x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR | |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Maryland | 45-2771978 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
405 Park Ave., 15th Floor New York, NY | 10022 | |
(Address of principal executive offices) | (Zip Code) | |
(212) 415-6500 | ||
(Registrant’s telephone number, including area code) |
Large accelerated filer o | Accelerated filer o | |
Non-accelerated filer x | (Do not check if a smaller reporting company) | Smaller reporting company o |
Page | |
September 30, 2012 | December 31, 2011 | ||||||
(Unaudited) | |||||||
ASSETS | |||||||
Prepaid expenses and other assets | $ | 67 | $ | — | |||
Deferred offering costs | — | 559 | |||||
Total assets | $ | 67 | $ | 559 | |||
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) | |||||||
Accounts payable and accrued expenses | $ | 2,085 | $ | 375 | |||
Preferred stock, $0.01 par value, 50,000,000 authorized, none issued and outstanding | — | — | |||||
Common stock, $0.01 par value, 300,000,000 shares authorized, 31,222 and 22,222 shares issued and outstanding at September 30, 2012 and December 31, 2011, respectively | — | — | |||||
Additional paid-in capital | (1,845 | ) | 200 | ||||
Accumulated deficit during the development stage | (173 | ) | (16 | ) | |||
Total stockholders' equity (deficit) | (2,018 | ) | 184 | ||||
Total liabilities and stockholders' equity (deficit) | $ | 67 | $ | 559 |
Three Months Ended | For the Period from July 13, 2011 (date of inception) to September 30, 2011 | Nine Months Ended | For the Period from July 13, 2011 (date of inception) to September 30, 2012 | |||||||||||||
September 30, 2012 | September 30, 2012 | |||||||||||||||
Revenues | $ | — | $ | — | $ | — | $ | — | ||||||||
Expenses: | ||||||||||||||||
General and administrative | 93 | — | 157 | 173 | ||||||||||||
Total expenses | 93 | — | 157 | 173 | ||||||||||||
Net loss | $ | (93 | ) | $ | — | $ | (157 | ) | $ | (173 | ) | |||||
Comprehensive loss | $ | (93 | ) | $ | — | $ | (157 | ) | $ | (173 | ) |
Common Stock | Accumulated Deficit | |||||||||||||||||
Number of Shares | Par Value | Additional Paid-in Capital | During the Development Stage | Total | ||||||||||||||
Balance, July 13, 2011 | — | $ | — | $ | — | $ | — | $ | — | |||||||||
Issuance of common stock | 22,222 | — | 200 | — | 200 | |||||||||||||
Net loss | — | — | — | (16 | ) | (16 | ) | |||||||||||
Balance, December 31, 2011 | 22,222 | — | 200 | (16 | ) | 184 | ||||||||||||
Offering costs | — | — | (2,052 | ) | — | (2,052 | ) | |||||||||||
Share-based compensation | 9,000 | — | 7 | — | 7 | |||||||||||||
Net loss | — | — | — | (157 | ) | (157 | ) | |||||||||||
Balance, September 30, 2012 | 31,222 | $ | — | $ | (1,845 | ) | $ | (173 | ) | $ | (2,018 | ) |
Nine Months Ended | For the Period from July 13, 2011 (date of inception) to September 30, 2011 | For the Period from July 13, 2011 (date of inception) to September 30, 2012 | |||||||||
September 30, 2012 | |||||||||||
Cash flows from operating activities: | |||||||||||
Net loss | $ | (157 | ) | $ | — | $ | (173 | ) | |||
Adjustments to reconcile net loss to net cash used in operating activities: | |||||||||||
Share-based compensation | 7 | — | 7 | ||||||||
Changes in assets and liabilities: | |||||||||||
Prepaid expenses and other assets | (67 | ) | — | (67 | ) | ||||||
Accounts payable and accrued expenses | (8 | ) | — | 8 | |||||||
Net cash used in operating activities | (225 | ) | — | (225 | ) | ||||||
Cash flows from financing activities: | |||||||||||
Proceeds from issuance of common stock | — | — | 200 | ||||||||
Payments of offering costs | (416 | ) | — | (696 | ) | ||||||
Advances from affiliate | 641 | — | 721 | ||||||||
Net cash provided by financing activities | 225 | — | 225 | ||||||||
Net change in cash | — | — | — | ||||||||
Cash, beginning of period | — | — | — | ||||||||
Cash, end of period | $ | — | $ | — | $ | — | |||||
Non-Cash Financing Activities: | |||||||||||
Deferred offering costs paid directly by affiliates | $ | — | $ | — | $ | 90 |
• | the lower of $9.25 or 92.5% of the price paid to acquire the shares, for stockholders who have continuously held their shares for at least one year; |
• | the lower of $9.50 and 95.0% of the price paid to acquire the shares for stockholders who have continuously held their shares for at least two years; |
• | the lower of $9.75 and 97.5% of the price paid to acquire the shares for stockholders who have continuously held their shares for at least three years; and |
• | the lower of $10.00 and 100.0% of the price paid to acquire the shares for stockholders who have continuously held their shares for at least four years (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to our common stock). |
• | We have a limited operating history and the Advisor has limited experience operating a public company. This inexperience makes our future performance difficult to predict. |
• | All of our executive officers are also officers, managers and/or holders of a direct or indirect controlling interest in our Advisor, our dealer manager, Realty Capital Securities, LLC (the "Dealer Manager") and other American Realty Capital affiliated entities. As a result, our executive officers, our Advisor and its affiliates face conflicts of interest, including significant conflicts created by our Advisor’s compensation arrangements with us and other investors advised by American Realty Capital affiliates and conflicts in allocating time among these investors and us. These conflicts could result in unanticipated actions. |
• | Because investment opportunities that are suitable for us may also be suitable for other American Realty Capital advised programs or investors, our Advisor and its affiliates face conflicts of interest relating to the purchase of properties and other investments and such conflicts may not be resolved in our favor, meaning that we could invest in less attractive assets, which could reduce the investment return to our stockholders. |
• | After the quarter following our acquisition of at least $1.2 billion in total portfolio assets, the purchase price and repurchase price for our shares will be based on net asset value ("NAV") rather than a public trading market. Our published NAV may not accurately reflect the value of our assets. No public market currently exists, or may ever exist, for shares of our common stock and our shares are, and may continue to be, illiquid. |
• | If we and our Advisor are unable to find suitable investments, then we may not be able to achieve our investment objectives or pay distributions. |
• | Our initial public offering of common stock (the "IPO"), which commenced on April 20, 2012, is a blind pool offering and you may not have the opportunity to evaluate our investments before you make your purchase of our common stock, thus making your investment more speculative. |
• | If we raise substantially less than the maximum offering in our IPO, we may not be able to invest in a diversified portfolio of real estate assets and the value of an investment in us may vary more widely with the performance of specific assets. |
• | We may be unable to pay or maintain cash distributions or increase distributions over time. |
• | We are obligated to pay substantial fees to our Advisor and its affiliates. |
• | We will depend on tenants for our revenue and, accordingly, our revenue is dependent upon the success and economic viability of our tenants. |
• | Increases in interest rates could increase the amount of our debt payments and limit our ability to pay distributions to our stockholders. |
• | Our organizational documents permit us to pay distributions from unlimited amounts of any source. Until substantially all the proceeds from our IPO are invested, we may use proceeds from our IPO and financings to fund distributions until we have sufficient cash flow. There are no established limits on the amounts of net proceeds and borrowings that we may use to fund such distribution payments. |
• | Any of these distributions may reduce the amount of capital we ultimately invest in properties and other permitted investments and negatively impact the value of your investment. |
• | We may not generate cash flows sufficient to pay our distributions to stockholders, as such we may be forced to borrow at higher rates or depend on our Advisor to waive reimbursement of certain expenses and fees to fund our operations. |
• | We are subject to risks associated with the significant dislocations and liquidity disruptions currently occurring in the credit markets of the United States of America and Europe. |
• | We may fail to qualify, or continue to qualify, to be treated as a real estate investment trust ("REIT") for U.S. federal income tax purposes, which would result in higher taxes, may adversely affect operations and would reduce our NAV and cash available for distributions. |
• | We may be deemed to be an investment company under the Investment Company Act of 1940, as amended, and thus subject to regulation under the Investment Company Act of 1940, as amended. |
• | We do not own any properties as of September 30, 2012. |
Nine Months Ended | ||||
(In thousands) | September 30, 2012 | |||
Selling commissions and dealer manager fees | $ | — | ||
Other offering costs | 2,052 | |||
Total offering costs | $ | 2,052 |
AMERICAN REALTY CAPITAL GLOBAL TRUST, INC. | ||
By: | /s/ Nicholas S. Schorsch | |
Nicholas S. Schorsch | ||
Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) | ||
By: | /s/ Brian S. Block | |
Brian S. Block | ||
Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
Exhibit No. | Description | |
10.7 * | Agreement for the sale of Unit 1 58/62 Scotch Street Carlisle, dated as of October 5, 2012, by and between Liverpool Victoria Friendly Society Limited and ARC MCCARUK001, LLC | |
10.8 * | Facility Letter, dated October 30, 2012, by and between ARC MCCARUK001, LLC and Santander UK plc | |
10.9 * | First Amendment to Advisory Agreement between American Realty Capital Global Trust, Inc., American Realty Capital Global Operating Partnership, L.P. and American Realty Capital Global Advisors, LLC, dated November 7, 2012 | |
31.1 * | Certification of the Principal Executive Officer of the Company pursuant to Securities Exchange Act Rule 13a-14(a) or 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
31.2 * | Certification of the Principal Financial Officer of the Company pursuant to Securities Exchange Act Rule 13a-14(a) or 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
32 * | Written statements of the Principal Executive Officer and Principal Financial Officer of the Company pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
101 * | XBRL (eXtensible Business Reporting Language). The following materials from American Global Trust, Inc.'s Quarterly Report on Form 10-Q for the three months ended September 30, 2012, formatted in XBRL: (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Operations and Comprehensive Loss, (iii) the Consolidated Statement of Changes in Equity, (iv) the Consolidated Statements of Cash Flows and (v) the Notes to the Consolidated Financial Statements. As provided in Rule 406T of Regulation S-T, this information in furnished and not filed for purpose of Sections 11 and 12 of the Securities Act of 1933 and Section 18 of the Securities Exchange Act of 1934 |
DATED October 5, 2012
(1) | liverpool victoria friendly society limited |
(2) | arc mccaruk001 llc |
AGREEMENT
for the sale of
Unit 1 58/62 Scotch Street
Carlisle
CONTENTS
Clause | Page | |
1. | DEFINITIONS AND INTERPRETATION | 1 |
2. | SALE AND PURCHASE OF THE PROPERTY | 2 |
3. | COMPLETION | 2 |
4. | STANDARD CONDITIONS | 3 |
5. | COVENANTS FOR TITLE | 4 |
6. | TITLE | 4 |
7. | MATTERS AFFECTING THE PROPERTY | 4 |
8. | COVENANTS TO BE INCLUDED IN THE TRANSFER | 4 |
9. | INSURANCE | 4 |
10. | APPORTIONMENT OF RENT | 5 |
11. | ARREARS | 6 |
12. | LOCAL LAND CHARGES NOTICES ORDERS AND OTHER MATTERS | 6 |
13. | REPRESENTATIONS | 6 |
14. | NON-ASSIGNMENT AND NON-MERGER | 7 |
15. | NOTICES | 7 |
16. | VARIATIONS TO THIS AGREEMENT | 7 |
17. | LAW AND JURISDICTION | 8 |
18. | INCORPORATION OF SCHEDULES | 8 |
19. | CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 | 8 |
20. | CONFIDENTIALITY | 8 |
SCHEDULE 1 - The Property | 11 | |
SCHEDULE 2 - Documents to which the Property is sold subject | 12 | |
SCHEDULE 3 - Letting Documents | 13 | |
SCHEDULE 4 - VAT | 15 | |
SCHEDULE 5 - Special Conditions | 17 |
PARTICULARS
DATE | : | 2012 |
SELLER | : | LIVERPOOL VICTORIA FRIENDLY SOCIETY LIMITED an incorporated friendly society with reference 61 COL whose principal office is at County Gates Bournemouth BH1 2NF |
BUYER | : | ARC MCCARUK001 LLC a limited liability company registered in the State of Delaware whose registered office is at 2711 Centerville Road Suite 400 Wilmington Delaware 19808 USA |
PROPERTY | : | Unit 1 58/62 Scotch Street Carlisle described in more detail in Schedule 1 |
PRICE | : | ONE MILLION SIX HUNDRED THOUSAND POUNDS (£1,600,000) |
COMPLETION DATE | : | 30 October 2012 subject to clause 3.5 of this agreement |
SELLER'S SOLICITORS | : | Lawrence Graham LLP whose registered office is at 4 More London Riverside London SE1 2AU (Ref: ELM/L563/290) |
BUYER'S SOLICITORS | : | Trowers & Hamlins LLP of 3 Bunhill Row London EC1Y 8YZ (Ref: JCA/ARC/01) |
THIS AGREEMENT is made on the date and between the parties specified in the Particulars
IT IS AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
1.1 | In this agreement unless the context otherwise requires the following terms shall have the following meanings: |
"Actual Completion" | the date on which completion of the sale and purchase of the Property pursuant to this agreement actually takes place | |
"Completion" | the later of the Completion Date and Actual Completion | |
"Land Registry" | Her Majesty's Land Registry as referred to in section 99 of LRA 2002 | |
"Letting Documents" | the deeds and documents referred to in Schedule 3 | |
"LRA 2002" | the Land Registration Act 2002 | |
"Particulars" | the section at the beginning of this agreement headed "Particulars" which forms part of this agreement (and the definitions set out in the Particulars shall have the meanings specified therein) | |
"Planning Acts" | the "Consolidating Acts" as defined in the Planning (Consequential Provisions) Act 1990 and any other legislation relating to town and country planning in force from time to time | |
"Schedule" | a schedule to this agreement | |
"Standard Conditions" | the Standard Commercial Property Conditions (Second Edition) | |
"Tenancies" | the tenancies and other rights of occupation arising under or by virtue of the Letting Documents | |
"Tenants" | the tenants or other occupiers of the Property in whom the Tenancies are vested and references to "Tenant" "relevant Tenant" and "relevant Tenants" shall be construed accordingly | |
"VAT" | value added tax as referred to in the VAT Act or any tax of a similar nature which may be substituted for or levied in addition to it | |
"VAT Act" | the Value Added Tax Act 1994 | |
"Working Day" | any day (other than a Saturday or a Sunday) on which clearing banks in the City of London are actually open for banking business during banking hours and references to "Working Days" shall be construed accordingly |
page 2
1.2 | In this agreement unless the context otherwise requires: |
1.2.1 | words importing one gender include any other gender and words importing the singular number include the plural number and vice versa and any reference to a person includes a reference to a company authority board department or other body |
1.2.2 | unless otherwise expressly stated all references to a clause or schedule mean a clause of or schedule to this agreement |
1.2.3 | any reference to a statute (whether specifically named or not) or a section of a statute shall include any amendment or modification or re-enactment of such statute for the time being in force and all instruments orders notices regulations directions guidance codes of practice bye-laws permissions and plans for the time being made issued or given under or deriving validity from the same |
1.2.4 | the table of contents and headings and titles to clauses are for convenience only and shall not affect the construction or interpretation of this agreement |
1.2.5 | unless otherwise expressly stated all references to an Annex mean the Annex (if any) so marked and forming part of this agreement and signed by or on behalf of each of the parties hereto by way of identification |
1.2.6 | at any time when any party to this agreement comprises two or more persons all references to such party shall include all or any number of such persons and obligations expressed or implied to be made by or with any of them shall be deemed to be made by or with all or any two or more of such persons jointly and each of them severally |
1.2.7 | any obligation on a party to do any act matter or thing includes an obligation to procure that it be done and any obligation on a party not to do or omit to do any act matter or thing includes an obligation not to permit or suffer such act matter or thing to be done or omitted to be done by any person under its control |
2. | SALE AND PURCHASE OF THE PROPERTY |
2.1 | The Seller agrees to sell and the Buyer agrees to buy the Property for the Price |
2.2 | The consideration for any supply made by the Seller under this agreement is exclusive of any VAT which is or becomes chargeable thereon and if any such sum is or becomes so payable the Buyer shall upon demand pay the same to the Seller |
3. | COMPLETION |
3.1 | The purchase of the Property shall be completed on the Completion Date at the offices of the Seller's Solicitors or where they may reasonably direct when the Buyer shall pay the Price (less the Deposit) and any other monies (including any VAT) then payable under the terms of this agreement upon being provided a valid VAT invoice by the Seller |
3.2 | If: |
3.2.1 | the money due on completion is received by the Seller's Solicitors' bankers after 3pm or |
page 3
3.2.2 | completion takes place after 3pm on a Working Day or |
3.2.3 | takes place on any day other than a Working Day |
then for the purpose of Standard Conditions 8.3 and 9.3 the date of Actual Completion shall be deemed to be the next Working Day
3.3 | The Buyer shall not be entitled to delay completion solely on the ground that the Seller is unable to provide the appropriate form of discharge or release in relation to any financial charges to which the sale is not subject but will accept an undertaking from the Seller's Solicitors on Completion to remit the completion monies towards the discharge of financial charges (if any) and to send the Buyer the appropriate form of discharge and release immediately upon receipt from the appropriate chargee or chargees |
3.4 | Unless any monies due to the Seller on exchange or Completion are remitted to the Seller or the Seller's Solicitors from a client account in the name of the Buyer's Solicitors the Seller shall not be obliged to accept such monies (and any such payment shall not be treated as a payment made in accordance with the terms of this agreement) unless the Buyer shall previously have supplied such evidence as shall be required by the Seller or the Seller's Solicitors regarding the identity of the Buyer and the source of its funds for entering into this agreement or completing its purchase of the Property with a view to avoiding any breach of the Money Laundering Regulations 2007 the Terrorism Act 2000 the Financial Services and Markets Act 2000 or the Proceeds of Crime Act 2002 or any subordinate legislation |
3.5 | In the event that the Buyer wishes to effect the purchase of the Property prior to the 30 October 2012 the Buyer may serve written notice on the Seller and the Seller's Solicitors specifying the date for completion of the purchase of the Property (being not less than three Working Days from the date of service of the notice) ("the Amended Completion Date") in which case for the purposes of this agreement the Completion Date shall be deemed to be the Amended Completion Date |
4. | STANDARD CONDITIONS |
4.1 | The Standard Conditions apply to this agreement with the variations set out in this clause but in the event of any conflict between the express terms of this agreement and the Standard Conditions the former shall prevail |
4.2 | Standard Condition 1.1.1(e) shall be deleted and replaced by the following: |
"contract rate" means 3% per annum above the base lending rate for the time being of Barclays Bank plc calculated on a day to day basis"
4.3 | In Standard Condition 4.1.4 the words "otherwise than by effluxion of time" shall be added after the words "if the lease ends" |
4.4 | In Standard Conditions 4.2.4 and 4.2.7(b)(ii) the number "10" shall be replaced by the number "5" |
4.5 | Standard Conditions 6.1 6.2 6.3.1 6.3.3 and 6.6 shall be deleted |
4.6 | In Standard Condition 9.3.4 the words "may give notice to the buyer before the date of actual completion that it will" shall be deleted and replaced by the words "shall be entitled to" and the words "if applicable" shall be added to the end of Standard Condition 9.3.4 |
4.7 | Standard Condition 1.4 shall be deleted |
page 4
5. | COVENANTS FOR TITLE |
For the purposes of the Law of Property (Miscellaneous Provisions) Act 1994 the Seller sells with full title guarantee and the transfer of the Property shall be in the form annexed hereto and shall have effect as if it is expressly made subject to all matters covered by clause 11
6. | TITLE |
6.1 | Title to the Property has been deduced to the Buyer's Solicitors before the date of this agreement and the Buyer shall be deemed to have accepted such title and shall not be entitled to raise any objection or requisition concerning such title |
6.2 | In the event that the Transfer of the Property is one to which the requirement for registration applies pursuant to sections 4 or 5 of LRA 2002 or is a disposition which is required to be completed by registration pursuant to section 27 of LRA 2002 the Buyer shall procure that the Transfer of the Property shall be so registered in accordance with LRA 2002 and shall indemnify and keep indemnified the Seller from and against all actions proceedings costs claims losses and liability arising as a result of any failure to do so |
7. | MATTERS AFFECTING THE PROPERTY |
The Property is sold subject to and (as the case may be) with the benefit of:
7.1 | the entries on the Property and Charges Registers of the Title Number(s) referred to in Schedule 1 (except mortgages (if any)) |
7.2 | the documents (if any) specified in Schedule 2 |
7.3 | the Letting Documents |
Full details of the above matters have been supplied to the Buyer's Solicitors before the date of this agreement and the Buyer shall be deemed to purchase with full knowledge and notice of them and shall not raise any objection or requisition concerning such matters save in respect of any such matters arising out of the Buyer's pre-completion searches at the Land Registry such searches being those as a prudent buyer would undertake prior to Completion.
8. | COVENANTS TO BE INCLUDED IN THE TRANSFER |
8.1 | The transfer of the Property shall be in the form of the transfer annexed hereto |
8.2 | The Transfer shall be engrossed by the Seller's Solicitors and executed in original and counterpart |
9. | INSURANCE |
9.1 | The Seller shall maintain its existing insurance in force until Completion and cancel the insurance of the Property as soon as practicable after Completion |
9.2 | In so far as the Seller has been reimbursed by any Tenant with the premium for the insurance of the Property for a period after Completion the Seller shall repay or allow to the relevant Tenant any refund of premium it obtains following the cancellation of such insurance |
9.3.1 | If on or before Completion the Property is damaged or destroyed by any of the risks insured against by the Seller the following provisions of this clause 9.3 shall apply |
page 5
9.3.2 | The Seller shall use its reasonable endeavours to procure payment of the insurance monies by the insurers in relation to any such damage or destruction |
9.3.3 | Subject to clause 9.3.4 all insurance monies actually paid by the insurers to the Seller (excluding payments for loss of rent for any period prior to Completion) shall be held upon trust for the Buyer and paid to the Buyer on Completion |
9.3.4 | The Seller shall apply any insurance monies received by it prior to Completion (excluding payment for loss of rent for any period prior to Completion) towards the reinstatement or rebuilding of any such damage or destruction only if: |
9.3.4.1 | and to the extent that there is a contractual obligation on the Seller to do so in any of the Letting Documents or a statutory obligation to do so and then only in liaison with and with the agreement of the Buyer (such agreement not to be unreasonably withheld or delayed) or |
9.3.4.2 | the Buyer directs the Seller to do so |
9.3.5 | The Seller shall upon Completion assign all its rights to the proceeds of such claims (except any claims for payments for loss of rent for any period prior to Completion) to the Buyer insofar as the same are assignable and shall notify the insurers upon Completion that all insurance monies are (except as aforesaid) payable to the Buyer and in the meantime the Seller shall not without the prior written consent of the Buyer (such consent not to be unreasonably withheld or delayed) settle or compromise any claim with the insurers |
9.4 | The Buyer shall not be entitled to refuse to complete the purchase of the Property by reason of damage to or destruction of the Property |
10. | APPORTIONMENT OF RENT |
10.1 | In this clause: |
10.1.1 | "Rent" shall mean all sums reserved as rents (except service charges VAT and insurance premiums) under the Tenancies |
10.1.2 | "Date of Actual Payment" shall mean the date ten Working Days after the Rent for the relevant Tenancy has been received by the Seller (if such Rent has not been received by the Seller in cleared funds at least two Working Days prior to Actual Completion) |
10.2 | Rent paid in advance shall be apportioned with effect from Actual Completion so that the Seller shall pay or allow to the Buyer on Completion or (if later) the Date of Actual Payment the total of: |
A | x (B + 0.5) | |
365 |
for each such Tenancy where:
A | (subject to any outstanding rent review) is the annual Rent reserved by that Tenancy at Completion and |
B | is the number of days from but excluding Actual Completion to but excluding the date when the next instalment of the Rent under that Tenancy is due |
page 6
11. | ARREARS |
11.1 | For a period of 6 months following Actual Completion the Buyer shall use all reasonable endeavours to recover from the Tenants any arrears of rent, insurance premiums and any other sums of any description payable by the Tenants at the Property for the period up to and including Actual Completion and within 10 Working Days of receipt of the same shall account to the Seller for the said arrears. |
11.2 | During the period of 6 months following Actual Completion the Buyer shall give to the Seller monthly updates in writing in respect of the Buyer's progress in collecting the arrears. |
11.3 | The Seller shall have no right to pursue any arrears nor take any action claim or proceedings against any Tenant if after a period of 6 months from and including Actual Completion the Buyer has not accounted to the Seller for arrears under clause 11.1 and furthermore the Seller shall not be entitled to require that the right to pursue any arrears in respect of the period prior to Actual Completion be assigned by the Buyer to the Seller. |
12. | LOCAL LAND CHARGES NOTICES ORDERS AND OTHER MATTERS |
The Property is sold subject to the following:
12.1 | all Local Land Charges whether registered before or after the date of this agreement and all matters capable of registration as Local Land Charges whether coming into existence before or after the date of this agreement |
12.2 | all notices orders demands proposals or requirements served or made by any local or other public or competent authority or government department whether before or after the date of this agreement |
12.3 | all actual or proposed orders directions notices charges restrictions conditions agreements or other matters arising under the Planning Acts whether before or after the date of this agreement |
12.4 | where the whole or part of the Property is registered all matters which are unregistered interests which override registered dispositions under schedule 3 (as amended by schedule 12) of LRA 2002 |
12.5 | all existing wayleave consents rights privileges easements liabilities (including drainage and other service rights or easements) and quasi or reputed easements affecting the Property |
12.6 | all other matters whatsoever affecting the Property which are capable of discovery by searches or enquiries or by inspection or survey and whether or not such searches or enquiries inspection or survey have in fact been made by or on behalf of the Buyer. |
13. | REPRESENTATIONS |
The Seller and the Buyer acknowledge that this agreement constitutes the entire contract between them to the exclusion of any preceding statement or representation whether oral written or implied or whether contained in any advertisement particulars or other matters issued or in any correspondence entered into by the Seller or its employees or agents with the Buyer or its employees or agents and the Buyer acknowledges that it has not entered into this agreement in reliance upon any such statement or representation other than those (if any) given in
page 7
writing by the Seller's Solicitors in response to written enquiries submitted by the Buyer's Solicitors prior to the date of this agreement
14. | NON-ASSIGNMENT AND NON-MERGER |
14.1 | The Buyer shall not be entitled to transfer the benefit of this agreement |
14.2 | The Seller shall not be required to transfer the Property in parts or to any person other than the Buyer at the Price |
14.3 | Despite Completion the provisions of this agreement shall remain in full force and effect in so far as they remain to be observed and performed |
14.4 | The Buyer shall not sell or otherwise dispose of nor enter into any agreement for sale or other disposition of any interest in the whole or any part or parts of the Property before the expiry of three Working Days after Completion |
15. | NOTICES |
15.1 | Any notice to be served on or communication to be sent to any party to this agreement shall be in writing and shall only be regarded as properly served or sent if served or sent to the persons and the addresses specified in clause 15.3 by: |
15.1.1 | personal delivery on a Working Day or |
15.1.2 | pre-paid special or recorded delivery mail |
15.2 | Notices and communications shall be deemed to have been served or received as follows: |
15.2.1 | in the case of personal delivery on the date of delivery unless delivered after 4 pm (in which case delivery shall be treated as having been made on the next Working Day) |
15.2.2 | in the case of pre-paid special or recorded delivery mail on the second Working Day after the notice or communication is posted |
15.3.1 | Notices and communications to the Seller shall be addressed to the Seller's Solicitors at their address and quoting the reference specified in the Particulars |
15.3.2 | Notices and communications to the Buyer shall be addressed to the Buyer's Solicitors at their address and quoting the reference specified in the Particulars |
16. | VARIATIONS TO THIS AGREEMENT |
16.1 | This agreement constitutes the entire contract between the parties and there are no other arrangements between the parties relating to the subject matter of this agreement |
16.2 | Save as provided in clause 16.3 any variations to this agreement shall be set out in a formal written agreement and signed by the parties agreeing such variations |
16.3 | Any additional conditions or variations to this agreement which are agreed in correspondence between the parties to this agreement (or their respective solicitors with their authority) must make express reference to this clause (unless a provision in this agreement allows for such additional conditions or variations to be agreed between the parties in which case reference need only be made to the appropriate provision in this agreement) in order to be valid and binding on the parties |
page 8
17. | LAW AND JURISDICTION |
17.1 | This agreement is governed by English law and the parties to this agreement submit to the non-exclusive jurisdiction of the English courts |
17.2 | In this clause 17.2 "Opinion Letter" means a letter from a suitably qualified attorney who is qualified and practices in the country of domicile of the Buyer (or of any one or more party constituting the Buyer) and is not an employee of the Buyer (or of any such party) and which shall be: |
17.2.1 | in a form prepared at the request and expense of the Buyer but which shall have first been approved by the Seller (such approval not to be unreasonably withheld or delayed) and |
17.2.2 | addressed to the Seller and (if the Seller so requires) its mortgagee |
17.3 | If: |
17.3.1 | the Buyer (or any one or more party constituting the Buyer) is a person who is ordinarily resident outside the United Kingdom or is a company incorporated outside the United Kingdom and |
17.3.2 | this agreement provides for the Buyer to give covenants in the transfer of the Property |
the Buyer shall procure that an Opinion Letter as to the valid execution and enforceability of the transfer shall be given to the Seller by the date two Working Days before the Completion Date and (if the Buyer fails to do so) the Seller shall not be obliged to complete until the second Working Day after the Opinion Letter has been given to the Seller and the Buyer shall be deemed to be in default in performing its obligations under this agreement
18. | INCORPORATION OF SCHEDULES |
The provisions of the Schedules apply to this agreement
19. | CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 |
19.1 | Unless the right of enforcement is expressly provided for in this agreement a person who is not a party to this agreement may not by virtue of the Contracts (Rights of Third Parties) Act 1999 enforce any of its terms |
19.2 | Except to the extent that there is express provision in this agreement to the contrary the parties may by agreement rescind or vary this agreement without the consent of any such person |
20. | CONFIDENTIALITY |
20.1 | Subject to clause 20.2 no party to this agreement shall without the prior written consent of each of the others disclose or publish or cause disclosure or publication of the existence and/or financial terms of this agreement and each party shall keep all such information confidential |
20.2 | The parties to this agreement shall not be prevented from disclosing the existence or financial terms of this agreement: |
20.2.1 | where disclosure is required in order to comply with a statutory requirement or the requirements of any lawful authority or the rules of the Securities and Exchange |
page 9
Commission, the London Stock Exchange or an order of the English court or court of Jersey |
20.2.2 | to any professional adviser who shall agree to keep such information confidential |
20.2.3 | in order to notify the Tenants of the completion of the sale and purchase and |
20.2.4 | by way of a press release including the purchase price and address of the Property but not including: |
20.2.4.1 | the Seller's identity; |
20.2.4.2 | any reference to Threadneedle Property Investments Limited or any of its associated companies or any company containing the word "Threadneedle" in its company name; or |
20.2.4.3 | any reference to Zurich Assurance Limited or any of its associated companies or any company containing the word "Zurich" in its company name. |
20.3 | The Buyer shall not make an application to Land Registry to enter an agreed notice (as defined in LRA 2002) in respect of this agreement and for the avoidance of doubt the Seller shall not be required to make or consent to the making of an application to Land Registry to enter such an agreed notice and the Buyer acknowledges that the entering into of this agreement by the Seller does not constitute such a consent |
20.4 | If the Buyer shall make an application to enter a caution against first registration or a unilateral notice (as defined in LRA 2002) in respect of this agreement the Buyer shall not submit to Land Registry either the original or a copy of this agreement |
21. | CAPITAL ALLOWANCES |
21.1 | Defined terms |
For the purposes of this clause:
21.1.1 | CAA 2001 means the Capital Allowances Act 2001 |
21.1.2 | Fixtures means all plant and machinery installed or otherwise fixed in or to the Property and treated in law as part of the same |
21.2 | No prior claim |
The Seller:
21.2.1 | warrants that it has not previously made a claim and undertakes that it shall not make a claim for capital allowances under Part 2 of CAA 2001 and |
21.2.2 | warrants that it is not required to bring a disposal value into account for capital allowances purposes |
in respect of any of the Fixtures
22. | NOTICES |
Any notices to be served on the Buyer under this agreement should be sent to ARC Global Trust Inc.at 405 Park Avenue, 15th Floor, New York, NY 10022 (for the
page 10
attention of Brian Block) and with a copy to Moor Park Capital Partners LLP at York House 45 Seymour Street London W1H 7JT (for the attention of Graydon Butler)
SIGNED BY the parties to this agreement or their duly authorised representatives on the Date specified in the Particulars
page 11
SCHEDULE 1
The Property
ALL THAT freehold land and property known as Unit 1 58/62 Scotch Street Carlisle and which is registered at Land Registry with absolute title under Title Number CU46679
page 12
SCHEDULE 2
Documents to which the Property is sold subject
No. | Date | Document | Parties |
1. | 01.06.1990 | Party Wall Agreement |
(1) Dunedin Property Development Company (Retail) Limited (2) Liverpool Victoria Trustees Limited
|
page 13
SCHEDULE 3
Letting Documents
Lease of Unit 1
No. | Date | Document | Parties |
1. | 21.03.1989 | Agreement for lease |
(1) Dunedin Property Development Company Limited (2) McDonald's Property Company Limited
|
2. | 29.09.1989 | Lease |
(1) Liverpool Victoria Trustees Limited (2) McDonald's Property Company Limited
|
3. | 16.01.1990 | Licence to alter |
(1) Liverpool Victoria Trustees Limited (2) McDonald's Property Company Limited
|
4. | 26.04.1994 | Rent review memorandum |
(1) Liverpool Victoria Friendly Society Limited (2) McDonald's Property Company Limited
|
5. | 17.11.1999 | Rent review memorandum |
(1) Liverpool Victoria Friendly Society Limited (2) McDonald's Property Company Limited
|
6. | 15.01.2003 | Licence to sub-underlet |
(1) Liverpool Victoria Friendly Society Limited (2) McDonald's Property Company Limited (3) McDonald's Restaurants Limited (4) HBN Restaurants Limited
|
7. | 17.01.2003 | Deed of variation |
(1) McDonald's Restaurants Limited (2) HBN Restaurants Limited (3) Christopher John Nicholls
|
8. | 22.01.2003 | Notice of deed of variation | |
9. | 10.12.2003 | Licence to assign |
(1) Liverpool Victoria Friendly Society Limited (2) McDonald's Property Company Limited (3) McDonald's Real Estate Company No. 1 Limited (4) McDonald's Real Estate LLP (5) McDonald's Restaurants Limited
|
10. | 06.02.2004 | TP3 |
(1) McDonald's Property Company Limited |
page 14
(2) McDonald's Real Estate Company No. 1 Limited
| |||
11. | 06.02.2004 | TP3 |
(1) McDonald's Real Estate Company No. 1 Limited (2) McDonald's Real Estate Limited Liability Partnership
|
12. | 25.03.2004 | Notice of assignment | |
13. | 25.11.2004 | Rent review memorandum |
(1) Liverpool Victoria Friendly Society Limited (2) McDonald's Property Company Limited
|
14. | 15.06.2007 | Licence to carry out works |
(1) Liverpool Victoria Friendly Society Limited (2) McDonald's Real Estate LLP (3) McDonald's Restaurants Limited
|
15. | 22.10.2009 | Rent review memorandum |
(1) Liverpool Victoria Friendly Society Limited (2) McDonald's Property Company Limited
|
Substation lease
No. | Date | Document | Parties |
1. | 03.07.1989 | Lease |
(1) Liverpool Victoria Trustees Limited (2) North Western Electricity Board
|
page 15
SCHEDULE 4
VAT
1.1 | The parties to this agreement intend that Article 5 of the Value Added Tax (Special Provisions) Order 1995 ("the Order") shall apply to the supply of the Property and shall use all reasonable endeavours to secure that under Article 5 of the Order the sale of the Property is treated as neither a supply of goods nor a supply of services for the purposes of VAT |
1.2 | The Seller warrants and undertakes that: |
1.2.1 | it (or the representative member of the VAT Group to which the Seller belongs) is registered for VAT purposes and |
1.2.2 | it has used and will until Actual Completion use the Property for carrying on the business of letting in return for rental income and none of the Tenants are members of the VAT group to which the Seller belongs and |
1.2.3 | it (or a relevant associate for the purposes of paragraph 3 of Schedule 10 to the VAT Act or a relevant group member for the purposes of paragraph 21 of Schedule 10 to the VAT Act) has exercised the option to tax the Property and notified the option within the allowed time pursuant to Part 1 Schedule 10 to the VAT Act and |
1.2.4 | the Property is not a capital item to which Part XV of the VAT Regulations 1995 applies, or being such an item, the period of adjustment ascertained in accordance with regulation 114 of the VAT Regulations 1995 has expired |
1.3 | The Buyer represents warrants and undertakes: |
1.3.1 | that following Actual Completion the Buyer will use the Property for carrying on the business of letting in return for rental income |
1.3.2 | that the Buyer is already or as a result of the transfer of the Property will immediately become a taxable person for the purposes of VAT (and if not already registered for VAT purposes will immediately apply to be so registered and will provide the Seller with a copy of the Buyer's application to so register) |
1.3.3 | to comply in all respects with the provisions of Articles 5(2) and 5(2A) of the Order by submitting by the relevant date (as defined in Article 5(3) of the Order) an option to tax which has effect on or before the relevant date and prior to Completion to provide to the Seller: |
1.3.3.1 | a copy of the notification of the option to tax; |
1.3.3.2 | the acknowledgement of receipt of the option to tax by the Commissioners if received by the Buyer prior to Completion |
1.3.4 | not to revoke the option to tax referred to above or otherwise render it ineffective for the purposes of the transfer of the Property within the terms of Article 5 of the Order |
1.3.5 | that Article 5(2B) of the Order does not apply to the Buyer |
1.3.6 | that the Buyer is not purchasing the Property as nominee or otherwise with the intention of holding it for the benefit of another person |
page 16
1.4 | The Seller and the Buyer shall comply with the provisions of section 49 of the VAT Act and regulations made thereunder in respect of VAT records relating to the business and assets required to be preserved under paragraph 6 of schedule 11 of the VAT Act and whichever party retains the records shall preserve the said records in safe custody for such period as may be required by law |
1.5 | If on Actual Completion the Buyer has breached any representation or warranty or failed to comply with any undertaking given in paragraph 1.3 of this Schedule, resulting in the supply of the Property being subject to VAT, or the Commissioners have otherwise determined in writing that VAT is payable in respect of the supply of the Property, the Buyer shall on Actual Completion pay to the Seller's Solicitors an amount equal to the VAT on the Price and the Seller shall issue to the Buyer a valid VAT invoice in respect of the taxable supply of the Property (or any part thereof) pursuant to this agreement |
1.6 | If after Actual Completion the Commissioners determine in writing that VAT is payable in respect of the supply of the Property the Buyer shall pay such VAT in addition to the balance of the Price within seven days of delivery of the Seller's tax invoice in respect thereof together with (and in addition thereto) any amount due to the Commissioners by way of penalty or interest payable by the Seller if the same arise by reason of a breach by the Buyer of a warranty or undertaking in paragraph 1.3 of this Schedule 4 |
page 17
SCHEDULE 5
Special Conditions
None
page 18
Signed by /s/ Neil Bisset
duly authorised for and on behalf of /s/ Joseph Vullo
THE SELLER
Signed by /s/ Jesse C. Galloway
duly authorised for and on behalf of
THE BUYER
APPENDIX 1
FORM OF TRANSFER
1 | Facility |
2 | Definitions and interpretation |
3 | Purpose |
3.1 | The Borrower shall apply the Loan towards the purchase of the Property. |
3.2 | The Lender is not bound to monitor or verify the application of any amount borrowed pursuant to this letter. |
4 | Conditions of utilisation |
4.1 | The Borrower may not request the Loan unless the Lender has received all of the documents and other evidence listed in Schedule 2, in a form and substance satisfactory to the Lender. |
4.2 | The Loan shall not be made unless on the proposed Utilisation Date: |
(a) | no Default is continuing or would result from the proposed Loan; and |
(b) | the representations and warranties in clause 15 are true. |
4.3 | The Loan shall be drawn down as a single advance. |
5 | Utilisation |
5.1 | The Borrower may request the Loan by delivering a notice to the Lender not later than 10 am two Business Days prior to the proposed Utilisation Date (or such other period as the Lender may agree). |
5.2 | That notice is irrevocable and must specify: |
(a) | the proposed Utilisation Date (being a Business Day within the Availability Period); |
(b) | the amount of the Facility to be drawn (which must not exceed £760,000); and |
(c) | the account to which the Loan should be credited. |
6 | Repayment |
6.1 | The Borrower shall repay the Loan in full (together with all other sums outstanding to the Lender under this letter) on or before the Final Repayment Date. |
6.2 | The Borrower may not reborrow any part of the Facility which is repaid. |
7 | Illegality, prepayment and cancellation |
7.1 | If it becomes unlawful for the Lender to perform any of its obligations under this letter or to fund the Loan: |
(a) | on the Lender notifying the Borrower in writing, the Facility will be immediately cancelled; and |
(b) | the Borrower shall repay the Loan on the date specified by the Lender (being no earlier than the last day of any applicable grace period permitted by law). |
7.2 | The Borrower may, if it gives the Lender not less than 5 Business Day's prior written notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the Loan by a minimum amount and an integral multiple of £100,000). |
(a) | If: |
(i) | any sum payable to the Lender by the Borrower is required to be increased under clause 11.1(b); or |
(ii) | the Lender claims indemnification from the Borrower under clause 12.1, |
(b) | On the date specified by the Borrower in a notice under clause 7.3(a), the Borrower shall repay the Loan in full. |
(a) | Any notice of prepayment given under this clause 7 shall be irrevocable and shall specify the date on which the relevant prepayment is to be made and the amount of that prepayment. |
(b) | Any prepayment under this letter shall be made together with accrued interest on the amount prepaid and any amounts due under clause 13. |
(c) | The Borrower may not reborrow any part of the Facility which is prepaid. |
(d) | The Borrower shall not repay or prepay all or any part of the Loan except at the times and in the manner expressly provided for in this letter. |
8 | Interest |
(a) | Interest shall accrue on the Loan for each applicable Interest Period at the percentage rate per annum which is the aggregate of: |
(i) | the Margin; |
(ii) | LIBOR; and |
(iii) | the Mandatory Cost. |
(b) | The Borrower shall pay accrued interest on the Loan on each Interest Payment Date. |
(c) | The Lender shall notify the Borrower of the determination of a rate of interest under this letter. |
8.2 |
(c) | The first Interest Period for the Loan shall start on the Utilisation Date and end on the first Interest Payment Date thereafter. |
(d) | Each subsequent Interest Period shall start on the expiry of the previous Interest Period and end on the next Interest Payment Date. |
(e) | No Interest Period for the Loan shall extend beyond the Final Repayment Date. |
8.3 | If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not). |
8.4 |
(a) | If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, default interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to clause 8.4(b), is 2 per cent higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted the Loan for successive Interest Periods, each of a duration selected by the Lender (acting reasonably). Any interest accruing under this clause 8.4 shall be immediately payable by the Borrower on demand by the Lender. |
(b) | If any overdue amount consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan: |
(i) | the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan; and |
(ii) | the rate of interest applying to the overdue amount during that first Interest Period shall be 2 per cent higher than the rate which would have applied if the overdue amount had not become due. |
(c) | Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable. |
(a) | If a Market Disruption Event occurs in relation to the Loan for any Interest Period, then the rate of interest on the Loan for that Interest Period shall be the rate per annum which is the sum of: |
(iii) | the Margin; |
(iv) | the rate notified to the Borrower by the Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the Lender of funding the Loan from whatever source it may reasonably select; and |
(v) | the Mandatory Cost. |
(b) | In this letter, Market Disruption Event means that at or about 11 am on the first day of the relevant Interest Period: |
(i) | the Screen Rate is not available; and |
(ii) | the Lender (acting reasonably) determines that, by reasons of circumstances affecting the London Interbank Market generally, adequate and fair means do not existing for ascertaining LIBOR for that Interest Period. |
(c) | If a Market Disruption Event occurs and the Lender or the Borrower so requires, the Lender and the Borrower shall enter into negotiations (for a period of not more than 20 Business Days) with a view to agreeing a substitute basis for determining the rate of interest. |
8.6 | The Borrower shall ensure that, from the Utilisation Date, Hedging Arrangements are in place (in a form acceptable to the Lender) in respect of not less than 100% of the Loan and that such Hedging Arrangements are maintained for the term of the Facility. |
9 | Bank accounts |
9.1 | The Borrower shall maintain with the Lender, a current account in the name of the Borrower designated as "Rent Account" and shall not, without the prior written consent of the Lender (such consent not to be unreasonably withheld, delayed or conditioned), maintain any other bank account, save that the Borrower shall be permitted to open and maintain other bank accounts |
9.2 | The Borrower shall procure that all Net Rental Income and all other amounts received by the Managing Agent are paid into the Rent Account in cleared funds on or before each Interest Payment Date. |
9.3 | If, notwithstanding clause 9.2, the Borrower receives any amount otherwise than by credit to the Rent Account or through the Lender, the Borrower shall pay that amount into the Rent Account or to the Lender immediately on receipt and shall, in the meantime, hold that payment subject to the security created by the Finance Documents. |
9.4 | If the Rent Account is maintained with the Lender: |
(d) | subject to clause 9.4(b) and to the requirement that any amounts paid into the Rent Account for a particular purpose must be used for that purpose, the Borrower shall have signing rights in relation to the Rent Account and may withdraw any amount from the Rent Account for any purpose; |
(e) | while a Default is continuing, only the Lender may withdraw sums from the Rent Account; |
(f) | the Lender may, at any time, apply any monies standing to the credit of the Rent Account in or towards payment of any amount then due and payable to it but unpaid under the Finance Documents; |
(g) | the Lender shall not be responsible to the Borrower for any non-payment of any liability of the Borrower which could be paid out of moneys standing to the credit of the Rent Account. The Lender shall not be liable to the Borrower for any withdrawal wrongly made if made in good faith; and |
(h) | the Lender may delegate its powers of withdrawal under this clause 9 to any administrator, receiver and/or manager. |
10 | Fees |
11 | Tax gross up and indemnities |
(d) | The Borrower shall make all payments to be made by it under any Finance Document without any Tax Deduction, unless a Tax Deduction is required by law. |
(e) | If a Tax Deduction is required by law to be made by the Borrower the amount of the payment due from the Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. |
11.2 | The Borrower shall pay, and, on demand, indemnify the Lender against any cost, loss or liability the Lender incurs in relation to, all stamp duty, registration and other similar Taxes payable in respect of any Finance Document. |
11.3 | All amounts payable under a Finance Document by the Borrower shall be deemed to be exclusive of any VAT. If VAT is chargeable, the Borrower shall pay to the Lender (in addition to and at the same time as paying such amount) an amount equal to the amount of the VAT. |
12 | Increased Costs |
(i) | Subject to clause 12.2, the Borrower shall, on demand by the Lender, pay to the Lender the amount of any Increased Costs incurred by the Lender as a result of (i) the introduction of or any change in (or in the interpretation or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this letter. |
(j) | In this letter, Increased Costs means: |
(i) | a reduction in the rate of return from the Facility or on the Lender's overall capital; |
(ii) | an additional or increased cost; or |
(iii) | a reduction of any amount due and payable under any Finance Document, |
12.2 | Clause 12.1 does not apply to the extent any Increased Cost is: |
(a) | attributable to a Tax Deduction required by law to be made by the Borrower; |
(b) | compensated for by the payment of the Mandatory Cost; or |
(c) | attributable to the wilful breach by the Lender of any law or regulation. |
13 | Other indemnities |
13.1 | The Borrower shall, within 3 Business Days of written demand, indemnify the Lender against any cost, loss or liability incurred by it as a result of: |
(d) | the occurrence of any Event of Default; or |
(e) | the Loan not being advanced on, or being advanced on a date other than, the Utilisation Date specified in any notice delivered pursuant to clause 5.1 other than as a result of a breach by the Lender of its obligations under this letter. |
13.2 | The Borrower shall, on demand by the Lender, pay to the Lender the LIBOR Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Loan or Unpaid Sum. |
13.3 | The Lender shall within three Business Days of certification by the Lender, pay to the Rent Account any LIBOR Break Gain. |
14 | Costs and expenses |
14.1 | The Borrower shall pay to the Lender within 3 Business Days of written demand the amount of all costs and expenses (including legal fees and fees in respect of the Valuation) properly incurred by it in connection with: |
(a) | the negotiation, preparation and execution of this letter and any document referred to in this letter or a Security Document, subject to an overall limit in the amount of £5,250 plus VAT thereon where applicable and disbursements; |
(b) | any other Finance Document executed after the Utilisation Date; and |
(c) | any amendment, release, waiver or consent requested by the Borrower in relation to a Finance Document. |
14.2 | The Borrower shall within 3 Business Days of written demand pay to the Lender the amount of all costs and expenses (including legal fees) incurred by the Lender in connection with enforcement of, or the preservation of any rights under, any Finance Document. |
15 | Representations |
(a) | The Borrower is a body corporate, duly incorporated and validly existing under the law of the jurisdiction of its incorporation. |
(b) | The Borrower has the power to own its assets and carry on its activities as they are being conducted. |
15.2 | Each Finance Document is in full force and effect and the obligations expressed to be assumed by the Borrower in each Finance Document to which it is a party are legal, valid, binding and enforceable obligations, subject to the Reservations and any qualification set out in any legal opinion or Report addressed to the Lender in connection with the Finance Documents. |
15.3 | The entry into and performance by the Borrower of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not conflict with: |
(a) | any law or regulation applicable to it; or |
(b) | its constitutional documents (if any). |
15.4 | The entry into and performance by it of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not conflict with any agreement or instrument binding on it or any of its assets nor oblige it to create any Security over any of its assets (other than under a Security Document). |
15.5 | The Borrower has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents. |
15.6 | All Authorisations required: |
(a) | to enable the Borrower lawfully to enter into, exercise its rights and comply with its obligations under the Finance Documents to which it is a party; and |
(b) | to make the Finance Documents to which the Borrower is a party admissible in evidence in its Relevant Jurisdictions, |
15.7 | The choice of governing law of the Finance Documents to which it is a party will be recognised and enforced in the Borrower's Relevant Jurisdictions, subject to the Reservations and any qualification set out in any legal opinion or Report addressed to the Lender in connection with the Finance Documents. |
15.8 | Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in the Borrower's Relevant Jurisdictions, subject to the Reservations and any qualification set out in any legal opinion or Report addressed to the Lender in connection with the Finance Documents. |
15.9 | No Event of Default is continuing or is reasonably likely to result from the making of the Loan. |
15.10 | No litigation, arbitration, administrative or bankruptcy proceedings of or before any court, arbitral body or agency is current or pending or, so far as the Borrower is aware, threatened against it which, if adversely determined, could reasonably be expected to have a Material Adverse Effect. |
(a) | In each case save as disclosed in any Certificate of Title: |
(i) | the Borrower is the sole legal and beneficial owner of, and has good and marketable title to, the Property subject to no Security; |
(i) | there subsists no breach of any law or regulation which affects or might reasonably be expected to affect the value of the Property; |
(ii) | there are no covenants, agreements, stipulations, reservations, conditions, interests, rights or other matters whatsoever which affect the Property; |
(ii) | nothing has arisen or has been created or is subsisting which would be an overriding interest over the Property; |
(iii) | no facility necessary for the enjoyment and use of the Property is enjoyed on terms entitling any person to terminate or curtail its use; and |
(iv) | the Borrower has not received notice of any adverse claim by any person in respect of the ownership of the Property or any interest in it, nor has any acknowledgement been given to any person in respect of the Property. |
(b) | Save as disclosed in any Certificate of Title, all deeds and documents necessary to show good and marketable title to the Property are in the possession of, or held to the order of, the Lender. |
15.12 | The Borrower is not required to make any deduction for or on account of Tax from any payment it may make under any Finance Document. |
15.13 |
(a) | All information supplied by it to the Lender in connection with the Finance Documents was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it was stated. |
(b) | All information supplied by or on behalf of the Borrower in connection with the preparation of the Reports was true, complete and accurate in all material respects at the dates supplied. |
(c) | All statements of fact in the Reports (other than the Certificate of Title) are true and accurate in all material respects. |
(d) | So far as the Borrower is aware (having made due and careful enquiry), no Report (other than the Certificate of Title) is misleading in any material respect and there is no expression of opinion contained in, or any conclusion reached in, any Report (other than the Certificate of Title) which is not fair and reasonable. |
(e) | So far as the Borrower is aware (having made due and careful enquiry), nothing has occurred or come to light since the date of any Report (other than the Certificate of Title) which renders any material facts contained in that Report (other than the Certificate of Title) inaccurate or misleading or which makes any of the opinions or conclusions contained in the relevant Report (other than the Certificate of Title) unfair or unreasonable. |
(f) | The Borrower has read the Certificate of Title and is not aware of any material omission or inaccuracy in the Certificate of Title. |
15.14 | The Repeating Representations are deemed to be repeated by the Borrower on each Interest Payment Date, by reference to the facts and circumstances then existing. |
16 | Information undertakings |
16.1 | The Borrower shall supply to the Lender as soon as the same become available, but in any event within 270 days after the end of each of its financial years its (unaudited) financial statements for that financial year. |
16.2 | The Borrower shall procure that each set of financial statements delivered under clause 16.1: |
(c) | is prepared using GAAP and accounting practices and financial reference periods consistent with those applied in the preparation of the first set of financial statements provided under clause 16.1; and |
(d) | give a true and fair view (if audited) or fairly present (if unaudited) of its financial condition as at the end of, and results of operations for, the period to which they relate. |
16.3 | The Borrower shall supply to the Lender: |
(a) | all documents despatched by the Borrower to its creditors generally, at the same time as they are despatched; |
(b) | promptly on becoming aware of them, the details of any litigation, arbitration, administrative or bankruptcy proceedings which are current, threatened or pending against it and which, if adversely determined, are likely to have a Material Adverse Effect; |
(c) | immediate notification of any notice received by it under section 146 of the Law of Property Act 1925 or any proceedings commenced or steps taken against it for the forfeiture of any lease under which it holds an interest in the Property; |
(d) | (unless otherwise agreed in writing by the Lender) no later than 28 days following the end of each Interest Payment Date, a quarterly monitoring report containing such information in respect of the Property and each Occupational Lease as the Lender shall reasonably require such report to be in a form acceptable to the Lender, but to include, without limitation, the following information: |
(iv) | the name of the tenant, or occupier; |
(v) | the rent, service charge, VAT and any other payments payable and (separately) paid in that Quarter; |
(vi) | details of any rent or service charges arrears; |
(vii) | details of any rent review agreed or in progress during that Quarter and any rent review which will fall to be determined in the following Quarter; |
(viii) | details of any expiry, termination or surrender or any notice of expiry, termination or surrender given by the tenant; |
(ix) | details of any new lettings and licences proposed; |
(x) | details of any new insurance claims and the progress of existing insurance claims; |
(xi) | details of any dispute between the Borrower and any tenant or occupier of the Property which, if adversely determined, would have or is reasonably likely to have a Material Adverse Effect; |
(xii) | details of any sinking fund in respect of the Property; |
(xiii) | details of any proposed disposal of the Property (including negotiations for the grant of any Occupational Lease); and |
(xiv) | details of all irrecoverable expenditure incurred or to be incurred by the Borrower in respect of the Property) in excess of £10,000; and |
(e) | such further information regarding the business and operations of the Borrower, the Property or the financial condition of the Borrower as the Lender may reasonably request. |
16.4 | The Borrower shall notify the Lender if any person becomes a member of the Borrower or ceases to be a member of the Borrower. |
16.5 | The Borrower shall notify the Lender of any Default (and the steps, if any, being taken to remedy it) on becoming aware of its occurrence. |
16.6 | The Borrower shall supply to the Lender a Compliance Certificate within 28 days of each Interest Payment Date setting out (in reasonable detail) computations as to compliance with the financial covenants set out in clause 17. |
17 | Financial covenants |
17.1 | So long as any amount is outstanding under the Finance Documents or the Facility is available for borrowing the Borrower shall ensure that: |
(e) | in respect of each Relevant Period, Annual Rent shall be at least 200 per cent of Annual Interest Costs; and |
(f) | at all times the Loan shall not exceed 60 per cent of the Market Value of the Property. |
17.2 | The covenant in clause 17.1(a) shall be tested on each Interest Payment Date. The covenant in clause 17.1(b) shall be tested annually by reference to the then most recent Valuation received by the Lender. |
17.3 | If, following a Valuation, the Borrower is in breach of clause 17.1(b), the Borrower shall within 20 Business Days of the date on which it is notified by the Lender of the breach, prepay the Loan in an amount sufficient to ensure compliance with clause 17.1(b). Clause 7.2(b) shall not apply to any prepayment made under this clause 17.3. |
(c) | The Borrower shall within 3 Business Days of written demand pay the costs of the initial Valuation supplied under clause 4.1 and any Valuation requested in accordance with clauses 17.4(b) and 17.4(c). |
(d) | The Lender may request a Valuation no more than once in each three year period. |
(e) | Notwithstanding clause 17.4(b), the Lender may request a Valuation at any time if: |
(i) | a Default is outstanding; or |
(ii) | subject to clause 17.4(f), a Default is reasonably anticipated at the date of the request; and/or |
(iii) | the Borrower proposes to sell or otherwise dispose of all or any part of the Property. |
(f) | The Lender may call for a Valuation at any time at its own cost. |
(g) | The Borrower shall provide all reasonable assistance to a Valuer to enable it to carry out a Valuation. |
(h) | If the Lender requests a Valuation pursuant to clause 17.4(c)(ii) and the Valuation does not reveal the existence of a Default, in the event that the Lender has requested a Valuation more than once pursuant to clause 17.4(b) or 17.4(c) in the previous three years the cost of the Valuation shall be for the Lender's account. |
18 | General undertakings |
18.1 | The Borrower will comply with all laws and regulations applicable to it if failure so to comply has or is reasonably likely to have a Material Adverse Effect. |
18.2 | The Borrower will not, without the prior written consent of the Lender, (whether by a single transaction or a series of related or unrelated transactions and whether at the same time or over a period of time) sell, transfer, lease or otherwise dispose of any of its Charged Assets or agree to do so save that the Borrower may, in the ordinary course of trading, dispose of those Charged Assets charged by way of floating charge only. |
(i) | The Borrower shall not create or permit to subsist any Security over any of its assets other than Permitted Security. |
(j) | The Borrower shall procure that its payment obligations under the Finance Documents rank at least pari passu with the claims of all other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally. |
18.4 | The Borrower will not, without the prior written consent of the Lender (such consent not to be unreasonably withheld, delayed or conditioned) form or acquire any Subsidiary or subscribe for shares in any company. |
18.5 | The Borrower will not incur or permit to be outstanding any Financial Indebtedness, other than: |
(a) | amounts due under any Finance Document; |
(b) | any other Financial Indebtedness to which the Lender has given its prior written consent; |
(c) | Subordinated Loans; |
(d) | any other Financial Indebtedness which the Lender has made available to the Borrower; and |
(e) | other Financial Indebtedness not exceeding £5,000 in aggregate in any financial year. |
18.6 | The Borrower will not without the prior written consent of the Lender redesignate all or any part of any member's capital contribution as a loan. |
18.7 | The Borrower shall not, without the prior written consent of the Lender: |
(a) | grant or agree to grant any new Occupational Lease; |
(b) | agree to any amendment or waiver or surrender or take any action which may lead to forfeiture in respect of any existing Occupational Lease; |
(c) | grant any licence or right to occupy any part of the Property; |
(d) | (such consent not to be unreasonably withheld, delayed or conditioned where the Borrower may not unreasonably withhold its consent) consent to any assignment or |
(e) | (except where required to do so under the terms of the relevant Occupational Lease) agree to any rent review in respect of any Occupational Lease. |
(c) | The Borrower shall not appoint any Managing Agent of the Property other than Moor Park Capital Partners LLP except with the consent of, and on terms approved by, the Lender (such consent not to be unreasonably withheld, delayed or conditioned). |
(d) | The Borrower shall procure that each Managing Agent shall on its appointment enter into a Duty of Care Deed and acknowledge to the Lender that it has notice of the Security created by the Security Documents and that it agrees to pay all Net Rental Income received by it into the Rent Account in cleared funds on or before each Interest Payment Date without withholding, set off or counterclaim. |
(e) | The Borrower shall not terminate the appointment of any Managing Agent without the consent of the Lender (such consent not to be unreasonably withheld, delayed or conditioned). |
18.9 | The Borrower shall not change its accounting reference period without the prior written consent of the Lender (such consent not to be unreasonably withheld, delayed or conditioned). |
(g) | The Borrower shall effect: |
(i) | insurance of its assets in accordance with paragraph 6.14 of the CML Lenders' Handbook save that the insurance shall be for the full reinstatement value of the Property which shall be deemed to be the value of that Property as specified in the most recent Valuation; |
(ii) | insurance against acts of terrorism; and |
(iii) | insurance against 3 years loss of rent, |
(h) | The Borrower will procure that the Lender is either joint insured or, if so agreed by the Lender, noted as mortgagee and loss payee on each such insurance policy and that every such policy shall contain: |
(i) | a standard mortgagee clause whereby such insurance shall not be vitiated or avoided as against a mortgagee in the event or as a result of any misrepresentation, act or neglect or failure to make disclosure on the part of the insured party or any circumstance beyond the control of the insured party; and |
(ii) | terms providing that it shall not be invalidated so far as the Lender is concerned for failure to pay any premium due without the insurer first giving to the Lender not less than 10 Business Days' notice. |
(i) | The Borrower will promptly on request supply copies of its Insurances and will notify the Lender of new policies, renewals made and material variations or cancellations of policies made or, to the knowledge of the Borrower, threatened or pending. |
(j) | The Borrower shall not do or permit to be done anything which may make void or voidable any of the Insurances. |
(k) | The Borrower shall promptly pay all premiums and do all other things necessary to keep all of the Insurances. |
(l) | If the Borrower fails to comply with any of the provisions of this clause 18.10, the Lender shall immediately be entitled to effect the Insurances concerned at the expense of the Borrower. |
(m) | Subject to clause 18.10(h), the Borrower shall apply all monies received or receivable under any Insurance (other than any insurance in respect of third party liability) towards replacing, restoring or reinstating the relevant asset. Any proceeds of insurance received by the Borrower shall, pending any such replacement, restoration or reinstatement, be credited to the Rent Account. |
(n) | To the extent that any Insurance and any Occupational Lease does not restrict the proceeds of insurance under that policy being used to prepay the Loan, the proceeds of insurance shall: |
(i) | if at the relevant time an Event of Default has occurred and is continuing; or |
(ii) | at any other time if the Lender requests or requires it in writing, |
18.11 | The Borrower shall use all reasonable endeavours to obtain as soon as practicable from each landlord under any lease pursuant to which the Borrower holds an interest in the Property, an acknowledgement addressed to the Lender confirming that such landlord will provide the Lender with 14 days' prior written notice of its intention to serve a notice under section 146 of the Law of Property Act 1925 or to take any other steps to forfeit or terminate such lease. |
19 | Events of Default |
19.1 | The Borrower does not pay on the due date any amount pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless its failure to pay is caused by an administrative or technical error and payment is made within 3 Business Days of its due date. |
19.2 | Any of the provisions in clauses 8.6, 16, 17.1(a), 17.3, 18.2, 18.3, 18.5, and 18.9 are not complied with. |
(a) | The Borrower does not comply with any provision of the Finance Documents (other than clause 17.1(b) and those provisions referred to in clauses 19.1 and 19.2). |
(b) | No Event of Default under clause 19.3(a) will occur if the failure to comply is capable of remedy and is remedied within ten Business Days of the Lender giving written notice to the Borrower or the Borrower becoming aware of the failure to comply. |
(f) | Any representation or statement made or deemed to be made by the Borrower in any Finance Document or any other document delivered by or on behalf of the Borrower under or in connection with any Finance Document is or proves to have been incorrect or misleading when made or deemed to be made. |
(g) | No Event of Default under clause 19.4(a) will occur if the failure to comply is capable of remedy and is remedied within ten Business Days of the Lender giving written notice to the Borrower or the Borrower becoming aware of the failure to comply. |
19.5 | Any Financial Indebtedness of the Borrower (other than any Financial Indebtedness due to the Lender other than pursuant to the Finance Documents) is not paid when due nor within any originally applicable grace period or is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described). |
19.6 | Any demand is made by a creditor in respect of any Financial Indebtedness of the Borrower (other than any Financial Indebtedness due to the Lender other than pursuant to the Finance Documents) which is incurred pursuant to an on demand facility (however described). |
19.7 | The Borrower is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness (other than any Financial Indebtedness due to the Lender other than pursuant to the Finance Documents). |
(a) | Any corporate action, legal proceedings or other procedure or step is taken in relation to or with a view to: |
(i) | the suspension of payments, a moratorium of any indebtedness of the Borrower (other than any such action taken in respect of any Financial Indebtedness due to the Lender other than pursuant to the Finance Documents); |
(ii) | winding-up, dissolution, administration, bankruptcy or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower; |
(iii) | a composition, assignment or arrangement with any creditor of the Borrower (other than any such action taken in respect of any Financial Indebtedness due to the Lender other than pursuant to the Finance Documents); |
(iv) | the appointment of a receiver, administrative receiver, compulsory manager or other similar officer in respect of the Borrower or any of its assets (other than any such action taken in respect of any Financial Indebtedness due to the Lender other than pursuant to the Finance Documents); |
(v) | the appointment of a liquidator, administrator, administrative receiver or other similar officer in respect of the Borrower; or |
(vi) | enforcement of any Security over any assets of the Borrower (other than any such action taken in respect of any Financial Indebtedness due to the Lender other than pursuant to the Finance Documents), |
19.9 | Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Borrower and is not discharged within 10 Business Days (other than any such action taken in respect of any Financial Indebtedness due to the Lender other than pursuant to the Finance Documents). |
19.10 | Any part of the Property is destroyed or is damaged to a material extent such that, taking into account the actually recoverable or recovered proceeds of insurance effected under the Finance Documents, in the opinion of the Lender, the destruction or damage will have a Material Adverse Effect. |
19.11 | It is or becomes unlawful for the Borrower to perform any of its obligations under the Finance Documents. |
19.12 | All or any part of the Property is compulsorily purchased. |
19.13 | Any person, other than the Lender, commits any breach of, or omits to observe, any of the obligations expressed to be assumed by such person under the Subordination Deed. |
19.14 | The entire issued share capital of the Borrower ceases to be legally and beneficially owned by the Shareholder. |
19.15 | Any event or series of events or any circumstances whether related or not occurs or circumstances arise which has or is reasonably likely to have a Material Adverse Effect. |
19.16 | On and at any time after the occurrence of an Event of Default which is continuing the Lender may, by notice to the Borrower: |
(a) | cancel the Facility, at which time it shall immediately be cancelled; and/or |
(b) | declare that all or part of the Loan, together with accrued interest, and all other amounts accrued under the Finance Documents be immediately due and payable, at which time they shall become immediately due and payable; and/or |
(c) | declare that all or part of the Loan be payable on demand, at which time it shall immediately become payable on demand by the Lender, |
20 | Changes to the parties |
20.1 | The Lender may: |
(k) | assign any of its rights; or |
(l) | transfer by novation any of its rights and obligations, |
20.2 | The Lender may disclose to any person: |
(c) | to (or through) whom the Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this letter; |
(d) | with (or through) whom the Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this letter or the Borrower; |
(e) | to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation; or |
(f) | who is an Affiliate of the Lender, |
20.3 | The Borrower may not assign any of its rights or transfer any of its rights or obligations under the Finance Documents. |
21 | Conduct of business by the Lender |
(g) | interfere with the right of the Lender to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; or |
(h) | oblige the Lender to disclose any information relating to its affairs (tax or otherwise) or any compensation in respect of Tax. |
22 | Payment mechanics |
22.1 | On each date on which the Borrower is required to make a payment under a Finance Document, the Borrower shall ensure that the Managing Agent makes the same available to the Lender for value on the due date. |
22.2 | If the Lender receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents, the Lender shall apply that payment towards the obligations of the Borrower under the Finance Documents in such order as the Lender shall determine. |
22.3 | All payments to be made by the Borrower under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set off or counterclaim. |
(f) | Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). |
(g) | During any extension of the due date for payment of any principal amount under this letter, interest is payable on that principal amount at the rate payable on the original due date. |
22.5 | If a change in any currency of the United Kingdom occurs, this letter will, to the extent the Lender (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the relevant interbank market and otherwise to reflect the change in currency. |
(a) | Set off |
23 | Security and recourse |
23.1 | All obligations of the Borrower to the Lender under the Finance Documents will be secured by the Security Documents. |
23.2 | Notwithstanding anything in this letter or in the Security Documents to the contrary the Lender acknowledges and agrees that all amounts payable or expressed to be payable by the Borrower to the Lender under, or in respect of its obligations and liabilities under, this letter and the Security Documents shall be recoverable only from and to the extent of: |
(f) | the Charged Assets; and |
(g) | any proceeds of realisation or enforcement of any such Security, |
24 | Notices |
24.1 | Any communication to be made under or in connection with this letter shall be made in writing and, unless otherwise stated, may be made by fax or letter. |
24.2 | The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each party for any communication or document to be made or delivered under or in connection with this letter is: |
(h) | in the case of the Borrower: Moor Park Capital Partners LLP |
(i) | in the case of the Lender: |
Address: | Santander UK plc 298 Deansgate Manchester M3 4HH |
(b) | Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective: |
(i) | if by way of fax, when received in legible form; or |
(ii) | if by way of letter, when it has been left at the relevant address or 5 days after being deposited in the post postage prepaid in an envelope addressed to it at that address, |
(c) | Any communication or document to be made or delivered to the Lender will be effective only when actually received by the Lender and then only if it is expressly marked for the attention of the department or officer identified above (or any substitute department or officer as the Lender shall specify for this purpose). |
(d) | Where the Borrower's registered office is outside the United Kingdom then without prejudice to any other mode of service allowed under any relevant law, it irrevocably appoints Moor Park Capital Partners LLP as its agent for service of notices and all other communications in relation to the Finance Documents (including process in relation to any proceedings before the English courts in connection with any Finance Document). |
(e) | If any person appointed as an agent for service is unable for any reason to act as agent the Borrower must immediately (and in any event within five days of such event taking place) appoint another agent on terms acceptable to the Lender. Failing this, the Lender may appoint another agent for this purpose. |
25 | Calculations and certificates |
25.1 | In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, in the absence of manifest error, the entries made in the accounts maintained by the Lender are prima facie evidence of the matters to which they relate. |
25.2 | Any certification or determination by the Lender under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates. |
25.3 | Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 365 days. |
26 | Partial invalidity |
27 | Remedies and waivers |
28 | Third parties |
28.1 | Unless expressly provided to the contrary in this letter, a person who is not a party to this letter has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this letter. |
28.2 | The consent of any person who is not a party to this letter is not required to rescind or vary this letter or any other agreement entered into in connection with it. |
29 | Publicity |
30 | Inconsistency with Security Documents |
30.1 | To the extent that there is any inconsistency between the terms of any Security Documents and the terms of this letter, then until such time as all liabilities and obligations of the Borrower under this letter are repaid and discharged in full, the terms of this letter shall prevail. |
31 | Governing law |
31.1 | This letter shall be governed by, and construed in accordance with, English law and all claims and disputes between the parties arising out of or in connection with this letter (whether or not contractual in nature) shall be determined in accordance with English law. |
31.2 | If in any court either party argues that a court other than the courts of England and Wales has jurisdiction to determine any dispute or difference between the parties arising out of or in connection with this letter that issue shall be determined in accordance with English law and each party irrevocably and unconditionally waives any right it might otherwise have to rely upon the law of the forum or any other law. |
32 | Submission to jurisdiction |
32.1 | For the benefit of the Lender, the Borrower submits to the exclusive jurisdiction of the courts of England and Wales in relation to all claims, disputes, differences or other matters arising out of or in connection with this letter provided that nothing in this clause shall prevent the Lender in its sole and unfettered discretion, from commencing proceedings against the Borrower in any court of competent jurisdiction. |
32.2 | The Borrower irrevocably waives any right that it may have: |
(a) | to object on any ground to an action being brought in the courts of England and Wales, to claim that the action brought in the courts of England and Wales has been brought in an inconvenient forum, or to claim that the courts of England and Wales do not have jurisdiction; or |
(b) | to oppose the enforcement of any judgment of any court of England and Wales. |
33 | Acceptance |
33.1 | The offer contained in this letter shall be open for acceptance for 20 Business Days following the date of this letter. |
33.2 | Please indicate your acceptance of the terms set out in this letter by signing and returning to us the enclosed copy of this letter. |
(a) | moneys borrowed; |
(b) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; |
(c) | the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease; |
(d) | receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); |
(e) | any amount raised under any other transaction (including, without limitation, any forward sale or purchase agreement) having the commercial effect of a borrowing; |
(f) | any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account); |
(g) | any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and |
(h) | the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (g) above |
(a) | 31 January 2013, and then quarterly thereafter; and |
(a) | the applicable Screen Rate; or |
(b) | (if no Screen Rate is available for the currency or period of that Loan) the rate (rounded upwards to four decimal places) quoted by leading banks to the Lender in the London Interbank Market, |
(a) | the interest (excluding Margin) which the Lender should have received for the period from the date of receipt of all or any part of the Loan or Unpaid Sum to the last day of the current Interest Period in respect of the Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period |
(b) | the amount which the Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the London Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period, |
(a) | the business, assets or financial condition of the Borrower; and/or |
(b) | the ability of the Borrower to perform any of its obligations under the Finance Documents to which it is a party; and/or |
(c) | the value or enforceability of the Security created by the Security Documents |
(a) | (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; |
(b) | if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
(c) | if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end |
(a) | any Security granted in favour of the Lender; |
(b) | any lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by the Borrower; |
(c) | any netting or set off arrangement entered into by the Borrower in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances; |
(d) | any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to the Borrower in the ordinary course of trading and on the supplier's standard or usual terms and not arising as a result of any default or omission by the Borrower; or |
(e) | any Security permitted by the Lender in writing |
(B) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which is required to bring into account in computing its chargeable profits (within the meaning of section 11(2) of the Taxes Act) the whole of any share of interest payable in respect of that advance that falls to it by reason of sections 114 and 115 of the Taxes Act; |
(iii) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (for the purposes of section 11(2) of the Taxes Act) of that company; or |
(c) | a building society authorised under the Building Societies Act 1986 and which is entitled to receive interest payable to it under this letter without deduction of tax pursuant to section 880 of the ITA |
(a) | its jurisdiction of incorporation or (in the case of an individual) the jurisdiction in which it is resident |
(b) | any jurisdiction where any asset subject to or intended to be subject to the Security to be created by it pursuant to the Security Documents is situated |
(c) | any jurisdiction where it conducts its business and |
(d) | the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it |
(a) | in respect of each Interest Payment Date occurring in the 12 month period from the Utilisation Date, the period from the Utilisation Date to that Interest Payment Date; and |
(b) | thereafter, each 12 month period ending on an Interest Payment Date |
(a) | rent, licence fees and equivalent amounts paid or payable; |
(b) | any sum received or receivable from any deposit held as security for performance of a tenant's obligations; |
(c) | any other moneys paid or payable in respect of occupation and/or usage of the Property and any fixture and fitting on the Property including any fixture or fitting on the Property for display or advertisement, on licence or otherwise; |
(d) | any sum paid or payable under any policy of insurance in respect of loss of rent or interest on rent; |
(e) | any sum paid or payable, or the value of any consideration given, for the grant, surrender, amendment, supplement or extension of any Occupational Lease; |
(f) | any sum paid or payable in respect of a breach of covenant or dilapidations under any Occupational Lease; |
(g) | any sum paid or payable by or distribution received or receivable from any guarantor of any occupational tenant under any Occupational Lease; |
(h) | any Tenant Contributions; and |
(i) | any interest paid or payable on, and any damages, compensation or settlement paid or payable in respect of, any sum referred to above less any related fees and expenses incurred (which have not been reimbursed by another person) by the Borrower |
(a) | the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court; |
(b) | the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors; |
(c) | the time barring of claims under the Limitation Acts; |
(d) | the possibility that an undertaking to assume liability for or to indemnify a person against non payment of stamp duty may be void; |
(e) | defences of set off or counter-claim; and |
(f) | similar principles and similar matters arising under the laws of any foreign jurisdictions in which the relevant obligations may have to be performed |
(a) | contribution to: |
(i) | ground rent; |
(ii) | insurance premia; |
(iii) | the cost of an insurance valuation; |
(iv) | a service or other charge in respect of the Borrower's costs in connection with any management, repair, maintenance or similar obligation or in providing services to a tenant of, or with respect to, the Property; or |
(v) | a reserve or sinking fund; or |
(b) | VAT. |
1.1 | assets includes present and future property, revenues and rights of every description; |
1.2 | this letter, a Finance Document or any other agreement or instrument is a reference to this letter, that Finance Document or that other agreement or instrument as the same may have been, or may from time to time be, amended, novated, replaced, restated, supplemented or varied provided that, where the consent of the Lender is required pursuant to any Finance Document or otherwise to such amendment, novation, replacement, restatement, supplement or variation, such consent has been obtained; |
1.3 | indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; |
1.4 | a guarantee includes any guarantee, indemnity, counter indemnity or other assurance in respect of the indebtedness of any person; |
1.5 | a person includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing; |
1.6 | a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of the law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; |
1.7 | a reference to determines or determined means a determination made in the absolute discretion of the person making the determination; |
1.8 | a provision of law is a reference to that provision as amended or re-enacted; |
1.9 | any provision in the CML Lenders' Handbook shall be treated (where and when applicable) as being a reference to the corresponding provision (or provisions) that most nearly corresponds to it in any amendment to or replacement of the CML Lenders' Handbook as at the date of this letter; |
1.10 | a clause number is to a clause in this letter and a reference to a paragraph number is to a paragraph of the relevant schedule in which that reference appears, unless specified otherwise; and |
1.11 | the masculine shall include the feminine. |
2 | Clause and schedule headings are for ease of reference only. |
3 | A Default is continuing if it has not been remedied or waived. |
4 | A reference in this letter to any person includes that person's successors and (in the case of the Lender only) its permitted assignees and transferees. |
1 | The Borrower |
1.1 | A copy of the constitutional documents of the Borrower. |
1.2 | A copy of a resolution of the board of directors of the Borrower approving the Finance Documents to which it is a party and authorising their execution. |
1.3 | A specimen of the signature by each person authorised by the resolutions referred to in paragraph 1.2 above. |
2 | Financial Information |
2.1 | A copy of the most recent financial statements of any material tenant of the Property. |
2.2 | Evidence and details of funding (if any) in respect of the balance of the purchase price of the Property provided other than under this letter. |
2.3 | Written confirmation addressed to the Lender from the Borrower's solicitors that they are holding £840,000 (being the balance of the purchase price for the Property) and that immediately on utilisation of the Facility they will apply such sum and the Loan immediately in completion of the purchase of the Property. |
3 | Insurance |
4 | Valuation |
(a) | the maximum amount of the Facility (as shown in clause 1) does not exceed 47.5% of the Market Value; and |
(b) | the Annual Rent for the 12 months immediately following the Utilisation Date is not less than 200% of Annual Interest Costs for such period. |
5 | Property |
5.1 | A Certificate of Title in respect of the Property. |
5.2 | An undertaking from the Borrower's solicitors in relation to stamping, the title deeds to the Property and registration of the Security Documents and the form RX1 at the Land Registry. |
5.3 | A completed Land Registry application form RX1. |
5.4 | An effective discharge of all Security affecting the Property and all other Security affecting any other assets the subject of the Security Documents. |
5.5 | If applicable, a copy of the completion statement prepared by the vendor's solicitors. |
5.6 | Each Occupational Lease. |
5.7 | In respect of each subsisting Occupational Lease: |
(a) | a rental authority letter from the vendor of the Property addressed to the tenant(s); and |
(b) | copy rent receipts or other evidence of receipt of rent by the vendor of the Property. |
5.8 | A copy of all consents (if any) required for the transfer of the Property to the Borrower and the charging of the Property by the Borrower. |
5.9 | Confirmation from the Valuer that it has received the Certificate of Title and specifying any resulting alteration to the initial Valuation. |
5.10 | A copy of the Inland Revenue land transaction return in connection with the Property signed by the Borrower. |
6 | Rent Account |
7 | Finance Documents |
7.1 | A duly completed notice in accordance with clause 5. |
7.2 | This letter accepted by the Borrower. |
7.3 | The Legal Charge executed by the Borrower. |
7.4 | Notices (and appropriate address labels) to each occupational tenant or occupier to pay all rent and any other sums payable in respect of the property in to the Rent Account substantially in the form of schedule 4 to the Legal Charge. |
7.5 | Hedging arrangements in accordance with clause 8.6. |
7.6 | The Subordination Deed executed by the parties thereto. |
8 | Managing Agent |
8.1 | The Management Agreement executed by Moor Park Capital Partners LLP and the Borrower. |
8.2 | Evidence of the Managing Agent's professional indemnity insurance cover. |
8.3 | The Duty of Care Deed executed by the Managing Agent, the Lender and the Borrower. |
9 | Legal opinions |
10 | Miscellaneous |
10.1 | Evidence that Moor Park Capital Partners LLP has accepted its appointment as process agent for the Borrower. |
10.2 | Evidence that all relevant fees, costs and expenses pursuant to clauses 10 and 14.1(a) have been paid or will be paid on the Utilisation Date. |
10.3 | A copy of any Authorisation or other document, opinion or assurance which the Lender considers to be necessary or desirable in connection with the entry into and performance of, and the transactions contemplated by, any Finance Document or for the validity and enforceability of any Finance Document. |
10.4 | A copy of the Borrower's VAT registration certificate and evidence that it has elected to waive the exemption in relation to the Property and that that election has been acknowledged by HM Revenue & Customs. |
10.5 | A winding-up check at the High Court in London and a search at the relevant Companies Registry in respect of the vendor of the Property dated no earlier than the Utilisation Date revealing no adverse entries. |
10.6 | Such information and documentation as the Lender may require in order to comply with its "know your customer" procedures. |
1 | We/I refer to the Facility Letter. This is a Compliance Certificate. Terms defined in the Facility Letter have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate. |
2 | We/I confirm that: |
(a) | in respect of the period commencing on ¨ and ending on ¨ (being the most recent Interest Payment Date) Annual Rent is not less than 200 per cent of Annual Interest Costs; and |
(b) | as at ¨ (being the most recent Interest Payment Date), the Loan is not greater than 60 per cent of the Market Value of the Property. |
3 | We confirm that no Default is continuing. |
1. | Amendment to Section 10(d) of the Advisory Agreement. Effective July 1, 2012, Section 10(d) of the Advisory Agreement is hereby replaced in its entirety with the following: |
By: | American Realty Capital Global Trust, Inc., |
1. | I have reviewed this Quarterly Report on Form 10-Q of American Realty Capital Global Trust, Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Dated this 9th day of November, 2012 | /s/ Nicholas S. Schorsch | |
Nicholas S. Schorsch | ||
Chief Executive Officer and Chairman of the Board of Directors | ||
(Principal Executive Officer) |
1. | I have reviewed this Quarterly Report on Form 10-Q of American Realty Capital Global Trust, Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Dated this 9th day of November, 2012 | /s/ Brian S. Block | |
Brian S. Block | ||
Executive Vice President and Chief Financial Officer | ||
(Principal Financial Officer) |
/s/ Nicholas S. Schorsch | |
Nicholas S. Schorsch | |
Chief Executive Officer and Chairman of the Board of Directors | |
(Principal Executive Officer) | |
/s/ Brian S. Block | |
Brian S. Block | |
Executive Vice President and Chief Financial Officer | |
(Principal Financial Officer) |
Common Stock
|
9 Months Ended | ||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Sep. 30, 2012
|
|||||||||||||||||
Stockholders' Equity Note [Abstract] | |||||||||||||||||
Common Stock | Common Stock As of September 30, 2012 and December 31, 2011, the Company had 31,222 and 22,222 shares of common stock outstanding, including unvested restricted shares, respectively, and had received total proceeds of $0.2 million as of September 30, 2012 and December 31, 2011. On October 5, 2012, the Company's board of directors authorized and the Company declared, a distribution, which will be calculated based on stockholders of record each day during the applicable period at a rate of $0.00194520550 per day based on $10.00 price per common share. The distributions will begin to accrue 30 days following the Company’s initial property acquisition. The distributions will be payable by the 5th day following each month end to stockholders of record at the close of business each day during the prior month. Distributions payments are dependent on the availability of funds. The board of directors may reduce the amount of distributions paid or suspend distribution payments at any time and therefore distributions payments are not assured. The Company has a Share Repurchase Program (“SRP”) that enables stockholders to sell their shares to the Company. Under the SRP, stockholders may request that the Company repurchase all or any portion, subject to certain minimum amounts described below, of their shares on any business day, if such repurchase does not impair the Company's capital or operations. After the first quarter following the Company's acquisition of at least $1.2 billion in total investment portfolio assets, the repurchase price for shares under the SRP will be based on NAV. Only those stockholders who purchased their shares from us or received their shares from us (directly or indirectly) through one or more non-cash transactions may be able to participate in the SRP. The repurchase of shares will occur on the last business day of each quarter (and in all events on a date other than a dividend payment date). Purchases under the SRP will be limited in any calendar quarter to 1.25% of the Company's NAV as of the last day of the previous calendar quarter, or approximately 5.0% of the Company's NAV in any 12 month period. If the Company reaches the 1.25% limit on repurchases during any quarter, the Company will not accept any additional repurchase requests for the remainder of such quarter. The SRP will automatically resume on the first day of the next calendar quarter, unless the board of directors determines to suspend the SRP. Prior to the commencement of the calculation of NAV, the number of shares repurchased may not exceed 5.0% of the weighted average number of shares of common stock outstanding at the end of the previous calendar year and the price per share for repurchases of shares of common stock will be as follows:
Subject to limited exceptions, stockholders who request the repurchase of shares of the Company's common stock within the first four months from the date of purchase will be subject to a short-term trading fee of 2.0%. When a stockholder requests a repurchase and the repurchase is approved, the Company reclassifies such obligation from equity to a liability based on the settlement value of the obligation. Shares purchased under the SRP have the status of authorized but unissued shares. As of September 30, 2012, no shares of common stock have been repurchased or were eligible to be repurchased. |