Gläubigerversammlung: DEMIRE Deutsche Mittelstand Real Estate AG

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

(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.

(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„).

(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.

[(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.

(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.]

[(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.]

(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.

([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.

([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].

[(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.]

(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.

(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.

(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].

[(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.]

(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].

(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].

(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.

(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.

(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.

(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.

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.

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.

„ Redemption Calculation Date “ means the tenth Business Day prior to the date on which the Notes are redeemed in accordance with this paragraph (4).]

(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).

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.

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.

„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.

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.

„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].

(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)].

[(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.]

(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.

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.

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.

(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).

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[”]:

(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

(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

(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

(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

[(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.]

([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.

(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.]

(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).]

(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.]

(3)

[ Restricted Payments. The Issuer undertakes that it will not, and will procure that none of its Subsidiaries, make a Restricted Payment, unless:

(a)

no Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

(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

(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:

(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

(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).

(d) Nothing in this § 11(3) shall prohibit:

(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;

(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);

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(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

(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.

(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).]

(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:

(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

(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]

[For purposes of this provision, each of the following will be deemed to be cash:

(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;

(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;

(iii)

any capital stock or assets of the kind referred to in clauses § 11(4)(d) or (f);

(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;

(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

(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).

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):

(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;

(d)

to acquire all or substantially all of the assets of, or a majority interest in the capital stock of, another Permitted Business;

(e)

to make a capital expenditure;

(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;

(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

(h)

any combination of the foregoing.

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.

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.]

(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:

(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

[(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].

(c)

The restrictions set out in paragraph[s (a) and] (b) above do not apply to:

[(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;]

([ii][i])

transactions between or among [members of] the [Issuer and/​or its Subsidiaries][Group];

[(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;

(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;]

([v][ii])

any issuance of shares of common or preferred equity of the Issuer to Affiliates of the Issuer;[ and]

[(vi)

any Restricted Payment that is permitted pursuant to § 11(3) of these Terms and Conditions;]

([vii][iii])

the incurrence [or amendment ]of any Subordinated Shareholder Debt[;][.]

[(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

(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.]

[(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;]

[(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

(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.

[(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.

(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:

(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;

(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;

(c)

immediately after such transaction, no Event of Default exists; and

(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.

(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.

(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.

(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.]

(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].

(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.

(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.]

[(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].

(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.

(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).

(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;

(viii)

the granting of Liens and other security interests not prohibited by §[3][4];

[(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.]

(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

(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

(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;

([x][ix]) all fair value adjustments on investment properties and related non-cash tax effects will be excluded; and

([xi][x]) the impact of any capitalized interest (including accreting or pay-in-kind interest) on any Subordinated Shareholder Debt will be excluded.

(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;

(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

(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.]

(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