cancelled, the Issuer has notified the Holders in accordance with § 15 that any transfer of such Notes to any person which is not (x) a member of the Group and (y) a Subsidiary of LuxTopCo will result in an Event of Default pursuant to § 11(1)(j)) in the period from (and including) the Amendment Date to (and including) 31 December 2025, the Yearly Target Sum for the undertaking to market pursuant to this § 3(4) for the calendar year 2026 shall be reduced in an amount equal to such excess.] | |||
§ [ 3 ][ 4 ]
NEGATIVE PLEDGE
|
(1) |
Negative Pledge. The Issuer undertakes [and each Guarantor has undertaken under the Security Trust Agreement], [for] so long as any Notes are outstanding, but only up to the time all amounts of principal and interest have been placed at the disposal of the Paying Agent, not to create or permit to subsist, and [the Issuer undertakes] to procure that [none of its Material Subsidiaries][no member of the Group] will create or permit to subsist, any security interest in rem over its assets to secure any [Capital Market][Financial] Indebtedness [other than Securitized Capital Market Indebtedness and Project Financings unless, subject to paragraph (3), the Issuer’s obligations under the Notes are secured equally with (or, in case such Capital Market Indebtedness is subordinated debt, senior in priority to) the Capital Market Indebtedness secured by such security interest][(except for the benefit of the Holders to secure the claims under the Notes or the Guarantees)]. |
|
(2) |
Limitation. [The undertakings pursuant to paragraph (1) shall not apply to a security which (i) was granted over assets of a Subsidiary of the Issuer that has become a Subsidiary only after the Issue Date, (ii) is mandatory according to applicable laws, (iii) is required as a prerequisite for governmental approvals, (iv) existed on the Issue Date, (v) is granted by a Subsidiary over any existing or future claims of this Subsidiary against the Issuer or any of its Subsidiaries as a result of passing on proceeds from the sale of any issuance of any securities, provided that such security serves as security for obligations of this Subsidiary under such securities, (vi) secures Capital Market Indebtedness existing at the time of an acquisition that becomes an obligation of the Issuer as a consequence of such acquisition, (vii) constitutes the renewal, extension or replacement of any security pursuant to the foregoing (i) through (vi), or (viii) does not fall within the scope of application of (i) through (vii) above and which secures Capital Market Indebtedness with a principal amount (when aggregated with the principal amount of other Capital Market Indebtedness which has the benefit of security (issued by the Issuer or any Material Subsidiary) other than any falling within the scope of application of (i) through (vii) above) not exceeding 5 per cent. of the Total Assets as of the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published (or its equivalent in other currencies as of the date of granting this security). |
|
Any security which is to be provided pursuant to this paragraph (2) may also be provided to a person acting as trustee for the Holders.] |
|
| [The undertakings pursuant to paragraph (1) shall not apply to a security which (i) was granted over assets of a member of the Group and/or any Guarantor that has become a member of the Group only after the Amendment Date (provided that the security was not created in anticipation of the acquisition of such member of the Group and does not extend to any other asset owned by the Issuer or any other member of the Group), (ii) is mandatory according to applicable laws, (iii) is required as a prerequisite for governmental approvals, (iv) existed on the Amendment Date in accordance with, and as permitted under, the terms and conditions of the Notes in effect immediately prior to the Amendment Date, (v) has been granted over assets of any entity which is acquired after the Amendment Date and which secures Financial Indebtedness existing at the time of the acquisition of such entity and which has not been Incurred with respect to such acquisition, (vi) constitutes the renewal, extension or replacement of any security pursuant to the foregoing (ii) through (v), (vii) secures any Refinancing Indebtedness on substantially the same assets that secured (in whole or in part) the Financial Indebtedness so refinanced, (viii) serves as additional security for the purposes of the refinancing of real estate loans incurred by members of the Group, existing on 15 August 2024 and having a maturity date no longer than six (6) months after the Amendment Date with a security value of up to EUR 15,000,000, (ix) does not fall within the scope of application of (i) through (viii) above and which secures Financial Indebtedness with a principal amount (when aggregated with the principal amount of other Financial Indebtedness which has the benefit of security (issued by the Issuer, any Guarantor or any other member of the Group) other than any security falling within the scope of application of (i) through (viii) above) not exceeding EUR 5,000,000, or (x) secures Financial Indebtedness of which at least 85 per cent of the net proceeds raised therefrom are used to redeem, purchase and cancel or otherwise discharge the Notes.] | |
|
[(3) |
Provision of Additional Security. Whenever the Issuer becomes obligated to secure (or procure that a Material Subsidiary secures) the Notes pursuant to this § 3, the Issuer shall be entitled to discharge such obligation by providing (or procuring that the relevant Material Subsidiary provides) a security interest in the relevant collateral to a security trustee, such security trustee to hold such collateral and the security interest that gave rise to the creation of such collateral, equally, for the benefit of the Holders and the holders of the Capital Market Indebtedness secured by the security interest that gave rise to the creation of such security interest in such collateral, such equal rank to be created in rem or, if impossible to create in rem, contractually.] |
§[4][5] INTEREST[; EXTENSION FEE]
|
(1) |
Rate of Interest and Interest Payment Dates. The Notes shall bear interest on their principal amount at the rate of 1.875 per cent[.] per annum from (and including) [15 October 2019 (the „Interest Commencement Date„)][the Issue Date to (but excluding) the earlier of (i) the Amendment Date and (ii) 15 October 2024. The Notes shall bear interest on their principal amount at the rate of 5.000 per cent per annum from (and including) the earlier of (i) the Amendment Date and (ii) 15 October 2024 ]to (but excluding) the Maturity Date. Interest shall be payable semi-annually in arrear on [15 April and 15 October][15 June and 15 December in each year, provided that in case the Amendment Date occurs on or prior to 15 October 2024 interest accrued in the period from (and including) 15 April 2024 to (but excluding) 15 October 2024 shall be paid on 15 October 2024] (each such date, an [„]Interest Payment Date[„]). The first [payment of interest shall be made on 15 April 2020.][Interest Payment Date shall be the Interest Payment Date immediately following the Amendment Date. |
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| (2) | Additional Interest . The Notes shall bear additional interest on their principal amount at a rate of 3.00 per cent per annum from (and including) 1 January 2027 to (but excluding) the Maturity Date. Additional interest shall be payable in arrear on the Maturity Date. | ||
| (3) | Extension Fee . | ||
| (a) | Redemptions of the Notes in whole (but not in part) shall be subject to payment of an additional amount or additional amounts on each Note as follows: | ||
| (i) | as from 1 January 2026 in case of any redemption in whole (but not in part) of any Note an amount equal to 3.000 per cent of the outstanding principal amount of such Note as of 31 December 2025 (the „2025 Extension Fee“) if, in the period from and including the Amendment Date to (and including) 31 December 2025, the Issuer has not (partially) redeemed in accordance with § 7 or § 11 or purchased in accordance with § 13(2) or otherwise discharged and cancelled (or, if not cancelled, has notified the Holders in accordance with § 15 that any transfer of such Notes to any person which is not (x) a member of the Group and (y) a Subsidiary of LuxTopCo will result in an Event of Default pursuant to § 11(1)(j)) Notes in an aggregate principal amount not less than the sum of (x) EUR 50,000,000 and (y) the Earmarked Amount, if any (such sum, the „2025 Bond Reduction Amount“); and | ||
| (ii) | as from 1 January 2027 in case of any redemption in whole (but not in part) of any Note an amount equal to 2.000 per cent of the outstanding principal amount of such Note as of 31 December 2026 (the „2026 Extension Fee“ and the sum of the 2025 Extension Fee, if any, and the 2026 Extension Fee, if any, at the relevant time, the „Extension Fee“) if, in the period from and including 1 January 2026 to (and including) 31 December 2026, the Issuer has not (partially) redeemed in accordance with § 7 or § 11 or purchased in accordance with § 13(2) or otherwise discharged and cancelled (or, if not cancelled, has notified the Holders in accordance with § 15 that any transfer of such Notes to any person which is not (x) a member of the Group and (y) a Subsidiary of LuxTopCo will result in an Event of Default pursuant to § 11(1)(j)) Notes in an aggregate principal amount of not less than EUR 50,000,000 (the „2026 Bond Reduction Amount“), in each case at their par value, less the Carry Forward Amount. | ||
| „Carry Forward Amount“ means the aggregate principal amount of Notes (partially) redeemed or purchased in the period from and including the Amendment Date to (and including) 31 December 2025 which exceeds the 2025 Bond Redemption Amount provided that only redemptions and purchases at par shall count towards the Carry Forward Amount. | |||
| (b) | Any principal amount of Notes (partially) redeemed in accordance with § 7 or § 11 or purchased in accordance with § 13(2) or otherwise discharged and cancelled (or, if not cancelled, the Issuer has notified the Holders in accordance with § 15 that any transfer of such Notes to any person which is not (x) a member of the Group and (y) a Subsidiary of LuxTopCo will result in an Event of Default pursuant to § 11(1)(j)) shall count first towards the 2025 Bond Reduction Amount until the aggregate outstanding principal amount of the Notes has been reduced by the 2025 Bond Reduction Amount and thereafter, however solely with respect to (partial) redemptions in accordance with § 7, or purchases at par value in accordance with § 13(2) towards the 2026 Bond Reduction Amount. | ||
| (c) | The Issuer shall notify the Holders‘ Representative and the Holders in accordance with § 15 promptly of (i) any redemption, purchase or other discharge to be allocated to the 2025 Bond Reduction Amount, (ii) any redemption purchases or other discharge to be allocated to the 2026 Bond Reduction Amount, and in each case whether they have been made at par, and (iii) whether any Extension Fee has been earned.] | ||
|
([2][4]) |
Late Payment. If the Issuer for any reason fails to redeem the Notes [or pay any Extension Fee] when due, interest shall continue to accrue on the outstanding amount from (and including) the due date to (but excluding) the date of actual redemption of the Notes [or (as the case may be) the actual payment of the Extension Fee] at the default rate of interest established by law16. Claims for further damages in case of late payment are not excluded. |
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|
([3][5]) |
Calculation of Interest. [Where interest is to be calculated in respect of a period which is shorter than an Interest Period (as defined in paragraph (4) below), the interest][If the amount of interest payable under the Notes (including additional interest pursuant to § 5(2)) is required to be calculated for any period of time, it] will be calculated on the basis of the actual number of calendar days elapsed in the relevant period, from (and including) the first date in the relevant period to (but excluding) the last date of the relevant period, divided by [the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such day of the relevant Interest Period, but excluding the last day of the relevant Interest Period)][365]. |
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| [(6) | Recalculation of Interest. If a tax deduction is made in connection with a payment on account of Swiss Withholding Tax with respect to interest and should it be unlawful for the payor to comply with § 9(2) for any reason, the applicable interest rate in relation to that payment shall be the interest rate which would have applied to that payment under § 5 divided by 1 minus the rate at which the relevant tax deduction on account of Swiss Withholding Tax is required to be made under Swiss domestic tax law and/or applicable double taxation treaties (where the rate at which the relevant deduction is required to be made is for this purposes expressed as a fraction of 1) and the relevant payor of Swiss Withholding Tax shall pay the relevant amount at the adjusted rate in accordance with this § 5(6) and deduct Swiss Withholding Tax on the interest payment so recalculated.] | ||
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[(4) |
Interest Period means the period from (and including) the Interest Commencement Date to (but excluding) the first Interest Payment Date and thereafter from (and including) each relevant Interest Payment Date to (but excluding) the next following Interest Payment Date.] |
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16 The default rate of interest established by statutory law is five percentage points above the base rate of interest published by Deutsche Bundesbank from time to time, sections 288 [paragraph][(]1[)], 247 [paragraph][(]1[ of the German Civil Code (Bürgerliches Gesetzbuch)] [) BGB].
§[5][6] PAYMENTS
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(1) |
Payment of Principal [ and][,] Interest [and Other Amounts]. Payment of principal[ and][,] interest [and other amounts] in respect of the Notes [(including any Extension Fee)] shall be made, subject to paragraph (2) below, to the Paying Agent for forwarding to the Clearing System or to its order for credit to the accounts of the relevant accountholders of the Clearing System. |
| (2) | Manner of Payment. Subject to applicable fiscal and other laws and regulations, payments of amounts due in respect of the Notes shall be made in Euro. |
| (3) | Discharge. The Issuer shall be discharged by payment to, or to the order of, the Clearing System. |
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(4) |
Business Day. If the date for payment of any amount in respect of any Note is not a Business Day then the Holder shall not be entitled to payment until the next such day in the relevant place and shall not be entitled to further interest or other payment in respect of such delay. For these purposes, „Business Day“ means a day (other than a Saturday or a Sunday) on which banks are open for general business in London and Frankfurt am Main and on which the Clearing System as well as all relevant parts of the [Trans-European Automated Realtime Gross Settlement Express Transfer System 2 (TARGET2) are operational][real-time gross settlement system operated by the Eurosystem or any successor system (T2) are open] to effect payments. |
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(5) |
References to Principal and Interest. References in these Terms and Conditions to principal in respect of the Notes shall be deemed to include, as applicable: the Final Redemption Amount, the Call Redemption Amount, the Put Redemption Amount, Additional Amounts which may be payable under § [8][9] and any other premium and any other amounts which may be payable under or in respect of the Notes. References in these Terms and Conditions to interest in respect of the Notes shall be deemed to include, as applicable, [interest pursuant to § 5(1), additional interest pursuant to § 5(2) and] any Additional Amounts which may be payable under § [8][9]. |
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[(6) |
Deposit of Principal and Interest. The Issuer may deposit with the local court in Frankfurt am Main principal or interest not claimed by Holders within twelve months after the Maturity Date, even though such Holders may not be in default of acceptance of payment. If and to the extent that the deposit is effected and the right of withdrawal is waived, the respective claims of such Holders against the Issuer shall cease.] |
§[6][7] REDEMPTION
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(1) |
Redemption at Maturity. Unless previously redeemed in whole or in part or purchased and cancelled, the Notes shall be redeemed at their Final Redemption Amount on [15 October 2024][31 December 2027] (the „Maturity Date„)[ together with interest accrued, if any, to (but excluding) the Maturity Date]. The [„]Final Redemption Amount[„] in respect of each Note shall be [the sum of (i)] its [outstanding] principal amount [at the relevant time and (ii) the applicable Extension Fee (if any) on the Relevant Redemption Date]. |
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(2) |
Early Redemption for Reasons of Taxation. If as a result of any change in, or amendment to, the laws or regulations of the Federal Republic of Germany (or in the event the Issuer becoming subject to another tax jurisdiction pursuant to § [8(4)][9(4)], the laws or regulations of such other tax jurisdiction) affecting taxation or the obligation to pay duties of any kind, or any change in, or amendment to, an official interpretation or application of such laws or regulations, which amendment or change becomes effective on or after the date on which the Notes were issued, the Issuer is required to pay Additional Amounts on the next succeeding Interest Payment Date, and this obligation cannot be avoided by the use of measures available to the Issuer which are, in the judgement of the Issuer, in each case taking into account the interests of Holders, reasonable, the Notes may be redeemed, in whole but not in part, at the option of the Issuer, at any time upon not less than 45 days’ nor more than 60 days’ prior notice of redemption given to the Paying Agent and, in accordance with § 15, to the Holders, at the [principal amount][Final Redemption Amount] together with interest accrued to (but excluding) the [date fixed for redemption][Relevant Redemption Date]. |
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| However, no such notice of redemption may be given (i) earlier than 90 days prior to the earliest date on which the Issuer would be obligated to pay such Additional Amounts if a payment in respect of the Notes was then due, or (ii) if at the time such notice is given, such obligation to pay such Additional Amounts does not remain in effect. | |||
| Any such notice shall be given in accordance with § 15. It shall be irrevocable, must specify the date fixed for redemption and must set forth a statement summarizing the facts constituting the basis for the right of the Issuer so to redeem. | |||
| (3) | Early Redemption at the Option of the Issuer. | ||
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(a) |
The Issuer may, upon notice given in accordance with subparagraph (b), redeem at its option [all or some of] the Notes [in whole or in part] (except for any Note which is the subject of the prior exercise by the Holder thereof of the option to require the redemption of such Note under paragraph ([5][4])) within the period from (and including) [15 July 2024][the Amendment Date] to (but excluding) the Maturity Date at the [Final][Call] Redemption Amount together with interest accrued, if any, to (but excluding) the [date for redemption][Relevant Redemption Date. |
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| The „Call Redemption Amount“ in respect of each Note and a Relevant Redemption Date shall be | |||
| (x) | in case of a redemption of Notes in part, the principal amount subject to such partial redemption on such Relevant Redemption Date; or | ||
| (y) | in case of a redemption of Notes in whole, the Final Redemption Amount on such Relevant Redemption Date.] | ||
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(b) |
Any such notice of redemption shall be given to the Paying Agent and, in accordance with § 15, to the Holders. Such notice shall specify (i) whether the Notes are to be redeemed in whole or in part and, if in part, the aggregate principal amount of the Notes which are to be redeemed [and the applicable Call Redemption Amount for each Note], and (ii) the date fixed for redemption, which shall be not less than [30][10] nor more than 60 days after the date on which notice is given by the Issuer to the Holders. |
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(c) |
In the case of a partial redemption of Notes, [the] Notes [to be redeemed shall be selected in accordance with the customary proceedings of the relevant][shall be redeemed on a pro rata basis by use of a pool factor and in compliance with the requirements and procedures of the] Clearing System. |
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(4) |
[Early Redemption at the Option of the Issuer (Make-Whole). The Issuer may, upon not less than 45 days’ nor more than 60 days’ prior notice of redemption given to the Paying Agent and, in accordance with § 15, to the Holders, redeem on any date specified by it (the „ Call Redemption Date „), at its option, the Notes (except for any Note which is the subject of the prior exercise by the Holder thereof of its option to require the redemption of such Note under paragraph (5)) in whole but not in part, at their Call Redemption Amount together with any unpaid interest accrued to (but excluding) the Call Redemption Date (but excluding accrued interest accounted for in the Call Redemption Amount). Any such notice of redemption shall be given in accordance with § 15. It shall be irrevocable and must specify the Call Redemption Date and the Call Redemption Amount at which such Notes are to be redeemed. |
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The „ Call Redemption Amount “ per Note means the higher of (i) the principal amount per Note and (ii) the Make-Whole Amount per Note. The „ Make-Whole Amount “ will be an amount calculated by an independent financial adviser appointed by the Issuer at the Issuer’s expense (the „ Calculation Agent „) on the Redemption Calculation Date by discounting the principal amount and the remaining interest payments to the Maturity Date on an annual basis, assuming a 365-day year or a 366-day year, as the case may be, and the actual number of days elapsed in such year and using the Bund Rate plus 35 basis points. |
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The „ Bund Rate “ shall be the yield to maturity per annum at the Redemption Calculation Date of a direct obligation of the Federal Republic of Germany with a constant maturity (as officially compiled and published in the most recent financial statistics that have become publicly available at least two Business Days (but not more than five Business Days) prior to the relevant Redemption Calculation Date (or, if such financial statistics are not so published or available, any publicly available source of similar market data)) most nearly equal to the period from the relevant Call Redemption Date to the Maturity Date; provided, however, that if the period from the relevant Call Redemption Date to the Maturity Date is not equal to the constant maturity of the direct obligation of the Federal Republic of Germany for which a weekly average yield is given, the Bund Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of a direct obligation of the Federal Republic of Germany for which such yields are given, except that if the period from the relevant Call Redemption Date to the Maturity Date is less than one year, the weekly average yield on an actually traded direct obligation of the Federal Republic of Germany adjusted to a constant maturity of one year shall be used. |
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„ Redemption Calculation Date “ means the tenth Business Day prior to the date on which the Notes are redeemed in accordance with this paragraph (4).] |
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| Early Redemption at the Option of the Holders upon a Change of Control. | |||
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(a) |
If a Put Event occurs after the [Issue][Amendment] Date, each Holder shall have the right, but not the obligation, to require the Issuer to redeem [in whole but not in part] or, at the Issuer’s option, purchase (or procure the purchase of) [in whole][any] or [in part][all of] his Notes, within 60 days after a Put Event Notice under subparagraph (b) has been published (the „Put Period„), at the Put Redemption Amount (the „Put Option„). Such Put Option shall operate as set out below under subparagraphs (b) and (c). |
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A „Put Event“ shall occur if a Change of Control has occurred and, only if and after the Investment Grade Status Commencement Date has occurred and no Investment Grade Status End Date has [ocurred][occurred], in addition a Rating Downgrade in respect of the Change of Control has occurred. |
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A „Rating Downgrade“ shall be deemed to have occurred in respect of a Change of Control (a) if within the Change of Control Period any rating previously assigned to the Notes or the Issuer by any Rating Agency is (i) withdrawn or, (ii) changed from an Investment Grade Rating to a [noninvestment][non-investment] Grade Rating. |
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„Rating Agency“ means each of the rating agencies of S&P Global Ratings („S&P„) [and][,] Moody’s Investors Service („Moody’s„) [and Fitch („Fitch“)] or any of their respective successors or any other rating agency of equivalent international standing specified from time to time by the Issuer. |
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A „Change of Control“ shall be deemed to have occurred at each time (whether or not approved by the management board or supervisory board of the Issuer) that any Person or Persons acting in concert, except for Wecken & Cie., members of the Wecken family, and any company controlled by members of the Wecken family and [funds][Apollo Global Management, Inc. and funds and separate accounts (incl. in each case their subsidiaries) controlled,] managed [or advised] by Apollo Global Management, [LLC][Inc. or its subsidiaries] (but excluding any portfolio companies) („Relevant Person(s)„) or any Person or Persons acting on behalf of any such Relevant Person(s), at any time directly or indirectly acquire(s) and come(s) to own (i) 50 per cent. or more of the registered share capital of the Issuer or (ii) such number of the shares in the capital of the Issuer carrying 50 per cent. or more of the voting rights. |
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| „Change of Control Period“ means the period ending 120 days after the occurrence of the Change of Control. | |||
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„Put Redemption Amount“ means for each Note 101 per cent[.] of the principal amount of such Note, plus unpaid interest accrued to (but excluding) the Put Date [plus any Extension Fee (if applicable) on the Relevant Redemption Date]. |
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(b) |
If a Put Event occurs, then the Issuer shall, without undue delay, after the Issuer becoming aware thereof, give notice of the Put Event (a „Put Event Notice„) to the Holders in accordance with § 15 specifying the nature of the Put Event and the procedure for exercising the Put Option contained in this paragraph [(5)][(4)]. |
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| (c) | To exercise the Put Option, the Holder must deliver on any Business Day within the Put Period (i) to the Paying Agent at its specified office a duly signed and completed notice of exercise in the then current form obtainable from the Paying Agent (or such other form as is acceptable to the Clearing System and the Paying Agent) (a „Put Notice„) and (ii) the aggregate Specified Denomination of Notes for which the Holder wishes to exercise its Put Option. The Issuer shall redeem or, at its option, purchase (or procure the purchase of) the relevant Note(s) on the date seven days after the expiration of the Put Period (the „Put Date„) unless previously redeemed or purchased and cancelled. Payment in respect of any Note so delivered will be made in accordance with the customary procedures through the Clearing System. A Put Notice, once given, shall be irrevocable. | ||
| [(5) | Relevant Redemption Date . „Relevant Redemption Date“ means (i) in the case of paragraph (1), the Maturity Date, (ii) in the cases of paragraphs (2) and (3), the date fixed for redemption as specified in the applicable redemption notice, (iii) in the case of paragraph (4) the Put Date and (iv) in the cases of § 11 (3), the actual date of redemption.] | ||
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[(6) |
Early Redemption in case of Minimal Outstanding Aggregate Principal Amount of the Notes. If 80 per cent. or more of the aggregate principal amount of the Notes have been redeemed or purchased by the Issuer or any direct or indirect Subsidiary of the Issuer pursuant to the provisions of this § 6, the Issuer may, on not less than 30 or more than 60 days’ notice to the Holders given in accordance with § 15, redeem, at its option, the remaining Notes in whole but not in part at the principal amount thereof plus unpaid interest accrued to (but excluding) the date of actual redemption.] |
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§[7][8] AGENTS
| (1) | Appointment; Specified Office. The initial Paying Agent and its initial specified office shall be: Deutsche Bank AG, Taunusanlage 12, 60325 Frankfurt am Main, Germany („Paying Agent„). The Paying Agent reserves the right at any time to change its specified office to some other office in the same city or within the European Economic Area (EEA). |
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(2) |
Variation or Termination of Appointment. The Issuer reserves the right at any time to vary or terminate the appointment of the Paying Agent [or the Calculation Agent] and to appoint another Paying Agent, additional or other paying agents [or another Calculation Agent] in accordance with the terms of an agency agreement. The Issuer shall at all times maintain (i) a Paying Agent, and (ii) so long as the Notes are listed on the Luxembourg Stock Exchange, a Paying Agent with a specified office in Luxembourg and/or in such other places as may be required by the rules of such stock exchange or its supervisory authority. |
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Agents of the Issuer. The Paying Agent [, the Calculation Agent] and any other paying agent appointed pursuant to paragraph (2) act solely as the agents of the Issuer and do not assume any obligations towards or relationship of agency or trust with any Holder. |
§[8][9] TAXATION
| (1) | Payments Free of Taxes. All amounts payable in respect of the Notes shall be made without withholding or deduction for or on account of any present or future taxes or duties of whatever nature imposed or levied at source by way of withholding or deduction by or on behalf of the Federal Republic of Germany or any political subdivision or any authority thereof or therein having power to tax (each, a Relevant Taxing Jurisdiction), unless such withholding or deduction is required by law. | |
| (2) | Payments of Additional Amounts. If such withholding or deduction with respect to amounts payable in respect of the Notes is required by law, the Issuer will pay such additional amounts (the „Additional Amounts„) as shall be necessary in order that the net amounts received by the Holders, after such withholding or deduction shall equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes or duties which: | |
| (a) | are payable by any Person acting as custodian bank or collecting agent on behalf of a Holder, or otherwise in any manner which does not constitute a withholding or deduction by the Issuer from payments of principal or interest made by it, or | |
| (b) | are payable by reason of the Holder having, or having had, some personal or business relation to the Relevant Taxing Jurisdiction and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Relevant Taxing Jurisdiction, or | |
| (c) | are withheld or deducted by a paying agent from a payment if the payment could have been made by another paying agent without such withholding or deduction, or | |
| (d) | are withheld or deducted pursuant to (i) any European Union Directive or Regulation concerning the taxation of interest income or savings, or (ii) any international treaty or understanding relating to such taxation and to which the Federal Republic of Germany or the European Union is a party, or (iii) any provision of law implementing, or complying with, or introduced to conform with, such Directive, Regulation, treaty or understanding, or | |
| (e) | would not have been imposed, withheld or deducted but for the failure of the Holder or beneficial owner of Notes (including, for these purposes, any financial institution through which the Holder or beneficial owner holds the Notes or through which payment on the Notes is made), following a written request by or on behalf of the Issuer addressed to the Holder or beneficial owner (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request, and in all events, at least 30 days before any withholding or deduction would be required), to comply with any certification, identification, information or other reporting requirement whether required by statute, treaty, regulation or administrative practice of the Federal Republic of Germany, that is a precondition to exemption from, or reduction in the rate of withholding or deduction of, taxes imposed by the Federal Republic of Germany (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Federal Republic of Germany), but in each case, only to the extent the Holder or beneficial owner is legally entitled to provide such certification, information or documentation, or | |
| (f) | are payable by reason of a change in law that becomes effective more than 30 days after the relevant payment becomes due, or | |
| (g) | are payable due to any combination of items (a) to (f), | |
| nor shall any Additional Amounts be paid with respect to any payment on a Note to a Holder who is a fiduciary or partnership or who is other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder of the Note. | ||
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For the avoidance of doubt, the withholding tax (Kapitalertragsteuer) levied in the Federal Republic of Germany at the level of the custodian bank (or other paying institution (including the Paying Agent)) plus the solidarity surcharge imposed thereon as well as church tax, where such tax is levied by way of withholding, pursuant to tax law as in effect as of the [Issue][Amendment] Date do not constitute a tax or duty as described above in respect of which Additional Amounts would be payable by the Issuer. |
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| (3) | FATCA. Notwithstanding any other provisions contained herein, the Issuer shall be permitted to withhold or deduct any amounts required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986 (the „Code„) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any amended or successor provisions), any regulations or agreements thereunder, official interpretations thereof, or any law implementing and intergovernmental approach thereto („FATCA Withholding„). The Issuer will have no obligation to pay additional amounts or otherwise indemnify an investor for any such FATCA Withholding deducted or withheld by the Issuer, any paying agent or any other party. | |
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(4) |
Other Tax Jurisdiction. If at any time the Issuer becomes subject to any taxing jurisdiction other than, or in addition to, the currently relevant taxing jurisdiction of the Issuer, references in this §[8][9] to the jurisdiction of the Issuer shall be read and construed as references to the jurisdiction of the Issuer and/or to such other jurisdiction(s). |
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§[9][10] PRESENTATION PERIOD, PRESCRIPTION
The presentation period provided for in section 801 paragraph 1, sentence 1 German Civil Code is reduced to ten years for the Notes. The period of limitation for claims under the Notes presented during the period for presentation will be two years calculated from the expiration of the relevant presentation period.
§[10][11] EVENTS OF DEFAULT
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Events of Default. [If an Event of Default occurs and is continuing, each Holder shall be entitled to declare due and payable by submitting a Termination Notice pursuant to paragraph (2) to the Issuer its entire claims arising from the Notes and demand (subject to paragraph (4) below) immediate redemption at the principal amount thereof together with unpaid interest accrued to (but excluding) the date of actual redemption.]Each of the following is an [“]Event of Default[”]: |
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| (a) | The Issuer fails to pay principal, interest or any other amounts due under the Notes [(including the Extension Fee (if any))] within 30 days from the relevant due date; or | |
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(b) |
the Issuer fails to duly perform[, or is otherwise in breach of, any covenant or undertaking or] any other material obligation arising from the Notes and such failure, if capable of remedy, continues unremedied for more than [90][45] days after the Issuer has received a written request thereof [in the manner set forth in paragraph (2) from a][from the Holders’ Representative (acting upon a Majority] Holder [Instruction)] to perform such obligation; or |
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(c) |
[(i) the Issuer, a Guarantor or a Material Group Member fails to pay principal or interest, fees or similar amounts due under] any Financial Indebtedness [(other than referred to in paragraph (a) above) at their specified maturity prior to the expiration of any grace period provided for in the agreement governing such Financial Indebtedness on the date of such default or (ii) any Financial Indebtedness (other than referred to in paragraph (a) above)] of the Issuer [, a Guarantor] or any Material [Subsidiary][Group Member] (other than under the Notes) becomes due and payable prior to its specified maturity (whether by declaration, automatic acceleration or otherwise) as a result of a termination right (howsoever described) due to a failure to comply with a payment obligation, provided that [, in each case of (i) and (ii),] the aggregate amount of [the relevant ]Financial Indebtedness [covered by (i) or (ii), as applicable,] amounts to at least [2 per cent. of the Total Assets as of the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published. For the avoidance of doubt,][EUR 15,000,000; provided that] this paragraph [(1)](c) shall not apply[,] where the Issuer[, Guarantor] or the relevant Material [Subsidiary][Group Member] contests in good faith that such payment obligation exists, is due or the requirements for the acceleration are satisfied; or |
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| (d) | the Issuer[, a Guarantor or a Material Group Member] announces its inability to meet its financial obligations or ceases its payments generally; or | |
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(e) |
insolvency proceedings against the Issuer[, a Guarantor or a Material Group Member] are instituted and have not been discharged or stayed within [90][75] days, or the Issuer[, a Guarantor or a Material Group Member] applies for or institutes such proceedings; or |
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(f) |
the Issuer[, a Guarantor or a Material Group Member] enters into liquidation unless this is done in connection with a merger or other form of amalgamation with another company or in connection with a corporate restructuring, and the other or the new company assumes all obligations of the Issuer [in connection with][, the relevant Guarantor or Material Group Member, as the case may be, under] the Notes[.] [Documents; or |
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| (g) | any security interest under the Security Documents ceases to be in full force and effect (other than in accordance with the terms of the Notes Documents or in connection with any insolvency proceeding or liquidation proceeding (whether on a solvent or insolvent basis) over any member of the DEMIRE XII Sub-Group, provided that with respect to DEMIRE Betriebsvorrichtungen Nr. 2 GmbH or Cielo BVO GmbH the foregoing shall only apply upon the occurrence of a DEMIRE XII Trigger Event, and except through the negligence or wilful misconduct of the Security Agent) with respect to Collateral individually or in the aggregate, having a fair market value in excess of EUR 5,000,000 for any reason other than the satisfaction in full of all obligations under these Terms and Conditions or the release of any such security interest in accordance with the terms of the Notes Documents or any such security interest created thereunder is declared invalid or unenforceable in a judicial proceeding or the Issuer, any Guarantor or any Material Group Member asserts in writing that such security interest is invalid or unenforceable and any such default continues for 10 Business Days; or | |
| (h) | any guarantee provided by any Guarantor under the Security Trust Agreement ceases to be in full force and effect (other than in accordance with the terms of the Security Trust Agreement and these Terms and Conditions) or is declared invalid or unenforceable in a judicial proceeding or any Guarantor and/or security grantor denies or disaffirms in writing its obligations under the Security Trust Agreement and any such default continues for 10 Business Days; or | |
| (i) | any party to the Security Trust Agreement or any Security Document (other than the Holders’ Representative and the Security Agent) fails to comply with the material provisions of, or does not perform its material obligations under such document (other than in connection with any insolvency proceeding or liquidation proceeding (whether on a solvent or insolvent basis) over any member of the DEMIRE XII Sub-Group, provided that with respect to DEMIRE Betriebsvorrichtungen Nr. 2 GmbH or Cielo BVO GmbH the foregoing shall only apply upon the occurrence of a DEMIRE XII Trigger Event), if such non-compliance is capable of remedy, it is not remedied within 30 days; or | |
| (j) | the Issuer or any member of the Group sells or transfers any Note previously purchased in accordance with § 13(2) and not cancelled that counts towards the reduction of the 2025 Bond Redemption Amount or the 2026 Bond Redemption Amount to any person which is not (x) a member of the Group and (y) a Subsidiary of LuxTopCo.] | |
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[(2) |
Termination Notices. Any notice by a Holder in accordance with paragraph (1)(b) or to terminate its Notes in accordance with this § 10 (a „ Termination Notice „) shall be made by means of a written declaration to the Issuer in the German or English language delivered by hand or mail together with evidence by means of a certificate of the Holder’s Custodian (as defined in § 17(4)) that such Holder, at the time of such Termination Notice, is a holder of the relevant Notes.] |
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([3][2]) |
Cure. For the avoidance of doubt, the right to declare Notes due in accordance with this § [10][11] shall terminate if the situation giving rise to it has been cured before the right is exercised and it shall be permissible to cure the Event of Default pursuant to paragraph) (1)(c) by repaying in full the relevant Financial Indebtedness. No event or circumstance other than an event specified in paragraph (1) shall entitle Holders [or the Holders’ Representative] to declare their Notes due and payable prior to their stated maturity, save as expressly provided for in these Terms and Conditions and subject to applicable mandatory law. |
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| [(3) | Termination. | |
| (a) | Comprehensive Termination . If an Event of Default (other than an Event of Default pursuant to paragraphs (1)(a), (1)(d), (1)(e), (1)(f) or (1)(j)) occurs and is continuing, the Holders’ Representative upon instruction of Holders of not less than 25% in principal amount of all outstanding Notes shall declare due and payable by written notice to the Issuer the entire claims arising from the Notes and demand immediate redemption at the Final Redemption Amount together with unpaid interest accrued until (but excluding) the Relevant Redemption Date on the Relevant Redemption Date. | |
| (b) | Individual Termination without Quorum . If an Event of Default pursuant to paragraphs (1)(a) or (1)(d), (1)(e), (1)(f), in each case with respect to the Issuer, or (1)(j) occurs and is continuing, each Holder shall be entitled to declare due and payable by written notice to the Issuer its entire claims arising from the Notes and demand immediate redemption at the Final Redemption Amount together with unpaid interest accrued until (but excluding) the Relevant Redemption Date on the Relevant Redemption Date. | |
| (c) | Individual Termination with Quorum. If an Event of Default pursuant to paragraphs (1)(d), (1)(e) or (1)(f) with respect to a Guarantor or a Material Group Member occurs and is continuing, each Holder shall be entitled to declare due and payable by written notice to the Issuer its entire claims arising from the Notes and demand immediate redemption at the Final Redemption Amount together with unpaid interest accrued until (but excluding) the Relevant Redemption Date on the Relevant Redemption Date, provided that any such notice declaring Notes due shall become effective only when the Issuer has received such notices from Holders representing at least 15 per cent of the aggregate principal amount of the Notes then outstanding. | |
| (d) | Ineffectiveness and Recission . Any termination under (a) through (c) above shall become ineffective if within three months the majority of the Holders so resolve in accordance with section 5 paragraph 5 of the SchVG. The resolution in relation to the ineffectiveness of a termination may be passed by simple majority of the voting rights, provided, however, that in any case there must be more Holders consenting to such resolution than Holders having terminated the Notes. Subject to paragraph (4) below, the Holders’ Representative shall be authorized to waive all past or existing Events of Default (except with respect to an event specified in paragraph (1)(a)) and rescind any termination with respect to the Notes and its consequences within three months of such termination (unless such Notes have already been redeemed at that time) if such rescission would not conflict with any judgment or decree of a court of competent jurisdiction, without the need to obtain a prior resolution of, or instruction from, Holders, provided that the Holders’ Representative obtained a Majority Holder Instruction as set forth in § 14(5)(c).] | |
| (4) |
[Quorum. In the events specified in paragraph (1)(b) to (f), any notice declaring Notes due shall become effective only when the Issuer has received such default notices from the Holders representing at least 15 per cent. of the aggregate principal amount of the Notes then outstanding. Any such termination shall become ineffective if within three months the majority of the Holders so resolve. The resolution in relation to the ineffectiveness of a termination may be passed by simple majority of the voting rights, provided, however, that in any case there must be more Holders consenting to such resolution than Holders having terminated the Notes.] |
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| [Other Remedies. If an Event of Default occurs and is continuing, the Holders‘ Representative may: | ||
| (a) | in its discretion proceed to protect and enforce the rights of the Holders by such appropriate judicial proceedings as the Holders‘ Representative deems most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in these Terms and Conditions or any other Notes Document or to support the exercise of any power granted herein, or to enforce any other proper remedy, including requiring an enforcement of Collateral or any payment under one or more of the Guarantees on behalf of the Holders, in each case subject to and in accordance with the Security Trust Agreement; and | |
| (b) | enforce all rights of action and claims under these Terms and Conditions or any other Notes Document without holding any of the Notes or the Global Notes or the production thereof in any proceedings relating thereto, and to bring any such proceedings on behalf of the Holders.] | |
§[11][12] COVENANTS
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(1) |
Limitations on the Incurrence of Financial Indebtedness. The Issuer [undertakes that it will not, and will procure that none of its Subsidiaries will, after the Issue Date][shall not, each Guarantor has undertaken under the Security Trust Agreement that it shall not, and the Issuer shall procure that no member of the Group will, for so long as any Notes are outstanding after the Amendment Date], [incur][Incur] any Financial Indebtedness (except for [Financial Indebtedness for refinancing existing Financial Indebtedness with an aggregate principal amount that is equal to or less than the aggregate principal amount of the refinanced Financial Indebtedness („Permitted] Refinancing Indebtedness[„)]) if, immediately after giving effect to the incurrence of such additional Financial Indebtedness (taking into account the application of the net proceeds of such incurrence)[,(a)] the ratio [(the „Net LTV Ratio“)] of (i) the sum of (x) the Consolidated Net Financial Indebtedness [of the Group] as of the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published and (y) the Net Financial Indebtedness [incurred][Incurred] since the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published to (ii) the sum of (without duplication) (x) the Total Assets as of the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published, (y) the purchase prices of any Real Estate Property (without any deductions for assumed Financial Indebtedness) acquired or contracted for acquisition since the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published and (z) the proceeds of any Financial Indebtedness [incurred][Incurred] since the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published (but only to the extent such proceeds were not used to acquire Real Estate Property or to reduce Financial Indebtedness) [(such ratio, with respect to any date, the „Loan-to-Value Ratio“ as of that date) ] would exceed [60][70] per cent.[; or] [For the avoidance of doubt, for purposes of making any calculations required under this paragraph (1) to determine the Net LTV Ratio and any of its components, any members of the Limes Sub-Group shall be excluded from the scope of consolidation and any increase of the Final Redemption Amount by the application of an Extension Fee (whether paid or payable in the future) shall be taken into account for the determination of the Consolidated Net Financial Indebtedness for this purpose.][(b) (i) the sum of (x) the Secured Financial Indebtedness as of the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published and (y) the New Secured Financial Indebtedness incurred since the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published would exceed 40 per cent. of (ii) the sum of (without duplication) (x) Total Assets as of the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published, (y) the purchase prices of any Real Estate Property (without any deductions for assumed Financial Indebtedness) acquired or contracted for acquisition since the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published and (z) the proceeds of any Financial Indebtedness incurred since the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published (but only to the extent such proceeds were not used to acquire Real Estate Property or to reduce Financial Indebtedness).] |
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(2) |
Maintenance of Interest Coverage Ratio. The Issuer undertakes that [from the Issue Date][on each Reporting Date] the ratio [(the „Interest Coverage Ratio“)] of (i) the aggregate amount of Consolidated EBITDA in the respective most recent four consecutive quarters ending prior to the Reporting Date for which Consolidated Financial Statements of the Issuer have been published to (ii) the aggregate amount of Net Cash Interest in the respective most recent four consecutive quarters ending prior to the Reporting Date for which Consolidated Financial Statements of the Issuer have been published will be not less than [(A) 1.75][1.50] to 1.00 [(for the period of time starting on the Issue Date and ending on 31 March 2021) and (B) 2.00 to 1.00 (after 31 March 2021)].[For the avoidance of doubt, for purposes of making any calculations required under of this paragraph (2) to determine the Interest Coverage Ratio and any of its components, members of the Limes Sub-Group shall be excluded from the scope of consolidation.] |
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(3) |
[Restricted Payments. The Issuer undertakes that it will not, and will procure that none of its Subsidiaries, make a Restricted Payment, unless: |
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(a) |
no Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; |
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(b) |
the Issuer would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least EUR 1.00 of additional Financial Indebtedness pursuant to § 11(1)(a); and |
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(c) |
such Restricted Payment, together with the aggregate amount of all Restricted Payments made by the Issuer and its Subsidiaries since 1 July 2017 in accordance with paragraphs (i), (ix), (xii), (xiii) and (xiv) of § 11(3)(d), is less than the sum, without duplication, of: |
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(i) |
50% of the Consolidated Net Income of the Issuer for the period (taken as one accounting period) from 1 July 2017 to the end of the Issuer’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus |
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(ii) |
100% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by the Issuer since the Issue Date as a contribution to its common equity capital or from the issue or sale of shares of common or preferred equity of the Issuer or from the issue or sale of convertible or exchangeable debt securities of the Issuer, in each case that have been converted into or exchanged for shares of common or preferred equity of the Issuer (other than shares of common or preferred equity or debt securities sold to a Subsidiary of the Issuer) or from the issuance or sale of Subordinated Shareholder Debt (other than an issuance or sale to a Subsidiary of the Issuer). |
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(d) |
Nothing in this § 11(3) shall prohibit: |
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(i) |
the payment of any dividend within 60 days after the date of its resolution if at such date of its resolution such payment would have complied with the provisions of these Terms and Conditions; |
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(ii) |
the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale or issuance (other than to a Subsidiary of the Issuer) of, shares of common or preferred equity of the Issuer, Subordinated Shareholder Debt or from the substantially concurrent contribution of common equity capital to the Issuer; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from § 11(3)(c)(ii); |
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(iii) |
the repurchase, redemption, defeasance or other acquisition or retirement for value of Financial Indebtedness of the Issuer that is contractually subordinated to the Notes with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; |
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(iv) |
the repurchase, redemption or other acquisition or retirement for value of any shares of common or preferred equity of the Issuer or any Subsidiary held by any current or former officer, director, employee or consultant of the Issuer or any of its Subsidiaries pursuant to any equity subscription agreement, stock option agreement, restricted stock grant, shareholders’ agreement or similar agreement up to a purchase price or other consideration paid not to exceed EUR 3,000,000 in any calendar year with unused amounts from such calendar year (but not including unused amounts from any prior calendar year) being available for use during the immediately succeeding calendar year; and provided, that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds from the sale of shares of common or preferred equity of the Issuer or a Subsidiary received by the Issuer or a Subsidiary during such calendar year, in each case to members of management, directors or consultants of the Issuer, any of its Subsidiaries or any direct or indirect holding company of the Issuer to the extent the cash proceeds from the sale of such share of common or preferred equity have not otherwise been applied to the making of Restricted Payments pursuant to § 11(3)(c)(ii) or clause (ii) above; |
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(v) |
the repurchase of shares of preferred or common equity deemed to occur upon the exercise of stock options to the extent such shares of preferred or common equity represent a portion of the exercise price of those stock options; |
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(vi) |
payments of cash, dividends, distributions, advances or other Restricted Payments by the Issuer or any of its Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares upon (A) the exercise of options or warrants or (B) the conversion or exchange of capital stock of any such Person; |
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(vii) |
advances or loans to (A) any future, present or former officer, director, employee or consultant of the Issuer or a Subsidiary to pay for the purchase or other acquisition for value of shares of preferred or common equity of the Issuer, or any obligation under a forward sale agreement, deferred purchase agreement or deferred payment arrangement pursuant to any management equity plan or stock option plan or any other management or employee benefit or incentive plan or other agreement or arrangement or (B) any management equity plan, employee benefit trust or stock option plan or any other management or employee benefit or incentive plan or unit trust or the trustees of any such plan or trust to pay for the purchase or other acquisition for value of shares of preferred or common equity of the Issuer, provided that the total aggregate Restricted Payments made under this clause (vii) do not exceed EUR 3,000,000 in any calendar year with unused amounts from such calendar year (but not including unused amounts from any prior calendar year) being available for use during the immediately succeeding calendar year; |
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(viii) |
the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Subsidiary to the holders of its shares of preferred or common equity (other than the Issuer or any Subsidiary) then entitled to participate in such dividends on a pro rata basis or otherwise in compliance with the terms of the instruments governing such shares of preferred or common equity; |
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(ix) |
so long as no Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the capital stock of the Issuer in an amount per annum not to exceed the greater of (A) 6% of the net cash proceeds received by the Issuer from a public offering of its shares of common or preferred equity and (B) 5% of the Market Capitalization, provided that, with respect to the foregoing sub-clause (B), after giving pro forma effect to any such dividend payments, the Loan-To-Value Ratio would not exceed 0.55 to 1.00; |
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(x) |
payments of guaranteed dividends or compensation payments, in each case legally required to be made to any shareholder (other than the Issuer or any of its Subsidiaries) of FVR-AG or any other Subsidiary in connection with the entering into any domination and/or profit and loss transfer agreement between the Issuer (or any Subsidiary) and FVR-AG or such other Subsidiary; |
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(xi) |
payments pursuant to any tax sharing agreement among the Issuer or any Subsidiary and any other Person with which the Issuer or any Subsidiary files or filed a consolidated tax return or with which the Issuer or any Subsidiary is or was part of a consolidated group for tax purposes; provided, however, that such payments shall not exceed the amount of tax that the Issuer or such Subsidiaries would owe on a stand-alone basis without taking into account such other Person; |
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(xii) |
so long as no Event of Default has occurred and is continuing, any Restricted Payment, provided that after giving pro forma effect to such Restricted Payment the Loan-To-Value Ratio would not exceed 0.50 to 1.00; |
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(xiii) |
so long as no Event of Default has occurred and is continuing or would be caused thereby, dividends or distributions by the Issuer in an amount not to exceed 2 per cent. of Total Assets in any calendar year with unused amounts from such calendar year (but not including unused amounts from any prior calendar year) being available for use during the immediately succeeding calendar year; or |
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(xiv) |
so long as no Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount not to exceed EUR 15,000,000 since the Issue Date. |
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(e) |
From the Investment Grade Status Commencement Date, if any, until the Investment Grade Status End Date, if any, the restriction pursuant to this § 11(3) shall be suspended (and the Issuer and its Subsidiaries shall have no obligation with respect thereto). Such requirement and restriction will again apply according to its terms from the Investment Grade Status End Date, if any, provided that, where such covenant applies again following an Investment Grade Status End Date, this § 11(3) will be interpreted as if it has been in effect since the Issue Date and prior to the Investment Grade Status Commencement Date (but not during the period from the Investment Grade Status Commencement Date until the Investment Grade Status End Date). Accordingly, Restricted Payments made during the period from the Investment Grade Status Commencement Date until the Investment Grade Status End Date will not reduce the amount available to be made as Restricted Payments under this § 11(3).] |
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| [Limitation on Distributions and Payments. The Issuer shall not, each Guarantor has undertaken under the Security Trust Agreement that it shall not, and the Issuer shall procure that no member of the Group will for so long as any Notes are outstanding (i) declare or pay any dividend or make any other payment or distribution on account of the Issuer’s shares or the shares of any other member of the Group (including, without limitation, any payment in connection with any merger or consolidation involving the Issuer or any of the aforementioned entities) or to the direct or indirect holders of the Issuer’s or any other Group member’s shares in their capacity as such (other than (A) dividends or distributions payable in shares of the Issuer, (B) dividends or distributions payable to the Issuer or another member of the Group other than any member of the Group that is not the Issuer and not a Subsidiary of LuxTopCo, and (C) dividends or other distributions by a member of the Group that is not a wholly-owned Subsidiary to the other shareholders (or owners of an equivalent interest in the case of a member of the Group that is an entity other than a corporation) on no more than a pro rata basis, measured by value, (D) dividends or distributions payable by the Issuer to its direct or indirect shareholders as foreseen under applicable corporate law requirements, including, without limitation, section 254 (1) of the German Stock Corporation Act (Aktiengesetz) and (E) payment of (external) costs and expenses incurred by Apollo in connection with the amendment of the Notes on the Amendment Date and the extension of any Subordinated Shareholder Debt (the „Apollo Transaction Costs“) up to an amount equal to any amount provided by Apollo to the Issuer as Subordinated Shareholder Debt for the sole purpose of payment of Apollo Transaction Costs by the Issuer); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Issuer) any shares of common or preferred equity of the Issuer or any direct or indirect holding company of the Issuer, or (iii) make any payment (except through capitalization) on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Shareholder Debt.] | |||
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(4) |
Limitation on Sale of Certain Assets. The Issuer shall not, [and shall not cause or permit any of its Subsidiaries to][each Guarantor has undertaken under the Security Trust Agreement that it shall not, and the Issuer shall procure that no member of the Group will, so long as any Notes are outstanding], directly or indirectly, consummate [an][any] Asset Sale unless: |
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(a) |
the Issuer (or the [Subsidiary][member of the Group], as the case may be) receives consideration at the time of the Asset Sale [in an amount] at least equal to the fair market value (determined at the time of contracting such Asset Sale) of the assets or shares of preferred or common equity issued or sold or otherwise disposed of; and |
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(b) |
at least [75][90] per cent. of the consideration received in the Asset Sale by the Issuer or such [Subsidiary][member of the Group, as the case may be,] is in the form of cash [or cash equivalents.][; and] |
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[For purposes of this provision, each of the following will be deemed to be cash: |
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(i) |
any liabilities, as recorded on the balance sheet of the Issuer or any Subsidiary (other than contingent liabilities), that are assumed by the transferee of any such assets and as a result of which the Issuer and its Subsidiaries are no longer obligated with respect to such liabilities or are indemnified against further liabilities; |
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(ii) |
any securities, notes or other obligations received by the Issuer or any such Subsidiary from such transferee that are converted by the Issuer or such Subsidiary into cash or cash equivalents within 90 days following the closing of the Asset Sale, to the extent of the cash or cash equivalents received in that conversion; |
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(iii) |
any capital stock or assets of the kind referred to in clauses § 11(4)(d) or (f); |
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(iv) |
Financial Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each Subsidiary are released from any guarantee of such Financial Indebtedness in connection with such Asset Sale; |
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(v) |
consideration consisting of Financial Indebtedness of the Issuer or any Subsidiary received from Persons who are not the Issuer or any Subsidiary that is cancelled; and |
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(vi) |
any Designated Non-Cash Consideration received by the Issuer or any of its Subsidiaries in such Asset Sales having an aggregate fair market value, when taken together with all other Designated Non-Cash Consideration received pursuant to this clause (vi) that is at that time outstanding, not to exceed the greater of EUR 30,000,000 and 2.0 per cent. of Total Assets, measured at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). |
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Within 365 days after the receipt of any net proceeds from an Asset Sale, the Issuer (or the applicable Subsidiary, as the case may be) may apply such net proceeds (at the option of the Issuer or such Subsidiary): |
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(c) |
to repay, repurchase, prepay or redeem (i) Financial Indebtedness of the Issuer or any Subsidiary that is secured by a Lien or any other security interest; (ii) the Notes pursuant to an offer to all Holders at a purchase price equal to 100% of the principal amount, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase (a Notes Offer); or (iii) pari passu Financial Indebtedness so long as the Issuer or such Subsidiary makes a Notes Offer on a pro rata basis; |
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(d) |
to acquire all or substantially all of the assets of, or a majority interest in the capital stock of, another Permitted Business; |
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(e) |
to make a capital expenditure; |
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(f) |
to acquire other assets (other than capital stock) not classified as current assets under IFRS that are used or useful in a Permitted Business; |
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(g) |
enter into a binding commitment to apply the net proceeds from such Asset Sale pursuant to clauses (d), (e) or (f) of this § 11(4); provided that such commitment shall be treated as a permitted application of such net proceeds from the date of such commitment until the earlier of (i) the date on which such acquisition or expenditure is consummated, and (ii) the date falling 180 days after the expiration of the aforementioned 365 day period; or |
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(h) |
any combination of the foregoing. |
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Pending the final application of any net proceeds from an Asset Sale, the Issuer (or the applicable Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest such net proceeds in any manner that is not prohibited by these Terms and Conditions. |
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Any net proceeds from Asset Sales that are not applied or invested as provided for in § 11(4) shall constitute „ Excess Proceeds „. When the aggregate amount of Excess Proceeds exceeds EUR 35,000,000, within ten Business Days thereof, or at any earlier time at the Issuer’s election, the Issuer will make an offer (an „ Asset Sale Offer „) to all Holders and may, to the extent the Issuer so elects, make an offer to holders of other Financial Indebtedness that is pari passu with the Notes to purchase, prepay or redeem with the proceeds of sales of assets the maximum principal amount of Notes and such other pari passu Financial Indebtedness (plus all accrued interest on the Financial Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to (solely in the case of the Notes) 100 per cent. of the principal amount and (solely in the case of any other pari passu Financial Indebtedness) no greater than 100 per cent. of the principal amount, in each case, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer and its Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by these Terms and Conditions. If the aggregate principal amount of Notes and other pari passu Financial Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer that is an application of the net proceeds from an Asset Sale pursuant to § 11(4)(c) exceeds the amount of the net proceeds so applied, the Issuer will select the Notes and such other pari passu Financial Indebtedness, if applicable, to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.] |
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| [(c) | if such Asset Sale related to Real Estate Property the Issuer (or the member of the Group, as the case may be) has conducted a sale process on a best efforts basis in accordance with the applicable provisions for such sale under § 3(4) above. | ||
| For purposes of this provision, any financial liabilities, as recorded on the (unconsolidated) balance sheet of the Issuer or any other member of the Group, (other than contingent liabilities), that are assumed by the transferee of any such assets or any other person as consideration for the transfer and as a result of which the Issuer and the member of the Group are no longer obligated with respect to such financial liabilities, or are otherwise discharged or indemnified against further financial liabilities, shall be deemed to be cash.] | |||
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(5) |
Restriction on Transactions with Affiliates. The Issuer shall not, [and shall not cause or permit any of its Subsidiaries to, make any payment to or sell, lease,][each Guarantor has undertaken under the Security Trust Agreement that it shall not, and the Issuer will procure that no member of the Group will, for so long as any Notes are outstanding, sell,] transfer or otherwise dispose of any of its properties or assets [(including shares or interests in any Subsidiary or Participation)] to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, [(i)] any Affiliate of [the Issuer other than a member of the Group or (ii) any Permitted Holder, unless such Permitted Holder no longer, directly or indirectly, through itself or through Affiliates, holds any share in the Issuer or otherwise controls] the Issuer (each, an [„]Affiliate Transaction[„])[involving aggregate payments or consideration in excess of EUR 5,000,000], unless: |
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| [(a) | in case such Affiliate Transaction relates to the sale, lease, transfer or other disposition of Real Estate Property, provided that the shares or common equity of such member of the Group (or the shares or common equity of any direct or indirect holding company of such member of the Group) are part of and subject to the Collateral (such transaction, an “Affiliate Real Estate Transaction”), the Issuer has demonstrated that: | ||
| (i) | at least 90 per cent of the consideration received by the Issuer or the member of the Group, as the case may be, is in the form of cash; | ||
| (ii) | the Issuer (or the member of the Group, as the case may be) has conducted a sale process on a best efforts basis in accordance with the applicable provisions for such sale under § 3(4) above, provided that such sale process on a best efforts basis must have included a fair value test with not more than 5 per cent discount on the book value (according to the books and records of the Issuer used for the most recent financial information published by it) of such relevant Real Estate Property) which has not yielded any executable offers by any third parties; and | ||
| (iii) | such Affiliate Real Estate Transaction has been unanimously approved by the supervisory board ( Aufsichtsrat ) of the Issuer; or | ||
| (b) | in case of any Affiliate Transaction (other than an Affiliate Real Estate Transaction): | ||
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(i)][(a) the][such] Affiliate Transaction is on terms that are no less favorable to the Issuer [or][,] the relevant [Subsidiary][member of the Group, as the case may be,] than those that would have been obtained in a comparable transaction by the Issuer or such [Subsidiary][member of the Group, as the case may be,] with an unrelated Person; and |
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[(ii)][(b)] with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate [payments or] consideration in excess of EUR [10.000.000][5,000,000], the Issuer has passed [by unanimous vote] a resolution of its management board (Vorstand) [and its supervisory board (Aufsichtsrat)] resolving that such Affiliate Transaction complies with this § [11][12](5) [and that such Affiliate Transaction has been approved by a majority of the disinterested members of the management board of the Issuer]. |
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(c) |
The restrictions set out in paragraph[s (a) and] (b) above do not apply to: |
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[(i) |
any employment agreement, collective bargaining agreement, consultant, employee benefit arrangements with any employee, consultant, officer or director of the Issuer or any Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into in the ordinary course of business;] |
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([ii][i]) |
transactions between or among [members of] the [Issuer and/or its Subsidiaries][Group]; |
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[(iii) |
transactions with a Person that is an Affiliate of the Issuer solely because the Issuer owns, directly or through a Subsidiary, an equity interest in, or controls, such Person; |
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(iv) |
payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors, employees or consultants of the Issuer or any of its Subsidiaries;] |
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([v][ii]) |
any issuance of shares of common or preferred equity of the Issuer to Affiliates of the Issuer;[ and] |
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[(vi) |
any Restricted Payment that is permitted pursuant to § 11(3) of these Terms and Conditions;] |
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([vii][iii]) |
the incurrence [ or amendment ]of any Subordinated Shareholder Debt [;] [ . ] |
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[(viii) |
loans or advances not exceeding in aggregate outstanding amount EUR 1,000,000, and in each case made to, or guarantees with respect to loans or advances made to, directors, officers or employees of the Issuer or any Subsidiary: (A) in respect of travel, entertainment or moving related expenses incurred in the ordinary course of business; (B) in respect of moving related expenses incurred in connection with any closing or consolidation of any facility or office; or (C) in the ordinary course of business; and |
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(ix) |
transactions with customers, clients, suppliers, or purchasers or sellers of goods or services or providers of employees or other labor (including, without limitation, with respect to the management, development, maintenance or refurbishment of real property and other related services), in each case in the ordinary course of business and otherwise in compliance with the terms of these Terms and Conditions that are fair to the Issuer or the Subsidiaries, in the reasonable determination of the members of the management board of the Issuer or the senior management thereof, or are on terms at least as favorable to the Issuer and its Subsidiaries as might reasonably have been obtained at such time from an unaffiliated Person.] |
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| [(d) | For purposes of this § 12(5), any financial liabilities, as recorded on the (unconsolidated) balance sheet of the Issuer or any other member of the Group (other than contingent liabilities), that are assumed by the transferee of any such assets or any other person as consideration for the transfer and as a result of which the Issuer and the member of the Group are no longer obligated with respect to such financial liabilities or are otherwise discharged or indemnified against further liabilities shall be deemed to be cash.] | ||
| (6) | Reports. | ||
| [(a)] | For so long as any Notes are outstanding, the Issuer shall post on its website: | ||
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[(i)][(a)] within 120 days after the end of each of the Issuer’s fiscal years, [an] annual report[s] containing its audited [unconsolidated and] consolidated financial statements [(the latter] in accordance with IFRS as adopted by the EU and the management report in accordance with section 315 of the German Commercial Code (or its successor provisions from time to time)[)] providing for[, as applicable, (A)] substantially the same information package as the most recently published annual reports[;] [and including reporting of the Net LTV Ratio and the Interest Coverage Ratio as defined in and calculated in accordance with these Terms and Conditions, (B) the current status and progress of disposals with respect to assets held for sale of the Issuer or any other member of the Group (on a cumulative and anonymized basis), and (C) the weighted average lease term (WALT) (calculated on a consistent basis with the Issuer’s annual report as of and for the financial year ending 31 December 2023), for the “top 20” properties of the Group;] |
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[(ii)][(b)] within 60 days after the end of each of the first three fiscal quarters in each fiscal year of the Issuer, unaudited condensed consolidated interim financial statements in accordance with IFRS as adopted by the EU on interim financial reporting (IAS 34) or a quarterly statement in accordance with the requirements of the Frankfurt Stock Exchange and which shall provide for [(A)] substantially the same information package as the most recently published interim financial statements[;] and [including reporting of the Net LTV Ratio and the Interest Coverage Ratio as defined in and calculated in accordance with these Terms and Conditions, (B) the current status and progress of disposals with respect to assets held for sale of the Issuer or any other member of the Group (on a cumulative and anonymized basis), and (C) the weighted average lease term (WALT) (calculated on a consistent basis with the Issuer’s annual report as of and for the financial year ending 31 December 2023) for the “top 20” properties of the Group; and |
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(iii)][(c)] promptly after the occurrence of any material acquisition, disposition or restructuring of the Issuer and the Subsidiaries, taken as a whole, or any senior executive officer changes at the Issuer or change in auditors of the Issuer or any other material event that the Issuer announces publicly, a report [or other notification] containing a description of such event. |
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[(b)] |
The Issuer shall [use its commercially reasonable efforts to], within 15 Business Days after the delivery of each report referred to in [clauses (a)][paragraph (a)(i)] and [(b)][(a)(ii)] above, conduct a conference call [(including the opportunity for Holders to pose questions to the management board of the Issuer during such call)] to discuss such report and the results of operation for the relevant reporting period. |
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| [(7) | Limitation on Acquisitions . The Issuer shall not, each Guarantor has undertaken under the Security Trust Agreement that it shall not, and the Issuer shall procure that no other member of the Group will, for so long as any Notes are outstanding, after the Amendment Date, acquire directly or indirectly any new properties (whether by way of an asset or share deal), unless: | ||
| (a) | any such properties are held by and acquired from a third party which is not an Affiliate of the Issuer (other than any member of the Group) or a Permitted Holder; | ||
| (b) | other than for any acquisitions from any member of the Group, the purchase price of any such acquisition does not exceed the fair market value of such property which (A) shall be confirmed through an officer’s certificate of the Issuer and (B) in the event that the purchase price of such acquisition exceeds EUR 5,000,000, shall be certified by a reputable independent valuer, in each case, any such confirmation and certification, as the case may be, either to be published on the website of the Issuer or to be delivered to the Holders in accordance with § 15 without undue delay following the consummation of such acquisition; and | ||
| (c) | other than for any acquisitions from any member of the Group, either (A) at the date of committing to such acquisition the outstanding aggregate principal amount of the Notes not held by the Issuer or any of its Subsidiaries is less than EUR 150,000,000, (B) the purchase price is fully funded by way of an equity contribution made, or Subordinated Shareholder Debt provided, by any shareholder of the Issuer after the Amendment Date for such purpose or (C) the acquisition relates to Permitted Acquisition Properties, provided that the aggregate purchase price for such Permitted Acquisition Properties must not exceed EUR 40,000,000. | ||
| „Permitted Acquisition Properties“ means any Real Estate Property (including any buildings situated thereon) which | |||
| (i) | is an existing commercial Real Estate Property and not a development asset; | ||
| (ii) | is located in a German „A-City“ or a „B-City“ as per the classification of German cities issued by bulwiengesa AG from time to time; | ||
| (iii) | has existing lease agreements with a weighted average lease term ( WALT ) at the time of acquisition of at least the weighted average lease term ( WALT )of the Issuer published by the Issuer in its latest financial statements (calculated on a consistent basis with the Issuer’s annual report as of and for the financial year ending 31 December 2023); | ||
| (iv) | has a vacancy rate of less than 5% based on the EPRA Vacancy Rate methodology; | ||
| (v) | requires a maximum 1.5% of the total purchase price in capital expenditure spending per annum (including any capital expenditure backlog as per the projections of the Issuer at the time of acquisition based on commercially reasonable assumptions and made in good faith); and | ||
| (vi) | is an ESG-compliant Real Estate Property with an energy efficiency class of at least „B“, based on the frameworks of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (recast) as will be repealed by Directive (EU) 2024/1275 of the European Parliament and of the Council of 24 April 2024 on the energy performance of buildings (recast), in each case as amended from time to time and implemented in Germany. | ||
| (8) | Merger or Sale of Assets . The Issuer will not: | ||
| (a) | directly or indirectly consolidate or merge with or into another Person (whether or not the Issuer is the surviving corporation); or | ||
| (b) | sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries, taken as a whole, in either case, in one or more related transactions, to another Person. | ||
| (9) | Holding Structure and Limitation on Holding Activities . | ||
| (a) | From (including) and following the Amendment Date, the Issuer shall: | ||
| (i) | directly hold and maintain 100% of the shares in LuxTopCo GP; | ||
| (ii) | ensure that the Issuer and LuxTopCo GP shall be and remain the sole partners of LuxTopCo with LuxTopCo GP being the sole general partner of LuxTopCo and directly holding and maintaining a nominal interest equal to 0.01% and the remaining interest (i.e. 99.99%) in LuxTopCo being directly held and maintained by the Issuer; | ||
| (iii) | ensure that LuxTopCo directly holds and maintains 100% of the shares in each of the LuxInterCo GPs; | ||
| (iv) | ensure that LuxTopCo and the respective LuxInterCo GPs shall be and remain the sole partners of the LuxInterCos with the respective LuxInterCo GP being the sole general partner of the respective LuxInterCo and directly holding and maintaining a nominal interest equal to 0.01% and the remaining interest (i.e. 99.99%) being directly held and maintained by LuxTopCo; and | ||
| (v) | ensure that each PropCo Holding, each other member of the Group which is a direct or indirect Subsidiary of a LuxInterCo and, from (and including) the point in time at which a Deferred Entity has become a direct or indirect Subsidiary of a LuxInterCo, each such Deferred Entity is and remains a direct or indirect Subsidiary of a LuxInterCo, unless such member of the Group is subject to a transaction not prohibited by these Terms and Conditions. | ||
| (b) | From (including) and following the Amendment Date, the Issuer will ensure that LuxTopCo, LuxTopCo GP, each LuxInterCo, each LuxInterCo GP, each PropCo Holding and each FVR-KG will not engage in any business activity or undertake any other activity, own any assets or incur any liability except for Holding Company Activities. | ||
| “Holding Company Activities” means, with respect to any Person, (i) any activity reasonably relating to the incurrence, sale, servicing, purchase, redemption, refinancing or discharge of any Financial Indebtedness not prohibited by the terms of these Terms and Conditions; (ii) any activity undertaken with the purpose of fulfilling any other obligations under these Terms and Conditions, other Financial Indebtedness not prohibited by the terms of these Terms and Conditions, any security document to which it is a party in accordance with these Terms and Conditions or the Security Trust Agreement; (iii) any activity involving the provision of administrative services (including, for the avoidance of doubt, the granting of loans or any other form of financings not prohibited under these Terms and Conditions) to any member of the Group; (iv) the delivery of services to such Person, any of its direct or indirect Subsidiaries or any of its direct or indirect holding companies (including IT services and general business services (including management, corporate accounting, controlling, finance, tax, legal and quality services and internal audits)) customarily provided or obtained by a holding company; (v) acting as an in-house bank entity for such Person and its direct or indirect Subsidiaries other than a member of the Limes Sub-Group, including the granting of loans to, providing and arranging hedging for or borrowing from, or providing guarantees for obligations of, direct or indirect Subsidiaries of such Person; (vi) the purchase of, the subscription for, and the ownership of shares in its direct or indirect Subsidiaries, intra-group debit balances, intra-group credit balances and other credit balances in bank accounts, the making of payments and the holding or making of investments not prohibited by § 12(3) and (5); (vii) relating to the granting of any security interest not prohibited by § 4 (viii) the incurrence and payment of professional fees and administration costs; (ix) all other activities necessary or expedient to perform the functions of a holding company; (x) anything required in order to maintain a permanent establishment ( Betriebsstätte ) for German tax purposes (or similar concepts for purposes of tax laws in the Grand Duchy of Luxembourg and other applicable jurisdictions) in relation to such Person, any of its direct or indirect Subsidiaries or any of its direct or indirect holding companies; (xi) any other activities that are related, incidental or ancillary to any of the foregoing clauses (i) to (x) and the ownership of assets required therefor; and (xii) other activities and assets not specifically enumerated above that are de minimis in nature. | |||
| (c) | From (including) the Amendment Date, the Issuer shall ensure that no direct or indirect Subsidiary of LuxTopCo will, and each Guarantor has undertaken under the Security Trust Agreement so long as any Notes are outstanding that it shall not, sell, transfer or otherwise dispose of any assets to any Subsidiary of the Issuer which is not a LuxInterCo or a direct or indirect Subsidiary of a LuxInterCo. | ||
| (10) | Maintenance of COMI . From (and including) the Amendment Date, the Issuer shall procure that neither LuxTopCo, nor LuxTopCo GP, nor any LuxInterCo, nor any LuxInterCo GP will permit: | ||
| (a) | its „centre of main interest“ (as that term is used in Article 3(1) of the European Insolvency Regulation) to be in any jurisdiction other than its jurisdiction of incorporation or formation; and | ||
| (b) | to exist an „establishment“ (as that term is defined in Article 2(10) of the European Insolvency Regulations) in any jurisdiction other than its jurisdiction of incorporation or formation. | ||
| (11) | Maintenance of Listing . For so long as the Notes are outstanding, the Issuer shall use best efforts to obtain and maintain the admission of the Notes to the official list of the Luxembourg Stock Exchange and the inclusion in trading of the Notes on the Euro MTF market operated by the Luxembourg Stock Exchange. If maintenance of such admission and inclusion in trading becomes in the opinion of the Issuer unduly onerous, the Issuer shall use best efforts to obtain and maintain a listing and/or inclusion in trading of the Notes on another suitable securities market. | ||
| (12) | Second Rating. Following the Amendment Date, the Issuer shall use its commercially reasonable efforts to obtain a second rating with respect to the Notes by another Rating Agency. | ||
| (13) | Acknowledgment of Control Limitations . | ||
| (a) | To the extent the Issuer undertakes under these Terms and Conditions to procure compliance by any member of the FVR-Group with any covenant or obligation under these Terms and Conditions or where any term of these Terms and Conditions is expressed directly or indirectly to apply to any member of the FVR-Group, such term, undertaking or requirement will be subject to all limitations and restrictions on the influence the Issuer may exercise as a shareholder of FVR-AG and its Subsidiaries (or the access it has to the relevant information in its capacity as shareholder of FVR-AG and its Subsidiaries, as applicable) in accordance with mandatory German corporate law but without any obligation to compensate or to offer any compensation in accordance with the German Stock Corporation Act ( Aktiengesetz ) (including, but not limited to, sections 311 et seq. of the German Stock Corporation Act) ( Aktiengesetz ) (and, for the avoidance of doubt, no breach of any such term, undertaking or requirement, and no Event of Default, shall occur if having exercised all such influence, the relevant term, undertaking or requirement is nevertheless breached). | ||
| (b) | To the extent the Issuer undertakes under these Terms and Conditions to procure compliance by DEMIRE Holding XII GmbH, DEMIRE Betriebsvorrichtungen Nr. 2 GmbH or Cielo BVO GmbH (together, the „DEMIRE XII Sub-Group“) with any covenant or obligation under these Terms and Conditions or where any term of these Terms and Conditions is expressed directly or indirectly to apply to any member of the DEMIRE XII Sub-Group (including, but not limited to, any requirement to provide or maintain security interests by or over such member of the DEMIRE XII Sub-Group), such term, undertaking or requirement will: | ||
| (i) | be suspended, and cease to have any further effect, upon DEMIRE Holding XII GmbH entering into (preliminary) insolvency proceedings (upon a filing by the debtor or the institution of (preliminary) insolvency proceedings) or liquidation proceedings (whether on a solvent or insolvent basis), including the competent court rejecting the institution of insolvency proceedings over DEMIRE Holding XII GmbH pursuant to lack of assets ( Abweisung mangels Masse ); and | ||
| (ii) | be subject to all limitations and restrictions on the influence the Issuer may exercise as a shareholder of members of the DEMIRE XII Sub-Group and on the authority of the directors of the members of the DEMIRE XII Sub-Group resulting from mandatory German insolvency law, | ||
| and, for the avoidance of doubt, no breach of any term, undertaking or requirement in these Terms and Conditions, and no Event of Default, shall occur if the relevant term, undertaking or requirement is breached (directly or indirectly) due to the circumstances and limitations set forth in this paragraph. | |||
| (14) | Permitted Conversion and Reorganization . The Issuer shall, without the consent of the Holders, at any time, only be permitted to: | ||
| (a) | convert into a limited liability company ( Gesellschaft mit beschränkter Haftung ), by way of (i) conversion pursuant to the German Transformation Act ( Umwandlungsgesetz ), (ii) contribution of shares in the Issuer or assets and liabilities of the Issuer into a limited liability company ( Gesellschaft mit beschränkter Haftung ) or (iii) otherwise by way of similar measures permitted under German law; | ||
| (b) | participate in a demand to transfer all shares in the Issuer (i) that are held by minority shareholders of the Issuer to the requesting majority shareholder of the Issuer in exchange for granting of adequate cash compensation if the requesting majority shareholder holds the number of shares in the Issuer required to demand such squeeze-out pursuant to Sections 327a et seqq. Stock Corporation Act ( Aktiengesetz ) (squeeze-out under stock corporation law) and is a Permitted Holder or is directly or indirectly controlled by one or more Permitted Holders, or (ii) in an upstream merger of the Issuer with a majority shareholder of the Issuer squeezing out minority shareholders of the Issuer against an adequate cash compensation if the majority shareholder and surviving entity of such upstream merger holds the number of shares in the Issuer required to implement such squeeze-out pursuant to Sections 62 para. 5 of the German Transformation Act ( Umwandlungsgesetz ), 327a et seqq. AktG (squeeze-out under transformation law) and is a Permitted Holder or is directly or indirectly controlled by one or more Permitted Holders and provided that the surviving entity has no other liabilities in addition to the liabilities of the Issuer prior to the consummation of such squeeze out (in each case a „Squeeze-Out“); and | ||
| (c) | apply for the revocation of the admission of all shares in the Issuer to trading on the regulated market ( Regulierter Markt ) of the Frankfurt Stock Exchange ( Frankfurter Wertpapierbörse ) in accordance with relevant laws and regulations, | ||
| if, in each case, the following requirements are met: | |||
| (i) | the Issuer has delivered prior written notice to the Holder Representative (not less than five (5) Business Days prior to the consummation of such transaction); | ||
| (ii) | it is ensured that the Issuer is indemnified against all losses, damages and other liabilities (including but not limited to, real estate transfer tax ( Grunderwerbsteuer ) or other tax liabilities) arising therefrom; | ||
| (iii) | the Issuer has delivered to the Holders’ Representative for delivery to the Holders an officer’s certificate certifying that its claim for indemnification referred to under (ii) above is fully valuable ( voll werthaltig ); | ||
| (iv) | the Issuer is reimbursed for any costs and expenses in full that arise or may arise from or in connection with any of the measures (save for an amount of up to EUR 150,000 for each measure which may be borne by the Issuer); and | ||
| (v) | the Issuer has delivered to the Holders’ Representative for delivery to the Holders an officer’s certificate prior to implementation certifying that the contemplated transaction will not result in a release of security interests over the Collateral or otherwise adversely affect the validity or enforceability of the security interests over the Collateral (taking into account, if required, a confirmation of security interests); | ||
| and provided further, that in case of a Squeeze-Out the following additional requirements are met: | |||
| (A) | the Squeeze-Out is consummated on a solvent basis (as determined by an officer or the management board of the Issuer in good faith and confirmed by an officer’s certificate); | ||
| (B) | no Event of Default exists at the time of the Squeeze-Out; | ||
| (C) | the Issuer has delivered to the Holders’ Representative for delivery to the Holders an officer’s certificate prior to implementation certifying that the contemplated Squeeze-Out cannot reasonably be expected (having made reasonable inquiries with the relevant Rating Agencies) to result in, the loss of the rating of the Notes, or a rating for the Notes being materially more difficult to obtain, or result in a downgrade of any rating for the Notes existing at the time. | ||
| In the event of any conflict between any other provisions of these Terms and Conditions and this § 12(14), this § 12(14) shall prevail, and, for the avoidance of doubt, shall not otherwise (i) waive any other provision of these Terms and Conditions or (ii) limit, impair or otherwise affect the rights and remedies of the Holders under these Terms and Conditions. | |||
| (15) | Undertakings in relation to the Limes Sub-Group. | ||
| (a) | Any rights or obligations of the Issuer or any of its Subsidiaries with respect to the Limes Sub-Group shall exclusively be governed by this § 12(15) and in case of any conflict between this § 12(15) and any other provision of the Terms and Conditions, this § 12(15) shall prevail. | ||
| (b) | Notwithstanding anything to the contrary in these Terms and Conditions, the Issuer shall not, each Guarantor has undertaken under the Security Trust Agreement that it shall not, and the Issuer shall procure that (x) none of the other members of the Group and DEMIRE Holding XII GmbH will, for so long as any Notes are outstanding, provide, renew, extend (including under agreements existing as of the Amendment Date) or replace (A) any loan, other financial support or otherwise make available funds to, and/or (B) any guarantee, security interest or any counter-indemnity obligation in respect of Financial Indebtedness or other liabilities or obligations of, any (other) member of the Limes Sub-Group, and (y) neither any member of the Limes Sub-Group nor DEMIRE Betriebsvorrichtungen Nr. 2 GmbH or Cielo BVO GmbH may participate in any cash pool operated within the Group. The Issuer shall, each Guarantor has undertaken under the Security Trust Agreement that it shall, and the Issuer shall procure that any Subsidiary (other than any member of the Limes Sub-Group or the DEMIRE XII Sub-Group, which is subject to insolvency proceedings at that time) will ensure that, no new acquisition of Real Estate Properties (either directly or through entities holding such Real Estate Property) will be made by any member of the Limes Sub-Group or the DEMIRE XII Sub-Group. | ||
| With respect to any assets of DEMIRE Holding XII GmbH other than any shareholding or participation in a Limes PropCo, the provisions of these Terms and Conditions relating or applicable to or governing members of the Group or assets held by a member of the Group shall apply to DEMIRE Holding XII GmbH mutatis mutandis , unless a DEMIRE XII Trigger Event occurred. | |||
| (c) | The Issuer shall, each Guarantor has undertaken under the Security Trust Agreement that it shall, and the Issuer shall procure that any Subsidiary (other than any member of the Limes Sub-Group, which is subject to insolvency proceedings at that time) will ensure that, in respect of any investment in, or sale or transfer of, any Limes PropCo or any asset held by any Limes PropCos, or any other transaction having a commercially equivalent effect, in each case entered into directly with or indirectly benefitting a Permitted Holder (such transaction, a “Limes Transaction”), the relevant Subsidiary may not enter into or consummate such transaction unless it is agreed in writing with the relevant Permitted Holder and a copy of such agreement has been delivered to the Holders’ Representative for delivery to the Holders (i) that one member of the Group being a LuxInterCo or any of its Subsidiaries which are a member of the Group (other than (x) a LuxInterCo which holds (directly or indirectly) any shares in DEMIRE Holding XIII GmbH, (y) DEMIRE Holding XIII GmbH, or (z) a Subsidiary of DEMIRE Holding XIII GmbH) shall be entitled to any Limes Excess Claim including by way of assignment of the Limes Excess Claim by the relevant Subsidiary and (ii) the relevant Permitted Holder undertakes for the benefit of the relevant member of the Group that, when entering into or consummating any subsequent transaction (including, without limitation, a further sale or transfer) with respect to the object of the relevant Limes Transaction, the entity directly acquiring, or investing in, the relevant Limes PropCo, shall act in its own best interest in accordance with prudent business practice. Any transfer of shares in any Limes PropCo to any direct or indirect Subsidiary of LuxTopCo shall as such not constitute a Limes Transaction. | ||
| “Limes Excess Claim” means | |||
| (i) | if no Limes Transaction occurred with respect to a Limes PropCo, any claim of its direct or indirect holding companies to any assets or other value of such Limes PropCo, irrespective of whether such claim is based on contractual arrangements, statutory law, shareholder resolutions or any other equity, debt or debt-like interest and, in particular, including any claims for distribution of profits or liquidation proceeds, | ||
| (ii) | if a Limes Transaction occurred with respect to a Limes PropCo, any claim to any assets or other value of such Limes PropCo which upon the occurrence of a Liquidity Event may exceed the capital invested by a Permitted Holder, directly or indirectly, in a Limes Transaction (including any purchase price paid by such Permitted Holder for any Limes PropCo) after 22 July 2024 plus interest of 18 per cent. per annum on such invested capital, irrespective of whether such claim is based on contractual arrangements, statutory law, shareholder resolutions or any other equity, debt or debt-like interest or any other structures agreed under or in connection with such Limes Transaction and, in particular, including any claims for distribution of profits or liquidation proceeds. | ||
| “Liquidity Event” means any event resulting in the Permitted Holder being a party to or a beneficiary of a transaction with respect to Limes PropCos or assets held by Limes PropCos as of the Amendment Date receiving returns in cash (or equivalents having the same commercial effect as cash) with respect to the Limes PropCos or assets held by Limes PropCos as of the Amendment Date until the Notes are redeemed or purchased and cancelled in full. | |||
| (d) | Notwithstanding anything to the contrary in these Terms and Conditions, the Issuer shall, and shall procure, that each direct or indirect holding company of a Limes PropCo, up to and including the Issuer, if and to the extent it holds a Limes Excess Claim, shall assign any Limes Excess Claim to a LuxInterCo or any of its Subsidiaries that is a member of the Group (other than (x) a LuxInterCo which holds (directly or indirectly) any shares in DEMIRE Holding XIII GmbH, (y) DEMIRE Holding XIII GmbH, or (z) a Subsidiary of DEMIRE Holding XIII GmbH). In case a Limes Transaction occurs with respect to a Limes PropCo and the Issuer procures that the Limes Excess Claim potentially resulting from such Limes Transaction is assigned to a LuxInterCo or any of its Subsidiaries that are a member of the Group (other than (x) a LuxInterCo which holds (directly or indirectly) any shares in DEMIRE Holding XIII GmbH, (y) DEMIRE Holding XIII GmbH, or (z) a Subsidiary of DEMIRE Holding XIII GmbH), any previous assignment of a Limes Excess Claim with respect to such Limes PropCo shall be released to the extent required in connection with a Limes Transaction consummated in accordance with § 12(15)(c). | ||
| (e) | Notwithstanding anything to the contrary in these Terms and Conditions, the Issuer shall not, each Guarantor has undertaken under the Security Trust Agreement that it shall not, and the Issuer shall procure that no member of the Group will, for so long as any Notes are outstanding, (i) waive or amend any right it may have to the Limes Excess Claim, (ii) take or knowingly omit to take, any action which action or omission might or would have the result of materially impairing the Limes Excess Claim (it being understood that the incurrence of Liens on the Limes Excess Claim permitted by these Terms and Conditions shall under no circumstances be deemed to impair the Limes Excess Claim) for the benefit of the Holders, (iii) grant to any person other than the Security Agent, for the benefit of the Holders any other beneficiaries described in the Security Trust Agreement, any interest whatsoever in any Limes Excess Claim without the prior written consent of the Holders‘ Representative (who shall be required to obtain a Majority Holder Instruction), provided that nothing in this provision shall restrict the provisions of § 12(15)(d).] | ||
[§ 12
MERGER, CONSOLIDATION OR SALE OF ASSETS
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(1) |
Substitution. The Issuer will not, directly or indirectly: (i) consolidate or merge with or into another Person (whether or not the Issuer is the surviving corporation) or (ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries, if any, taken as a whole, in either case, in one or more related transactions, to another Person, unless: |
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(a) |
either: (i) the Issuer is the surviving Person; or (ii) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made is an entity organized or existing under the laws of any member state of the European Union, the United Kingdom, Switzerland, Canada, any state of the United States or the District of Columbia; |
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(b) |
the Person formed by or surviving any such consolidation or merger with the Issuer (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer under the Notes (including these Terms and Conditions) and any agreement(s) entered into between the Issuer and the Paying Agent, Calculation Agent or other paying agent appointed in relation to the Notes; |
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(c) |
immediately after such transaction, no Event of Default exists; and |
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(d) |
the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period (i) be permitted to incur at least EUR 1.00 of additional Financial Indebtedness pursuant to § 11(1) and the maintenance test pursuant to § 11(2) is complied with or (ii) the Interest Coverage Ratio would not be less than, and the Loan-to-Value Ratio would not be greater than, it was immediately prior to giving effect to such transaction. |
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(2) |
Notice. Any merger or consolidation of, or sale of assets by, the Issuer pursuant to this § 12 shall be published in accordance with § 15. |
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(3) |
Change of References. Upon effectiveness of any merger or consolidation of, or sale of assets by, the Issuer which complies with the requirements of § 12(1) and (2), any reference in these Terms and Conditions to the Issuer shall from then on be deemed to refer to the successor Person and any reference to the Federal Republic of Germany with respect to the Issuer shall from then on be deemed to refer to the relevant taxing jurisdiction with respect to the successor Person. |
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(4) |
Transfer of Domicile. A transfer of domicile of the Issuer to another country or territory is only permissible if the requirements set forth in paragraphs (1) and (2) above are complied with accordingly. Paragraph (3) second half-sentence of the first sentence shall apply mutatis mutandis.] |
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§ 13
FURTHER ISSUES, PURCHASES AND CANCELLATION
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(1) |
Further Issues. [Subject to § 11, the Issuer may from time to time, without the consent of the Holders,][The Issuer will not] issue further Notes having the same terms and conditions as the Notes [in all respects (or in all respects except for the relevant issue date, interest commencement date, first interest payment date and/or issue price) so as to form a single series with the Notes]. |
| (2) | Purchases. The Issuer may at any time purchase Notes in the open market or otherwise and at any price[, provided that if the Extension Fee exceeds zero at that time the Issuer shall have disclosed in an appropriate manner that any redemption of Notes in whole (but not in part) would be subject to payment of the Extension Fee]. Notes purchased by the Issuer may, at the option of the Issuer, be held, resold or surrendered to the Paying Agent for cancellation. |
| (3) | Cancellation. All Notes redeemed in full shall be cancelled forthwith and may not be reissued or resold. |
§ 14
AMENDMENTS OF THE TERMS AND CONDITIONS BY RESOLUTIONS OF HOLDERS, JOINT REPRESENTATIVE
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(1) |
Amendment of the Terms and Conditions. The Issuer may agree with the Holders on amendments to the Terms and Conditions [and the Security Trust Agreement if the consent of the Holders is required] by virtue of a majority resolution of the Holders pursuant to sections 5 et seqq. [of the German Act on Issues of Debt Securities (Gesetz über Schuldverschreibungen aus Gesamtemissionen – ]SchVG[)], as amended from time to time. In particular, the Holders may consent to amendments which materially change the substance of the Terms and Conditions [or the Security Trust Agreement], including such measures as provided for under section 5 paragraph 3 of the SchVG by resolutions passed by such majority of the votes of the Holders as stated under paragraph (2) below. A duly passed majority resolution shall be binding equally upon all Holders. |
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| (2) | Majority. Except as provided by the following sentence and provided that the quorum requirements are being met, the Holders may pass resolutions by simple majority of the voting rights participating in the vote. Resolutions which materially change the substance of the Terms and Conditions [or the Security Trust Agreement], in particular in the cases of section 5 paragraph 3 numbers 1 through 9 of the SchVG, may only be passed by a majority of at least 75 per cent. of the voting rights participating in the vote (a „Qualified Majority„). | |
| (3) | Vote without a meeting. Subject to paragraph (4), resolutions of the Holders shall exclusively be made by means of a vote without a meeting in accordance with section 18 of the SchVG. The request for voting will provide for further details relating to the resolutions and the voting procedure. The subject matter of the vote as well as the proposed resolutions shall be notified to the Holders together with the request for voting. The exercise of voting rights is subject to the Holders’ registration. The registration must be received at the address stated in the request for voting no later than the third day preceding the beginning of the voting period. As part of the registration, Holders must demonstrate their eligibility to participate in the vote by means of a special confirmation of the Custodian in accordance with § 17(4)(i)(a) and (b) hereof in text form and by submission of a blocking instruction by the Custodian stating that the relevant Notes are not transferable from (and including) the day such registration has been sent to (and including) the day the voting period ends. | |
| (4) | Second Noteholders’ Meeting. If it is ascertained that no quorum exists for the vote without meeting pursuant to paragraph (3), the scrutineer may convene a noteholders’ meeting, which shall be deemed to be a second noteholders’ meeting within the meaning of section 15 paragraph 3 sentence 3 of the SchVG. Attendance at the second noteholders’ meeting and exercise of voting rights is subject to the Holders’ registration. The registration must be received at the address stated in the convening notice no later than the third day preceding the second noteholders’ meeting. As part of the registration, Holders must demonstrate their eligibility to participate in the vote by means of a special confirmation of the Custodian in accordance with § 17(4)(i)(a) and (b) hereof in text form and by submission of a blocking instruction by the Custodian stating that the relevant Notes are not transferable from (and including) the day such registration has been sent to (and including) the stated end of the noteholders’ meeting. | |
|
(5) |
Holders’ Representative. [The Holders may by majority resolution provide for the appointment or dismissal of a joint representative (the „Holders’ Representative„), the duties and responsibilities and the powers of such Holders’ Representative, the transfer of the rights of the Holders to the Holders’ Representative and a limitation of liability of the Holders’ Representative. Appointment of a Holders’ Representative may only be passed by a Qualified Majority if such Holders’ Representative is to be authorized to consent, in accordance with paragraph (2) hereof, to a material change in the substance of the Terms and Conditions.] |
|
| [(a) | Appointment of Holders’ Representative . The initial common representative of the Holders (the „Holders’ Representative“) and its initial specified office is: | |
| Dentons GmbH, Wirtschaftsprüfungsgesellschaft, Steuerberatungsgesellschaft Markgrafenstraße 33, 10117 Berlin Germany |
||
| Telephone: | +49 30 26 47 3 207 | |
| Email: | andreas.ziegenhagen@dentons.com | |
| Attention: | Andreas Ziegenhagen | |
| The Holders’ Representative shall be a common representative of the Holders within the meaning of the SchVG. | |||
| (b) | Duties and Powers . The Holders’ Representative shall have the duties and powers (1) provided by law (including in accordance with section 19 of the SchVG), (2) specifically set forth in these Terms and Conditions, (3) as may be separately agreed with the Holders’ Representative in the Security Trust Agreement or elsewhere (including any actions, measures and decisions under any of such agreements), (4) to amend the Security Trust Agreement in accordance with it terms, and (5) such additional powers and duties as are granted to it by majority resolution passed pursuant to this § 14 (to the extent such additional powers and duties are expressly accepted by it by written notice to the Issuer). | ||
| Whether or not an Event of Default has occurred and is continuing, the Holders’ Representative shall: | |||
| (i) | without prejudice to paragraph (c) and (g) below, solicit a vote of Holders without meeting (A) as soon as reasonably practicable upon (1) a request from the Security Agent for a decision, instruction or consent of the Holders or the Holders‘ Representative being required under the Security Trust Agreement if deemed necessary by the Holders’ Representative, and (2) the giving by the Holders’ Representative of notice of its resignation for the purpose of the appointment of a successor Holders’ Representative, (B) to obtain, if deemed necessary by the Holders’ Representative, instructions from the Holders with respect to any action to be taken by the Holders’ Representative, or (C) as required by law; | ||
| (ii) | in connection with any voting of Holders perform the duties of the chairperson or the scrutineer if required pursuant to the SchVG and | ||
| (iii) | perform the duties set forth in the Security Trust Agreement. | ||
| To the extent that the Holders‘ Representative has been authorized to assert certain rights of the Holders, the Holders shall not be entitled to assert such rights themselves, unless explicitly provided for in the relevant majority resolution. The Holders‘ Representative shall provide reports to the Holders on its activities. The Holders‘ Representative shall, in particular, be entitled to agree on the terms of, and perform all actions, measures and declarations attributed to it, in the Security Trust Agreement and acts in this regard, where relevant, on behalf of all Holders and without the need to obtain a prior resolution of, or instructions from, any Holder. The Holders shall be excluded from enforcing their rights in this regard. | |||
| (c) | No Obligation to act without instruction . Notwithstanding anything to the contrary in the Terms and Conditions, the Holders‘ Representative shall always be entitled, but not obliged, to seek a Majority Holder Instruction for any actions, measures, decisions, instructions, or consent, or for the omission of any of these in relation to, under or in connection with the Notes, the Security Trust Agreement, or any other agreement with the Holders‘ Representative in connection with the Notes (each, an „Action“), especially if the Holders’ Representative is requested by the Security Agent, the Issuer or any Holder or any other party thereto for an Action to be made under the Security Trust Agreement. | ||
| Should it not be possible to obtain such Majority Holder Instruction in time or at all, the Holders’ Representative shall not be required to take any such Action. | |||
| „Majority Holder Instruction“ means the instruction (given by letter, fax or email or other electronic means, as applicable) of Holders representing more than 50 per cent of the aggregate principal of the Notes then outstanding held by Holders that expressly have instructed or rejected to give an instruction within 10 (or such other number, as requested by the Holders’ Representative) Business Days following a request to obtain an instruction submitted by the Holders’ Representative or the Issuer to Holders in accordance with § 15 in respect of any of the potential Actions. | |||
| For the avoidance of doubt and without limitation of the generality of the other provisions herein, the Holders’ Representative shall be authorized to instruct the Security Agent to enforce or release any collateral and guarantees in accordance with these Terms and Conditions and as provided for in the Security Trust Agreement without having to obtain a prior resolution of, or instructions from, Holders, provided that if it has received instructions by Holders in accordance with and by a Majority Holder Instruction, the Holders’ Representative shall be bound to instruct the Security Agent in accordance with the provisions of the Security Trust Agreement, accordingly (as may be specified in more detail in the relevant Majority Holder Instruction). | |||
| (d) | Duties and Powers following an Event of Default . If an Event of Default has occurred and is continuing of which the Holders’ Representative has been notified in writing by the Issuer, any Guarantor, any party to the Security Trust Agreement or any Holder, the Holders’ Representative shall exercise such of the rights and powers vested in it by these Terms and Conditions, subject to such rights or powers being qualified, limited or otherwise affected by the provisions of the Security Trust Agreement, and use the same degree of diligence and care in its exercise, as a prudent business manager ( ordentlicher und gewissenhafter Geschäftsleiter within the meaning of section 7 paragraph 3 sentence 1 of the SchVG) would exercise or use under the circumstances; provided that the exercise of such rights and powers shall not be inconsistent with any majority resolution or Majority Holder Instruction passed by the Holders in accordance with this § 14. | ||
| (e) | No obligation to act upon illegality . No provision of these Terms and Conditions shall require the Holders’ Representative to do anything which would be illegal or contrary to applicable law or regulation. Under no circumstances will the Holders’ Representative be responsible or liable for (A) investigating or assessing the suitability, value, sufficiency, validity, binding nature, or enforceability of any Guarantee or Collateral, (B) making any inquiries as to the performance of the obligations of the Issuer, any Guarantor and/or any of their Subsidiaries, or (C) monitoring the performance by the Security Agent of its obligations or to assess the validity, sufficiency or adequacy of any instruction given to the Security Agent by any other person or (D) or the sufficiency, adequacy or correctness of any information or document delivered to it for on-delivery to Holders in accordance with these Terms and Conditions. | ||
| (f) | Exemption from self-dealing restrictions . The Holders’ Representative shall be exempt from the restrictions set forth in section 181 of the BGB and similar self-dealing restrictions under other applicable laws. | ||
| (g) | Right to direct the Holders’ Representative . Subject to these Terms and Conditions and applicable law, Holders representing more than 50 per cent of the aggregate principal amount of the Notes then outstanding are given the right to direct (including by letter, fax or email or other electronic means, as applicable) the time, method and place of conducting any proceeding for any remedy available to the Holders’ Representative or of exercising any power conferred on the Holders’ Representative, including, without limitation, in connection with the occurrence of an Event of Default. | ||
| (h) | Liability . The Holders’ Representative shall be liable for the proper performance of its duties towards the Holders who shall be joint and several creditors ( Gesamtgläubiger ); in the performance of its duties it shall act with the diligence and care of a prudent business manager ( ordentlicher und gewissenhafter Geschäftsleiter within the meaning of section 7(3) of the SchVG). The liability of the Holders’ Representative is limited to willful misconduct and gross negligence. The liability for gross negligence is limited to an amount of EUR 10,000,000. The Holders shall decide upon the assertion of claims for compensation of the Holders against the Holders‘ Representative. | ||
| (i) | Certain Rights of Holders’ Representative. Subject to paragraphs (b) and (h): | ||
| (i) | the Holders’ Representative may rely, and shall be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper person; | ||
| (ii) | before the Holders’ Representative acts or refrains from acting, it may require an officer’s certificate of the Issuer or an opinion of legal counsel in form and substance reasonably satisfactory to the Holders’ Representative. The Holders’ Representative shall not be liable for any action it takes or omits to take in good faith in reliance on such officer’s certificate of the Issuer or opinion of legal counsel; | ||
| (iii) | the Holders’ Representative shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Holders’ Representative, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Holders’ Representative shall determine to make such further inquiry or investigation, it shall be entitled at reasonable times upon written request to examine the books, records and premises of the Issuer personally or by agent or attorney; and | ||
| (iv) | the Holders’ Representative may request that the Issuer delivers an officer’s certificate of the Issuer setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to these Terms and Conditions. | ||
| (j) | Compensation and Indemnity of Holders’ Representative . The Issuer shall pay to the Holders’ Representative fees, costs, expenses and disbursements as separately agreed between the Issuer and the Holders’ Representative. Unless expressly agreed otherwise, the Issuer shall bear the costs and fees in each case including appropriate insurance cover, any costs for legal advice incurred and value added tax (if any) arising in connection with these Terms and Conditions. | ||
| (k) | Replacement of Holders’ Representative. The Holders’ Representative may be removed from office at any time by majority resolution of the Holders in accordance with this § 14 without specifying any reasons. | ||
| The Holders’ Representative may resign at any time by notifying the Issuer (in which case the Issuer shall notify the Holders in accordance with the procedures set forth in § 15. If the Holders’ Representative resigns, he shall call a vote without undue delay to elect a successor Holders’ Representative. A resignation of the Holders’ Representative shall become effective only upon the appointment, by majority resolution of the Holders in accordance with this § 14, of a successor Holders’ Representative and the successor Holders’ Representative’s acceptance of such appointment. | |||
| A successor Holders’ Representative shall deliver a written acceptance of its appointment to the Issuer and shall succeed the retiring Holders’ Representative as a party to the Security Trust Agreement. Thereupon the resignation or removal of the retiring Holders’ Representative shall become effective, and the successor Holders’ Representative shall have all the rights, powers and duties of the Holders’ Representative under these Terms and Conditions and any reference in these Terms and Conditions shall forthwith be references to such successor Holders’ Representative. The retiring Holders’ Representative shall promptly transfer all property held by it as Holders’ Representative to the successor Holders’ Representative. | |||
| (l) | Reports by Holders’ Representative to Holders . Within 60 days after each 1 June (a „Holders’ Representative Reporting Date“), beginning with the Holders’ Representative Reporting Date following the Amendment Date, and for as long as any Notes remain outstanding, the Holders’ Representative shall furnish to the Paying Agent (who, at the Issuer’s expense, will forward to the Holders) a report dated as of the relevant Holders’ Representative Reporting Date, briefly describing any activities relating to the Notes undertaken by the Holders’ Representative during the twelve-months period ending on such Holders’ Representative Reporting Date and stating whether or not any of the circumstances described in section 7 paragraph 1 of the SchVG have arisen. | ||
| (6) | Right to direct the Security Agent when no Holders’ Representative is appointed . Subject to these Terms and Conditions and applicable law, for as long as no Holders‘ Representative is appointed, Holders representing more than 50 per cent of the aggregate principal amount of the Notes then outstanding are given the right to direct (including by letter, fax or email or other electronic means, as applicable) the time, method and place of conducting any proceeding for any remedy available to the Security Agent or of exercising any power conferred on the Security Agent, including, without limitation, under the Terms and Conditions, the Security Trust Agreement and any Security Document.] | ||
|
[(6)][(7)] |
Publication. Any notices concerning this § 14 shall be made exclusively pursuant to the provisions of the SchVG [unless expressly provided otherwise in any of the provisions above]. |
||
§ 15
NOTICES
|
(1) |
Notices. Except as stipulated in § 14(6), all notices concerning the Notes [(including, without limitation, the notice to seek a Majority Holder Instruction)] shall be published [in][on] the [Federal Gazette (Bundesanzeiger) and][website of the Issuer and, if and so long required by law or the rules of the Luxembourg Stock Exchange or such other stock exchange on which the Notes may be listed at the request of the Issuer,] on the website of the Luxembourg Stock Exchange [(www.bourse.lu)][(www.luxse.com) or such other stock exchange (as applicable), provided that the Holders‘ Representative shall be entitled to publish any such notice additionally or in lieu of such other publications in the Federal Gazette (Bundesanzeiger) or by way of any other practical means using proper market standards (including by any electronic means within or outside the clearing systems, as applicable) and, as applicable, using the services of any recognised services provider, in each case at the cost of the Issuer]. Any notice so given will be deemed to have been validly given to the Holders on the [third calendar day][Business Day immediately] following the date of such publication (or, if published more than once, on the [third calendar day][Business Day immediately] following the date of the first such publication). |
|
[(2) |
Notification via the Clearing System. If the publication of notices pursuant to paragraph (1) above is no longer required by law or the rules of the stock exchange on which the Notes are listed, the Issuer may deliver the relevant notice to the Clearing System, for communication by the Clearing System to the Holders. Any such notice shall be deemed to have been validly given to the Holders on the fifth calendar day following the day on which the said notice was given to the Clearing System.] |
|
[(3)][(2)] |
Notification to the Issuer. Notices to be given by any Holder to the Issuer may be made by means of a [written] declaration [to be delivered by hand, fax or mail][in text format (Textform, e.g. email to ir@demire.ag or fax to +49 6103 37249 11) or in written form to be sent together with the evidence of the Holder’s entitlement in accordance with § 17(4)] to the Paying Agent. Such notice may be given by any Holder to the Paying Agent through the Clearing System in such manner as the Paying Agent and the Clearing System may approve for such purpose. |
§ 16
DEFINITIONS
[„2025 Extension Fee“ has the meaning assigned to such term in § 5(3)(a)(i).]
[„2025 Bond Reduction Amount“ has the meaning assigned to such term in § 5(3)(a)(i).]
[„2026 Extension Fee “ has the meaning assigned to such term in § 5(3)(a)(ii).]
[„2026 Bond Reduction Amount“ has the meaning assigned to such term in § 5(3)(a)(ii).]
[„Account Pledge Agreement“ has the meaning assigned to such term in § 2(3)(a).]
[„Action“ has the meaning assigned to such term in § 14(5)(c).]
„Additional Amounts“ has the meaning assigned to such term in § [8][9](2).
[„Additional Guarantors“ means each entity listed in Annex 2 (Additional Guarantors).] [„Additional Pledged Companies“ means each entity listed in Annex 3 (Additional Pledged Companies), and including the PropCo Holdings.]„Affiliate“ shall mean any affiliated company within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz).
[„Affiliate Real Estate Transaction“ has the meaning assigned to such term in § 12(5)(a).]„Affiliate Transaction“ has the meaning assigned to such term in § [11][12](5).
[„Amendment Date“ has the meaning assigned to such term in § 1(1).] [„Apollo“ means Apollo Global Management, Inc. or funds or separate accounts (incl. in each case their subsidiaries) controlled, managed or advised by Apollo Global Management, Inc. or its subsidiaries.] [„Apollo Transaction Costs“ has the meaning assigned to such term in § 12(3).]„Asset Sale“ means:
|
(i) |
the sale, lease, conveyance or other disposition of any assets [, whether by virtue of a share or asset deal,] by the Issuer or any [of its Subsidiaries, provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer and its Subsidiaries taken as a whole will be governed by § 12 and not by § 11(4); und][other member of the Group; and] |
|
(ii) |
the issuance of shares of preferred or common equity by any [Subsidiary][member of the Group (other than the Issuer)] or the sale by the Issuer or any [of its Subsidiaries][other member of the Group] of shares of preferred or common equity in any [Subsidiary of][member of the Group (other than] the Issuer[)] (in each case, other than directors’ qualifying shares). |
Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:
| (i) | the lease or sublease of any real estate asset in the ordinary course of business [other than sale and lease back transactions]; |
|
(ii) |
any single transaction or series of related transactions that involve[s] assets having a fair market value of less than [the greater of (A) EUR 7,500,000 and (B) 0.5 per cent. of Total Assets][EUR 1,000,000]; |
|
(iii) |
a transfer of assets or shares of preferred or common equity between [or among] the Issuer and any [Subsidiary;][other member of the Group or among other members of the Group, provided that the shares or common equity (or the shares or common equity of any direct or indirect holding company of such member of the Group) so transferred are directly or indirectly held by LuxTopCo or any of its Subsidiaries that is a member of the Group following such transfer;] |
|
(iv) |
an issuance of shares of preferred or common equity by a [member of the Group to a] Subsidiary [to the Issuer or to another Subsidiary][of LuxTopCo that is a member of the Group]; |
|
(v) |
the sale, lease or other transfer of [accounts receivable,] inventory or other assets (other than real property [or shares]) in the ordinary course of business and any sale or other disposition of damaged, worn-out or obsolete assets or assets that are no longer useful in the conduct of the business of the Issuer and [its Subsidiaries][any other member of the Group]; |
|
(vi) |
licenses and sublicenses by the Issuer or any [of its Subsidiaries][other member of the Group] in the ordinary course of business; |
| (vii) | any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business; |
|
(viii) |
the granting of Liens and other security interests not prohibited by §[3][4]; |
| (ix) | the sale or other disposition of cash or cash equivalents; |
|
[(x) |
a Restricted Payment that does not violate § 11(3) or any transaction specifically excluded from the definition of Restricted Payment;] |
|
([xi][x]) the disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;[and] |
|
|
([xii][xi]) the foreclosure, condemnation or any similar action with respect to any property or other assets or a surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind[; ][.] |
|
|
[(xiii) |
the disposition of assets to a Person who is providing services (the provision of which have been or are to be outsourced by the Issuer or any Subsidiary to such Person) related to such assets; and |
|
(xiv) |
the disposition of assets to joint ventures or associates in a Permitted Business in exchange for capital stock in such Person not to exceed the greater of (i) EUR 150,000,000 or (ii) 10 per cent. of Total Assets.] |
[„ Asset Sale Offer “ has the meaning assigned to such term in § 11(4).]
[„best efforts basis“ has the meaning assigned to such term in § 3(4).][„Bund Rate“ has the meaning assigned to such term in § 6(4).]
[„BGB“ means the German Civil Code (Bürgerliches Gesetzbuch).]„Business Day“ has the meaning assigned to such term in § [5][6](4).
[„ Calculation Agent “ has the meaning assigned to such term in § 6(4).]
„Call Redemption Amount“ has the meaning assigned to such term in § [6(4)][7(3)].
[„ Call Redemption Date “ has the meaning assigned to such term in § 6(4).]
[„Carry Forward Amount” has the meaning assigned to such term in § 5(3)(a).][„ Capital Market Indebtedness “ means any present or future obligation for the payment of borrowed money (including obligations by reason of any guarantee or other liability agreement for such obligations of third parties) which is in the form of, or represented by, bonds or notes which are capable of being quoted, listed, dealt in or traded on a stock exchange (for the avoidance of doubt: Schuldschein loans/promissory notes shall be no Capital Market Indebtedness).]
[„Cash Reserves“ means any cash on bank accounts of a member of the Group which is:| (i) | not required for working capital needs of the respective member of the Group (other than the Issuer) (including payment of operating costs, taxes, etc.); |
| (ii) | not held as deposit for third parties (e.g. for tenants); |
| (iii) | not subject to legal restrictions regarding the transfer to other member of the Group (such as applicable capital maintenance, financial assistance or similar rules and any cash of FVR-AG and its Subsidiaries); |
| (iv) | not restricted under loan agreements or other agreements such that it is required to remain at level of the member of the Group for capex or other purposes; and |
| (v) | with respect to each member of the Group exceeding a de minimis amount of EUR 100,000 (thereby not taking into account the amounts under (i) to (iv) above).] |
„CBF“ has the meaning assigned to such term in § 1[(3)][(1)].
„Change of Control“ has the meaning assigned to such term in § [6(5)][7(4)](a).
„Change of Control Period“ has the meaning assigned to such term in § [6(5)][7(4)](a).
„Clearing System“ has the meaning assigned to such term in § 1(3).
[„CoC Waivers“ has the meaning assigned to such term in § 3(1).]„Code“ has the meaning assigned to such term in § [8(3)][9(3)].
[„Collateral“ has the meaning assigned to such term in § 2(3)(a).]„Consolidated EBITDA“ means Consolidated Net Income of the Issuer for such period plus the following to the extent deducted in calculating such Consolidated Net Income, without duplication:
| (i) | provision for taxes based on income or profits for such period; plus |
|
(ii) |
the Net Cash Interest of [such Person and its Subsidiaries][the Issuer and any other member of the Group] for such period; plus |
|
(iii) |
depreciation, amortization (including, without limitation, amortization of intangibles and deferred financing fees) and other non-cash charges and expenses (including without limitation write downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of purchase accounting on the Issuer and [its Subsidiaries][any other member of the Group] for such period) of the Issuer and [its Subsidiaries][any other member of the Group] (excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was paid in a prior period) for such period; plus |
|
(iv) |
any expenses, charges or other costs related to the issuance of any capital stock, any investment, acquisition, disposition, recapitalization, listing or the incurrence of Financial Indebtedness permitted to be [incurred][Incurred] under § [11][12](1) (including refinancing thereof) whether or not successful, including (i) such fees, expenses or charges related to any incurrence of Financial Indebtedness issuance and (ii) any amendment or other modification of any incurrence; plus |
|
(v) |
any foreign currency translation losses (including losses related to currency remeasurements of Financial Indebtedness) of the Issuer and [its Subsidiaries][any other member of the Group]; plus |
| (vi) | (A) any extraordinary, exceptional or unusual loss or charge, or (B) any non-cash charges or reserves in respect of any integration; plus |
| (vii) | the amount of any minority interest expense consisting of subsidiary income attributable to minority equity interests of third parties in any non-wholly owned Subsidiary in such period or any prior period, except to the extent of dividends declared or paid on, or other cash payments in respect of, shares of preferred or common equity held by such parties; plus |
| (viii) | all expenses incurred directly in connection with any early extinguishment of Financial Indebtedness; minus |
|
(ix) |
any foreign currency translation gains (including gains related to currency remeasurements of Financial Indebtedness) of the Issuer and [its Subsidiaries][any other member of the Group]; minus |
| (x) | any extraordinary, exceptional or unusual gain; minus |
| (xi) | non-cash items increasing such Consolidated Net Income for such period (other than any non-cash items increasing such Consolidated Net Income pursuant to clauses (i) through (xi) of the definition of Consolidated Net Income), other than the reversal of a reserve for cash charges in a future period in the ordinary course of business, |
in each case, on a consolidated basis [excluding any members of the Limes Sub-Group] and determined in accordance with IFRS.
„Consolidated Financial Statements“ means, with respect to any Person, the consolidated financial statements and notes to those financial statements and the group management report of that Person and its subsidiaries prepared in accordance with IFRS as well as consolidated interim financial statements and quarterly statements (as of the relevant date).
„Consolidated Net Financial Indebtedness“ means the Financial Indebtedness of the Issuer and [its Subsidiaries][the members of the Group], on a consolidated basis in accordance with IFRS less [cash and cash equivalents (whether or not shown under ]“cash and cash equivalents” [(as shown][or any other balance sheet items] in the Consolidated Financial Statements of the Issuer [and including any restricted cash]).
„Consolidated Net Income“ means the aggregate of the net income/(loss) of the Issuer on a consolidated basis [excluding any members of the Limes Sub-Group], determined in accordance with IFRS; provided that:
|
(i) |
[solely for the purpose of determining the amount available for Restricted Payments under § 11(3)(c)(i), any net income (loss) of any Subsidiary will be excluded if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Subsidiary, directly or indirectly, to the Issuer by operation of the terms of such Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Subsidiary or its shareholders (other than (i) restrictions that have been waived or otherwise released, (ii) restrictions pursuant to the Notes or these Terms and Conditions or (iii) contractual restrictions in effect on the Issue Date with respect to the Subsidiary and other restrictions with respect to such Subsidiary that, taken as a whole, are not materially less favorable to the Holders of the Notes than such restrictions in effect on the Issue Date), except that the Issuer’s equity in the net income of any such Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or cash equivalents actually distributed or that could have been distributed by such Subsidiary during such period to the Issuer or another Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Subsidiary, to the limitation contained in this clause); |
|
(ii)] any net gain (or loss) realized upon the sale or other disposition of any asset or disposed operations of the Issuer [or][,] any [Subsidiaries][other member of the Group](including pursuant to any sale leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by the Issuer) will be excluded; |
|
|
([iii][ii]) |
any [one time][one-time] non-cash charges or any amortization or depreciation resulting from purchase accounting, in each case, in relation to any acquisition of, or merger or consolidation with, another Person or business or resulting from any reorganization or restructuring involving the Issuer or [its Subsidiaries][any other member of the Group] will be excluded; |
|
([iv][iii]) |
the cumulative effect of a change in accounting principles will be excluded; |
|
([v][iv]) |
any extraordinary, exceptional or nonrecurring gains or losses or any charges in respect of any restructuring, redundancy or severance (in each case as determined in good faith by the Issuer) will be excluded; |
|
([vi][v]) |
any unrealized gains or losses in respect of Hedging Obligations or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value or changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of Hedging Obligations will be excluded; |
|
([vii][vi]) |
any non-cash compensation charge or expenses arising from any grant of stock, stock options or other equity-based awards will be excluded; |
|
([viii][vii]) |
any goodwill or other intangible asset impairment charges will be excluded; |
|
([ix][viii]) |
all deferred financing costs written off and premium paid in connection with any early extinguishment of Financial Indebtedness and any net gain or loss from any write-off or forgiveness of Financial Indebtedness will be excluded; |
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([x][ix]) all fair value adjustments on investment properties and related non-cash tax effects will be excluded; and |
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|
([xi][x]) the impact of any capitalized interest (including accreting or pay-in-kind interest) on any Subordinated Shareholder Debt will be excluded. |
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„Custodian“ has the meaning assigned to such term in § 17(4).
[ „Designated Non-Cash Consideration“ means the fair market value of non-cash consideration received by the Issuer or one of its Subsidiaries in connection with an Asset Sale that is so designated as “Designated Non-Cash Consideration” pursuant to a resolution of the management board of the Issuer, setting forth the basis of such valuation, less the amount of cash or cash equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.]
[„Deferred Entities“ means the entities listed in Annex 7 (Deferred Entities).] [„Deferred Entities Transfer“ has the meaning assigned to such term in § 3(1).] [„DEMIRE XII Sub-Group“ has the meaning assigned to such term in § 12(13)(b).] [„DEMIRE XII Trigger Event“ means DEMIRE Holding XII GmbH entering into (preliminary) insolvency proceedings (upon a filing by the debtor or the institution of (preliminary) insolvency proceedings) or liquidation proceedings (whether on a solvent or insolvent basis), including the competent court rejecting the institution of insolvency proceedings over DEMIRE Holding XII GmbH pursuant to lack of assets (Abweisung mangels Masse).] [„Earmarked Amount“ has the meaning assigned to such term in § 3(3).] [„European Insolvency Regulation“ means Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast).]„Event of Default“ has the meaning assigned to such term in § [10][11](1).
[„ Excess Proceeds “ has the meaning assigned to such term in § 11(4).]
[„Extension Fee“ has the meaning assigned to such term in § 5(2).]„FATCA Withholding“ has the meaning assigned to such term in § [8(3)][9(3)].
„Final Redemption Amount“ has the meaning assigned to such term in § [6][7](1).
„Financial Indebtedness“ means (without duplication) any indebtedness (excluding any indebtedness owed to another member of the Group) for or in respect of:
| (i) | moneys borrowed [under any loan agreement or otherwise] or evidenced by bonds, notes, debentures or similar instruments; |
| (ii) | any amount raised by acceptance under any acceptance credit facility or a dematerialized equivalent; |
| (iii) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, commercial papers or any similar instrument; |
| (iv) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, commercial papers or any similar instrument; |
| (v) | receivables sold or discounted (other than any receivables to the extend they are sold on a non-recourse basis); |
|
(vi) |
any amounts raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing, but excluding bank guarantee facilities made or to be made available by financial institutions to the Issuer or [a Subsidiary][any other member of the Group or, for the purposes of § 12(15) only, the Limes Sub-Group,] under which the Issuer or the respective [Subsidiary][other member of the Group or, as applicable, the Limes Sub-Group,] may request the issue of a bank guarantee or bank guarantees in [favour][favor] of a Person who agrees to purchase a Real Estate Property owned by the Issuer or a Subsidiary; |
| (vii) | 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; |
|
(viii) |
any lease of property by the Issuer or any [Subsidiary][other member of the Group or, for the purposes of § 12(15) only, the Limes Sub-Group,] as lessee that is reflected on the Issuer’s consolidated balance sheet as a capitalized lease in accordance with IFRS; and |
| (ix) | the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (i) to (viii) above, |
in each case only if and to the extent such item has to be recorded as a liability on the Issuer’s consolidated balance sheet in accordance with IFRS and excluding any Subordinated Shareholder Debt.
[„Fitch“ has the meaning assigned to such term in § 7(4)(a).]„FVR-AG“ means Fair Value REIT-AG and its successors.
[„FVR-Group“ means FVR-AG and any of its direct and indirect Subsidiaries.] [„FVR-KGs“ means the limited partnerships listed in Part III of Annex 3 (Additional Pledged Companies).] [„FVR-LuxCos“ has the meaning assigned to such term in § 3(1).]„Global Note“ has the meaning assigned to such term in § 1(2).
„Group“ means the Issuer together with its Subsidiaries[, except any members of the Limes Sub-Group].
[„Guarantee(s)“ has the meaning assigned to such term in § 2(2)(a).] [„Guarantor(s)“ has the meaning assigned to such term in. § 2(2)(a) (and, following the accession to the Security Trust Agreement in accordance with § 3(1), shall also mean the FVR-LuxCos).]„Hedging Obligations“ means with respect to any specified Person, the obligations of such Person under:
| (i) | interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; |
| (ii) | other agreements or arrangements designed to manage interest rates or interest rate risk; and |
| (iii) | other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices. |
„Holder“ has the meaning assigned to such term in § 1(4).
„Holders’ Representative“ has the meaning assigned to such term in § 14(5)[(a)].
[„Holders’ Representative Reporting Date“ has the meaning assigned to such term in § 14(5)(l).] [„Holding Company Activities“ has the meaning assigned to such term in § 12(9)(b).]„IFRS“ means the International Financial Reporting Standards, as adopted by the European Union, as in effect from time to time.
„Incur“ means, with respect to any Financial Indebtedness or other obligation of any Person, to create, assume, guarantee or otherwise become liable in respect of such Financial Indebtedness or other obligation, and incurrence and incurred have the meanings correlative to the foregoing whereby Financial Indebtedness shall only be incurred at the time any funds are disbursed and amounts drawn and deposited into escrow accounts shall not be deemed incurred until such proceeds are withdrawn from such escrow account.
[„ Interest Commencement Date “ has the meaning assigned to such term in § 4(1).]
[„Interest Coverage Ratio“ has the meaning assigned to such term in § 12(2).]„Interest Payment Date“ has the meaning assigned to such term in § [4][5](1).
[„ Interest Period “ has the meaning assigned to such term in § 4(3).]
„Investment Grade Rating“ shall occur when the Notes or the Issuer are rated „Baa3“ or better by Moody’s [, „BBB-„ or better by S&P] and „BBB-“ or better by [S&P][Fitch], as applicable (or [, if either such entity ceases to rate the Notes and the Issuer,] the equivalent investment grade credit rating from any other rating agency of equivalent international standing specified from time to time by the Issuer).
„Investment Grade Status Commencement Date“ means any date following the [Issue][Amendment] Date on which the Notes or the Issuer have achieved an Investment Grade Rating and no Event of Default is continuing until the Investment Grade Status End Date.
„Investment Grade Status End Date“ means any date on which the Notes and the Issuer cease to have an Investment Grade Rating.
[„Issue Date“][„Issuer„] has the meaning assigned to such term in § 1(1).
[„Issuer“][„Issue Date„] has the meaning assigned to such term in § 1(1).
„Lien“ means any lien, mortgage, trust deed, deed of trust, deed, pledge, security interest, assignment for collateral purposes, deposit arrangement, or other security agreement, excluding any right of set-off but including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and any other like agreement granting or conveying a security interest in rem to a Person that is not a member of the Group, in each case to secure outstanding Financial Indebtedness, but in each case excluding
| (i) | any encumbrance registered in department 2 of the German land register; |
| (ii) | any lien arising in connection with a disposal of an asset in the ordinary course of business including, without limitation, any lien created in assets subject to a sale agreement for the purposes of financing the purchase price [by the purchaser]; |
| (iii) | any lien in respect of which an unconditional deletion consent has been delivered to the relevant member of the Group [which has been filed with the relevant land register or any other competent register or authority]; |
| (iv) | any lien arising by operation of law (or by agreement having the same effect) or in the ordinary course of business; |
| (v) | any cash collateral posted in connection with cross-currency and interest rate hedging transactions; |
| (vi) | any lien on bank accounts under general terms and conditions of any provider of bank accounts; and |
| (vii) | existing liens over Real Estate Property acquired or to be acquired which shall be released as a consequence of the intended repayment of the loans thereby secured from the net proceeds of these Notes. |
[„ Loan-to-Value Ratio “ has the meaning assigned to such term in § 11(1)(a).]
[„Limes Excess Claim“ has the meaning given to that term in § 12(15)(c).] [„Limes PropCo“ means the entities listed in Annex 8 (Limes PropCos) below.] [„Limes Sub-Group“ means, collectively, (i) the Limes PropCos and (ii) any other person in respect of which a Limes PropCo is a direct or indirect Subsidiary or Participation (other than the Issuer or any direct or indirect Subsidiary or Participation of LuxTopCo),(iii) any other Subsidiary or Participation of a person referred to in (i) and (ii), except for DEMIRE Betriebsvorrichtungen Nr. 2 GmbH or Cielo BVO GmbH, and (iv) DEMIRE Holding XII GmbH (regardless of whether at the relevant time a Limes PropCo is a direct or indirect Subsidiary or Participation of it).] [„Limes Transaction“ has the meaning given to that term in § 12(15)(c).] [„Liquidity Event“ has the meaning given to that term in § 12(15)(c).] [„LuxInterCo 1“ means an entity established in the legal form of a Luxembourg special limited partnership (société en commandite spéciale) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and of which LuxInterCo GP 1 is the sole general partner of LuxInterCo 1 with a nominal interest equal to 0.01% and the remaining interest (i.e. 99.99%) is directly held by LuxTopCo.] [„LuxInterCo 2“ means an entity established in the legal form of a Luxembourg special limited partnership (société en commandite spéciale) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and of which LuxInterCo GP 2 is the sole general partner of LuxInterCo 2 with a nominal interest equal to 0.01% and the remaining interest (i.e. 99.99%) is directly held by LuxTopCo.] [„LuxInterCo 3“ means an entity established in the legal form of a Luxembourg special limited partnership (société en commandite spéciale) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and of which LuxInterCo GP 3 is the sole general partner of LuxInterCo 3 with a nominal interest equal to 0.01% and the remaining interest (i.e. 99.99%) is directly held by LuxTopCo.] [„LuxInterCo 4“ means an entity established in the legal form of a Luxembourg special limited partnership (société en commandite spéciale) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and of which LuxInterCo GP 4 is the sole general partner of LuxInterCo 4 with a nominal interest equal to 0.01% and the remaining interest (i.e. 99.99%) is directly held by LuxTopCo.] [„LuxInterCo 5“ means an entity established in the legal form of a Luxembourg special limited partnership (société en commandite spéciale) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and of which LuxInterCo GP 5 is the sole general partner of LuxInterCo 5 with a nominal interest equal to 0.01% and the remaining interest (i.e. 99.99%) is directly held by LuxTopCo.] [„LuxInterCos“ means, collectively, LuxInterCo 1 and LuxInterCo 5, and „LuxInterCo“ means each of them (and, following the accession to the Security Trust Agreement in accordance with § 3(1), „LuxInterCos“ shall also mean LuxInterCo 2, LuxInterCo 3 and LuxInterCo 4, and „LuxInterCo“ shall also mean each one of them).] [„LuxInterCo GP 1″means an entity incorporated in the legal form of a Luxembourg limited liability company (société à responsabilité limitée) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and is a wholly-owned direct Subsidiary of LuxTopCo.] [„LuxInterCo GP 2″means an entity incorporated in the legal form of a Luxembourg limited liability company (société à responsabilité limitée) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and is a wholly-owned direct Subsidiary of LuxTopCo.] [„LuxInterCo GP 3″means an entity incorporated in the legal form of a Luxembourg limited liability company (société à responsabilité limitée) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and is a wholly-owned direct Subsidiary of LuxTopCo.] [„LuxInterCo GP 4″means an entity incorporated in the legal form of a Luxembourg limited liability company (société à responsabilité limitée) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and is a wholly-owned direct Subsidiary of LuxTopCo.] [„LuxInterCo GP 5″means an entity incorporated in the legal form of a Luxembourg limited liability company (société à responsabilité limitée) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and is a wholly-owned direct Subsidiary of LuxTopCo.] [„LuxInterCo GPs“ means, collectively, LuxInterCo GP 1 and LuxInterCo GP 5, and „LuxInterCo GP“ means each of them (and, following the accession to the Security Trust Agreement in accordance with § 3(1), „LuxInterCo GPs“ shall also mean LuxInterCo GP 2, LuxInterCo GP 3 and LuxInterCo GP 4, and „LuxInterCo GP“ shall also mean each one of them).] [„LuxTopCo“ means an entity incorporated in the legal form of a Luxembourg special limited partnership (société en commandite spéciale) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and of which LuxTopCo GP is the sole general partner with a nominal interest equal to 0.01% and the remaining interest (i.e. 99.99%) is directly held by the Issuer.] [„LuxTopCo GP“ means an entity incorporated in the legal form of a Luxembourg limited liability company (société à responsabilité limitée) which has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg and is a wholly-owned direct Subsidiary of the Issuer.][„ Make-Whole Amount “ has the meaning assigned to such term in § 6(4).]
[„Majority Holder Instruction“ has the meaning assigned to such term in § 14(5)(c).]
[„Material Group Member“ means any member of the Group other than the Issuer, in which the Issuer holds a stake (directly or indirectly) of at least 75% from time to time that accounted for an attributable pro-rata net asset value (defined as book value of its assets minus the book value of any financial indebtedness) of at least EUR 15,000,000.00, in the most recently published audited Consolidated Financial Statements of the Issuer.]
[„ Market Capitalization “ means an amount equal to (a) the total number of issued and outstanding shares of common stock or common equity interests of the Issuer on the date of resolution of the relevant dividend, multiplied by (b) the arithmetic mean of the closing prices per share of such common stock or common equity interests for the 30 consecutive trading days immediately preceding the date of resolution on such dividend.]
[„ Material Subsidiary “ means any Subsidiary of the Issuer whose total assets are at least equal to 5 per cent. of the Total Assets.]
„Maturity Date“ has the meaning assigned to such term in § [6][7](1).
[„Moody’s“ has the meaning assigned to such term in § 7(4)(a).] [„MTO Waivers“ has the meaning assigned to such term in § 3(1).]„Net Cash Interest“ means all interest and other financing charges accrued, payable in cash to Persons who are not members of the Group less the amount of any interest and other financing charges accrued to be received by members of the Group from Persons who are not members of the Group, in each case, excluding any one-off financing charges (including without limitation, any one-off fees [and/or break costs)][, break costs and/or the Extension Fee (if any), as applicable) and any interest accruing on any Subordinated Shareholder Debt].
„Net Financial Indebtedness“ means the nominal amount of Financial Indebtedness incurred [by the Issuer and any other member of the Group] minus the nominal amount of Financial Indebtedness repaid (since the relevant Reporting Date) [by the Issuer and any other member of the Group].
[„ New Secured Financial Indebtedness “ means the amount of Secured Financial Indebtedness incurred minus the amount of Secured Financial Indebtedness repaid (each as determined in accordance with IFRS).]
[„Net LTV Ratio“ has the meaning assigned to such term in § 12(1).]
„Notes“ has the meaning assigned to such term in § 1(1).
[„Notes Documents“ means these Terms and Conditions, the Security Trust Agreement (including, the Guarantees), the Security Documents and other document designated as such by the Issuer and the Holders‘ Representative.] [„Participation“ means any entity in which the Issuer, directly or indirectly, holds 50 per cent. or less of the voting capital.]„Paying Agent“ has the meaning assigned to such term in § [7][8](1).
[„ Permitted Business “ means (a) any businesses in activities engaged in by the Issuer or any of its Subsidiaries on the Issue Date or (b) any businesses that are related, complementary, incidental, ancillary or similar to the foregoing or are reasonable extensions or developments of any thereof in the European Union.]
[„Permitted Acquisition Properties“ has the meaning assigned to such term in § 12(7).][„ Permitted Refinancing Indebtedness “ has the meaning assigned to such term in § 11(1).]
[„Permitted Holders“ means Wecken & Cie., members of the Wecken family, and any company controlled by members of the Wecken family and Apollo Global Management, Inc. and funds and separate accounts (incl. in each case their subsidiaries) controlled, managed or advised by Apollo Global Management, Inc. or its subsidiaries (but excluding any portfolio companies), and in each case excluding the Issuer and its Subsidiaries.] [„Permitted Holder Investment“ has the meaning given to that term in § 12(15)(c).]„Person“ means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, limited liability company or government (or any agency or political subdivision thereof) or any other entity.
[„ Project Financing “ means any financing of all or part of the costs of a project, provided that (i) any Lien or other security interest created by the Issuer or any other member of the Group in connection therewith is limited solely to such assets or the share capital of a project finance company relating to that project, and (ii) the documentation in respect of such financing provides for recourse to be limited to the assets financed and the revenues (including insurance proceeds) derived from such assets as the principal source of repayment for the money borrowed.]
[„Pledged Account“ has the meaning assigned to such term in § 2(3).]
[„Prevailing Book Value“ has the meaning assigned to such term in § 3(4).]
[„PropCo Holdings“ means, collectively, the entities listed Part I ( PropCo Holdings ) of Annex 3 ( Additional Pledged Companies ), and „PropCo Holding“ means each of them.]
„Put Date“ has the meaning assigned to such term in § [6(5)][7(4)](c).
„Put Event“ has the meaning assigned to such term in § [6(5)][7(4)](a).
„Put Event Notice“ has the meaning assigned to such term in § [6(5)][7(4)](b).
„Put Notice“ has the meaning assigned to such term in § [6(5)][7(4)](c).
„Put Option“ has the meaning assigned to such term in § [6(5)][7(4)](a).
„Put Period“ has the meaning assigned to such term in § [6(5)][7(4)](a).
„Put Redemption Amount“ has the meaning assigned to such term in § [6(5)][7(4)](a).
„Qualified Majority“ has the meaning assigned to such term in § 14(2).
„Rating Agency“ has the meaning assigned to such term in § [6(5)][7(4)](a).
„Rating Downgrade“ has the meaning assigned to such term in § [6(5)][7(4)](a).
„Real Estate Property“ means (without duplication) the real estate property of the Issuer and the [Subsidiaries][other members of the Group] that is recognized as of the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published, or is required to be recognized in accordance with IFRS since the immediately preceding Reporting Date for which Consolidated Financial Statements of the Issuer have been published, in the item “investment properties” of the Consolidated Financial Statements of the Issuer.
[„ Redemption Calculation Date “ has the meaning assigned to such term in § 6(4).]
[„Refinancing Indebtedness“ means any Financial Indebtedness that is incurred to refund, refinance, replace, exchange, renew, repay or extend any Financial Indebtedness existing or incurred in compliance with the terms of these Terms and Conditions (including Financial Indebtedness of the Issuer that refinances Financial Indebtedness of any other member of the Group and Financial Indebtedness of any the other member of the Group that refinances Financial Indebtedness of the Issuer or any other member of the Group) including Financial Indebtedness that refinances Refinancing Indebtedness, provided that such Refinancing Indebtedness is incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Financial Indebtedness being refinanced (plus, without duplication, any additional Financial Indebtedness Incurred to pay interest, fees or premiums required by the instruments governing such existing Financial Indebtedness and costs, expenses and fees Incurred in connection therewith).]„Relevant Person(s)“ has the meaning assigned to such term in § [6(5)][7(4)](a).
[„Relevant Redemption Date“ has the meaning assigned to such term in § 7(5).]„Reporting Date“ means 31 March, 30 June, 30 September and 31 December of each year.
[„RETT Blocker Assignment Agreements“ has the meaning assigned to such term in § 2(3)(a).][„ Restricted Payment “ means:
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(i) |
declare or pay any dividend or make any other payment or distribution on account of the Issuer’s shares of common or preferred equity or any of its Subsidiaries’ shares of common or preferred equity (including, without limitation, any payment in connection with any merger or consolidation involving the Issuer or any of its Subsidiaries) or to the direct or indirect holders of the Issuer’s or any of its Subsidiaries’ shares of common or preferred equity in their capacity as holders (other than dividends or distributions payable in shares of common or preferred equity of the Issuer and other than dividends or distributions payable to the Issuer or a Subsidiary); |
|
(ii) |
purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Issuer) any shares of common or preferred equity of the Issuer or any direct or indirect holding company of the Issuer; |
|
(iii) |
make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Financial Indebtedness of the Issuer that is expressly contractually subordinated in right of payment to the Notes (excluding any intercompany Financial Indebtedness between or among the Issuer and any of its Subsidiaries), except (A) a payment of interest or principal at the stated maturity thereof or (B) the purchase, repurchase or other acquisition of Financial Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or scheduled maturity, in each case due within one year of the date of such purchase, repurchase or other acquisition; or |
|
(iv) |
make any payment (except through capitalization) on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Shareholder Debt.] |
„SchVG“ [has the meaning assigned to such term in § 14(1)][means the German Act on Issues of Debt Securities (Gesetz über Schuldverschreibungen aus Gesamtemissionen).] [„Security Agent“ has the meaning assigned to such term in § 2(2)(a).]
[„ Secured Financial Indebtedness “ means that portion of Consolidated Net Financial Indebtedness that is secured by a Lien on properties or other assets of the Issuer or any of its Subsidiaries (each as determined in accordance with IFRS).]
[„ Securitized Capital Market Indebtedness “ means any Capital Market Indebtedness incurred in respect of or in connection with any securitization or similar financing arrangement relating to assets owned by the Issuer or its Subsidiaries and where the recourse of the holders of such Capital Market Indebtedness against the Issuer is limited solely to such assets or any income generated therefrom.]
[„Security Trust Agreement“ means the security trust agreement entered into among, inter alios, the Issuer, the Guarantors, the Security Agent and the Holders‘ Representative, substantially in the form attached hereto as Annex 1, as amended from time to time in accordance with the provisions set forth therein.] [„Security Documents“ means the Guarantees, the Account Pledge Agreement, the Share Pledge Agreements, the Structural Assignment Agreements, the RETT Blocker Assignment Agreements, and any other agreement under which an additional security interest for the benefit of the Holders is created pursuant to the Terms and Conditions and/or the Security Trust Agreement from time to time.] [„Share Pledge Agreements“ has the meaning assigned to such term in § 2(3)(a).]„Specified Denomination“ has the meaning assigned to such term in § 1(1).
[„S&P“ has the meaning assigned to such term in § 7(4)(a).] [„Squeeze-Out“ has the meaning assigned to such term in § 12(14)(b).] [„Structural Assignment Agreements“ has the meaning assigned to such term in§ 2(3)(a).]„Subordinated Shareholder Debt“ means, collectively, any loan or other financial instrument provided to the Issuer by a direct or indirect holding company of the Issuer or a Relevant Person, provided that such Subordinated Shareholder Debt:
| (i) | does not (including upon the happening of any event) mature or require any amortization or other payment of principal prior to the first anniversary of the maturity of the Notes (other than through conversion or exchange of any such security or instrument for shares of common or preferred equity of the Issuer); |
| (ii) | does not (including upon the happening of any event) require the payment of cash interest prior to the first anniversary of the maturity of the Notes; |
| (iii) | does not (including upon the happening of any event) provide for the acceleration of its maturity nor confers on its shareholders any right (including upon the happening of any event) to declare a default or event of default or take any enforcement action, in each case, prior to the first anniversary of the maturity of the Notes; |
|
(iv) |
is not secured by a Lien or other security interest on any assets of the Issuer or [a Restricted Subsidiary][any other member of the Group] and is not guaranteed by any [Subsidiary][other member] of the [Issuer][Group]; |
|
(v) |
is subordinated in right of payment to the prior payment in full in cash of the Notes in the event of any default, bankruptcy, reorganization, liquidation, winding up or [other][similar] disposition of assets of the Issuer; and |
| (vi) | is not (including upon the happening of any event) mandatorily convertible or exchangeable, or convertible or exchangeable at the option of the holder, in whole or in part, prior to the date on which the Notes mature other than into or for shares of common or preferred equity of the Issuer, |
provided, however, that any event or circumstance that results in such Financial Indebtedness ceasing to qualify as Subordinated Shareholder Debt, such Financial Indebtedness shall constitute an incurrence of such Financial Indebtedness by the Issuer[, and any and all Restricted Payments made through the use of the net proceeds from the incurrence of such Financial Indebtedness since the date of the original issuance of such Subordinated Shareholder Debt shall constitute new Restricted Payments that are deemed to have been made after the date of the original issuance of such Subordinated Shareholder Debt].
„Subsidiary“ means any [Person that must be consolidated with the Issuer for the purposes of preparing Consolidated Financial Statements of the Issuer.][entity over which a Person has direct or indirect control or owns directly or indirectly more than 50 per cent. of the voting capital or similar right of ownership, and “control” for this purpose means the power to direct the management and the policies of the entity whether through the ownership of voting capital, by contract or otherwise within the meaning of section 17 of the German Stock Corporation Act (Aktiengesetz).] [„Swiss Withholding Tax“ means taxes imposed under the Swiss Withholding Tax Act.] [„Swiss Withholding Tax Act“ means the Swiss Federal Act on the Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), together with the related ordinances, regulations and guidelines, all as issued, amended or replaced and applicable from time to time.] [„Termination Notice“ has the meaning assigned to such term in § 10(2).] [„Tender Offer“ has the meaning assigned to such term in § 3(3).]
„Total Assets“ means, as of any date of determination, (i) the total assets of the Issuer and [its Subsidiaries][the other members of the Group] on a consolidated basis in accordance with IFRS as shown on the most recent available consolidated balance sheet of the Issuer preceding such date less (ii) the amount of goodwill as shown on the most recent available consolidated balance sheet of the Issuer preceding such date.
„United States“ has the meaning assigned to such term in § 1([5][6]).
[„Yearly Target Sum“ has the meaning assigned to such term in § 3(4).]§ 17
GOVERNING LAW, PLACE OF PERFORMANCE AND PLACE OF JURISDICTION, ENFORCEMENT
| (1) | Governing Law. The Notes, as to form and content, and all rights and obligations of the Holders and the Issuer, shall be governed by German law. |
| (2) | Place of Performance. Place of performance is Frankfurt am Main, Federal Republic of Germany. |
| (3) | Place of Jurisdiction. Subject to any mandatory jurisdiction for specific proceedings under the SchVG, the district court of Frankfurt am Main shall have non-exclusive jurisdiction for any action or other legal proceedings arising out of or in connection with the Notes. |
| (4) | Enforcement. Any Holder of Notes may in any proceedings against the Issuer, or to which such Holder and the Issuer are parties, protect and enforce in his own name his rights arising under such Notes on the basis of (i) a statement issued by the Custodian with whom such Holder maintains a securities account in respect of the Notes [(such as a deposit certificate for the exercise of rights pursuant to section 6 (2) sentence 1 German Securities Deposit Act (Depotgesetz))] (a) stating the full name and address of the Holder, (b) specifying the aggregate principal amount of Notes credited to such securities account on the date of such statement and (c) confirming that the Custodian has given written notice to the Clearing System containing the information pursuant to (a) and (b) and (ii) a copy of the Global Note representing the relevant Notes certified as being a true copy of the original Global Note by a duly authorized officer of the Clearing System or a depository of the Clearing System, without the need for production in such proceedings of the actual records or the Global Note representing the Notes. For purposes of the foregoing, „Custodian“ means any bank or other financial institution of recognized standing authorized to engage in securities custody business with which the Holder maintains a securities account in respect of the Notes, including the Clearing System. Each Holder may, without prejudice to the foregoing, protect and enforce his rights under these Notes also in any other way which is admitted in the country of the proceedings. |
[Annex 1
Security Trust Agreement
Dated [__] 2024
between
DEMIRE DEUTSCHE MITTELSTAND REAL ESTATE AG
as Company and Issuer
[GLAS __________ GMBH] as Security Agent
and others
SECURITY TRUST AND GUARANTEE AGREEMENT
HENGELER MUELLER
TABLE OF CONTENTS
Clause
| 1. | Definitions and Interpretation |
| 2. | Effectiveness |
| 3. | Duties of the Security Agent |
| 4. | Parallel Debt |
| 5. | Guarantee and Indemnity |
| 6. | Guarantee Limitations |
| 7. | Guarantor Undertakings |
| 8. | Asset Management |
| 9. | Release of Notes Collateral and Guarantee |
| 10. | Actions by the Security Agent |
| 11. | Representations and Warranties |
| 12. | Enforcement of Notes Collateral and Guarantee |
| 13. | Priority of payments: Order of application of Proceeds |
| 14. | Retaining Third Parties |
| 15. | Reimbursement of Expenses |
| 16. | Right to Indemnification |
| 17. | Taxes |
| 18. | Resignation and Revocation |
| 19. | Transfer of Notes Collateral |
| 20. | Standard of Care for Liability, Limitation of Liability |
| 21. | General Provisions regarding the Security Agent |
| 22. | Disclosure of Information |
| 23. | Partial Invalidity and Further Assurance |
| 24. | Notices |
| 25. | Counterparts; Amendments |
| 26. | Exemption |
| 27. | Entire Agreement |
| 28. | Applicable Law; Place of Jurisdiction |
| 29. | Termination |
| Schedule 1 Other Parties | |
| Schedule 2 Key Documents List | |
| Signature Pages | |
This SECURITY TRUST AND GUARANTEE AGREEMENT7(the „Agreement“) is made on ____ 2024
BETWEEN:
| (1) | DEMIRE Deutsche Mittelstand Real Estate AG, a stock corporation ( Aktiengesellschaft ) organized under the laws of the Federal Republic of Germany („Germany“), having its registered office at Robert-Bosch-Straße 11, 63225 Langen, Germany, registered with the commercial register ( Handelsregister ) at the local court ( Amtsgericht ) of Frankfurt am Main, Germany, under the registration number HRB 89041 (the „Company“ and „Issuer“); |
| (2) | THE SUBSIDIARIES of the Company named in Part 1 ( The Guarantors ) of Schedule 1 ( Other Parties ) (the „Guarantors“); |
| (3) | THE SUBSIDIARIES of the Company named in Part 2 ( The Security Grantors ) of Schedule 1 ( Other Parties ) (the „Security Grantors“) (the Issuer, the Guarantors and the Security Grantors together the „Obligors“); |
| (4) | [DENTONS GMBH WIRTSCHAFTSPRÜFUNGSGESELLSCHAFT STEUERBERATUNGSGESELLSCHAFT] a limited liability company ( Gesellschaft mit beschränkter Haftung ) incorporated and existing under the laws of the Federal Republic of Germany, having its registered office at Markgrafenstraße 33, 10117 Berlin, Germany and registered with the commercial register ( Handelsregister ) at the local court ( Amtsgericht ) of Berlin (Charlottenburg), Germany, under the registration number HRB 101036, as common representative ( gemeinsamer Vertreter ) of and for the Beneficiaries (as defined below) (the „Initial Holders‘ Representative“); |
| (5) | [GLAS __________ GMBH] a limited liability company ( Gesellschaft mit beschränkter Haftung ) incorporated and existing under the laws of the Federal Republic of Germany, having its registered office at Bockenheimer Anlage 46, 60322 Frankfurt am Main, Germany and registered with commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Frankfurt am Main, Germany under register number [___] (in its capacity as security agent under this Agreement and any Collateral Agreement (as defined below), together with any assignees and successors from time to time in accordance with this Agreement, the „Security Agent“). |
| The persons under (1) to (4) are hereinafter each referred to as a „Party“ and, collectively, the „Parties“. |
WHEREAS:
| (A) | On or about the date hereof, the terms and conditions of the Notes (as defined below) issued by the Issuer will be amended and the claims under the Notes (as defined below) shall be secured by, inter alia , pledges over the shares in certain Subsidiaries of the Issuer and the other Security Grantors. |
| (B) | The Issuer, the other Security Grantors and the Security Agent will enter into certain Collateral Agreements (as defined below) in order to secure the claims of the Beneficiaries against the Issuer under the Notes. |
| (C) | Further, certain Subsidiaries of the Issuer shall guarantee the claims of the Beneficiaries against the Issuer under the Notes subject to the terms and conditions of this Agreement. |
| (D) | The Security Agent has agreed to act as trustee for the benefit of the Beneficiaries upon and subject to the terms and conditions of this Agreement in respect of the Collateral Agreements and the Guarantee (as defined below). |
NOW, THEREFORE, the Parties hereby agree as follows:
| 1. | Definitions and Interpretation | |||
| 1.1 | In this Agreement the following terms shall have the meanings ascribed to them in this Clause 1.1: | |||
| „Account Pledge Agreement“ has the meaning given to that term in the Notes Terms and Conditions. | ||||
| „Acceleration Event” means the Holders‘ Representative or any Beneficiary (or a group of Beneficiaries) (as the case may be) exercising any right to accelerate or otherwise declare prematurely due any Liabilities. | ||||
| „Appropriation“ means the appropriation (or similar process including any private sale under Luxembourg law) of the shares in the capital of any person subject to Notes Collateral by the Security Agent (or any other person appointed by the Security Agent) that is effected (to the extent permitted under the relevant Transaction Document and applicable law) by enforcement of the Notes Collateral. | ||||
| „Asset Documentation“ has the meaning given to it in Clause 8(a) ( Asset Management ). | ||||
| „Asset Management Service Agreements“ has the meaning given to it in Clause 8(c) ( Asset Management ). | ||||
| „Auditors‘ Determination“ has the meaning given to that term in Clause 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „Auditors“ has the meaning given to that term in Clause 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „Beneficiary“ means each holder of any of the Notes from time to time. | ||||
| „Business Day“ means a day on which banks are open for general business in Frankfurt am Main (Germany) and Luxembourg. | ||||
| „Cash Only Creditor“ has the meaning given to that term in Clause 12.9(b) ( Alternative to Non-Cash Consideration ). | ||||
| „Charged Property“ means all of the assets which from time to time are, or are expressed to be, the subject of the security created or evidenced or expressed to be created or evidenced under or pursuant to the Collateral Agreements. | ||||
| „Collateral Agreement“ means each of the Account Pledge Agreement, the Share Pledge Agreements, the Structural Assignment Agreements and the RETT Blocker Assignment Agreements. | ||||
| „Competitive Sales Process“ means: | ||||
| (a) | any auction or other competitive sales process conducted under the supervision of, and with the advice of a Financial Adviser appointed by, or approved by, the Security Agent pursuant to Clause 12.7 ( Appointment of Financial Adviser ) ; and | |||
| (b) | any enforcement of the security created or evidenced or expressed to be created or evidenced under or pursuant to any Collateral Agreement carried out by way of auction or other competitive sales process pursuant to requirements of applicable law. | |||
| „Data Transfer Agreement“ has the meaning given to it in clause 8(a) ( Asset Management ). | ||||
| „Distress Event“ means any of: | ||||
| (a) | an Acceleration Event; or | |||
| (b) | the enforcement of the security created or evidenced or expressed to be created or evidenced under or pursuant to the Collateral Agreements. | |||
| „Distressed Disposal” means a disposal of a Charged Property of a member of the Group which is | ||||
| (a) | being effected pursuant to a Holders‘ Representative Instruction (if a Holders‘ Representative has been appointed) or Holder Majority Decision in circumstances where the security created or evidenced or expressed to be created or evidenced under or pursuant to the Collateral Agreements has become enforceable; | |||
| (b) | being effected by enforcement of the security created or evidenced or expressed to be created or evidenced under or pursuant to the Collateral Agreements (including the disposal of any Charged Property of a member of the Group, the shares in which have been subject to an Appropriation); or | |||
| (c) | being effected, after the occurrence of a Distress Event, by the Company, a Guarantor or another Obligor to a person or persons which is, or are, not a member, or members, of the Group. | |||
| „Effective Date“ has the meaning given to that term in Clause 2 ( Effectiveness ). | ||||
| „Electronic Means“ has the meaning given to that term in Clause 21 ( General Provisions regarding the Security Agent ). | ||||
| „Eligible Institution“ has the meaning given to such term in Clause 18.1 ( Resignation ). | ||||
| „Enforcement Action“ means: | ||||
| (a) | in relation to any Liabilities: | |||
| (i) | the acceleration of any Liabilities or the making of any declaration that any Liabilities are prematurely due and payable (other than as a result of it becoming unlawful for a Secured Party to perform its obligations under, or of any voluntary or mandatory prepayment arising under, the Transaction Documents); | |||
| (ii) | the making of any declaration that any Liabilities are payable on demand; | |||
| (iii) | the making of a demand in relation to a Liability that is payable on demand or due and payable; | |||
| (iv) | the making of any demand against any Guarantor in relation to any Guarantee of that Guarantor; | |||
| (v) | the exercise of any right to require any member of the Group to acquire any Liability (including exercising any put or call option against any member of the Group for the redemption or purchase of any Liability other than in connection with an asset sale offer or a change of control offer (howsoever defined) as set out in any of the Transaction Documents); | |||
| (vi) | the exercise of any right of set-off, account combination or payment netting against any member of the Group in respect of any Liabilities other than the exercise of any such right which is otherwise expressly permitted under the Notes Terms and Conditions; and | |||
| (vii) | the suing for, commencing or joining of any legal or arbitration proceedings against any member of the Group to recover any Liabilities; | |||
| (b) | the taking of any steps to enforce or require the enforcement of any Notes Collateral (including by way of exercise of voting rights pertaining to any shares being subject to Notes Collateral); | |||
| (c) | the entering into of any composition, compromise, assignment or arrangement with any member of the Group which owes any Liabilities, or has given any Notes Collateral, Guarantee other assurance against loss in respect of the Liabilities ; or | |||
| (d) | the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, judicial manager, administrator (including an insolvency administrator ( Insolvenzverwalter )preliminary insolvency administrator ( vorläufiger Insolvenzverwalter )), trustee ( Sachwalter ), preliminary trustee ( vorläufiger Sachwalter ) or similar officer) in relation to, the winding up, judicial management, dissolution, administration or reorganisation of any member of the Group which owes any Liabilities, or has given any Notes Collateral, Guarantee or other assurance against loss in respect of any of the Liabilities, or any of such member of the Group’s or any such assets or any suspension of payments or moratorium of any indebtedness of any such member of the Group, or any analogous procedure or step in any jurisdiction, | |||
| except that the following shall not constitute an Enforcement Action: | ||||
| (i) | the taking of any action falling within paragraphs(a)(ii), (a)(iii), (a)(iv), (a)(vii) or (d) above which is necessary (but only to the extent necessary) to preserve the validity, existence or priority of claims in respect of Liabilities, including the registration of such claims before any court or governmental authority and the bringing, supporting or joining of proceedings to prevent any immediately impending loss of the right to bring, support or join proceedings by reason of applicable limitation periods; | |||
| (ii) | a Beneficiary bringing legal proceedings against any person solely for the purpose of: | |||
| (A) | obtaining injunctive relief ( einstweilige Verfügung ) (or any analogous remedy outside Germany) to restrain any actual or putative breach of any Transaction Document to which it is party; | |||
| (B) | obtaining specific performance (other than specific performance of an obligation to make a payment) with no claim for damages; or | |||
| (C) | requesting judicial interpretation of any provision of any Transaction Document to which it is party with no claim for damages; or | |||
| (iii) | allegations of material misstatements or omissions made in reports or any exchange on which the Notes are listed by a member of the Group pursuant to the information and reporting requirements under the Notes Terms and Conditions. | |||
| „Enforcement Event“ has the meaning given to such term in the relevant Collateral Agreement. | ||||
| „Entitled Creditors“ has the meaning given to that term in Clause 12.9. ( Alternative to Non-Cash Consideration ). | ||||
| „Fairness Opinion“ means, in respect of a Distressed Disposal or a Liabilities Sale, an opinion (on a reliance basis) that the proceeds received or recovered in connection with that Distressed Disposal or Liabilities Sale are fair from a financial point of view taking into account all relevant circumstances, including, without limitation, the method of enforcement or disposal. | ||||
| „Financial Adviser“ means any: | ||||
| (a) | reputable independent international investment bank; | |||
| (b) | reputable independent international accountancy firm; or | |||
| (c) | other reputable independent professional services firm which is regularly engaged in providing valuations of businesses or financial assets or, where applicable, advising on competitive sales processes. | |||
| „Freely Disposable Amount“ has the meaning given to that term in paragraph (a)(ii) of Clause 6.3 ( Guarantee limitations for Swiss Guarantors ). | ||||
| „German Guarantor“ has the meaning given to that term in Clause 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „GmbH & Co. KG Guarantor“ has the meaning given to that term in 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „GmbH Guarantor“ has the meaning given to that term in Clause 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „GmbHG“ has the meaning given to that term in 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „Group“ means the Company and each of its Subsidiaries from time to time, but excluding the Limes Entities at any time. | ||||
| „Guarantee“ means each of the guarantees and indemnities granted by the Guarantors under Clause 5 ( Guarantee and Indemnity ). | ||||
| „Guarantee Demand Date“ means each date upon which the Security Agent makes a written demand upon the relevant Guarantor to make payment in respect of the Guarantee. | ||||
| „Guarantee Event“ means any amount of principal, interest, costs, expenses or other amount under or in connection with the Transaction Documents not having been fully and irrevocably paid by an Obligor when due ( fällig ). | ||||
| „HGB“ means the German Commercial Code ( Handelsgesetzbuch ). | ||||
| „Holder Majority Decision“ means the consent or instruction given to the Security Agent (given by letter, fax or e-mail or other electronic means, as applicable) by Beneficiaries representing more than 50 per cent of the then outstanding aggregate principal amount of the Notes in accordance with § 14(6) of the Notes Terms and Conditions. | ||||
| „Holders‘ Representative“ means the Initial Holders‘ Representative and any successor in the capacity as common representative ( gemeinsamer Vertreter ) appointed under the Notes from time to time. | ||||
| „Holders‘ Representative Instruction“ means the consent or instruction given to the Security Agent (by letter, fax or e-mail or other electronic means, as applicable) by the Holders‘ Representative acting on instructions of Beneficiaries representing more than 50 per cent of the aggregate principal of the Notes then outstanding and that expressly have instructed or rejected to give an instruction following a request to obtain an instruction submitted by the Holders‘ Representative to the Beneficiaries in accordance with § 14(5)(c) of the Notes Terms and Conditions in respect of any of the potential actions to be taken by the Security Agent. | ||||
| „Immediately Effective Provisions“ means Clauses 1 ( Definitions and Interpretations ), 2 ( Effectiveness ), 3 ( Duties of the Security Agent ) and 10 ( Actions by the Security Agent ) through to (and including) 29 ( Termination ). | ||||
| „Invitation to Vote“ means the invitation to a voting without a meeting ( Abstimmung ohne Versammlung ) in relation to the Notes which has been published in the Federal Gazette ( Bundesanzeiger ) on [●] 2024. | ||||
| „Key Documents List“ has the meaning given to it in paragraph (a) of Clause 8 ( Asset Management ). | ||||
| „Limes Entities“ means DEMIRE Köln Max-Glomsda-Straße 4 GmbH, DEMIRE Essen Hatzper Str. Theodor-Althoff-Str GmbH, DEMIRE Aschheim, Max-Planckstraße GmbH and DEMIRE Kassel Kölnische Str. Mauerstr. Spohrstr GmbH and any of their Subsidiaries. | ||||
| „Limitations on Enforcement“ has the meaning given to that term in Clause 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „Liabilities“ means all present and future liabilities and obligations at any time of any member of the Group under the Transaction Documents, both actual and contingent and whether incurred solely or jointly or as principal or surety or in any other capacity together with any of the following matters relating to or arising in respect of those liabilities and obligations: | ||||
| (a) | any refinancing, novation, deferral or extension; | |||
| (b) | any claim for breach of representation, warranty or undertaking or on an event of default or under any indemnity given under or in connection with any document or agreement evidencing or constituting any other liability or obligation falling within this definition; and | |||
| (c) | any claim for damages or restitution, | |||
| and any amounts which would be included in any of the above but for any discharge, non-provability, unenforceability or non-allowance of those amounts in any insolvency or other proceedings. | ||||
| „Liabilities Sale“ means any disposal of any Liabilities effected by an Enforcement Action. | ||||
| „Luxembourg Guarantor“ has the meaning ascribed to that term in paragraph (a) of Clause 6.2 ( Guarantee Limitations for Luxembourg Guarantors ). | ||||
| „Luxembourg Intra-Group Liabilities“ has the meaning ascribed to that term in paragraph (b) of Clause 6.2 ( Guarantee Limitations for Luxembourg Guarantors ). | ||||
| „Luxembourg“ means the Grand Duchy of Luxembourg. | ||||
| „Management Determination“ has the meaning given to that term in Clause 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „Mandated Service Providers“ has the meaning given to that term in paragraph (b) of Clause 8 ( Asset Management ). | ||||
| „New Asset Management Depository“ has the meaning given to that term in paragraph (a) Clause 8 ( Asset Management ). | ||||
| „New Security Agent“ has the meaning given to that term in Clause 18.1 ( Resignation ). | ||||
| „Non-Cash Consideration“ means consideration in a form other than cash. | ||||
| „Non-Cash Recoveries“ means any proceeds of an Appropriation and/or disposal which are, or is, in the form of Non-Cash Consideration. | ||||
| „Notes“ means the senior (initially unsecured) notes ( Schuldverschreibungen ) (ISIN: DE000A2YPAK1) issued by the Issuer on 15 October 2019 in an original aggregate principal amount of EUR 600,000,000 originally due on 15 October 2024 and originally bearing interest on their principal amount at the rate of 1.875 per cent. per annum, the terms of which have been amended by way of a resolution under the German Act on Debt Securities ( Schuldverschreibungsgesetz ) dated [●] August 2024. | ||||
| „Notes Collateral“ means the security interests established under each Collateral Agreement in favour of the Security Agent. | ||||
| „Notes Terms and Conditions“ means the terms and conditions ( Anleihebedingungen ) of the Notes from time to time. | ||||
| „Parallel Debt Obligations“ has the meaning given to that term in Clause 4.1 ( Parallel Debt ). | ||||
| „Principal Obligations“ has the meaning given to that term in Clause 4.1 ( Parallel Debt ). | ||||
| „Regulation“ has the meaning given to that term in paragraph (a)(i) of Clause 6.2 ( Guarantee limitations for Luxembourg Guarantors ). | ||||
| „Relevant Provisions“ has the meaning given to that term in Clause 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „Restricted Obligations“ has the meaning given to that term in paragraph (a)(ii) of Clause 6.3 ( Guarantee limitations for Swiss Guarantors ). | ||||
| „Retained Non-Cash“ has the meaning given to that term in Clause 12.9 ( Alternative to Non-Cash Consideration ). | ||||
| „RETT Blocker Assignment Agreements“ has the meaning given to that term in the Notes Terms and Conditions. | ||||
| „Secured Obligations“ means all present and future obligations (other than the Parallel Debt Obligations) of the Obligors to any of the Secured Parties at any time (including, for the avoidance of doubt, under the Guarantee), both actual and contingent and whether incurred solely or jointly or as principal, surety or in any other capacity, whether for principal, interest, costs or otherwise under or in connection with the Transaction Documents, as well as any obligation based on unjust enrichment ( ungerechtfertigte Bereicherung ) or tort ( Delikt ) arising to any Secured Party under or in connection with any Transaction Document. | ||||
| „Secured Party“ means each of the Security Agent, each Holders‘ Representative and each Beneficiary. | ||||
| „Security Agent’s Request“ has the meaning given to that term in Clause 6.1 ( Limitations relating to a GmbH Guarantor ). | ||||
| „Share Pledge Agreements“ has the meaning given to that term in the Notes Terms and Conditions.8 | ||||
| „Structural Assignment Agreements“ has the meaning given to that term in the Notes Terms and Conditions. | ||||
| „Subsidiary“ means any entity over which a person has direct or indirect control or owns directly or indirectly more than 50 per cent. of the voting capital or similar right of ownership, and „control“ for this purpose means the power to direct the management and the policies of the entity whether through the ownership of voting capital, by contract or otherwise within the meaning of section 17 of the German Stock Corporation Act ( Aktiengesetz ). | ||||
| „Swiss Accessory Security“ has the meaning given to that term in Clause 3.8 (Duties of the Security Agent ). | ||||
| „Swiss Federal Tax Administration“ means the tax authorities referred to in article 34 of the Swiss Withholding Tax Act. | ||||
| „Swiss Guarantor“ means any Guarantor incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to article 9 of the Swiss Withholding Tax Act. | ||||
| „Swiss Withholding Tax“ means taxes imposed under the Swiss Withholding Tax Act. | ||||
| „Swiss Withholding Tax Act“ means the Swiss Federal Act on Withholding Tax of 13 October 1965 ( Bundesgesetz über die Verrechnungssteuer ), together with the related ordinances, regulations and guidelines, all as issued, amended or replaced and applicable from time to time. | ||||
| „Transaction Documents“ means the Notes, the Notes Terms and Conditions, this Agreement and each Collateral Agreement. | ||||
| 1.2 | Unless otherwise stated therein or inconsistent therewith or the context requires otherwise, the following rules of interpretation shall apply to this Agreement: | |||
| (a) | Words denoting the singular shall also include the plural and vice versa ; words denoting persons only shall also include firms and corporations and vice versa ; | |||
| (b) | References to any statutory provision shall be deemed also to refer to any statutory modification, re-statement or re-enactment and to any statutory instrument, order or regulation made thereunder or under any statutory modification, re-statement or re-enactment thereof; | |||
| (c) | Reference to any document or agreement shall include reference to such document or agreement as amended, amended and restated, varied, supplemented, replaced, novated or otherwise modified from time to time and to any document or agreement expressed to be supplemental thereto or executed pursuant thereto; | |||
| (d) | Headings in this Agreement are for ease of reference only and are not intended to affect its interpretation. | |||
| 1.3 | Save where the contrary is indicated in this Agreement, any reference in this Agreement to a time of day shall be construed as a reference to time in Frankfurt am Main, Germany. | |||
| 1.4 | Where the Security Agent is referred to in this Agreement as acting „reasonably“ or in a „reasonable“ manner or as coming to an opinion or determination that is „reasonable“ (or any similar or analogous wording is used), this shall mean that the Security Agent shall, where it has in fact sought such instructions, be acting or coming to an opinion or determination on the instructions of the Beneficiaries or from the Holders‘ Representative (in case a Holders‘ Representative has been appointed) and that the Security Agent shall be under no obligation to determine the reasonableness of such instructions from Beneficiaries or from the Holders‘ Representative or whether in giving such instructions by the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) is acting in a reasonable manner. | |||
| 1.5 | Where agreement or approval, acceptability to or satisfaction with or approval of the Security Agent is referred to (or any similar or analogous wording is used) in relation to a matter not affecting the personal interests of the Security Agent, this shall mean the agreement or approval, acceptability to or satisfaction with or approval of, (or similar where similar or analogous wording is used, as applicable) the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) as notified by or on behalf of, the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) to the Security Agent. | |||
| 1.6 | Where the Security Agent is obliged to consult under the terms of the Transaction Documents, unless otherwise specified, the Security Agent shall carry out that consultation in accordance with the instructions (if any) it receives under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from Beneficiaries by Holder Majority Decision. The Security Agent should be under no obligation to determine the reasonableness of such circumstances or whether in giving such instructions the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) are acting in a reasonable manner. | |||
| 1.7 | In respect of paragraphs 1.4 to 1.6 above, the Security Agent shall not be responsible for any liability occasioned by any delay or failure on the part of the Beneficiaries or the Holders‘ Representative (in case a Holders‘ Representative has been appointed) to give any such instructions or direction or to form any such opinion. | |||
| 1.8 | This Agreement is made in the English language and the English language version of this Agreement shall prevail over any possible translation of this Agreement. Where a German term has been used, it alone, and not the English term to which it relates, shall be authoritative for the interpretation of this Agreement. Where English terms are accompanied by German definitions, such definitions shall define how such terms are to be interpreted under the laws of Germany. | |||
| 1.9 | Terms capitalised, but not defined herein shall have the meaning given to them in the Notes Terms and Conditions. | |||
| 1.10 | In this Agreement, where it relates to a Luxembourg entity, a reference to: | |||
| (a) | a winding-up, administration, liquidation, insolvency, or dissolution includes, without limitation, bankruptcy ( faillite ), insolvency, voluntary dissolution or liquidation ( dissolution or liquidation volontaire ), court ordered liquidation ( liquidation judiciaire ) or reorganisation, reprieve from payment ( sursis de paiement ), judicial reorganisation ( réorganisation judiciaire ), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally; | |||
| (b) | a receiver, administrative receiver, administrator, liquidator, trustee, custodian or similar officer includes, without limitation, a juge délégué , commissaire , juge-commissaire , mandataire ad hoc , administrateur provisoire , liquidateur or curateur ; | |||
| (c) | gross negligence is a reference to faute lourde and wilful misconduct is a reference to faute dolosive ; | |||
| (d) | a security includes any hypothèque , nantissement , gage , privilège , sûreté réelle , droit de rétention , and any type of security in rem ( sûreté réelle ) or agreement or arrangement having a similar effect and any transfer of title by way of security; | |||
| (e) | a person being unable to pay its debts includes that person being in a state of cessation of payments ( cessation de paiements ) and a loss of its creditworthiness ( ébranlement de crédit ); | |||
| (f) | by-laws or constitutional documents includes its up-to-date (restated) articles of association ( statuts coordonnés ); | |||
| (g) | a director or a manager includes an administrateur and a gérant ; | |||
| (h) | attachments or similar creditors process means an executory attachment ( saisie exécutoire ) or conservatory attachment ( saisie arrêt ); and | |||
| (i) | a set-off includes, for purposes of Luxembourg law, legal set-off. | |||
| 2. | EFFECTIVENESS | |||
| 2.1 | This Agreement (other than the Immediately Effective Provisions) shall only become effective upon implementation ( Vollzug ) within the meaning of section 21 German Act on Debt Securities ( Schuldverschreibungsgesetz ) of the amendments in relation to the Notes (in the form prior to the date of this Agreement) contemplated by the Invitation to Vote (the date of such occurrence, the „Effective Date“). | |||
| 2.2 | The Immediately Effective Provisions shall become effective on the date on which this Agreement has been duly executed by each of the original Parties. | |||
| 2.3 | The Company shall promptly upon the occurrence of the Effective Date notify the same to the Security Agent. | |||
| 3. | DUTIES OF THE SECURITY AGENT | |||
| 3.1 | The Security Agent shall hold and administer the Notes Collateral and exercise its rights in respect thereof and discharge its duties under the Transaction Documents as a trustee ( Treuhänder ) for the benefit of the Secured Parties. For the avoidance of doubt, the Security Agent does not act as a common representative ( gemeinsamer Vertreter ) within the meaning of the German Act on Debt Securities ( Schuldverschreibungsgesetz ). | |||
| 3.2 | This Agreement constitutes a genuine contract for the benefit of third parties ( echter Vertrag zugunsten Dritter ) pursuant to § 328 (1) of the German Civil Code ( Bürgerliches Gesetzbuch ) in respect of the obligations of the Security Agent contained herein to act as trustee ( Treuhänder ) for the benefit of the Beneficiaries which are not party to this Agreement. | |||
| 3.3 | This Agreement sets out the general rights and obligations of the Security Agent which govern the performance of its functions in respect of the Notes Collateral and the Guarantee, provided that the Security Agent shall only be obliged to perform the obligations, activities and services explicitly set out in this Agreement and no other duties shall be implied. | |||
| 3.4 | Subject to the provisions of this Agreement, the Security Agent shall exercise its duties under this Agreement with regard to the interests of and for the benefit of the Beneficiaries. If the Security Agent receives an instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries as per a Holder Majority Decision, the Security Agent shall act as instructed subject to Clause 21 ( General Provisions regarding the Security Agent ) below. | |||
| 3.5 | The Security Agent is not obliged to monitor the discharge by the Issuer of its payment and other obligations arising from the Notes or any other relevant Transaction Documents or to carry out duties which are the responsibility of the Issuer. | |||
| 3.6 | The Security Agent shall, unless otherwise provided for under Clause 3.4 above or elsewhere in this Agreement or any other Transaction Document, decide on any consents or approvals to be given by it pursuant to the Transaction Documents in its reasonable discretion in accordance with this Agreement (in particular Clause 21 ( General Provisions regarding the Security Agent )). | |||
| 3.7 | The Security Agent, as long it is appointed hereunder, shall not render services to any other persons or carry out any business other than in connection with the Transaction Documents under this Agreement. | |||
| 3.8 | Without prejudice to the generality of the foregoing, for the purposes of any Notes Collateral governed by Swiss law: | |||
| (a) | The Security Agent shall: | |||
| (i) | hold and administer any non-accessory Notes Collateral ( nicht-akzessorische Transaktionssicherheit ) governed by Swiss law as indirect representative ( indirekter Stellvertreter ) in its own name, including as creditor of the Parallel Debt Obligations (as defined below), but on behalf and for the benefit of each Secured Party; and | |||
| (ii) | hold and administer any accessory Notes Collateral ( akzessorische Transaktionssicherheit ) (e.g. a right of pledge) governed by Swiss law (a „Swiss Accessory Security“) for itself and as direct representative ( direkter Stellvertreter ) in the name and on behalf of each Secured Party. | |||
| (b) | Each Secured Party (other than the Security Agent) hereby appoints the Security Agent as its direct representative ( direkter Stellvertreter ) and authorizes the Security Agent to: | |||
| (i) | accept, execute and deliver in its name and on its behalf as its direct representative ( direkter Stellvertreter ) any Collateral Agreements creating a Swiss Accessory Security; | |||
| (ii) | accept, execute and deliver in its name and on its behalf as its direct representative ( direkter Stellvertreter ) any amendments, confirmations and/or alterations to any Collateral Agreements creating a Swiss Accessory Security and to administer, exercise such rights, remedies, powers and discretions as are delegated to or conferred upon the Security Agent thereunder together with such powers and discretions as are reasonably incidental thereto; | |||
| (iii) | to effect in its name and on its behalf as its direct representative ( direkter Stellvertreter ) any release of any Swiss Accessory Security created under any Collateral Agreements in accordance with this Agreement; and | |||
| (iv) | to take such other action in its name and on its behalf as its direct representative ( direkter Stellvertreter ) as may from time to time be authorized under or in accordance with the Transaction Documents. | |||
| 4. | PARALLEL DEBT | |||
| 4.1 | Each Obligor hereby agrees and undertakes vis-á-vis the Security Agent by way of an abstract acknowledgement of debt ( abstraktes Schuldanerkenntnis ) that it shall pay to the Security Agent sums equal to, and in the currency of, any Secured Obligations owed by it to a Secured Party (other than the Security Agent) under any Transaction Document (the „Principal Obligations“) as and when the same fall due ( fällig ) for payment under the relevant Transaction Document (the „Parallel Debt Obligations“), it being understood that the amount which may become payable by each of the Obligors as its Parallel Debt pursuant to this Clause 1.2 shall never exceed the total of the amounts which are payable under or in connection with its Secured Obligations. | |||
| 4.2 | The right of the Security Agent to demand payment of the Parallel Debt Obligations shall be independent and several from the rights of the other Secured Parties to demand payment of the Principal Obligations provided that the payment by an Obligor of its Parallel Debt Obligations to the Security Agent in accordance with this Clause 4.2 shall also discharge (in the amount of the relevant payment) the corresponding Principal Obligations and vice versa the payment by that Obligor of its Principal Obligations in accordance with the provisions of the relevant Transaction Documents shall also discharge (in the amount of the relevant payment) the corresponding Parallel Debt Obligations. No Principal Obligation shall be discharged by a discharge of the Parallel Debt Obligations if such discharge of the Parallel Debt Obligations is effected by virtue of any set-off, counterclaim or similar defence invoked by the Issuer vis-à-vis the Security Agent other than in accordance with the terms of the relevant Transaction Document. | |||
| 4.3 | All monies received or recovered by the Security Agent by the enforcement of any Collateral Agreement, this Agreement or under the Guarantee granted to secure the Parallel Debt Obligations, shall be applied in accordance with this Agreement. | |||
| 5. | GUARANTEE AND INDEMNITY | |||
| 5.1 | Each Guarantor irrevocably and unconditionally jointly and severally ( gesamtschuldnerisch ): | |||
| (a) | guarantees ( garantiert ) by way of an independent payment obligation ( selbständiges Zahlungsversprechen ) to the Security Agent (but not vis-à-vis any other Secured Party) to pay to the Security Agent (for distribution by the Security Agent to the Beneficiaries in accordance with Clause 13 ( Priority of payments: Order of application of Proceeds ) any amount payable under the Secured Obligations and the Parallel Debt Obligations from time to time. Payment under this Guarantee shall be due ( fällig ) within three (3) Business Days of a written demand by the Security Agent stating the sum demanded from that Guarantor and that such sum is an amount of principal, interest, costs, expenses or other amount under or in connection with the Transaction Documents that has not been fully and irrevocably paid by an Obligor when due; and | |||
| (b) | undertakes vis-à-vis the Security Agent (but not vis-à-vis any other Secured Party) to indemnify ( schadlos halten ) any Secured Party against any cost, loss or liability suffered by that Secured Party if any obligation of an Obligor under or in connection with any Transaction Document or any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which the relevant Secured Party would otherwise have been entitled to recover ( Ersatz des positiven Interesses ) and that claim shall be due ( fällig ) within three (3) Business Days of a written demand by the Security Agent. | |||
| For the avoidance of doubt this guarantee and indemnity does not constitute a guarantee upon first demand ( Garantie auf erstes Anfordern ) and, in particular, receipt of such written demand shall not preclude any rights and/or defences the Guarantor may have with respect to any payment requested by the Security Agent under this guarantee and indemnity or the German Civil Code ( Bürgerliches Gesetzbuch – BGB). | ||||
| 5.2 | This guarantee and indemnity is independent and separate from the obligations of any Obligor under any of the Transaction Documents and is a continuing guarantee and indemnity which will extend to the ultimate balance of sums payable by any Obligor to any Secured Party under the Transaction Documents, regardless of any intermediate payment or discharge in whole or in part. It shall extend to any additional obligations of an Obligor resulting from any amendment, novation, supplement, extension, restatement or replacement of any Transaction Document, including without limitation any extension of or increase in any facility or issuance amount, the addition of a new facility or a new issuance under any Transaction Document. | |||
| 5.3 | If any payment by an Obligor or any discharge given by the Security Agent (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: | |||
| (a) | the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and | |||
| (b) | the Security Agent shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred. | |||
| 5.4 | ||||
| (a) | The obligations of each Guarantor under this Clause 5 will not be affected by an act, omission, matter or thing which relates to the principal obligation (or purported obligation) of any Obligor (as the case may be) under the relevant Transaction Documents and which would reduce, release or prejudice any of its obligations under this Clause 5, including any personal defences of any Obligor ( Einreden des Hauptschuldners ), or any right of revocation ( Anfechtung ) or set-off ( Aufrechnung ) of any Obligor. | |||
| (b) | The obligations of each Guarantor under this Clause 5 are independent from any other security or guarantee which may have been or will be given to the Secured Parties. In particular, the obligations of each Guarantor under this Clause 5 will not be affected by any of the following: | |||
| (i) | the deferral of payment ( Stundung ), waiver or consent granted to, any other Obligor from or in respect of its obligations under or in connection with any Transaction Document; | |||
| (ii) | 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 any other person or any failure to realise the full value of any security; | |||
| (iii) | any incapacity or lack of power, authority or legal personality of or dissolution or a deterioration of the financial condition of any other Obligor; or | |||
| (iv) | any unenforceability, illegality or invalidity of any obligation of any other Obligor under any Transaction Document. | |||
| (c) | For the avoidance of doubt nothing in this Clause 5 shall preclude any defences that any Guarantor (in its capacity as Guarantor only) may have against the Security Agent that the guarantee and indemnity does not constitute its legal, valid, binding or enforceable obligations. | |||
| 5.5 | The Security Agent will not be required to proceed against or enforce any other rights or security or claim payment from any person before claiming from any Guarantor under this Clause 5. This applies irrespective of any provision of a Transaction Document to the contrary. | |||
| 5.6 | Until all amounts which may be or become payable by the Obligors under or in connection with the Transaction Documents have been irrevocably paid in full, the Security Agent may, subject to the terms of this Agreement: | |||
| (a) | refrain from applying or enforcing any other monies, security or rights held or received by it in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and | |||
| (b) | hold in an interest-bearing suspense account any monies received from any Guarantor or on account of any Guarantor’s liability under this Clause 5. | |||
| 5.7 | Until all amounts which may be or become payable by the Obligors under or in connection with the Transaction Documents have been irrevocably paid in full and unless the Security Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under any of the Transaction Documents or by reason of any amount being payable, or liability arising, under this Clause 5: | |||
| (a) | to be indemnified by an Obligor; | |||
| (b) | to claim any contribution from any other guarantor of any Obligor’s obligations under the Transaction Documents; | |||
| (c) | to exercise any right of set-off against any Obligor; and/or | |||
| (d) | to take the benefit (in whole or in part and whether by way of legal subrogation or otherwise) of any rights of the Secured Parties under the Transaction Documents or of any other guarantee or security taken pursuant to, or in connection with, the Transaction Documents by any Secured Party. | |||
| 5.8 | If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the Transaction Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Security Agent or as the Security Agent may direct. | |||
| 5.9 | This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Secured Party or the Security Agent for the benefit of the Beneficiaries. | |||
| 5.10 | The Security Agent shall be the only party entitled under the guarantees and indemnities granted under this Clause 5 provided that the Security Agent shall only be entitled to take any act or enforce its rights under this Clause 5 in accordance with the instruction procedure pursuant to Clause 12 ( Enforcement of Transaction Security and the Guarantee ). | |||
| 6. | GUARANTEE LIMITATIONS | |||
| 6.1 | Limitations relating to a GmbH Guarantor | |||
| (a) | For the purpose of this Clause 6.1: | |||
| „Auditors“ means the auditors of any relevant GmbH Guarantor. | ||||
| „German Guarantor“ means a Guarantor incorporated under the laws of Germany. | ||||
| „GmbH Guarantor“ means a German Guarantor which is a limited liability company ( Gesellschaft mit beschränkter Haftung ). | ||||
| „GmbH & Co. KG Guarantor“ means a German Guarantor incorporated as a limited liability partnership ( Kommanditgesellschaft ) with a limited liability company ( Gesellschaft mit beschränkter Haftung ) as a general partner ( Komplementär ) (GmbH & Co. KG). | ||||
| „GmbHG“ means the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ). | ||||
| „Guarantee Demand Date“ means each date on which the Security Agent issues a written demand upon the relevant Guarantor to make payment in respect of the Guarantee. | ||||
| „HGB“ means the German Commercial Code ( Handelsgesetzbuch ). | ||||
| (b) | In the case that the Guarantee is granted by a GmbH Guarantor and secures liabilities which are owed by direct or indirect shareholders of that GmbH Guarantor or Subsidiaries of such shareholders (such Subsidiaries not to include the GmbH Guarantor and the Subsidiaries which are also Subsidiaries of that GmbH Guarantor) („Up-Stream or Cross-Stream Guarantees“), the Security Agent agrees not to enforce the Guarantee in respect of such amount: | |||
| (i) | as is required to ensure that the amount of the relevant GmbH Guarantor’s net assets, calculated as the sum of the balance sheet positions shown under section 266 (2) (A), (B), (C), (D) and (E) HGB minus the sum of the balance sheet positions shown under section 266 (3) (B), (C), (D) and (E) HGB and any amounts not available for distribution to shareholders pursuant to section 253 (6) HGB, section 268 (8) HGB and section 272 (5) HGB and any similar provisions preventing distributions of amounts ( Ausschüttungssperren ) (hereinafter „Net Assets“), does not fall below the amount of its registered share capital ( Stammkapital ); or | |||
| (ii) | where the amount of the relevant GmbH Guarantor’s Net Assets already is below the amount of its registered share capital, as is required as to ensure that such amount is not further reduced. | |||
| The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany ( Grundsätze ordnungsmäßiger Buchführung ) and be based on the same principles that were applied by the German Guarantor in the preparation of its most recent annual balance sheet ( Jahresbilanz ). | ||||
| (c) | The limits in paragraphs (b)(i) and (b)(ii) above will not apply: | |||
| (i) | to the extent any proceeds from the issuance of the Notes have been on-lent to, or otherwise been passed on to, the relevant GmbH Guarantor or any of its Subsidiaries to the extent that any such on-lent or passed-on amount has not been repaid by that GmbH Guarantor or any of its Subsidiaries at the Guarantee Demand Date and provided that, in such case, the Security Agent waives with binding effect on the Parties the restrictions set out in Clause 5.7 in respect of the GmbH Guarantor’s recourse claim (if any) arising as a result of the enforcement of the Guarantee so that it shall be permitted for the GmbH Guarantor to make use of its rights to (A) set off its recourse claim (if any) against the loan obligation in respect of the amounts on-lent to it or (B) otherwise use its recourse claim (if any) to settle or discharge this loan obligation. For the avoidance of doubt, the Security Agent may elect not to waive the restrictions set out in Clause 5.7 in respect of the GmbH Guarantor’s recourse claim (if any) arising as a result of the enforcement of the Guarantee against that GmbH Guarantor provided that if the Security Agent so elects the limits in paragraphs (b)(i) and (b)(ii) above apply in relation to any amounts which correspond to funds that have been borrowed under the Notes and have been on-lent to, or otherwise been passed on to, the relevant GmbH Guarantor or any of its Subsidiaries; | |||
| (ii) | following the Guarantee Demand Date, the relevant GmbH Guarantor does not provide financial statements in accordance with paragraphs (e) and (f) below; | |||
| (iii) | if, on the Guarantee Demand Date, the relevant GmbH Guarantor as dominated entity ( beherrschtes Unternehmen ) is party to a domination and/or profit and loss transfer agreement ( Beherrschungs- und/oder Gewinnabführungsvertrag ) with its (indirect) shareholder either directly or through an unbroken chain of domination and/or profit transfer agreements being the Issuer as the primary obligor of the relevant guaranteed obligations, as dominating entity ( beherrschendes Unternehmen ) | |||
| (A) | unless the GmbH Guarantor has proven by way of a final ( rechtskräftig ) court judgment that the existence of a profit and loss transfer agreement and/or domination agreement is not sufficient to disapply Section 30 sentence 1 GmbHG and any other provision of statutory law of the GmbHG, the German Stock Corporation Act ( Aktiengesetz ), the German Criminal Code ( StGB ) or mandatory provisions of the German Civil Code ( Bürgerliches Gesetzbuch ) (together, the „Relevant Provisions“), the breach of which would result in a personal or criminal liability of the managing directors of the GmbH Guarantor which has its basis ( Ursprung ) in the granting of Up-Stream or Cross-Stream Guarantees, and that payment under the Guarantee would result in a breach of section 30 sentence 1 or 31 GmbHG or otherwise result in a personal or criminal liability of the managing directors of the GmbH Guarantor as a result of breach of statutory obligations under any of the Relevant Provisions, which has its basis ( Ursprung ) in the granting of Up-Stream or Cross-Stream Guarantees. The Security Agent agrees that if such court proceedings to obtain a final judgment in that respect has been initiated ( anhängig ) by the GmbH Guarantor against the Security Agent no later than twenty (20) Business Days after the Guarantee Demand Date (and does not terminate such proceedings itself), the Security Agent will only enforce the Guarantees subject to the limitations set out in this Clause 6.1 (the „Limitations on Enforcement“) until such proceedings have been settled by a final court judgment on the merit ( Begründetheit ), provided that if a judgment is rendered which is not based on merit ( Begründetheit ), the Limitations on Enforcement with respect to the Security Agent shall only continue to be applicable if the relevant GmbH Guarantor initiates new court proceedings against the Security Agent within twenty (20) Business Days of such judgment. | |||
| (B) | Irrespective of the preceding sentences, a decision of the Federal Supreme Court ( Bundesgerichtshof ) ruling on whether the existence of a profit and loss transfer agreement and/or a domination agreement is sufficient to disapply section 30 sentence 1 and 31 GmbHG and any other Relevant Provisions to avoid any personal or criminal liability of the managing directors of the GmbH Guarantor in respect of the taking out of a guarantee or surety or providing of security interests for debt of the parent entity of the guarantor, the surety company or the security provider, respectively, or its direct or indirect subsidiaries, if these subsidiaries are not subsidiaries of the guarantor, surety company or security provider, respectively, shall be deemed as sufficient evidence as between the Parties to this Agreement in respect of that question. In any case, however, the GmbH Guarantor may only rely on this paragraph (iii) if and to the extent the GmbH Guarantor confirms in the Management Determination (and the Auditors confirm in any Auditors‘ Determination) that the GmbH Guarantor’s claims for the reimbursement of losses (and indemnity claims which would arise following payment under the Guarantee) against its direct or indirect shareholders would not be of substance ( nicht werthaltig ); or | |||
| (iv) | if and to the extent the relevant GmbH Guarantor holds on the Guarantee Demand Date a fully recoverable indemnity claim or claim for consideration or return ( vollwertiger Gegenleistungs- oder Rückgewähranspruch ) against its shareholder that can be accounted for in the balance sheet of the relevant GmbH Guarantor at full value ( vollwertig ). | |||
| (d) | For the purpose of the calculation of the Net Assets of the relevant GmbH Guarantor, the following balance sheet items shall be disregarded: | |||
| (i) | the amount of any increase of the relevant GmbH Guarantor’s registered share capital after the date of this Agreement (A) if and to the extent it has been effected without the prior written consent of the Security Agent, or (B) if and to the extent that it is not fully paid up provided that the corresponding claim against the shareholders is not accounted for as an asset in the balance sheet at full value ( vollwertig ) of the GmbH Guarantor at the Guarantee Demand Date; and | |||
| (ii) | loans provided to the relevant GmbH Guarantor by a member of the Group if such loans are subordinated (for the benefit of its creditors in general) or are considered subordinated in an insolvency proceeding over its assets pursuant to section 39 (1) no. 5 of the German Insolvency Code ( Insolvenzordnung ), unless extinguishing the loan (e.g. by assignment to the borrower under that loan) would (x) violate mandatory legal restrictions applicable to the relevant member of the Group; (y) violate any of the terms of any of the Transaction Documents; and/or (z) trigger or increase the risk of any managing director or other officer or representative of any member of the Group of becoming personally and/or criminally liable as a result thereof and it being understood that, if such member of the Group is a Guarantor and/or a grantor of Notes Collateral, the corresponding amount of the payment claim of that member of the Group shall be disregarded when calculating the Net Assets (if applicable) of that member of the Group in connection with the enforcement of the Guarantee or Notes Collateral created by that member of the Group. The first sentence of this paragraph (ii) shall not apply if the Security Agent notifies the respective GmbH Guarantor that it elects to enforce the Guarantee and/or Notes Collateral against that other member of the Group and the aforementioned payment claim is taken into account when calculating that other member of the Group’s Net Assets (if applicable) available for such enforcement; and | |||
| (iii) | loans or other liabilities incurred in wilful or gross negligent violation of the provisions of any of the Transaction Documents. | |||
| (e) | The relevant GmbH Guarantor shall deliver (within fifteen (15) Business Days following the Guarantee Demand Date) to the Security Agent a notification stating that and to which extent the amount payable in respect of the Guarantee shall be limited in accordance with paragraphs (b)(i) and (b)(ii) above and taking into account the adjustments in paragraph (d) above, if any, such notification to be supported by evidence reasonably satisfactory to the Security Agent, i.e. interim financial statements ( Stichtagsbilanz ) showing the balance sheet positions mentioned in paragraph (b)(i) above (taking into account the adjustments in paragraph (d) above, if any) as of the date on which the enforcement of the obligations under this Clause 6.1 is sought (as set forth above, the „Management Determination“). | |||
| (f) | Following the Security Agent’s receipt of the Management Determination, upon the Security Agent’s request (acting upon a corresponding prior instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, and in each case acting reasonably and in good faith) (the „Security Agent’s Request“), the relevant GmbH Guarantor will deliver (within forty (40) Business Days following receipt of the Security Agent’s Request) to the Security Agent an up-to-date balance sheet drawn-up by the Auditors together with a determination of the Net Assets. Such balance sheet and determination of Net Assets shall be prepared in accordance with accounting principles pursuant to the HGB, be based on the same principles that were applied when establishing the previous year’s balance sheet and take into account the adjustments in paragraph (d) above, if any. The determination by the Auditors (as set forth above, the „Auditors‘ Determination“) pertaining to the relevant GmbH Guarantor shall be prepared as of the Guarantee Demand Date. | |||
| (g) | The Security Agent shall be entitled to demand payment under the Guarantee in an amount which would, in accordance with the Management Determination or, if applicable and taking into account any previous enforcement in accordance with the Management Determination, the Auditors‘ Determination, not cause the relevant GmbH Guarantor’s Net Assets to be reduced below the registered share capital of the relevant GmbH Guarantor or further reduced if already below such registered share capital. If (i) and to the extent the Net Assets as determined by the Auditors‘ Determination are lower than the Net Assets as determined by the Management Determination or (ii) any amounts in respect of the Guarantee have been enforced without regard to the limitations set out in (b)(i) and (b)(ii) above because (A) the Management Determination was not delivered within the relevant time frame or (B) the Auditors‘ Determination was not delivered within the relevant time frame but has been delivered within ten (10) Business Days following the due date for the delivery of the Auditors‘ Determination, the Security Agent shall without undue delay repay to the relevant GmbH Guarantor upon written demand of the relevant GmbH Guarantor any amount (if and to the extent already paid to the Security Agent) in the case of (i) equal to the difference between the amount paid and the amount payable resulting from the Auditors‘ Determination, and in the case of (ii), which the Security Agent would not have been entitled to enforce had the Management Determination and the Auditors‘ Determination been delivered in time provided such demand for repayment is made to the Security Agent within six (6) months ( Ausschlussfrist ) from the date the Guarantee is enforced. The Security Agent may withhold any amount received pursuant to an enforcement of this Guarantee until final determination of the amount of the Net Assets pursuant to the Auditors‘ Determination. | |||
| (h) | If pursuant to the Auditors‘ Determination the amount of the available Net Assets is higher than that set out in the Management Determination, the relevant GmbH Guarantor shall pay such amount to the Security Agent within five (5) Business Days after receipt of the Auditors‘ Determination. | |||
| (i) | In a situation where the relevant GmbH Guarantor does not have sufficient Net Assets to maintain its registered share capital, the relevant GmbH Guarantor shall within three (3) months after a written request by the Security Agent, to the extent commercially justifiable, dispose of all assets which are not necessary for its business ( nicht betriebsnotwendig ) where the relevant assets are shown in the balance sheet of the relevant GmbH Guarantor with a book value which (in the reasonable opinion of the Security Agent) is significantly lower than the market value of such assets. After the expiry of such three (3) Months period, the GmbH Guarantor shall, within three (3) Business Days, notify the Security Agent of the amount of the net proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets of the relevant GmbH Guarantor taking into account such proceeds. Such calculation shall, upon the Security Agent’s request (acting reasonably), be confirmed by one of the Auditors of the relevant GmbH Guarantor within a period of twenty (20) Business Days following the request. | |||
| (j) | The limits set out in paragraphs (b)(i) and (b)(ii) above do not affect the rights of the Security Agent to claim any outstanding amount again at a later point in time if any to the extent that paragraphs (b)(i) and (b)(ii) above would allow this at that later point. | |||
| (k) | Paragraphs (b) to (j) of this Clause 6.1 shall apply mutatis mutandis if the Guarantee is granted by a GmbH & Co. KG Guarantor in relation to the limited liability company ( GmbH ) as general partner ( Komplementär ) of that GmbH & Co. KG Guarantor. | |||
| 6.2 | Guarantee limitations for Luxembourg Guarantors | |||
| (a) | Notwithstanding any other provision of this Agreement or any other Transaction Document, to the extent that the Guarantee is granted by a guarantor existing under the laws of Luxembourg (the „Luxembourg Guarantor“), the aggregate maximum liability of a Luxembourg Guarantor under this Agreement and any other Transaction Document for the obligations of any Obligor which is not a direct or indirect Subsidiary of the Luxembourg Guarantor shall be limited to an amount not exceeding the greater of: | |||
| (i) | 95 per cent. of the Luxembourg Guarantor’s own funds ( capitaux propres ), as referred to in annex I to the grand-ducal regulation dated 18 December 2015 defining the form and content of the presentation of balance sheet and profit and loss account, and enforcing the Luxembourg law dated 19 December 2002 concerning the trade and companies register and the accounting and annual accounts of undertakings (the „Regulation“) as increased by the amount of any subordinated debt (including any Luxembourg Intra-Group Liabilities (as defined below)) each as reflected in the Luxembourg Guarantor’s latest duly approved annual accounts and other relevant documents available to the Security Agent at the date of this Agreement; or | |||
| (ii) | 95 per cent. of the Guarantor’s own funds ( capitaux propres ), as referred to in the Regulation as increased by the amount of any subordinated debt (including any Luxembourg Intra-Group Liabilities (as defined below)) each as reflected in the Luxembourg Guarantor’s latest duly approved annual accounts. | |||
| (b) | Any payment made by the Luxembourg Guarantor with respect to the Agreement and any other Transaction Document will be made without withholding or deduction for or on account of taxes in Luxembourg unless required by Luxembourg law. If the Luxembourg Guarantor is required by Luxembourg law to withhold or deduct amounts for or on account of tax with respect to a payment to the Security Agent, the Luxembourg Guarantor will pay the additional amounts necessary so that the net amount received by the Security Agent after the withholding or deduction is not less than the amount that it would have received in the absence of the withholding or deduction. For the avoidance of doubt, paragraph (a) above shall prevail to this paragraph (b) which shall not lead to the aggregate maximum liability of a Luxemburg Guarantor described therein being exceeded. | |||
| (c) | For the purposes of this Clause 6.2, „Luxembourg Intra-Group Liabilities“ means all existing liabilities owed by a Luxembourg Guarantor to any other member of the Group that are not financed by a borrowing under any Transaction Document. | |||
| (d) | The above limitation shall not apply to any amounts borrowed by, or made available to, in any form whatsoever, the Luxembourg Guarantor or any of its direct or indirect present or future Subsidiaries under any Transaction Documents (or any document entered into in connection therewith). | |||
| (e) | The obligations and liabilities of any Luxembourg Guarantor shall not include any obligation which, if incurred, would constitute a breach of the provisions of financial assistance under Luxembourg law (to the extent applicable). | |||
| (f) | Where, for the purpose of calculating any amount under paragraph (a) above: | |||
| (i) | no duly established annual accounts are available for the relevant reference period (which will include a situation where, in respect of the determinations to be made above, no final annual accounts have been established in due time in respect of the then most recently ended financial year); or | |||
| (ii) | the relevant annual accounts do not adequately reflect the status of the Luxembourg Guarantor’s subordinated debt or the Luxembourg Guarantor’s own funds ( capitaux propres ) as envisaged above; or | |||
| (iii) | the Luxembourg Guarantor has taken corporate or contractual actions which have resulted in the increase of its own funds or subordinated debt since the close of its last financial year, | |||
| the Security Agent (upon a corresponding prior instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, in each case, acting reasonably and in good faith), may designate a person to make the determination of the relevant Luxembourg Guarantor’s own funds and subordinated debt amounts, based on such available elements and facts as deemed relevant by such person at such time in accordance with the Luxembourg accounting principles applicable to the Luxembourg Guarantor. | ||||
| 6.3 | Guarantee limitations for Swiss Guarantors | |||
| (a) | If and to the extent that: | |||
| (i) | a Swiss Guarantor under this Agreement or any other Transaction Document guarantees, indemnifies and/or secures obligations other than obligations of one of its wholly-owned direct or indirect subsidiaries; and | |||
| (ii) | a guarantee payment in fulfilling such obligations would, under Swiss law then applicable, constitute a repayment of capital ( Einlagerückgewähr ), a violation of the legally protected reserves ( gesetzlich geschützte Reserven ) or the payment of a (constructive) dividend ( Gewinnausschüttung ) by such Swiss Guarantor or would otherwise be restricted under Swiss corporate law, („Restricted Obligations“), such Restricted Obligations (and the amount of any payment in relation thereto) shall from time to time be limited to the maximum amount permitted to be paid under Swiss law then applicable, provided that, such amount shall at no time be less than the maximum amount of freely disposable equity of such Swiss Guarantor (the „Freely Disposable Amount“) at the time or times payment under or pursuant to the Guarantee or otherwise under this Agreement or any other Transaction Document is requested from such Swiss Guarantor and further provided that such limitation (as may apply from time to time or not) shall only apply to the extent it is a requirement under applicable law at the time the respective Swiss Guarantor is required to perform Restricted Obligations under this Agreement or any other Transaction Document and shall not (generally or definitively) free such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date thereof until such times as payment is again permitted notwithstanding such limitation. | |||
| (b) | In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations under this Agreement is obliged to withhold Swiss Withholding Tax in respect of such payment, such Swiss Guarantor shall: | |||
| (i) | use best efforts to ensure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax; | |||
| (ii) | if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; | |||
| (iii) | promptly notify the Security Agent that such notification, or as the case may be, deduction has been made and provide the Security Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration; | |||
| (iv) | in the case of a deduction of Swiss Withholding Tax, use best efforts to ensure that any person other than the Security Agent, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction (A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and pay to the Security Agent upon receipt any amounts so refunded or (B) if the Security Agent or a Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment and if requested by the Security Agent, provide to the Security Agent or the Secured Party such documents that are required by law or applicable tax treaties (or otherwise useful to file a claim) to enable the Security Agent or Secured Party to prepare a claim for and get a refund of Swiss Withholding Tax; | |||
| (v) | to the extent such a deduction is made, not be obliged to either gross-up or indemnify in accordance with the terms of any Transaction Document, or otherwise pay for such deductions in relation to any such payment made by it in respect of any Restricted Obligations unless such payment is permitted under the laws of Switzerland then in force. This subsection (v) is without prejudice to the gross-up or indemnification obligations of any Obligor other than such Swiss Guarantor. | |||
| (c) | If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with paragraph (b) above, the Security Agent shall be entitled to further request payment under the Guarantee as per Clause 5 ( Guarantee and Indemnity ) and any other guarantee, security or indemnity granted to it under this Agreement or any other Transaction Document and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax was required, whereby such further payments shall always be limited to the maximum amount of the Freely Disposable Amount. In case the proceeds irrevocably received by the Security Agent and the Secured Parties pursuant to paragraph (b)(iv) (refund) above and this paragraph (additional enforcements) have the effect that the proceeds received by the Security Agent and the Secured Parties exceed the guaranteed obligations, then the Security Agent or the relevant Secured Party shall return such overcompensation to the relevant Swiss Guarantor. | |||
| (d) | If and to the extent requested by the Security Agent and permitted by applicable law in order to allow the Security Agent (and the Secured Parties) to obtain a maximum benefit under the Transaction Documents and, in particular, this Clause 6.3, a Swiss Guarantor shall promptly implement, and any shareholder of a Swiss Guarantor which is a party to this Agreement or any other Transaction Document shall procure that such Swiss Guarantor shall implement and cause to be implemented within such period, the following: | |||
| (i) | the preparation of an up-to-date audited (interim) balance sheet of such Swiss Guarantor; | |||
| (ii) | the provision of a determination by such Swiss Guarantor of the Freely Disposable Amount based on such audited (interim) balance sheet; | |||
| (iii) | the confirmation of the auditors of such Swiss Guarantor that a payment of the relevant amount corresponding to (the maximum of) the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserve; | |||
| (vi) | the prompt convening of a meeting of the shareholders of such Swiss Guarantor which will approve, or the passing of any shareholders‘ resolution approving the payment or other performance under this Agreement or any other Transaction Document, as applicable; | |||
| (v) | if the enforcement of any Restricted Obligations would be limited as a result of any matter referred to in this Clause 6.3, such Swiss Guarantor shall, to the extent permitted by applicable law, (A) write up or realise any of its assets shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realisation, however, only if such assets are not necessary for such Swiss Guarantor’s business ( nicht betriebsnotwendig ) and/or (B) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Transaction Documents; and | |||
| (vi) | all such other measures reasonably necessary and/or to promptly procure the fulfilment of all prerequisites reasonably necessary to allow such Swiss Guarantor and relevant parent company to promptly make the payments and perform the obligations agreed hereunder from time to time with a minimum of limitations. | |||
| 7. | GUARANTOR UNDERTAKINGS | |||
| Each Guarantor undertakes to comply with any and all undertakings (directly or indirectly) imposed or expressed to be imposed on it as „Guarantor“ in the Notes Terms and Conditions, including, but not limited to, the undertakings pursuant to § 4(1) ( Negative Pledge ) of the Notes Terms and Conditions not to create or permit to subsist any security interest and the undertakings included in § 12 ( Covenants ) of the Notes Terms and Conditions, which are (directly or indirectly) imposed or expressed to be imposed on it as „Guarantor“. | ||||
| 8. | ASSET MANAGEMENT | |||
| (a) | The Issuer shall transfer (and shall procure ( dafür einstehen ) that the relevant member of the Group will transfer) all electronic data, documents and information related to the Group’s asset management, property management, facility management and properties (including the documents and information specified in the „Key Documents List“ attached as Schedule 2 ( Key Documents List ) that are held by the Issuer or any other member of the Group (the „Asset Documentation“) (be it on servers owned by the Issuer or the member of the Group or servers to which the Issuer or such member of the Group has otherwise access to) within three (3) Business Days after the Amendment Date to [GP InterCo [●] S.á r.l.] or a wholly-owned subsidiary of [GP InterCo [●] S.á r.l.] (such entity, the „New Asset Management Depository“) by transferring the legal ownership and possession of the Issuer’s or the Group member’s respective servers and the Asset Documentation to the New Asset Management Depository and/or servers owned by the New Asset Management Depositary under a data transfer agreement („Data Transfer Agreement“). The Issuer shall procure that (i) any newly created or received Asset Documentation shall henceforth be stored on servers owned by the New Asset Management Depository and (ii) no databases or software tools except for the ones transferred to and owned by the New Asset Management Depository will be used to file or manage Asset Documentation, it being acknowledged that (i) certain data (in particular personal data regarding employees of the Issuer), which are not relevant for the asset management, property management or facility management may not be transferred to the New Asset Management Depository due to data protection law restrictions, and (ii) the Data Transfer Agreement will include provisions under which the New Asset Management Depository will be obliged to re-transfer certain not required data to the Issuer or such other member of the Group in case the Issuer or member of the Group is no longer affiliated with the New Asset Management Depository. | |||
| (b) | The Issuer hereby represents that, to its best knowledge, all actually present and available physical documents specified in the Key Documents List are in the actual possession of the member of the Group for which they are relevant to conduct its asset management or stored at third party service providers mandated by the respective member of the Group („Mandated Service Providers“); provided that if the Issuer becomes aware that a member of the Group or a Mandated Service Provider is not in possession of such relevant physical documents, the Issuer shall ensure that such physical documents be transferred into the possession of that member of the Group or (as the case may be) a Mandated Service Provider within 10 Business Days. | |||
| (c) | In addition, the Issuer shall amend (and shall procure ( dafür einstehen ) that the relevant members of the Group will agree to amend) all asset management, property management and facility management service agreements between the Issuer and any of member of the Group or Participations („Asset Management Service Agreements“), such that | |||
| (i) | the relevant Asset Management Service Agreement can be terminated by the counterparty in case of a change of control in the relevant counterparty or any direct or indirect shareholder of the counterparty, including where such change of control occurs or is reasonably likely to occur upon an enforcement of the related Collateral; and | |||
| (ii) | the parties to the Asset Management Service Agreements shall (subject to mandatory data protection law) reasonably cooperate to effect the transfer of the asset management, property management and facility management team, including the obligation to transfer any employee-related data (e.g., employment agreements, personnel files, payroll data, insurance contracts, etc.) of such persons and any other information reasonably required for notification pursuant to section 613a (5) BGB upon termination of the respective Asset Management Agreement following an enforcement of the related Collateral unless such obligation is waived by the Security Agent (acting upon a corresponding prior instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, in each case acting reasonably and in good faith). | |||
| 9. | RELEASE OF NOTES COLLATERAL AND GUARANTEE | |||
| (a) | As soon as (i) the Security Agent is satisfied that the Issuer has fully and finally discharged all Secured Obligations or (ii) the Security Agent received a corresponding instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, the Security Agent shall, to the extent the Notes Collateral and the Guarantee has not been previously released in accordance with the relevant Collateral Agreement or this Agreement, promptly re-transfer or release to the Issuer or to the Issuer’s order the Notes Collateral transferred or pledged to it and release the Guarantee. | |||
| (b) | The Security Agent shall further be authorised (but not obliged to, unless satisfied that the relevant requirements have been met) to release and/or re-transfer Collateral and/or the Guarantee in the cases and to the extent set out in the Notes Terms and Conditions. | |||
| 10. | ACTIONS BY THE SECURITY AGENT | |||
| 10.1 | If the Security Agent in the course of its activities, subject to Clause 3.5 above, is notified (without implying any obligation on the Security Agent to investigate) that the existence of the Notes Collateral or the Guarantee is at risk, the Security Agent shall: | |||
| (a) | promptly notify the Holders‘ Representative about such event; and | |||
| (b) | subject to Clause 10.2 below, take or initiate all required actions in accordance with a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision. | |||
| 10.2 | The Security Agent shall only be obliged to perform any action hereunder, including, without limitation, intervene in accordance with paragraph (b) of Clause 10.1 above if, and to the extent that: | |||
| (a) | it has received a corresponding prior instruction under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision; and | |||
| (b) | it is satisfied that it will be fully secured, pre-funded or indemnified (either by reimbursement or in any other way it deems appropriate including payment in advance) against all charges, fees, costs and expenses resulting from its activities (including fees for retaining counsel, banks, auditors or other experts as well as the expenses of retaining third parties to perform certain duties). | |||
| 11. | REPRESENTATIONS AND WARRANTIES | |||
| Each Obligor hereby represents to the Secured Parties that it has the legal capacity, is in a position to perform and has obtained all authorisations, registrations and licences required for the performance of its duties and obligations under the Transaction Documents. | ||||
| 12. | ENFORCEMENT OF NOTES COLLATERAL AND GUARANTEE | |||
| 12.1 | Enforcement Event | |||
| The Notes Collateral may be exercised, collected, claimed and enforced exclusively by the Security Agent in accordance with the provisions of this Agreement and the relevant Collateral Agreements. Each Notes Collateral may be enforced independently from the other Notes Collateral if and when an Enforcement Event as set out in the relevant Collateral Agreement has occurred. | ||||
| 12.2 | Guarantee Event | |||
| The Guarantee may be exercised, collected, claimed and enforced exclusively by the Security Agent in accordance with the terms of Clause 5 ( Guarantee and Indemnity ) and this Clause 12. | ||||
| 12.3 | Enforcement through Security Agent | |||
| For the avoidance of doubt, the Secured Parties shall not have any independent power to enforce, or have recourse to, any Guarantee or security created under the Collateral Agreements (or to exercise any right, power, authority or discretion arising under the Collateral Documents or the Guarantees) except through the Security Agent. | ||||
| 12.4 | Manner of Enforcement | |||
| (a) | As soon as reasonably practicable, and in any event within five (5) Business Days of the Security Agent obtaining actual knowledge of the occurrence of an Enforcement Event and/or a Guarantee Event or having been informed accordingly by the Holders’ Representative or any Beneficiary to do so, the Security Agent shall give notice to the Beneficiaries and request from the Holders‘ Representative (or, in case a Holders‘ Representative has not been appointed, from the Beneficiaries) instructions as to whether and in which manner the Notes Collateral and/or the Guarantee shall be enforced or any other Enforcement Action taken. | |||
| (b) | Upon having obtained or received a Holders‘ Representative Instruction (or, in case a Holders‘ Representative has not been appointed, from the Beneficiaries by Holder Majority Decision) the Security Agent shall proceed with any Enforcement Action as per the relevant instruction. The Security Agent shall not incur any liability vis-à-vis the Issuer or any Beneficiary or the Holders‘ Representative by following any such instruction. | |||
| (c) | In the event that the Security Agent has not received any instructions in accordance with paragraph (b) above or unclear or unequivocal instructions have been provided to the Security Agent, the Security Agent may refrain from enforcing the Notes Collateral and/or Guarantee or any other Enforcement Action until it receives an enforcement instruction under a Holders‘ Representative Instruction (or, in case a Holders‘ Representative has not been appointed, from the Beneficiaries by Holder Majority Decision) and shall be free to decide in its own discretion whether and what action to take or not to take (without incurring any liability). | |||
| 12.5 | Appropriation | |||
| (a) | Without prejudice to the requirements set out in Clause 12.4 ( Manner of Enforcement ) as to a Holders‘ Representative Instruction or Holder Majority Decision, if the Security Agent enforces any Notes Collateral by way of Appropriation, to the extent any of the Secured Obligations are, or are deemed to be, discharged as a consequence of such Appropriation but no payments have been made to the Secured Parties, the Parties agree that for the benefit of the Secured Parties (other than the Security Agent and a Holders‘ Representative) such discharge shall be allocated among the relevant Secured Parties in the second rank in the payment waterfall set out in Clause 13 ( Priority of payments: Order of application of Proceeds ), provided that any such discharge shall be disregarded for the purpose of the calculation and payment of any applicable interest. | |||
| (b) | In the case of paragraph (a), the Security Agent shall, if so instructed under a Holders‘ Representative Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision, sell any asset subject to an Appropriation (or, if such assets comprise shares in a holding company, sell the assets directly or indirectly held by such holding company) as soon as reasonably practicable. To the extent that the Security Agent sells or otherwise realises the assets subject to the Appropriation (or, if such assets comprise shares in a holding company, the assets directly or indirectly held by such holding company), the resulting proceeds shall be distributed in accordance with Clause 13 ( Priority of payments: Order of application of Proceeds ) and as if any discharge pursuant to paragraph (a) above had not occurred. | |||
| 12.6 | Fair value | |||
| (a) | Without prejudice to the requirement to take and act on instructions pursuant to Clause 12.4 ( Manner of Enforcement ) above, in the case of: | |||
| (i) | a Distressed Disposal; or | |||
| (ii) | a Liabilities Sale, | |||
| effected by, or at the request of, the Security Agent, the Security Agent shall take reasonable care to obtain a fair market price having regard to the prevailing market conditions. | ||||
| (b) | The requirement in paragraph (a) above shall be satisfied (and as between the Beneficiaries, the Holders’ Representative, the Company and the Guarantors shall be conclusively presumed to be satisfied) and the Security Agent will be deemed to have discharged all its obligations in this respect under this Agreement and the other Transaction Documents and generally at law if: | |||
| (i) | that Distressed Disposal or Liabilities Sale is made pursuant to any process or proceedings approved or supervised by or on behalf of any court of law; | |||
| (ii) | that Distressed Disposal or Liabilities Sale is made by, at the direction of or under the control of, a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer (or any analogous officer in any jurisdiction) appointed in respect of a member of the Group or the assets of a member of the Group; | |||
| (iii) | that Distressed Disposal or Liabilities Sale is made pursuant to a Competitive Sales Process; or | |||
| (iv) | a Financial Adviser appointed by the Security Agent pursuant to Clause 12.7 ( Appointment of Financial Adviser ) has delivered a Fairness Opinion to the Security Agent in respect of that Distressed Disposal or Liabilities Sale. | |||
| 12.7 | Appointment of Financial Adviser | |||
| (a) | Without prejudice to Clause 3 ( Duties of the Security Agent ), the Security Agent may engage, or approve the engagement of, (in each case on such terms as it may consider appropriate, and the extent to which the Security Agent may rely on any advice, valuation or opinion are agreed) pay for and rely on the services of a Financial Adviser to provide advice, a valuation or an opinion in connection with: | |||
| (i) | a Distressed Disposal or a Liabilities Sale; or | |||
| (ii) | the application or distribution of any proceeds of a Distressed Disposal or a Liabilities Sale; | |||
| (b) | For the purposes of paragraph (a) above, the Security Agent shall act: | |||
| (i) | in accordance with a Holders‘ Representatives Instruction (in case a Holders‘ Representative has been appointed) or from the Beneficiaries by Holder Majority Decision; or | |||
| (ii) | in the absence of any such instructions, as the Security Agent sees fit. | |||
| 12.8 | Non-Cash Recoveries | |||
| (a) | Without prejudice to the requirements set out in 12.4 ( Manner of Enforcement )as to a Holders‘ Representative Instruction or Holder Majority Decision, if the Security Agent enforces any Notes Collateral in any way to receive any Non-Cash Recoveries, it shall distribute those Non-Cash Recoveries pursuant to Clause 13 ( Priority of payments: Order of application of Proceeds ) as if they were cash proceeds, provided that it must be ensured that any cash proceeds directly generated by such Non-Cash Recoveries after the distribution of such Non-Cash Recoveries will be allocated among the Secured Parties in accordance with Clause 13 ( Priority of payments: Order of application of Proceeds ). | |||
| (b) | The Security Agent may (i) hold, manage, exploit, collect, realise and dispose of those Non-Cash Recoveries, including the contribution or transfer of such Non-Cash Recoveries to a separate enforcement entity, the shares, notes or other securities issued by which shall constitute new Non-Cash Recoveries and (ii) hold, manage, exploit, collect, realise and distribute any resulting cash proceeds. | |||
| (c) | No disposal and/enforcement may be made in whole or part (and the Security Agent shall not be required to follow any Holders‘ Representative Instruction or Holder Majority Decision in such case) for Non-Cash Consideration if the Security Agent has reasonable grounds for believing that its receiving, distributing, holding, managing, exploiting, collecting, realising or disposing of that Non-Cash Consideration would have an adverse effect on it. | |||
| 12.9 | Alternative to Non-Cash Consideration | |||
| (a) | If any Non-Cash Recoveries are to be distributed pursuant to Clause 12.8 ( Non-Cash Recoveries ), the Security Agent shall (prior to that distribution and taking into account the Liabilities then outstanding and the cash value of those Non-Cash Recoveries) notify the Secured Parties entitled to receive those Non-Cash Recoveries pursuant to that distribution (the „Entitled Creditors“). | |||
| (b) | If: | |||
| (i) | it would be unlawful for an Entitled Creditor to receive such Non-Cash Recoveries (or it would otherwise conflict with that Entitled Creditor’s constitutional documents for it to do so); and | |||
| (ii) | that Entitled Creditor promptly so notifies the Security Agent and supplies such supporting evidence as the Security Agent may reasonably require, | |||
| that Secured Parties shall be a „Cash Only Creditor“ and the Non-Cash Recoveries to which it is entitled shall be „Retained Non-Cash“. | ||||
| (c) | To the extent that, in relation to any distribution of Non-Cash Recoveries, there is a Cash Only Creditor: | |||
| (i) | the Security Agent shall not distribute any Retained Non-Cash to that Cash Only Creditor but shall otherwise treat the Non-Cash Recoveries in accordance with this Agreement; | |||
| (ii) | if that Cash Only Creditor is represented by a Holders‘ Representative (in case a Holders‘ Representative has been appointed), the Security Agent shall notify the Holders‘ Representative of that Cash Only Creditor’s identity and its status as a Cash Only Creditor; and | |||
| (iii) | to the extent notified pursuant to paragraph (ii) above, the Holders‘ Representative shall not distribute any of those Non-Cash Recoveries to that Cash Only Creditor. | |||
| (d) | The Security Agent shall hold any Retained Non-Cash and shall, acting on the instructions of the Cash Only Creditor entitled to it, manage, exploit, collect, realise and dispose of that Retained Non-Cash for cash consideration and shall distribute any Cash Proceeds of that Retained Non-Cash to that Cash Only Creditor in accordance with Clause 13 ( Priority of Payments: Order of Application of Proceeds ). | |||
| (e) | On any such distribution of Cash Proceeds which are attributable to a disposal of any Retained Non-Cash, the extent to which such distribution is treated as discharging the Liabilities due to the relevant Cash Only Creditor shall be determined by reference to the valuation which determined the extent to which the distribution of the Non-Cash Recoveries to the other Entitled Creditors discharged the Liabilities due to those Entitled Creditors. | |||
| 13. | PRIORITY OF PAYMENTS: ORDER OF APPLICATION OF PROCEEDS | |||
| All amounts from time to time received or recovered by the Security Agent in connection with the realisation or enforcement of any Notes Collateral and/or Guarantee shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law in the following order of priority: | ||||
| (a) | first , to discharge any sums owing to or incurred in connection with this Agreement or the Notes by the Security Agent and, if a Holders‘ Representative has been appointed, the Holders‘ Representative, on a pro rata basis ; | |||
| (b) | second , ranking equally amongst themselves and on a pro rata basis , in payment or distribution to the Beneficiaries (as the case may be via payment to the paying agent under the Notes towards the discharge of the liabilities under the Notes) in accordance with the Notes Terms and Conditions; and | |||
| (c) | third, any remainderto the relevant provider of the Notes Collateral and/or Guarantee. | |||
| 14. | RETAINING THIRD PARTIES | |||
| 14.1 | The Security Agent may, where necessary, at reasonable market prices (if appropriate, after obtaining several offers), retain the services of a suitable law firm, accounting firm and/or credit institution or seek information and advice from legal counsel, financial consultants, banks and other experts (and irrespective of whether such persons are already retained by the Security Agent, the Issuer or a Beneficiary), to assist it in performing the duties, rights or powers assigned to it under this Agreement and the other Transaction Documents, in particular in respect of the following actions: | |||
| (a) | the taking of specific measures under Clause 10 ( Actions by the Security Agent ); | |||
| (b) | enforcement of Notes Collateral pursuant to Clause 12 ( Enforcement of Notes Collateral ); | |||
| (c) | any amendment, supplement or waiver of, under or in relation to any Transaction Document; or | |||
| (d) | any other duty, right or power of the Security Agent under the Transaction Documents. | |||
| Any properly and reasonably incurred fees, costs, charges and expenses, indemnity claims and any other amounts payable by the Security Agent to such third parties or advisers shall be promptly reimbursed by the Issuer. | ||||
| 14.2 | The Security Agent may rely on such third parties retained pursuant to Clause 14.1 and any information and advice obtained therefrom without having to make its own investigations, and the Security Agent shall not be liable for any wilful misconduct ( Vorsatz ) or negligence ( Fahrlässigkeit ) of such persons. The Security Agent shall not be liable for any damages to, costs or losses of, any person, any diminishing of value or any liability whatsoever arising as a result of such reliance and shall only remain liable for diligently selecting ( ordnungsgemäße Auswahl ) such third parties retained pursuant to Clause 14.1 in accordance with Clause 20 ( Standard of Care for Liability ). | |||
| 14.3 | The Security Agent may sub-contract or delegate the performance of some (but not all) of any of its duties and obligations not specifically referred to in Clause 14.1. Any breach in the performance of the delegated obligations by such sub-contractor or delegate shall not be treated as a breach of obligation by the Security Agent pursuant to Section 278 of the German Civil Code ( Bürgerliches Gesetzbuch ) and the Security Agent shall only remain liable for diligently selecting ( ordnungsgemäße Auswahl ) such sub-contractors and delegates in accordance with Clause 20 ( Standard of Care for Liability ). | |||
| 15. | REIMBURSEMENT OF EXPENSES | |||
| In addition to the remuneration of the Security Agent (which may be agreed between the Issuer and the Security Agent (or any of its affiliates) by means of a separate fee letter), the Issuer shall promptly pay out-of-pocket costs, charges and expenses which the Security Agent properly and reasonably incurs in relation to any action taken by it under or in relation to this Agreement or the other Transaction Documents. | ||||
| 16. | RIGHT TO INDEMNIFICATION | |||
| 16.1 | The Issuer shall indemnify the Security Agent in respect of all proceedings (including claims and liabilities in respect of taxes other than on the Security Agent’s own overall net profits, income or gains and subject to Clause 17 ( Taxes )), losses, claims and demands and all costs, charges, expenses, and liabilities to which the Security Agent (or any third party pursuant to Clause 14 ( Retaining Third Parties )) may be or become liable or which may be incurred by the Security Agent (or any such third party) in respect of anything done or omitted in relation to this Agreement and any of the other Transaction Documents, unless such costs and expenses have been incurred by the Security Agent due to a wilful or grossly negligent breach of the duty of care provided for in Clause 20 ( Standard of Care for Liability ). | |||
| 16.2 | Any indemnities shall be owed by the Issuer and the Security Agent has no right of indemnification against the Beneficiaries hereunder, save for any indemnity provided by any Beneficiary in accordance with any instructions received by the Security Agent from a Beneficiary. | |||
| 16.3 | The indemnity set out in Clause 16.1 shall survive the termination of this Agreement and the appointment of the Security Agent. | |||
| 17. | TAXES | |||
| 17.1 | The Issuer shall bear all stamp duties, transfer taxes and other similar taxes, duties or charges which are imposed on or in connection with: | |||
| (a) | the creation of, holding of, or enforcement of the Notes Collateral and/or Guarantee; | |||
| (b) | any action taken by the Security Agent pursuant to any Transaction Document; or | |||
| (c) | the entry by the Security Agent into any Transaction Document. | |||
| 17.2 | All payments of fees and reimbursements of expenses to the Security Agent shall include any turnover taxes, VAT or similar taxes (other than taxes on the Security Agent’s net profits, overall income or gains, which are imposed in the future on the services of the Security Agent). | |||
| 18. | RESIGNATION AND REVOCATION | |||
| 18.1 | Resignation | |||
| The Security Agent may resign from its office as Security Agent at any time by giving 30 (thirty) calendar days prior written notice to the Issuer, provided that such resignation only becomes effective as soon as another reputable financial institution or financial services provider or security agency services provider in Germany or Luxembourg which is experienced in the business of security trusteeship and which has obtained any required authorisations, registrations and licences (an „Eligible Institution“) has been appointed by the Issuer as successor security trustee and has accepted such appointment (the „New Security Agent“) hereunder and the other Transaction Documents and which has been furnished with all authorities and powers and assumed all rights and obligations of the Security Agent under this Agreement (including under Clause 4 ( Parallel Debt ) hereof) that have been granted to the Security Agent. The Security Agent shall as soon as reasonably practicable notify the Issuer in advance and in writing of its intention to resign or terminate this Agreement. | ||||
| 18.2 | Appointment of New Security Agent | |||
| (a) | The Issuer shall, upon receipt of a written notice of resignation by the Security Agent in accordance with Clause 18.1 ( Resignation ), promptly appoint an Eligible Institution as New Security Agent under the Transaction Documents and procure that such New Security Agent accedes to all Transaction Documents to which the Security Agent is a party. The Security Agent shall have the right (but no obligation) to nominate a New Security Agent for appointment by the Issuer. The Issuer shall have the right to veto any nomination of a New Security Agent by the resigning Security Agent if such New Security Agent is not an Eligible Institution or if any other Eligible Institution has been appointed by the Issuer to be the New Security Agent and such Eligible Institution has accepted such appointment under the Transaction Documents and agreed to accede to all Transaction Documents. The proposed appointment of the New Security Agent shall further be subject to Clause 18.3 ( Revocation ). | |||
| (b) | If the Security Agent exercises a right to terminate this Agreement for cause ( aus wichtigem Grund ), the Issuer shall within 10 (ten) Business Days after receipt of the termination notice either (i) accept and confirm the nomination by the Security Agent of an Eligible Institution that has confirmed in writing that it agrees to the appointment effective as of the termination date or (ii) appoint another Eligible Institution as New Security Agent effective as of the termination date. If the Issuer fails to comply with either of (i) or (ii) above, any new security agent nominated (by way of Holders‘ Representative Instruction or Holder Majority Decision) shall be the New Security Agent effective as of the termination date. | |||
| 18.3 | Revocation | |||
| The Issuer and the Beneficiaries (by instructing the Holders‘ Representative, as applicable) shall be authorised to revoke the appointment of the Security Agent as security agent under this Agreement for cause ( aus wichtigem Grund ). | ||||
| 18.4 | Effects of Resignation or Revocation | |||
| Any termination or revocation of the appointment of the Security Agent by it shall not become effective unless the requirements set out in Clause 18.1 or 18.2 (as the case may be) have been met, and all agreed and due fees for the Security Agent services, as well any out-of-pocket costs, charges and expenses payable pursuant Clause 13 (Expenses), have been paid to the Security Agent or (any of its affiliates, as specified by the Security Agent). | ||||
| 18.5 | Continuation of Rights and Obligations | |||
| Notwithstanding a resignation pursuant to Clause 18.1 ( Resignation ) or revocation pursuant to Clause 18.3 (Revocation), the rights and obligations of the Security Agent under the Transaction Documents shall continue until the appointment of the New Security Agent has become effective and the assets and rights have been assigned to it pursuant to Clause 19 ( Transfer of Notes Collateral ), provided that any claims against the Security Agent which have accrued until such point in time shall not be affected thereby. The retiring Security Agent shall make available to the New Security Agent such documents and records and provide such assistance as the New Security Agent may reasonably request for the purposes of performing its functions as Security Agent. However, none of the provisions of this Clause 18 shall affect the right of the Security Agent to resign from its office for cause ( aus wichtigem Grund ) with immediate effect hereunder. Upon the appointment of the New Security Agent, the retiring Security Agent shall be discharged from any further obligation in respect of the Transaction Documents but shall remain entitled to the benefit of Clause 16 ( Right to Indemnification ) and any Security Agency fee for the account of the retiring Security Agent shall be payable on that date. | ||||
| 19 | TRANSFER OF NOTES COLLATERAL | |||
| 19.1 | Transfer of Notes Collateral | |||
| In case of a replacement of the Security Agent pursuant to Clause 18 ( Resignation and Revocation ), the Security Agent shall forthwith transfer the Notes Collateral, the Parallel Debt Obligations and other assets and other rights it holds as fiduciary ( Treuhänder ) or trustee (as applicable) under any Transaction Document (including, for the avoidance of doubt, the Guarantee) to the New Security Agent. For the avoidance of doubt, any transfer of the Guarantee, the Parallel Debt Obligations and/or the Notes Collateral shall only occur if the New Security Agent accepts the applicable limitations set out in Clause 6 ( Guarantee Limitations ) above. | ||||
| 19.2 | Assumption of Obligations | |||
| In the event of a replacement of the Security Agent pursuant to Clause 18 ( Resignation and Revocation ), the Security Agent shall use its best efforts to reach an agreement with the New Security Agent that the New Security Agent assumes the obligations of the Security Agent’s under the relevant Collateral Agreement and under this Agreement (including, for the avoidance of doubt, in respect of the Guarantee). If requested by the Security Agent, the Issuer shall reasonably assist the Security Agent reaching such agreement with the New Security Agent. | ||||
| 19.3 | Costs for replacement of Security Agent | |||
| The costs incurred in connection with replacing the Security Agent pursuant to Clause 18 ( Resignation and Revocation ) shall be borne by the Issuer. | ||||
| 19.4 | Accounting and Records | |||
| The Security Agent shall be obliged to account to the New Security Agent for its activities under or with respect to any Collateral Agreement. The Security Agent shall deliver to the New Security Agent, subject to any applicable law (in particular, data protection legislation), all relevant contracts, correspondence, files and other documents, books, books of accounts, registers, records and other information and documents relating to the performance of its obligations under the Transaction Documents. Notwithstanding Clause 15 ( Reimbursement of Expenses ), all reasonably incurred costs and expenses related to this shall be borne by the Issuer. | ||||
| 19.5 | Preservation of security | |||
| In the event that a transfer or assignment by the Security Agent of its rights and/or obligations under this Agreement (and any relevant Transaction Documents) occurred or was deemed to occur by way of novation, the Parties explicitly agree that all securities and guarantees created under any Transaction Documents shall be preserved for the benefit of the new Security Agent and the other beneficiaries, and in respect of their rights and/or obligations governed by Luxembourg law, in accordance with the provisions of article 1278 of the Luxembourg civil code. | ||||
| 20. | STANDARD OF CARE FOR LIABILITY, LIMITATION OF LIABILITY | |||
| 20.1 | The Security Agent shall in the performance of its obligations and duties under the Transaction Documents meet the due care and diligence of a prudent business person ( Sorgfalt eines ordentlichen Kaufmannes ). | |||
| 20.2 | The Security Agent under no circumstances be liable to any person for any losses, liability, claims, damages or expenses arising out of any acts or omissions by it in the exercise of its rights or the performance or non-performance of its obligations and duties under the Transaction Documents except in the case of any such loss, liability, claim, damage or expense being directly caused by gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ) of the Security Agent. In no event shall the Security Agent have any liability for indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, loss of business, goodwill, opportunity, reputation, anticipated savings or profits (Section 252 German Civil Code ( Bürgerliches Gesetzbuch )). | |||
| 20.3 | Limitation of Holders‘ Representative Liability | |||
| (a) | It is expressly understood and agreed by the Parties that this Agreement is executed and delivered by the Holders‘ Representative not individually or personally but solely in its capacity as a Holders‘ Representative in the exercise of the powers and authority conferred and vested in it hereunder and under the Notes Terms and Conditions. It is further understood by the Parties that in no case shall the Holders‘ Representative be (i) responsible or accountable in damages or otherwise to any other Party for any loss, damage or claim incurred by reason of any act or omission performed or omitted by it in good faith in accordance with this Agreement or the Notes Terms and Conditions, as applicable, and in a manner that the Holders‘ Representative believed to be within the scope of the authority conferred on it by this Agreement and/or the Notes Terms and Conditions or by law, or (ii) personally liable for or on account of any of the statements, representations, warranties, covenants or obligations stated to be those of any other Party, all such liability, if any, being expressly waived by the Parties and any person claiming by, through or under such Party, provided however, that a Notes Representative shall be personally liable under this Agreement for its own gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ). It is also acknowledged that a Notes Representative shall not have any responsibility for the actions of any individual Holder. | |||
| (b) | The Holders‘ Representative is not liable for, nor is required to procure payment or take any other action in respect of, any payments or other actions which are so required to be made or taken by or on behalf of the Beneficiaries. | |||
| 20.4 | Holders‘ Representative not fiduciary for other Beneficiaries | |||
| The Holders‘ Representative shall not be deemed to owe any fiduciary duty to any of any Beneficiaries, other than where specifically set forth in or on the basis of this Agreement and/or the Notes Terms and Conditions and/or under mandatorily applicable law, the Company or any member of the Group and shall not be liable to the Company or any member of the Group if the Holders‘ Representative or anyone in connection with its instruction under any relevant Transaction Documents shall in good faith mistakenly pay over or distribute to the Beneficiaries or to any other person cash, property or securities to which any Beneficiary shall be entitled by virtue of this Agreement or otherwise. With respect to the Beneficiaries the Holders‘ Representative undertakes to perform or to observe only such of its covenants or obligations, if any, as are specifically set forth in this Agreement and/or the Notes Terms and Conditions, and no implied covenants or obligations with respect to Beneficiaries shall be read into this Agreement or the Notes Terms and Conditions against a Holders‘ Representative. | ||||
| 20.5 | Reliance on certificates | |||
| The Holders‘ Representative may rely without enquiry on any notice, consent or certificate of the Security Agent, or any other agent or service provider involved in accordance with this Agreement and/or the Notes Terms and Conditions as to the matters certified therein. | ||||
| 20.6 | Further provisions regarding the Holders‘ Representative | |||
| In acting under and in accordance with this Agreement and/or the Terms and Conditions the Holders‘ Representative shall act in accordance with the relevant Transaction Documents and shall seek any necessary instruction from the Beneficiaries, to the extent provided for, and in accordance with, the relevant Transaction Documents, and where it so acts on the instructions of the Beneficiaries, the Holders‘ Representative shall not incur any liability to any person for so acting other than in accordance with the Transaction Documents. Furthermore, prior to taking any action under this Agreement or the relevant Transaction Documents, as the case may be, the Holders‘ Representative may reasonably request and rely upon an opinion of counsel or opinion of another qualified expert, at the Company’s expense, as applicable. | ||||
| 20.7 | Holders‘ Representative; reliance and information | |||
| (a) | The Holders‘ Representative may rely and shall be fully protected in acting or refraining from acting upon any notice or other document reasonably believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person. | |||
| (b) | The Holders‘ Representative is entitled to assume that: | |||
| (i) | any payment or other distribution made in respect of the obligations under or in connection with this Agreement and/or the Notes Terms and Conditions, respectively, has been made in accordance with the provisions of this Agreement; | |||
| (ii) | any security granted in respect of any the obligations under or in connection with this Agreement and/or the Notes Terms and Conditions is in accordance with this Agreement; and | |||
| (iii) | no default of any kind has occurred; | |||
| unless it has actual notice to the contrary. The Holders‘ Representative is not obliged to monitor or enquire whether any such default has occurred. | ||||
| 20.8 | No action | |||
| The Holders‘ Representative shall not have any obligation to take any action under this Agreement unless it is indemnified or secured to its satisfaction (whether by way of payment in advance or otherwise) by the Obligors (or, as applicable, by the Beneficiaries in accordance with the Notes Terms and Conditions). | ||||
| 20.9 | Security Agent and the Holders‘ Representative | |||
| (a) | The Holders‘ Representative is not responsible for the appointment or for monitoring the performance of the Security Agent. | |||
| (b) | The Holders‘ Representative shall be under no obligation to instruct or direct the Security Agent to take any Security enforcement action unless it shall have been instructed to do so by the Beneficiaries in accordance with the Notes Terms and Conditions and this Agreement, and has been indemnified and/or secured to its satisfaction. | |||
| (c) | The Security Agent acknowledges and agrees that it has no claims for any fees, costs or expenses from, or indemnification against, the Holders‘ Representative. | |||
| 20.10 | Illegality | |||
| The Holders‘ Representative may refrain from doing anything (including disclosing any information) which might, in its opinion, constitute a breach of any law or regulation and may do anything which, in its opinion, is necessary or desirable to comply with any law or regulation. | ||||
| 21. | GENERAL PROVISIONS REGARDING THE SECURITY AGENT | |||
| 21.1 | The Security Agent shall not be liable for: | |||
| (a) | any action or failure to act of the Issuer or of other parties to the Transaction Documents; | |||
| (b) | the Transaction Documents (including any security interest created thereunder) not being legal, valid, binding or enforceable, or for the fairness or practicability of the provisions of the Transaction Documents; or | |||
| (c) | any action or failure to act by it if such action or failure to act, as the case may be, was in compliance with a Holders‘ Representative Instruction or Holder Majority Decision, as the case may be. | |||
| 21.2 | The Security Agent shall (save as otherwise expressly provided in any Transaction Document), have discretion as to the exercise or non-exercise of any and all the powers, authorities and discretions vested in it by or pursuant to this Agreement and/or any other Transaction Document to which the Security Agent is a party or conferred upon the Security Agent by operation of law (the exercise of which, as between the Security Agent and the Beneficiaries, shall be conclusive and binding on the Beneficiaries), and provided it shall not have acted in violation of its standard of care as set out in in Clause 20 ( Standard of Care for Liability ), the Security Agent shall not be responsible for any loss, costs, damages, expenses or inconvenience that may result from the exercise or non-exercise thereof. | |||
| 21.3 | The Security Agent, as between itself and the Beneficiaries, shall have full power to undertake any calculations (including, without limitation, any necessary currency conversions) in relation to any of the provisions of any Transaction Document and determine all questions and doubts arising in relation to any of the provisions of any Transaction Document and every such calculation or determination, whether made upon a question actually raised or implied in the acts or proceedings of the Security Agent, shall be conclusive and shall bind the Security Agent and the Beneficiaries. | |||
| 21.4 | Any consent given by the Security Agent for the purposes of any Transaction Document may be given on such terms and subject to such conditions (if any) as the Security Agent thinks fit in its discretion and, notwithstanding anything to the contrary contained in any Transaction Document, may be given retrospectively. | |||
| 21.5 | The Security Agent shall not be responsible for recitals, statements, warranties or representations of any party (other than those relating to or provided by it) contained in any Transaction Document or other document entered into in connection therewith and may rely on the accuracy and correctness thereof (absent actual knowledge to the contrary) and shall not be responsible for the execution, legality, effectiveness, adequacy, genuineness, validity or enforceability or admissibility in evidence of any such agreement or other document or security thereby constituted or evidenced. The Security Agent may accept without enquiry, requisition or objection such title as the Issuer may have to the Notes Collateral or any part thereof from time to time and shall not be bound to investigate or make any enquiry into the title of the Issuer to the Notes Collateral or any part thereof from time to time. | |||
| 21.6 | No provision of this Agreement or any other Transaction Document shall require the Security Agent to do anything which may be illegal, contrary to any applicable law or regulation, court order or order by a regulator, a breach of fiduciary duty or duty of confidentiality or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers or otherwise in connection with any Transaction Document (including, without limitation, forming any opinion or employing any legal, financial or other adviser), if it determines in its reasonable discretion that repayment of such funds or adequate indemnity against such risk or liability is not assured to it. In particular, and for the avoidance of doubt, nothing in this Agreement shall be construed so as to constitute an obligation of the Security Agent to perform any services which it would not be entitled to render pursuant to the provisions of the German Act on Rendering Legal Services ( Rechtsdienstleistungsgesetz ) or pursuant to the provisions of the German Tax Advisory Act ( Steuerberatungsgesetz ) or any other services that require an express official approval, licence or registration. The Security Agent shall be entitled to refrain without liability from any actions or undertake measures, when this is, in its opinion, necessary in order to comply with any applicable law, directive or regulation at any time, including for the avoidance of doubt, applicable law relating to the funding of terrorist activities or money laundering. | |||
| 21.7 | The Security Agent shall not be responsible for the genuineness, validity, effectiveness or suitability of any Transaction Document or any other documents entered into in connection therewith or any other document or any obligation or rights created or purported to be created thereby or pursuant thereto or any security or the priority thereof constituted or purported to be constituted thereby or pursuant thereto, nor shall it be responsible or liable to any person because of any invalidity of any provision of such documents or the unenforceability thereof, whether arising from statute, law or decisions of any court and (without prejudice to the generality of the foregoing) the Security Agent shall not have any responsibility for or have any duty to make any investigation in respect of or in any way be liable whatsoever for: | |||
| (a) | the nature, status, creditworthiness or solvency of the Issuer or any other person or entity who has at any time provided any security or support whether by way of guarantee, charge or otherwise in respect of any advance made to the Issuer; | |||
| (b) | the execution, legality, validity, adequacy, admissibility in evidence or enforceability of any Transaction Document or any other document entered into in connection therewith; | |||
| (c) | the scope or accuracy of any representations, warranties or statements made by or on behalf of the Issuer or any other person or entity who has at any time provided any Transaction Document or in any document entered into in connection therewith; | |||
| (d) | the performance or observance by the Issuer or any other person of any provisions or stipulations relating to the Notes or any Transaction Document or in any document entered into in connection therewith or the fulfilment or satisfaction of any conditions contained therein or relating thereto or the supervision of the Issuer or such other person in respect thereof or as to the existence or occurrence at any time of any default, event of default or similar event contained therein or any waiver or consent which has at any time been granted in relation to any of the foregoing; | |||
| (e) | the existence, accuracy or sufficiency of any legal or other opinions (irrespective of any monetary or other limitation), searches, reports, certificates, valuations, calculations or investigations delivered or obtained or required to be delivered or obtained at any time in connection with the Transaction Documents; | |||
| (f) | the failure by the Issuer or any other party to the Transaction Documents (other than the Security Agent) to obtain or comply with any licence, consent or other authority in connection with the Notes Collateral or the Transaction Documents or the failure to effect or procure registration of or to give notice to any person in relation to or otherwise perfect or protect the security created or purported to be created by or pursuant to any of the Notes Collateral or the Transaction Documents or other documents entered into in connection therewith; or | |||
| (g) | any accounts, books, records or files maintained by the Issuer or any other person in respect of any of the Notes Collateral or the Transaction Documents. | |||
| 21.8 | The Security Agent may, in the absence of actual knowledge to the contrary, assume without enquiry that the Issuer and each of the other parties to the Transaction Documents is duly performing and observing all of the provisions of those documents binding on or relating to it and that no event has happened which constitutes an Enforcement Event. | |||
| 21.9 | In no event shall the Security Agent be liable for any losses arising from the Security Agent receiving or transmitting any data to the Issuer (or any authorised person) or acting upon any notice, instruction or other communications via any Electronic Means by the Issuer or any authorised person other than losses deriving from the Security Agent’s gross negligence ( grobe Fahrlässigkeit ) or wilful misconduct ( Vorsatz ). If the Security Agent is requested to act on instructions or directions delivered by fax, email or any other unsecured method of communication or any Electronic Means used to submit instructions, the Security Agent shall have no duty or obligation to verify or confirm that the person who sent such instructions or directions is, in fact, a person authorised to give instructions or directions on behalf of the Issuer, and no liability for any losses, liabilities, costs or expenses incurred or sustained by the Issuer as a result of the Security Agent’s reliance upon or compliance with such instructions or directions. The Issuer agrees that the security procedures, if any, to be followed in connection with a transmission of any such notice, instructions or other communications, provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances. | |||
| 21.10 | „Electronic Means“ shall mean the following communications methods: | |||
| (a) | non-secure methods of transmission or communication such as e-mail and facsimile transmission; | |||
| (b) | secure electronic transmission containing applicable authorisation codes, passwords and/or authentication keys issued by the Security Agent; and | |||
| (c) | any other method or system specified by the Security Agent as available for use in connection with its services hereunder. | |||
| 21.11 | The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Beneficiaries and, if a Holders‘ Representative has been appointed, from the Holders‘ Representative, 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. | |||
| 22. | DISCLOSURE OF INFORMATION | |||
| 22.1 | None of the Parties may, during the continuance of this Agreement or after its termination, disclose to any person whatsoever (except with the written approval of the other Party (such approval not to be unreasonably withheld or delayed)) any information which such Party has received under or in connection with this Agreement other than disclosure: | |||
| (a) | to the parties to any of the Transaction Documents or any person intending to accede thereto or to acquire any rights and/or obligations thereunder or interests therein by way of assignment, transfer or participation or otherwise, in accordance with the Transaction Documents; | |||
| (b) | to its shareholders; | |||
| (c) | to the holders of the Notes; | |||
| (d) | to the court or the auditors or legal or other professional advisers (provided that such advisers are subject to a professional duty of confidentiality or execute an undertaking of confidentiality) in connection with any proceedings arising out of or in connection with this Agreement or any other Transaction Document or the preservation or maintenance of its rights thereunder; | |||
| (e) | if required to do so by: | |||
| (i) | an order of a court of competent jurisdiction whether in pursuance of any procedure for discovering documents or otherwise or of any competent judicial, governmental, supervisory or regulatory body; or | |||
| (ii) | the rules of any stock exchange on which securities of any member of such party’s group are listed; | |||
| (f) | pursuant to any law or regulation or requirement of any governmental agency or regulator or banking or taxation authority of competent jurisdiction, in accordance with which that party is required or accustomed to act; | |||
| (g) | to the auditors or legal or other professional advisers (provided that such advisers are subject to a professional duty of confidentiality or execute an undertaking of confidentiality) of any entity mentioned in sub-paragraphs (a), (b) or (c) above; | |||
| provided that the above restriction shall not apply to: | ||||
| (i) | employees, officers or agents of the parties referred to in sub-paragraph (a) above any part of whose functions are or may be related in any way to this Agreement; | |||
| (ii) | information which has become known to the recipient otherwise than in breach of this Clause 22; | |||
| (iii) | information which has been received from another source upon conditions not requiring that the information to be kept confidential; and | |||
| (iv) | information which is or becomes available to the general public otherwise than in breach of this Clause 22. | |||
| 22.2 | The provisions of Clause 22.1 shall survive the termination of this Agreement. | |||
| 23. | PARTIAL INVALIDITY AND FURTHER ASSURANCE | |||
| 23.1 | If any provision of this Agreement is or becomes invalid or unenforceable under any jurisdiction, such invalidity or unenforceability shall not render invalid or unenforceable any other provision of this Agreement in such jurisdiction and the validity and enforceability of the relevant provision and all other provisions in any other jurisdiction. Such invalid or unenforceable provision shall be replaced by the Parties with a provision which comes as close as possible to the commercial intention of the invalid provision and the invalid provision itself. In case of a gap in the provisions of this Agreement, the Parties shall agree on a provision, which comes legally as close as possible to the commercial intention. | |||
| 23.2 | This Agreement shall not be affected by the invalidity, illegality or unenforceability with respect to any provision in any jurisdiction or with respect to any party of any other Transaction Document or amendment agreement thereto. | |||
| 24. | NOTICES | |||
| 24.1 | Any notice, declaration or other communication under or in connection with this Agreement shall be made in writing or text form. Unless otherwise agreed in this Agreement, fax or email is sufficient. Any declaration or notice which is delivered by fax or email shall be immediately confirmed by letter (in particular any notice regarding the termination of this Agreement or the resignation of the Security Agent pursuant to Clause 18 ( Resignation and Revocation )); the validity of the original fax notice or email is not affected by such confirmation not being sent or received, as long as such notice or email has been received. | |||
| 24.2 | Subject to any written notification given fifteen (15) calendar days in advance of any change of address, all notices, declaration and other communication under this Agreement or any Collateral Agreement shall be sent to the following address of such party: | |||
| Notices to the Issuer: | ||||
| DEMIRE Deutsche Mittelstand Real Estate AG Robert-Bosch-Straße 11 63225 Langen (Hessen) Attn: Frank Nickel; Tim Brückner E-Mail: nickel@demire.ag ; brueckner@demire.ag |
||||
| Notices to the Security Agent: | ||||
| [GLAS __________ GmbH c/o Global Loan Agency Services GmbH Bockenheimer Anlage 46 60322 Frankfurt am Main, Germany Attn: TMG / „Sun” [E-Mail: tmg.frankfurt@glas.agency] |
||||
| Notices to the Initial Holders‘ Representative: | ||||
| Dentons GmbH Wirtschaftsprüfungsgesellschaft, Steuerberatungsgesellschaft Markgrafenstraße 33 10117 Berlin Attn: Andreas Ziegenhagen Phone: +49 30 26 47 3 207 E-Mail: andreas.ziegenhagen@dentons.com |
||||
| 24.3 | Each notice, declaration or other communication under or in connection with this Agreement shall be provided in English. | |||
| 25. | COUNTERPARTS; AMENDMENTS | |||
| 25.1 | This Agreement may be executed in one or more counterparts ( Ausfertigungen ), all of which taken together shall constitute one and the same contract, and may also be executed by facsimile or by email-scan. | |||
| 25.2 | Amendments, supplements and other modifications to this Agreement (including this Clause 25.2) shall only be effective, if they are in writing and signed by all Parties and, if such amendment, supplement or other modification adversely affects, in the opinion of the Security Agent, the Beneficiaries, after a Holders‘ Representative Instruction or Holder Majority Decision has been obtained. The Parties agree that no variation, change, amendment, annulment and/or termination of this Agreement shall constitute a novation thereof. | |||
| 25.3 | Neither any failure to exercise nor any delay in exercising, on the part of any Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. | |||
| 25.4 | The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law or any other Transaction Document. | |||
| 26. | EXEMPTION | |||
| The restrictions set forth in Section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ) and any similar restrictions contained in any laws of any other jurisdiction shall not apply to any Party to the fullest extent permitted under applicable law in respect of its rights and obligations hereunder. | ||||
| 27. | ENTIRE AGREEMENT | |||
| This Agreement constitutes the entire agreement and understanding between the Parties in relation to the subject matter hereof and cancels, replaces and modifies any other agreement or understanding in relation thereto. | ||||
| 28. | APPLICABLE LAW; PLACE OF JURISDICTION | |||
| 28.1 | This Agreement (including, without limitation, any non-contractual obligation arising out of it) shall be governed by, and construed in accordance with, the laws of Germany. | |||
| 28.2 | The courts of Frankfurt am Main, Germany shall have non-exclusive jurisdiction over disputes arising out of or in connection with this Agreement. | |||
| 29. | TERMINATION | |||
| This Agreement shall terminate upon the release of the security interest created under all Collateral Agreements. | ||||
7 NTD: Any shareholder loan provided by Apollo to be deeply subordinated (qualifizierter Nachrang) in the shareholder loan agreement for the benefit of the Secured Party with an ability /consent right of the Security Agent to agree to any amendments.
8 NTD: To cover pledges over GP interests in each LuxCo, pledges over the shares in each GP (S.á r.l.) and minority shares the Issuer will hold after the completion of the restructuring.
SCHEDULE 1
OTHER PARTIES
Part I – The Guarantors
[ Subject to final LuxCo structure and collateral package .]
| Name of Original Guarantor | Registration Details |
| [LuxTopCo scsp9] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by the Issuer as limited partner and 0.01% of whose shares are being held by GP TopCo S.á r.l. (as defined below) as general partner] |
| [GP TopCo S.á r.l.]10 | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, which is a wholly-owned subsidiary of the Issuer] |
| [LuxInterCo 1 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 1 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 1 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 2 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 2 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 2 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 3 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 3 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 3 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 4 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 4 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 4 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 5 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 5 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 5 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| DEMIRE Bad Vilbel Konrad Adenauer Allee 1-11 GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 113516 |
| DEMIRE Bayreuth Nürnberger Straße 38 GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 127674 |
| DEMIRE BT HB DO H CLZ KS KO GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 118631 |
| DEMIRE Düsseldorf Wiesenstraße 70 GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 101226 |
| DEMIRE Eschborn Frankfurter Straße GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 101207 |
| DEMIRE HB HZ B HST GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 118507 |
| DEMIRE Kempten Bahnhofstr. Hirschstr. Alpenstr. GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 110358 |
| DEMIRE Leonberg Neue Ramtelstraße GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 119920 |
| DEMIRE Meckenheim Merl GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 99182 |
| DEMIRE Neuss Breslauer Straße GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 114092 |
| Sihlegg Investments Holding GmbH | (CH) UID CHE-335.238.408, Zug |
9 Lux TopCo and Lux InterCos to be established in the form of an scsp.
10 GP to be established in the form of an S.á r.l.
Part II – The Security Grantors
[ Subject to final LuxCo structure and collateral package .]
| Name of Security Grantor | Registration Details |
| Company (in respect of Share Pledges, Account Pledge, IC Loan Receivables) | a stock corporation ( Aktiengesellschaft ) organized under the laws of the Federal Republic of Germany („Germany“), having its registered office at Robert-Bosch-Straße 11, 63225 Langen, Germany, registered with the commercial register ( Handelsregister ) at the local court ( Amtsgericht ) of Frankfurt am Main, Germany, under the registration number HRB 89041 |
| [LuxTopCo scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by the Issuer as limited partner and 0.01% of whose shares are being held by GP TopCo S.á r.l. (as defined below) as general partner] |
| [GP TopCo S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, which is a wholly-owned subsidiary of the Issuer] |
| [LuxInterCo 1 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 1 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 1 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 2 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 2 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 2 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 3 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 3 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 3 S.á r.l.] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 4 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 4 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 4 S.á r.l] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| [LuxInterCo 5 scsp] | [a certain to-be-established or to-be-acquired special limited partnership ( société en commandite spéciale ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, 99.99% of whose shares are being held by LuxTopCo scsp as limited partner and 0.01% of whose shares are being held by GP InterCo 5 S.á r.l. (as defined below) as general partner] |
| [GP InterCo 5 S.á r.l] | [a certain to-be-established or to-be-acquired limited liability company ( société à responsabilité limitée ) which is incorporated and has its centre of main interest (as defined in the European Insolvency Regulation) in the Grand Duchy of Luxembourg, and which is a wholly-owned subsidiary of LuxTopCo scsp] |
| FVR Beteiligungsgesellschaft Erste mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42460 |
| FVR Beteiligungsgesellschaft Zweite mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42458 |
| FVR Beteiligungsgesellschaft Dritte mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42440 |
| FVR Beteiligungsgesellschaft Vierte mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42439 |
| FVR Beteiligungsgesellschaft Fünfte mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42435 |
| FVR Beteiligungsgesellschaft Sechste mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42436 |
| FVR Beteiligungsgesellschaft Siebte mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42437 |
| FVR Beteiligungsgesellschaft Achte mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42434 |
| FVR Beteiligungsgesellschaft Neunte mbH & Co. KG | Local court ( Amtsgericht ) of Offenbach am Main under register number ( Handelsregister ) HRA 42609 |
| DEMIRE Holding II GmbH | Local court ( Amtsgericht ) of Frankfurt am Main under register number ( Handelsregister ) HRB 84192 |
| DEMIRE Holding IX GmbH | Local court ( Amtsgericht ) of Frankfurt am Main under register number ( Handelsregister ) HRB 100179 |
| DEMIRE Holding VIII GmbH | Local court ( Amtsgericht ) of Frankfurt am Main under register number ( Handelsregister ) HRB 100246 |
| DEMIRE Holding XI GmbH | Local court ( Amtsgericht ) of Frankfurt am Main under register number ( Handelsregister ) HRB 102585 |
| [I/C Loan Assignors (other than Issuer): any direct or indirect Subsidiary or Participation of the Issuer which is not a Subsidiary or Participation of LuxTopCo] | [__] |
| [RETT Blocker Receivables Assignors: any member of the Group holding claims against RETT blocker entities)] | [__] |
SCHEDULE 2
KEY DOCUMENTS LIST11
11 In each case, the original document as well as electronic copies should be transferred into the possession of the asset management SPV.
| 1. | KEY PROPERTY DOCUMENTS, including | |
| a. | Any (intra-group) asset management agreement(s) and any other data, documentation, information or item relating to the asset management; | |
| b. | Property management agreements and any other data, documentation, information or item relating to the property management; | |
| c. | Facility management agreements and any other data, documentation, information or item relating to the facility management; | |
| d. | Tenant lists and tenant contact details; | |
| e. | Existing correspondences with tenants; | |
| f. | Lease agreements, lists of lease agreements and any other data, documentation, information or item (including any security or documentation relating thereto) relating to the lease or sub-lease of the relevant Charged Properties; | |
| g. | Building permits, approvals of change of use ( Nutzungsänderungsgenehmigungen ) building applications, applications for change of use and amendments as well as pertaining appendices, including but not limited to fire protection certificates, parking space evidence, fire protection concepts, approval of applications for deviations and other relevant building law documents; | |
| h. | Construction plans; | |
| i. | Architectural, engineering agreements and general contractor agreements; | |
| j. | Warranty bonds with respect to the relevant Charged Properties, in particular pertaining to general contractor agreements ( Bürgschaften ); | |
| k. | Acceptance protocols ( Abnahmeprotokolle ) regarding general contractor agreements; | |
| l. | Any documentation relating to the safety of the relevant Charged Properties and other building documentation (in particular, TÜV and inspection reports); | |
| m. | Maintenance contracts; | |
| n. | Utility and disposal agreements ( Ver- und Entsorgungsverträge ); | |
| o. | Connection contracts ( Anschlussverträge ) [If applicable]; | |
| p. | Care and maintenance manuals; [If applicable] | |
| q. | Inspection log books; | |
| r. | Lock plan (Schließplan), master keys and security cards; passwords, intrusion detection system; all existing keys for the relevant Charged Properties; | |
| s. | Energy certificates; | |
| t. | Any documentation relating to the insurance of the relevant Charged Properties, including insurance agreements; | |
| u. | All employee-related data (employment agreements, personnel filed, payroll data, insurance contracts etc.) with respect to employees dedicated to or engaged in, whether exclusively or not, the asset management, property management or facility management; | |
| v. | Documents on past, current or impending legal disputes relating to the relevant Charged Properties. | |
| 2. | KEY TAX & ACCOUNTING DOCUMENTS | |
| a. | Latest assessments (Bescheide) with respect to property-based taxes and expenses and financial statements; | |
| b. | General ledgers; | |
| c. | Tax and VAT registration certificates issued by the Germany tax authorities; | |
| d. | All final and signed tax and VAT returns filed (originals together with any appendixes); | |
| e. | All supporting calculation, records and documentation related to the tax and VAT returns including all invoices issued and received declared in the VAT returns; | |
| f. | All tax and VAT assessments, extracts of VAT account, as well as tax and VAT authority correspondence received from the German tax authorities (originals together with any appendixes); | |
| g. | All final and signed withholding tax returns filed; | |
| h. | All documents and correspondence with the German tax authorities in the context of the ongoing tax audits as well as closed tax audits; | |
| i. | Sec. 15a German VAT Act register / documentation; | |
| j. | Real Estate Transfer Tax relevant documentation with respect to share transfers; | |
| k. | Any other Tax related documentation, including any information and appropriate documentation (in particular meeting format and standards required by the tax authorities and any other relevant authority) which is required for the due and complete preparation and timely filing of any Tax declarations. | |
[Further Schedules to Be Added as Needed]
– SIGNATURE PAGES
–
–
[______]
Annex 2
Additional Guarantors
| # | Name of Guarantor | Register Details |
| DEMIRE Meckenheim Merl GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 99182 | |
| DEMIRE Neuss Breslauer Straße GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 114092 | |
| Sihlegg Investments Holding GmbH | (CH) UID CHE-335.238.408, Zug | |
| DEMIRE Düsseldorf Wiesenstraße 70 GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 101226 | |
| DEMIRE Eschborn Frankfurter Straße GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 101207 | |
| DEMIRE Bad Vilbel Konrad Adenauer Allee 1-11 GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 113516 | |
| DEMIRE HB HZ B HST GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 118507 | |
| DEMIRE Leonberg Neue Ramtelstrasse GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 119920 | |
| DEMIRE Kempten Bahnhofstr. Hirschstr. Alpenstr. GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 110358 | |
| DEMIRE BT HB DO H CLZ KS KO GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 118631 | |
| DEMIRE Bayreuth Nürnberger Straße 38 GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 127674 |
Annex 3
Additional Pledged Companies
Part I – PropCo Holdings
| # | Name of Pledged Company | Register Details |
| 1. | DEMIRE Holding I GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 117554 |
| 2. | DEMIRE Holding II GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 84192 |
| 3. | DEMIRE Holding III GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 100244 |
| 4. | DEMIRE Holding IV GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 100128 |
| 5. | DEMIRE Holding XI GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 102585 |
| 6. | DEMIRE Holding XII GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 102578 |
| 7. | DEMIRE Holding XIII GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 104037 |
Part II – FVR-KGs
| # | Name of Pledged Company | Register Details |
| 1. | FVR Beteiligungsgesellschaft Erste mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42460 |
| 2. | FVR Beteiligungsgesellschaft Zweite mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42458 |
| 3. | FVR Beteiligungsgesellschaft Dritte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42440 |
| 4. | FVR Beteiligungsgesellschaft Vierte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42439 |
| 5. | FVR Beteiligungsgesellschaft Fünfte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42435 |
| 6. | FVR Beteiligungsgesellschaft Sechste mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42436 |
| 7. | FVR Beteiligungsgesellschaft Siebente mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42437 |
| 8. | FVR Beteiligungsgesellschaft Achte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42434 |
| 9. | FVR Beteiligungsgesellschaft Neunte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42609 |
Part III – Other
| # | Name of Pledged Company | Register Details |
| 1. | DEMIRE Meckenheim Merl GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 99182 |
| 2. | DEMIRE Neuss Breslauer Straße GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 114092 |
| 3. | Sihlegg Investments Holding GmbH | (CH) UID CHE-335.238.408, Zug |
| 4. | DEMIRE Düsseldorf Wiesenstraße 70 GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 101226 |
| 5. | DEMIRE Eschborn Frankfurter Straße GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 101207 |
| 6. | DEMIRE Bad Vilbel Konrad Adenauer Allee 1-11 GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 113516 |
Annex 4
Pledged Account
| # | Pledgor | Pledged Account |
| 1. | Issuer | IBAN: DE81 5004 0000 0592 9955 81 BIC: COBADEFFXXX Bank: Commerzbank AG |
| 2. | Issuer | IBAN: DE54 5004 0000 0592 9955 82 BIC: COBADEFFXXX Bank: Commerzbank AG |
Annex 5
IC Loan Receivables
| # | Assignor | Assigned Receivables |
| 1. | Issuer | All receivables (principal and interest) against DEMIRE HB HZ B HST GmbH under an intercompany loan agreement of up to EUR 20,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 2. | Issuer | All receivables (principal and interest) against Sihlegg Investments Holding GmbH under an intercompany loan agreement of up to EUR 20,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 3. | Issuer | All receivables (principal and interest) against FVR Beteiligungsgesellschaft Achte mbH & Co. KG under an intercompany loan agreement of up to EUR 2,500,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 4. | Issuer | All receivables (principal and interest) against FVR Beteiligungsgesellschaft Neunte mbH & Co.KG under an intercompany loan agreement of up to EUR 10,500,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 5. | Issuer | All receivables (principal and interest) against DEMIRE Meckenheim Merl GmbH under an intercompany loan agreement of up to EUR 57,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 6. | Issuer | All receivables (principal and interest) against DEMIRE Schwerin Am Margaretenhof 18 GmbH under an intercompany loan agreement of up to EUR 14,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 7. | Issuer | All receivables (principal and interest) against DEMIRE Holding III GmbH under an intercompany loan agreement of up to EUR 2,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 8. | Issuer | All receivables (principal and interest) against DEMIRE Holding lV GmbH under an intercompany loan agreement of up to EUR 1,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 9. | Issuer | All receivables (principal and interest) against DEMIRE Holding V GmbH under an intercompany loan agreement of up to EUR 25,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 10. | Issuer | All receivables (principal and interest) against DEMIRE Leonberg Neue Ramtelstraße GmbH under an intercompany loan agreement of up to EUR 9,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 11. | Issuer | All receivables (principal and interest) against DEMIRE Holding VII GmbH under an intercompany loan agreement of up to EUR 11,500,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 12. | Issuer | All receivables (principal and interest) against DEMIRE Kempten Bahnhofstr. Hirschstr. Alpenstr. GmbH under an intercompany loan agreement of up to EUR 14,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 13. | Issuer | All receivables (principal and interest) against DEMIRE BT HB DO H CLZ KS KO GmbH under an intercompany loan agreement of up to EUR 6,500,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 14. | Issuer | All receivables (principal and interest) against DEMIRE Eschborn Frankfurter Straße GmbH under an intercompany loan agreement of up to EUR 38,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 15. | Issuer | All receivables (principal and interest) against DEMIRE Bad Kreuznach Brückes Hochstr. GmbH under an intercompany loan agreement of up to EUR 10,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 16. | Issuer | All receivables (principal and interest) against DEMIRE Düsseldorf Wiesenstraße 70 GmbH under an intercompany loan agreement of up to EUR 25,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 17. | Issuer | All receivables (principal and interest) against DEMIRE Lichtenfels Bamberger Straße 20 GmbH under an intercompany loan agreement of up to EUR 2,500,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 18. | Issuer | All receivables (principal and interest) against DEMIRE Betriebsvorrichtungen Nr. 1 under an intercompany loan agreement of up to EUR 1,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 19. | Issuer | All receivables (principal and interest) against DEMIRE Holding X GmbH under an intercompany loan agreement of up to EUR 65,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 20. | Issuer | All receivables (principal and interest) against DEMIRE AN BN R PM FR FL GmbH under an intercompany loan agreement of up to EUR 60,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 21. | Issuer | All receivables (principal and interest) against DEMIRE Holding XI GmbH under an intercompany loan agreement of up to EUR 80,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 22. | Issuer | All receivables (principal and interest) against DEMIRE Köln Max-Glomsda-Straße 4 GmbH under an intercompany loan agreement of up to EUR 22,500,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 23. | Issuer | All receivables (principal and interest) against DEMIRE Bad Vilbel Konrad Adenauer Allee 1-11 GmbH under an intercompany loan agreement of up to EUR 28,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 24. | Issuer | All receivables (principal and interest) against DEMIRE Essen Hatzper Str. Theodor-Althoff-Str. GmbH under an intercompany loan agreement of up to EUR 120,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 25. | Issuer | All receivables (principal and interest) against DEMIRE Aschheim Max-Planckstraße GmbH under an intercompany loan agreement of up to EUR 30,400,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 26. | Issuer | All receivables (principal and interest) against DEMIRE Neuss Breslauer Straße GmbH under an intercompany loan agreement of up to EUR 89,500,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 27. | Issuer | All receivables (principal and interest) against DEMIRE Frankfurt Gutleutstraße 85 GmbH under an intercompany loan agreement of up to EUR 58,500,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 28. | Issuer | All receivables (principal and interest) against DEMIRE Trier Simeonstraße 46 GmbH under an intercompany loan agreement of up to EUR 30,000,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 29. | Issuer | All receivables (principal and interest) against DEMIRE Ankauf 8 GmbH under an intercompany loan agreement of up to EUR 50,000, bearing interest of 2.875% with a maturity date on 23/08/2026 |
| 30. | Issuer | All receivables (principal and interest) against DEMIRE Ankauf 9 GmbH under an intercompany loan agreement of up to EUR 50,000, bearing interest of 2.875% with a maturity date on 23/08/2026 |
| 31. | Issuer | All receivables (principal and interest) against DEMIRE Ankauf 10 GmbH under an intercompany loan agreement of up to EUR 50,000, bearing interest of 2.875% with a maturity date on 23/08/2026 |
| 32. | Issuer | All receivables (principal and interest) against DEMIRE Trier Celle GmbH under an intercompany loan agreement of up to EUR 3,500,000, bearing interest of 2.875% with a maturity date on 31/03/2026 |
| 33. | Issuer | All receivables (principal and interest) against DEMIRE Holding XII GmbH under an intercompany loan agreement of up to EUR 37,000,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 34. | Issuer | All receivables (principal and interest) against DEMIRE Kassel Kölnische Str. Mauerstr. Spohrstr. GmbH under an intercompany loan agreement of up to EUR 51,500,000, bearing interest of 2.875% with a maturity date on 31/12/2028 |
| 35. | Issuer | All receivables (principal and interest) against DEMIRE Betriebsvorrichtungen Nr. 2 GmbH under an intercompany loan agreement of up to EUR 2,500,000, bearing interest of 2.875% with a maturity date on 31/12/2033 |
| 36. | Issuer | All receivables (principal and interest) against JV_Theodor-Heuss-Allee GmbH under an intercompany loan agreement of up to EUR 25,150,000, bearing interest of 4.135% with a maturity date on 21/06/2027 |
Annex 6
RETT Blocker Receivables
| # | Assignor | Assigned Receivables |
| 1. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against 1. LKS Beteiligungsgesellschaft mbH under a loan agreement |
| 2. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against 2. LKS Beteiligungsgesellschaft mbH under a loan agreement |
| 3. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against 3. LKS Beteiligungsgesellschaft mbH under a loan agreement |
| 4. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against 4. LKS Beteiligungsgesellschaft mbH under a loan agreement |
| 5. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against 6. LKS Beteiligungsgesellschaft mbH under a loan agreement |
| 6. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against Dovemco Limited under a loan agreement |
| 7. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against Taurecon Invest I. GmbH under a loan agreement |
| 8. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against RESI Beteiligungs GmbH under a loan agreement |
| 9. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against Taurecon Real Estate Consulting GmbH under a loan agreement |
| 10. | Issuer or one of its subsidiaries (as the case may be) | All receivables (principal and interest) against ZuHause Real Estate Group GmbH under a loan agreement |
Annex 7
Deferred Entities
| # | Name of Deferred Entity | Register Details |
| 1. | FVR Beteiligungsgesellschaft Erste mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42460 |
| 2. | FVR Beteiligungsgesellschaft Zweite mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42458 |
| 3. | FVR Beteiligungsgesellschaft Dritte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42440 |
| 4. | FVR Beteiligungsgesellschaft Vierte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42439 |
| 5. | FVR Beteiligungsgesellschaft Fünfte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42435 |
| 6. | FVR Beteiligungsgesellschaft Sechste mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42436 |
| 7. | FVR Beteiligungsgesellschaft Siebente mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42437 |
| 8. | FVR Beteiligungsgesellschaft Achte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42434 |
| 9. | FVR Beteiligungsgesellschaft Neunte mbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 42609 |
| 10. | Fair Value REIT-AG | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 120099 |
| 11. | GP Value Management GmbH | Local court ( Amtsgericht ) in Frankfurt am Main under register number ( Handelsregister ) HRB 127398 |
| 12. | BBV Immobilien-Fonds Nr. 8 GmbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 43283 |
| 13. | BBV 10 Geschäftsführungs-GmbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 43156 |
| 14. | BBV Immobilien-Fonds Nr. 10 GmbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 43288 |
| 15. | BBV Immobilien-Fonds Nr. 14 GmbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 43271 |
| 16. | BBV 14 Geschäftsführungs-GmbH & Co. KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 43202 |
| 17. | IC Fonds & Co. Gewerbeobjekte Deutschland 15. KG | Local court ( Amtsgericht ) in München under register number ( Handelsregister ) HRA 100710 |
| 18. | IC Fonds & Co. SchmidtBank-Passage KG | Local court ( Amtsgericht ) in Offenbach am Main under register number ( Handelsregister ) HRA 43250 |
Annex 8
Limes PropCos
| # | Name of Entity | Register Details |
| 1. | DEMIRE Köln Max-Glomsda-Straße 4 GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 113514 |
| 2. | DEMIRE Essen Hatzper Str. Theodor-Althoff-Str. GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 113517 |
| 3. | DEMIRE Aschheim Max-Planckstraße GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 113518 |
| 4. | DEMIRE Kassel Kölnische Str. Mauerstr. Spohrstr. GmbH | Local court (Amtsgericht) in Frankfurt am Main under register number (Handelsregister) HRB 118599 |
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