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 | |
March 31, 2013 | December 31, 2012 | ||||||
(Unaudited) | |||||||
ASSETS | |||||||
Real estate investments, at cost: | |||||||
Land | $ | 488 | $ | 519 | |||
Buildings, fixtures and improvements | 1,138 | 1,210 | |||||
Acquired intangible lease assets | 805 | 856 | |||||
Total real estate investments, at cost | 2,431 | 2,585 | |||||
Less accumulated depreciation and amortization | (70 | ) | (30 | ) | |||
Total real estate investments, net | 2,361 | 2,555 | |||||
Cash | 6,359 | 262 | |||||
Derivative, at fair value | 73 | — | |||||
Receivable for sale of common stock | 396 | — | |||||
Prepaid expenses and other assets | 28 | 76 | |||||
Deferred costs, net | 32 | 40 | |||||
Total assets | $ | 9,249 | $ | 2,933 | |||
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) | |||||||
Mortgage note payable | $ | 1,155 | $ | 1,228 | |||
Derivatives, at fair value | 22 | 53 | |||||
Accounts payable and accrued expenses | 2,465 | 2,433 | |||||
Deferred rent and other liabilities | 49 | — | |||||
Distributions payable | 46 | 15 | |||||
Total liabilities | 3,737 | 3,729 | |||||
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, 1,028,161 and 256,500 shares issued and outstanding at March 31, 2013 and December 31, 2012, respectively | 10 | 3 | |||||
Additional paid-in capital | 6,048 | (311 | ) | ||||
Accumulated other comprehensive loss | (19 | ) | (43 | ) | |||
Accumulated deficit | (527 | ) | (445 | ) | |||
Total stockholders' equity (deficit) | 5,512 | (796 | ) | ||||
Total liabilities and stockholders' equity (deficit) | $ | 9,249 | $ | 2,933 |
Three Months Ended March 31, | ||||||||
2013 | 2012 | |||||||
Revenue: | ||||||||
Rental income | $ | 42 | $ | — | ||||
Operating expense reimbursement | 3 | — | ||||||
Total revenues | 45 | — | ||||||
Expenses: | ||||||||
Property operating | — | — | ||||||
Operating fees to affiliate | — | — | ||||||
General and administrative | 4 | 1 | ||||||
Depreciation and amortization | 30 | — | ||||||
Total expenses | 34 | 1 | ||||||
Operating income (loss) | 11 | (1 | ) | |||||
Interest expense | (13 | ) | — | |||||
Net loss | $ | (2 | ) | $ | (1 | ) | ||
Other comprehensive income (loss): | ||||||||
Cumulative translation adjustment | (80 | ) | — | |||||
Designated derivatives, fair value adjustments | 104 | — | ||||||
Comprehensive income (loss) | $ | 22 | $ | (1 | ) | |||
Basic and diluted weighted average shares outstanding | 439,097 | 22,222 | ||||||
Basic and diluted net loss per share | $ | — | NM |
Common Stock | ||||||||||||||||||||||
Number of Shares | Par Value | Additional Paid-in Capital | Accumulated Other Comprehensive Loss | Accumulated Deficit | Total | |||||||||||||||||
Balance, December 31, 2012 | 256,500 | $ | 3 | $ | (311 | ) | $ | (43 | ) | $ | (445 | ) | $ | (796 | ) | |||||||
Issuance of common stock | 771,324 | 7 | 7,628 | — | — | 7,635 | ||||||||||||||||
Common stock offering costs, commissions and dealer manager fees | — | — | (1,276 | ) | — | — | (1,276 | ) | ||||||||||||||
Common stock issued through distribution reinvestment plan | 337 | — | 3 | — | — | 3 | ||||||||||||||||
Share-based compensation | — | — | 4 | — | — | 4 | ||||||||||||||||
Distributions declared | — | — | — | — | (80 | ) | (80 | ) | ||||||||||||||
Net loss | — | — | — | — | (2 | ) | (2 | ) | ||||||||||||||
Cumulative translation adjustment | — | — | — | (80 | ) | — | (80 | ) | ||||||||||||||
Designated derivatives, fair value adjustment | — | — | — | 104 | — | 104 | ||||||||||||||||
Balance, March 31, 2013 | 1,028,161 | $ | 10 | $ | 6,048 | $ | (19 | ) | $ | (527 | ) | $ | 5,512 |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
Cash flows from operating activities: | |||||||
Net loss | $ | (2 | ) | $ | (1 | ) | |
Adjustments to reconcile net loss to net cash provided by (used in) operating activities: | |||||||
Depreciation | 17 | — | |||||
Amortization of intangibles | 13 | — | |||||
Amortization of deferred financing costs | 2 | — | |||||
Amortization of above market lease | 12 | — | |||||
Share-based compensation | 4 | — | |||||
Changes in assets and liabilities: | |||||||
Prepaid expenses and other assets | 48 | — | |||||
Accounts payable and accrued expenses | 63 | (16 | ) | ||||
Deferred rent | 49 | — | |||||
Net cash provided by (used in) operating activities | 206 | (17 | ) | ||||
Cash flows from financing activities: | |||||||
Proceeds from issuance of common stock | 7,239 | — | |||||
Payments of offering costs | (1,144 | ) | (117 | ) | |||
Distributions paid | (46 | ) | — | ||||
Due to affiliates, net | (157 | ) | 134 | ||||
Net cash provided by financing activities | 5,892 | 17 | |||||
Net change in cash | 6,098 | — | |||||
Effect of exchange rate changes on cash | (1 | ) | — | ||||
Cash, beginning of period | 262 | — | |||||
Cash, end of period | $ | 6,359 | $ | — | |||
Supplemental Disclosures | |||||||
Cash paid for interest | $ | 12 | $ | — | |||
Non-Cash Financing Activities | |||||||
Common stock issued through distribution reinvestment plan | $ | 3 | $ | — |
(In thousands) | Future Minimum Base Rent Payments | |||
April 1, 2013 — December 31, 2013 | $ | 160 | ||
2014 | 213 | |||
2015 | 213 | |||
2016 | 213 | |||
2017 | 213 | |||
Thereafter | 1,325 | |||
$ | 2,337 |
March 31, | ||
Tenant | 2013 | |
McDonald's Property Company Limited | 100.0% |
Encumbered Properties | Outstanding Loan Amount | Effective Interest Rate | Interest Rate | |||||||||||||
Portfolio | March 31, 2013 | December 31, 2012 | Maturity | |||||||||||||
(In thousands) | (In thousands) | |||||||||||||||
McDonald's | 1 | $ | 1,155 | $ | 1,228 | 4.1% | (1) | Fixed | Oct. 2017 |
(In thousands) | Future Principal Payments | |||
April 1, 2013 — December 31, 2013 | $ | — | ||
2014 | — | |||
2015 | — | |||
2016 | — | |||
2017 | 1,155 | |||
Thereafter | — | |||
$ | 1,155 |
(In thousands) | Quoted Prices in Active Markets Level 1 | Significant Other Observable Inputs Level 2 | Significant Unobservable Inputs Level 3 | Total | ||||||||||||
March 31, 2013 | ||||||||||||||||
Foreign currency swap | $ | — | $ | 73 | $ | — | $ | 73 | ||||||||
Interest rate swap | $ | — | $ | (22 | ) | $ | — | $ | (22 | ) | ||||||
December 31, 2012 | ||||||||||||||||
Foreign currency swap | $ | — | $ | (33 | ) | $ | — | $ | (33 | ) | ||||||
Interest rate swap | $ | — | $ | (20 | ) | $ | — | $ | (20 | ) |
Carrying Amount at | Fair Value at | Carrying Amount at | Fair Value at | |||||||||||||||
(In thousands) | Level | March 31, 2013 | March 31, 2013 | December 31, 2012 | December 31, 2012 | |||||||||||||
Mortgage note payable | 3 | $ | 1,155 | $ | 1,155 | $ | 1,228 | $ | 1,228 |
March 31, 2013 | December 31, 2012 | |||||||||||
Derivative | Number of Instruments | Notional Amount | Number of Instruments | Notional Amount | ||||||||
(In thousands) | (In thousands) | |||||||||||
Interest rate swap | 1 | $ | 1,155 | 1 | $ | 1,228 |
March 31, 2013 | December 31, 2012 | ||||||||||||
Derivative | Number of Instruments | Notional Amount | Number of Instruments | Notional Amount | |||||||||
(In thousands) | (In thousands) | ||||||||||||
Foreign currency swap (1) | 1 | $ | 1,277 | 1 | $ | 1,357 |
(In thousands) | Balance Sheet Location | March 31, 2013 | December 31, 2012 | |||||||
Derivatives designated as hedging instruments: | ||||||||||
Foreign currency swap | Derivatives asset, at fair value | $ | 73 | $ | — | |||||
Interest rate swap | Derivatives liability, at fair value | $ | (22 | ) | $ | (20 | ) | |||
Foreign currency swap | Derivatives liability, at fair value | $ | — | $ | (33 | ) |
Three Months Ended | ||||
(In thousands) | March 31, 2013 | |||
Amount of gain recognized in accumulated other comprehensive loss from derivatives (effective portion) | $ | 106 | ||
Amount of loss reclassified from accumulated other comprehensive income into income as interest expense (effective portion) | $ | (2 | ) | |
Amount of gain (loss) recognized in income on derivative instruments (ineffective portion and amount excluded from effectiveness testing) | $ | — |
(In thousands) | Derivative Assets | Derivative Liabilities | ||||||||||||||
Derivatives | March 31, 2013 | December 31, 2012 | March 31, 2013 | December 31, 2012 | ||||||||||||
Interest rate swap | $ | — | $ | — | $ | (22 | ) | $ | (20 | ) | ||||||
Foreign currency swap | 73 | — | — | (33 | ) | |||||||||||
Total derivatives, fair value | $ | 73 | $ | — | $ | (22 | ) | $ | (53 | ) |
Payable as of | ||||||||||||||||
Three Months Ended March 31, | March 31, | December 31, | ||||||||||||||
(In thousands) | 2013 | 2012 | 2013 | 2012 | ||||||||||||
Total commissions and fees from Dealer Manager | $ | 763 | $ | — | $ | 20 | $ | — |
Payable as of | ||||||||||||||||
Three Months Ended March 31, | March 31, | December 31, | ||||||||||||||
(In thousands) | 2013 | 2012 | 2013 | 2012 | ||||||||||||
Fees and expense reimbursements from the Advisor and Dealer Manager | $ | 229 | $ | — | $ | 1,148 | $ | 930 |
Three Months Ended | Three Months Ended | Payable as of | ||||||||||||||||||||||
March 31, 2013 | March 31, 2012 | March 31, | December 31, | |||||||||||||||||||||
(In thousands) | Incurred | Forgiven | Incurred | Forgiven | 2013 | 2012 | ||||||||||||||||||
Ongoing fees: | ||||||||||||||||||||||||
Property management and leasing fees | $ | — | $ | 1 | $ | — | $ | — | $ | — | $ | 1 | ||||||||||||
Strategic advisory fees | 36 | — | — | — | 36 | — | ||||||||||||||||||
Total related party operational fees and reimbursements | $ | 36 | $ | 1 | $ | — | $ | — | $ | 36 | $ | 1 |
Three Months Ended March 31, | ||||||||
(In thousands) | 2013 | 2012 | ||||||
Property operating expenses absorbed | $ | 4 | $ | — | ||||
General and administrative expenses absorbed | 153 | — | ||||||
Total expenses absorbed (1) | $ | 157 | $ | — |
Three Months Ended March 31, | ||||||||
2013 | 2012 | |||||||
Net loss (in thousands) | $ | (2 | ) | $ | (1 | ) | ||
Weighted average shares of common stock outstanding | 439,097 | 22,222 | ||||||
Net loss per share, basic and diluted | $ | — | NM |
Source of Capital (in thousands) | Inception to March 31, 2013 | April 1, 2013 to April 30, 2013 | Total | |||||||||
Common stock | $ | 9,869 | $ | 8,838 | $ | 18,707 |
• | 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 investment programs advised by American Realty Capital affiliates and conflicts in allocating time among these investment programs 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 investment programs, 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 our 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 that have recently occurred 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. |
• | As of March 31, 2013, we only own one property. |
• | a significant decrease in the market price of a long-lived asset; |
• | a significant adverse change in the extent or manner in which a long-lived asset is being used or in its physical condition; |
• | a significant adverse change in legal factors or in the business climate that could affect the value of a long-lived asset, including an adverse action or assessment by a regulator; |
• | an accumulation of costs significantly in excess of the amount originally expected for the acquisition or construction of a long-lived asset; and |
• | a current-period operating or cash flow loss combined with a history of operating or cash flow losses or a projection or forecast that demonstrates continuing losses associated with the use of a long-lived asset. |
Portfolio | Acquisition Date | Number of Properties | Square Feet | Remaining Lease Term (1) | Annualized Net Operating Income (2) | Base Purchase Price (3) | Capitalization Rate (4) | Annualized Rental Income/NOI per Square Foot (5) | |||||||||||||||
(In thousands) | (In thousands) | ||||||||||||||||||||||
McDonald's | Oct. 2012 | 1 | 9,094 | 11.0 | $ | 225 | $ | 2,566 | 8.8% | $ | 24.74 |
(1) | Remaining lease term in years as of March 31, 2013. |
(2) | Annualized net operating income for the three months ended March 31, 2013 or since acquisition date. Net operating income is rental income on a straight-line basis, which includes tenant concessions such as free rent, as applicable, plus operating expense reimbursement revenue less property operating expenses. |
(3) | Contract purchase price, excluding acquisition related costs, based on the exchange rate at the time of purchase. |
(4) | Annualized net operating income divided by base purchase price. |
(5) | Annualized rental income as of March 31, 2013 for the in-place leases in the property portfolio on a straight-line basis, which includes tenant concessions such as free rent, as applicable. |
Three Months Ended | ||||
(In thousands) | March 31, 2013 | |||
Net loss (in accordance with GAAP) | $ | (2 | ) | |
Depreciation and amortization | 30 | |||
FFO | 28 | |||
Amortization of above market leases (1) | 12 | |||
MFFO | $ | 40 |
(1) | Under GAAP, certain intangibles are accounted for at cost and reviewed at least annually for impairment, and certain intangibles are assumed to diminish predictably in value over time and amortized, similar to depreciation and amortization of other real estate related assets that are excluded from FFO. However, because real estate values and market lease rates historically rise or fall with market conditions, management believes that by excluding charges relating to amortization of these intangibles, MFFO provides useful supplemental information on the performance of the real estate. |
Three Months Ended | |||||||
March 31, 2013 | |||||||
(In thousands) | Percentage of Distributions | ||||||
Distributions: | |||||||
Distributions paid in cash | $ | 46 | |||||
Distributions reinvested | 3 | ||||||
Total distributions | $ | 49 | |||||
Source of distribution coverage: | |||||||
Cash flows provided by operations | $ | 46 | 93.9 | % | |||
Proceeds from issuance of common stock | — | — | % | ||||
Common stock issued under the DRIP / offering proceeds | 3 | 6.1 | % | ||||
Proceeds from financings | — | — | % | ||||
Total sources of distribution coverage | $ | 49 | 100.0 | % | |||
Cash flows provided by operations (GAAP basis) | $ | 206 | |||||
Net loss (in accordance with GAAP) | $ | (2 | ) |
For the Period from July 13, 2011 (date of inception) to | ||||
(In thousands) | March 31, 2013 | |||
Distributions paid: | ||||
Common stockholders in cash | $ | 47 | ||
Common stockholders pursuant to DRIP / offering proceeds | 3 | |||
Total distributions paid | $ | 50 | ||
Reconciliation of net loss: | ||||
Revenues | $ | 75 | ||
Acquisition and transaction-related expenses | (228 | ) | ||
Depreciation and amortization | (51 | ) | ||
Other operating expenses | (204 | ) | ||
Other non-operating income | (23 | ) | ||
Net loss (in accordance with GAAP) (1) | $ | (431 | ) |
April 1, 2013 — December 31, 2013 | Years Ended December 31, | |||||||||||||||||||
(In thousands) | Total | 2014 — 2015 | 2016 — 2017 | Thereafter | ||||||||||||||||
Principal Payments Due: | ||||||||||||||||||||
Mortgage notes payable | $ | 1,155 | $ | — | $ | — | $ | 1,155 | $ | — | ||||||||||
Interest Payments Due: | ||||||||||||||||||||
Mortgage notes payable | $ | 223 | $ | 35 | $ | 94 | $ | 94 | $ | — |
Three Months Ended | ||||
(In thousands) | March 31, 2013 | |||
Selling commissions and dealer manager fees | $ | 763 | ||
Other offering costs | 513 | |||
Total offering costs | $ | 1,276 |
Three Months Ended | ||||
(In thousands) | March 31, 2013 | |||
Total commissions paid to the Dealer Manager | $ | 763 | ||
Less: | ||||
Commissions to participating brokers | (476 | ) | ||
Reallowance to participating broker dealers | (49 | ) | ||
Net to the Dealer Manager | $ | 238 |
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 | |
10.9 * | Agreement for the Sale and Purchase of Wickes Store, dated April 12, 2013, between Aviva Investors Pensions Limited and ARC WKBPLUK001, LLC | |
10.10 * | Facility Letter, dated May 3, 2013, by and between ARC WKBPLUK001, LLC and Santander UK plc | |
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 March 31, 2013, 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 |
Exhibit 10.9
DATED 12 April 2013
AVIVA INVESTORS PENSIONS LIMITED
and
ARC WKBPLUK001, LLC
AGREEMENT
for the sale and purchase of Wickes Store, New Preston Road, Blackpool
Legal Services
Surrey Street
Norwich
CONTENTS
Clause 1 | Definitions |
Clause 2 | Interpretation |
Clause 3 | The Property Sold |
Clause 4 | Completion |
Clause 5 | Covenant for Title |
Clause 6 | Incorporation of Conditions |
Clause 7 | Variation of Conditions |
Clause 8 | Title |
Clause 9 | Matters Affecting the Property |
Clause 10 | Representations Excluded |
Clause 11 | Apportionment of Rent due under the Lease |
Clause 12 | Arrears |
Clause 13 | Interest – Late Payments |
Clause 14 | Form of Transfer |
Clause 15 | Discharge of Contract |
Clause 16 | VAT |
Clause 17 | Risk and Insurance |
Clause 18 | Planning |
Clause 19 | Tenant’s Fixtures and Fittings |
Clause 20 | Whole Contract |
Clause 21 | Buyer’ Bank Details |
Clause 22 | English Law |
Clause 23 | Contracts (Rights of Third Parties) Act 1999 |
Clause 24 | Capital Allowances |
Clause 25 | Acknowledgement |
Clause 26 | Rent Authority Letter |
Clause 27 | Pending Registration |
1 |
Clause 28 | Following Completion |
Clause 29 | Opinion Letter |
Clause 30 | Title Indemnity Insurance Policy |
2 |
THIS AGREEMENT dated 2013 is made BETWEEN
(1) The Seller: AVIVA INVESTORS PENSIONS LIMITED (company registration number 1059606) whose registered office is at 1 Poultry London EC2R 8EJ
(2) The Buyer: ARC WKBPLUK001, LLC (a limited liability company registered in the State of Delaware) whose registered office is at 2711 Centreville Road, Suite 400, Wilmington, Delaware 19808 USA
IT IS AGREED:-
1. | DEFINITIONS |
In this agreement the following expressions shall have the following meanings:-
Actual Completion" means the date on which the sale and purchase of the Property is actually completed in accordance with the terms of this agreement
"Buyer's Solicitors" means Trowers & Hamlins LLP 3 Bunhill Row London EC1Y 8YZ (reference JCA/ARC/02)
"Completion Date" means 3 May 2013 and for the avoidance of doubt is the “completion date” for the purposes of the Conditions
"Conditions" means the Standard Commercial Property Conditions of Sale (Second Edition)
“Contamination” means the presence in, on, under or over the Property of any substance capable of causing pollution or contamination of the environment
"Customs" means H M Revenue & Customs
"Income" means the principal yearly rents other sums reserved as rent insurance costs interest and all other sums payable under the Lease
"Lease" means the documents relating to a tenancy to which the Property is subject short particulars of which are set out in the Second Schedule and any other supplemental document entered into in accordance with this agreement by the Seller in connection with the management of the Property between the date of this agreement and Actual Completion
3 |
"Planning Acts" means the Town and Country Planning Act 1990 and all other legislation for the time being in force relating to town and country planning
"Price" means three million eight hundred and ninety-three thousand pounds (£3,893,000)
"Property" means the property described in the First Schedule
“Records” means the records referred to in Section 49 VATA and which relate to the Property
"Seller's Solicitors" means Aviva Legal Services of PO Box 432 5th Floor Carrara Surrey Street Norwich NR1 3PG (Reference LS/JW)
"Tenant" means the tenant under the Lease
"VAT" means Value Added Tax chargeable under the Value Added Tax Act 1994 or any identical or substantially similar tax which may replace such Value Added Tax and whether payable as a result of any election or otherwise
"Working Day" means a day falling on or between Monday and Friday upon which clearing banks in the City of London are open for normal business
2. | INTERPRETATION |
2.1 | Words importing the singular number only shall include the plural number and vice versa and words importing any particular gender shall include masculine feminine and neuter genders |
2.2 | Any reference in this agreement or in the Conditions to a statute or order shall include any statutory extension or modification or re-enactment of such statute or order and any regulations directions bye-laws orders or other such matter made under or pursuant to it or them |
2.3 | The clause and schedule headings (if any) in and the front cover of the agreement are for reference only and do not affect the construction or interpretation of this agreement |
2.4 | A reference to a clause or schedule without further designation is to a clause or schedule of this agreement and a clause includes a sub-clause |
4 |
2.5 | References in this agreement to the Buyer shall save where indicated to the contrary include its successors in title |
2.6 | Unless this agreement requires otherwise references to persons include firms companies and corporations and vice versa |
3. | THE PROPERTY SOLD |
The Seller shall sell and the Buyer shall buy the Property at the Price on the terms of this agreement
4. | COMPLETION |
Completion of the sale and purchase hereby agreed shall take place on the Completion Date
5. | COVENANT FOR TITLE |
The Seller sells the Property with full title guarantee subject to the terms of this agreement
6. | INCORPORATION OF CONDITIONS |
6.1 | The Conditions shall be deemed to be incorporated in this agreement insofar as they are not varied by or inconsistent with the terms of this agreement |
6.2 | Where the terms of this agreement conflict with the Conditions the terms of this agreement shall prevail |
7. | VARIATION OF CONDITIONS |
The Conditions are varied as follows:-
7.1 | The contract rate is 3 percent per annum above the base lending rate from time to time of Barclays Bank plc |
7.2 | Conditions 1.3.3(b) 1.3.5(c) 1.3.7(e) 1.3.8 5 6.1 6.3 6.4.2 6.6 7 8.1.3 8.3 10.3 and 11 shall not apply |
7.3 | Condition 1.3.1 - add at the end the words "and signed by (or by some person duly authorised by) the person giving it and in the case of service on the relevant party's solicitors quoting the reference set out in this agreement" |
7.4 | Condition 1.3.4 – delete “subject to conditions 1.3.5 to 1.3.7” and insert “subject to condition 1.3.5” |
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7.5 | Condition 1.4 shall be replaced by the following:- |
"An obligation to pay money or the receipt of a taxable supply includes an obligation to pay any Value Added Tax chargeable in respect of that payment or due in respect of the relevant taxable supply as the case may be"
7.6 | The Buyer's obligation to pay money due whether on the date of this agreement or on Actual Completion shall be discharged by telegraphic or other direct transfer to the bank account specified by the Seller's Solicitors |
7.7 | Condition 2.2.2 shall be replaced by the following:- |
"A deposit of one hundred and ninety-five thousand pounds (£195,000) shall be paid by the Buyer to the Buyer’s Solicitors to be held by them as stakeholder and the interest on the deposit shall be paid to the Seller at Actual Completion and if for any reason whatsoever the Seller becomes entitled under the Conditions to retain for its own benefit the deposit paid by the Buyer the Buyer undertakes to pay to the Seller on demand such sum as with the deposit already paid would amount to a full 10% of the Price together with compensation calculated at the contract rate on the deposit from the date of this agreement until payment"
7.8 | Condition 4.2.3 – add the word “reasonable” after the words “in accordance with” |
7.9 | Condition 8.1.1 - add after the words "Completion date is" the words "the date specified in clause 1 or if none" |
7.10 | Condition 8.1.2 - the reference to “conditions 8.3 and 9.3” shall be substituted by the reference to “condition 9.3 and the apportionment provisions of this agreement” and the words “as a result of the buyer’s default” shall be deleted |
7.11 | Condition 8.4(a) – replace the words “condition 8.3” with “the provisions of this agreement” |
7.12 | Condition 8.4 (c) - replace “condition 7.1.2 or 7.1.3” with “clause 17 of this agreement” |
7.13 | Condition 9.1.1 - add after the words "leading to it" the words "(made or confirmed in writing by the Seller's Solicitors)" |
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7.14 | Condition 9.2 (c) - replace the words “condition 7.1.2 (e)” with “clause 17 of this agreement” |
8. | TITLE |
The Seller having deduced title to the Property to the Buyer before the date of this agreement as the Buyer accepts and in addition having produced to the Buyer copies of the documents referred to in the Schedules the Buyer shall be deemed to purchase with full knowledge of the contents of such documents and shall take subject thereto and shall raise no objection to or requisition on any matter concerning or arising out of the title to the Property or to or on any such document save for any matters arising whether from the usual pre-completion searches or otherwise after the date of this agreement
9. | MATTERS AFFECTING THE PROPERTY |
9.1 | The Property is sold subject to and (as the case may be) with the benefit of the following matters so far as they are still subsisting and capable of taking effect at Actual Completion:- |
9.1.1 | the entries in the property and charges registers of the title number specified in the First Schedule (save for any financial charges) and the matters referred to in or arising out of the documents brief details whereof are set out in the Third Schedule |
9.1.2 | the Lease |
9.1.3 | all rights of way water light and air support drainage and other rights easements quasi-easements liabilities and public or private rights whatsoever and to any liability to repair or contribute to the repair of roads passages sewers drains pipes fences party structures and other like matters |
9.1.4 | in respect of the whole or any part of the Property which is registered any matters which are unregistered interests which override registered dispositions under Schedule 3 to the Land Registration Act 2002 and in respect of the whole or any part of the Property which is unregistered any matters which are or would be unregistered interests which override first registration under Schedule 1 to the Land Registration Act 2002 |
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9.1.5 | all local land charges (whether or not registered before the date of this agreement) and all matters capable of registration as local land charges (whether or not actually registered) |
9.1.6 | all notices served and orders demands proposals or requirements made by any local or other public or competent authority whether made before or after the date of this agreement |
9.1.7 | all actual or proposed orders directions plans notices instruments charges restrictions conditions agreements or other matters arising under any statute relating to the Planning Acts and any laws and regulations intended to control or regulate the construction demolition alteration or change of use of land or buildings or to preserve or protect the environment |
and the Seller warrants to the Buyer that that it has disclosed any such matters revealed by its records.
10. | REPRESENTATIONS EXCLUDED |
In relation to this sale and purchase the Buyer hereby admits that it has not entered into this agreement in reliance wholly or partly upon any statement representation or description whatsoever made by or on behalf of the Seller save as set out in this agreement or any written statements of the Seller's Solicitors in reply to enquiries before contract which were not capable of independent verification by:-
10.1 | non-intrusive inspection and survey of the Property or any part thereof to the extent reasonably to be expected of a prudent purchaser |
10.2 | searches and enquiries of the local or other public authority to the extent reasonably to be expected of a prudent purchaser or |
10.3 | inspection of the documents disclosed to the Buyer |
(whether or not such inspections survey search and enquiry have been made)
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11. | APPORTIONMENT OF RENT DUE UNDER THE LEASE |
11.1 | In this clause "Rent" means the principal yearly rent reserved under the Lease at the rate payable on Actual Completion |
11.2 | The Rent will be apportioned with effect from Actual Completion so that the Seller pays or allows to the Buyer on Actual Completion the total of: |
Rent
____ x A
365
for the Lease where A is the number of days from but excluding Actual Completion to but excluding the date when the next instalment of the Rent under the Lease is due plus half a day
11.3 | The Seller shall not be required to account to the Buyer for any Rent in respect of the period after Actual Completion unless the Seller has actually received such Rent from the Tenant |
11.4 | If after Actual Completion the Seller receives any Rent the whole or any part of which is attributable to the period after Actual Completion the Seller shall within five Working Days of receipt pay such Rent or the part so attributable to the Buyer |
11.5 | If after Actual Completion the Buyer receives any Rent the whole or any part of which is attributable to the period up to and including half of the day of Actual Completion the Buyer shall within five Working Days of receipt pay such Rent or the part so attributable to the Seller |
12. | ARREARS |
12.1 | If at Actual Completion there are arrears of Income neither party hereto shall be obliged to make payment to the other in respect of such arrears |
12.2 | The Buyer agrees that for a period of six months from Actual Completion it will take reasonable steps to pursue any arrears and shall account to the Seller for any arrears recovered that are due to the Seller within ten working days of receipt |
12.3 | The Buyer agrees that it will not dispose of the reversion immediately expectant on the determination of the Lease whilst there are arrears of Income due to the Seller which are less than six months old unless the person to whom such disposal is made enters into a deed with the Seller in the same form mutatis mutandis as clause 12.2 |
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12.4 | Where clause 12.3 applies the Buyer agrees to notify the Seller promptly in writing and in any event no later than three Working Days after a disposal of its reversionary interest |
13 | INTEREST - LATE PAYMENTS |
Without prejudice to condition 9.3 if and whenever the one party shall fail to pay any sum or sums provided for in this agreement by or on the date on which the same shall become due such party shall pay to the other interest on such sum or sums at the contract rate calculated from the due date to the date of actual payment
14 | FORM OF TRANSFER |
14.1 | The Seller shall not be obliged to complete the transfer of the Property other than by way of a single transfer of the whole of the Property to the Buyer |
14.2 | The transfer shall be in the form attached to this agreement as Appendix 1 (with such changes as the Seller’s Solicitors and the Buyer’s Solicitors shall agree) and shall be engrossed as a counterpart and an original by the Seller’s Solicitors and delivered to the Buyer’s Solicitors not less than three Working Days before the Completion Date |
15 | DISCHARGE OF CONTRACT |
The Seller may give notice to the Buyer discharging the contract if prior to Actual Completion:-
15.1 | the Buyer being a company goes into liquidation (otherwise than for the purpose of a reconstruction or amalgamation) or a petition which is not frivolous or vexatious for an administration order is made or enters into a voluntary arrangement with a creditor or creditors under Part I of the Insolvency Act 1986 or enters into administrative receivership or has a receiver appointed or |
15.2 | the Buyer being a private person (or being private persons any one of them) is adjudicated bankrupt or an interim receiver is appointed of the property of the Buyer or if the Buyer enters into a voluntary arrangement with a creditor or creditors under Part VIII of the Insolvency Act 1986 |
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16 | VAT |
16.1 | Unless the provisions of clause 16.2 apply the Buyer shall pay to the Seller on Actual Completion in addition to the Price VAT on the Price (if any) and the Seller shall deliver to the Buyer on Actual Completion a proper VAT invoice |
16.2 | If the Buyer produces evidence to the reasonable satisfaction of the Seller before the date of this agreement that:- |
16.2.1 | the Buyer will at Actual Completion be registered or required to be registered for the purposes of VAT |
16.2.2 | the Buyer has given notice in accordance with Part 1 of Schedule 10 of the Value Added Tax Act 1994 ("VATA") no later than the relevant date (as defined in Article 5 of the Value Added Tax (Special Provisions) Order 1995 ("Article 5")) of an option to tax in relation to the Property which has effect from the relevant date |
the Seller and Buyer shall treat the transfer of the Property as falling within Article 5 and accordingly (subject to clause 16.4) the Seller will not charge VAT on the Price
16.3 | The Seller warrants and undertakes to the Buyer that it is registered for the purposes of VAT and that the Seller has validly elected to waive exemption from VAT in relation to the Property under paragraph 2 of Schedule 10 VATA and given notice of such election to Customs and that such election has not been revoked or disapplied |
16.4 | Notwithstanding the fact that the Buyer satisfies the Seller as set out in clause 16.2 above so that the Seller does not require the Buyer to pay VAT on Actual Completion if Customs shall issue a decision to the effect or raise an assessment on the Seller on the basis that the transfer of the Property pursuant to this agreement does not fall within the provisions of Article 5 then the Buyer will in addition to the Price pay to the Seller (against the production of a copy of the decision assessment and a proper VAT invoice in respect thereof) the amount of any VAT for which the Seller is liable to account in respect of the transfer of the Property in immediately available funds within fifteen Working Days of receipt of the said documentation or, if later, the date of Actual Completion |
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16.5 | The Seller warrants and undertakes to the Buyer that:- |
16.5.1 | the Seller uses the Property for the purpose of a property letting business; and |
16.5.2 | the Property is not a capital item for the purposes of Part XV of the VAT Regulations 1995 (SI 1995/2518) or being such a capital item the period of adjustment in relation to the Property has expired |
16.6 | The Buyer agrees that it will from and including Actual Completion carry on the same business in relation to the Property as that carried on by the Seller that is to say holding the Property as a let investment |
16.7 | The Buyer hereby notifies the Seller that Paragraph (2B) of Article 5 of the Value Added Tax (Special Provisions) Order 1995 does not apply to the Buyer |
16.8 | The Buyer shall promptly on receipt from Customs supply to the Seller a copy of the acknowledgement of its option to tax |
16.9 | The Seller and the Buyer intend that the Seller should retain the Records and accordingly the Seller shall: |
16.9.1 | preserve the Records in the United Kingdom for such period as may be required by law and |
16.9.2 | so long as it preserves the Records permit the Buyer (at the Buyer’s cost) reasonable access to them to inspect and make copies of them |
17 | RISK AND INSURANCE |
17.1 | The Seller will insure the Property in accordance with its obligations as landlord under the Lease until and including Actual Completion |
17.2 | The Seller will at the Buyer’s written request: |
17.2.1 | permit the Buyer to inspect the policy or evidence of its terms or evidence of the payment of the premium at any reasonable time |
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17.2.2 | increase the amount of cover for the Property under the terms of the Seller’s insurance policy' or extend the risks covered by it subject to the insurer being willing and able to do so and subject to the Buyer paying the Seller on demand any additional premium due for the increased or extended cover |
17.2.3 | obtain or consent to an endorsement on the Seller’s insurance policy for the Property of the Buyer’s interest subject to the insurer being willing to make the endorsement and subject to the Buyer paying the Seller on demand any additional premium due for the endorsement |
17.3 | The Seller will be under no obligation to seek any refund from the Tenant of any additional premium due or paid in relation to any increased cover requested by the Buyer or for any endorsement on the policy of the Buyer’s interest |
17.4 | No damage to or destruction of the Property nor any deterioration in its condition (however caused) will entitle the Buyer either to a reduction of the Price or to refuse to complete or to delay completion. |
17.5 | If in the period between the date of this agreement and Actual Completion the Property is damaged or destroyed by a risk against which the Seller has insured: |
17.5.1 | the Seller will make a claim under its insurance policy in respect of that damage or destruction and shall consult with and keep informed the Tenant and take due account of its representations prior to so doing and during the claim process. |
17.5.2 | to the extent that any insurance money in respect of the damage or destruction is paid to the Seller before Actual Completion and to the extent that the Seller is not under any statutory obligation to use any insurance money received by it to repair or rebuild the Property before Actual Completion the Seller will hold the insurance money on trust for the Buyer and will pay the money to the Buyer on Actual Completion to use in accordance with the terms of the Lease |
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17.5.3 | to the extent that any insurance money in respect of the damage or destruction is paid to the Seller after Actual Completion the Seller will hold the insurance money on trust for the Buyer and will as soon as is reasonably practicable and in any event within 10 working days of receipt pay it to the Buyer to use in accordance with the terms of the Lease |
17.5.4 | to the extent that any insurance money in respect of the damage or destruction has not been paid to the Seller before Actual Completion the Seller will to the extent permitted by the policy and at the Buyer’s expense assign to the Buyer all rights to claim under the policy the assignment being in the form reasonably required by the Buyer |
17.6 | On Actual Completion the Seller will cancel its insurance policy in respect of the Property and if following the cancellation the Seller receives from its insurers a refund of any premium paid in respect of any period after the date of cancellation the Seller will pay or allow the refund to the Tenant in accordance with the terms of the Lease |
17.7 | The Buyer will apply any insurance money paid to it by the Seller under this clause in accordance with the terms of the Lease and will keep the Seller indemnified against any claims arising from any breach of this obligation |
17.8 | On Actual Completion there will be no apportionment between the Seller and the Buyer of any insurance rents received or receivable from the Tenant under the terms of the Lease |
17.9 | Section 47 of the Law of Property Act 1925 does not apply |
18 | PLANNING |
No warranty is given as to the authorised use of the Property for the purpose of the Planning Acts
19 | TENANT'S FIXTURES AND FITTINGS |
Any Tenant's fixtures and fittings or apparatus belonging to statutory/privatised utilities are excluded from the sale of the Property
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20 | WHOLE CONTRACT |
For the purpose of Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 any variation of or addition to the provisions of this agreement which may be agreed in correspondence of today's date between the parties to this agreement (or the solicitors of the parties to this agreement) and which expressly refers to this agreement and purports to vary it is incorporated in this agreement and it is acknowledged that this agreement with the duplicate or counterpart of it (with any such variation or addition) incorporate all the terms of the contract between the parties to this agreement
21 | BUYER'S BANK DETAILS |
The Buyer hereby confirms that any deposit under this agreement or any money due to the Seller on completion shall be made from the undernoted account:-
Bank – Royal Bank of Scotland
Address – PO BOX 412, 62 – 63 Threadneedle Street, London EC2R 8LA
Account Number – 23115320 (Trowers & Hamlins client account)
Sort Code – 15-10-00
22 | ENGLISH LAW |
This agreement shall be governed by and construed in accordance with English law
23 | CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 |
The provisions of the Contracts (Rights of Third Parties) Act 1999 are not intended to apply to this agreement and unless expressly stated nothing contained in this agreement will create any rights in favour of any person pursuant to that Act
24 | CAPITAL ALLOWANCES |
24.1 | In this clause "Plant" means such machinery and plant within the meaning of the Capital Allowances Act 2001 as is included in the sale of the Property |
24.2 | The Seller warrants that it has not claimed and that it will not claim at any time any capital allowances on any Plant nor has it or will it enter into any election under the Capital Allowances Act 2001 |
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25 | ACKNOWLEDGEMENT |
25.1 | The parties agree and acknowledge that: |
25.1.1 | the Buyer had permission from the Seller to carry out its own investigations of the condition of the Property prior to the sale and purchase becoming binding to ascertain whether any Contamination exists and if so the extent of such Contamination |
25.1.2 | the price takes into account the state of the Property including any Contamination, as at Actual Completion |
25.1.3 | the Buyer shall have no claim against the Seller for any environmental liabilities associated with the Property |
25.1.4 | both the Seller and the Buyer are large commercial organisations |
25.1.5 | the Property is sold in its existing state and condition including the presence of any Contamination and no warranty is given as to such state and condition or its suitability for any purpose |
25.2 | The Buyer acknowledges that in providing the Buyer with any copies of any reports surveys investigations or audits dealing with environmental or other issues the Seller makes no representation whatsoever as to the contents or accuracy of such reports surveys investigations or audits |
25.3 | The agreements and acknowledgement in clauses 25.1 are made pursuant to the statutory guidance under the Environmental Protection Act 1990 to exclude the Seller as an appropriate person to bear responsibility for environmental liability in relation to or arising from the Property |
26 | RENT AUTHORITY LETTERS |
The Seller shall on Actual Completion supply to the Buyer a letter in the form attached as Appendix 2 addressed to the Tenant authorising the payment of future rents to the Buyer
27 | PENDING REGISTRATION |
From Actual Completion until the registration of the transfer of the Property has been completed in accordance with Schedule 2 of the Land Registration Act 2002 the Seller irrevocably appoints the Buyer to act as its agent and to carry out all such acts and execute all such documents in relation to the Property as the Buyer may (subject to the terms of this agreement) in its absolute discretion consider appropriate
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28 | following completion |
Following Actual Completion the Seller’s Solicitors shall post the deeds and documents for the Property including those listed in the Schedules to this Agreement (and it is accepted that the document mentioned in the third schedule is only a certified copy) to the Buyer’s Solicitors by registered post and neither the Seller nor the Seller’s Solicitors shall be liable for any subsequent loss of them in the post
29. | Opinion Letter |
On Actual Completion the Buyer shall provide to the Seller an opinion letter from Proskauer Rose LLP the form of which is attached as Appendix 3 with such amendments as are necessary to reflect the completion documents such letter to be dated the date of Actual Completion or within three Working Days before Actual Completion and ahead of Actual Completion the Buyer’s Solicitors shall provide a faxed or emailed copy of the signed letter to the Seller’s Solicitors
30. | Title INDEMNITY INSURANCE POLICY |
Prior to the Completion Date the Seller shall at its own expense increase the Limit of Indemnity under Policy Number 9980CQ01318 from £3,062,193 to the Price and shall provide such evidence as the Buyer shall reasonably require that such amendment has been made to the policy (and shall supply a copy of the revised policy document to the Buyer ahead of Actual Completion if received)
THE FIRST SCHEDULE - THE PROPERTY
Freehold property known as Wickes Store, New Preston Road, Blackpool, registered at the Land Registry under title number LA498569 with absolute title
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THE SECOND SCHEDULE - THE LEASE
10.05.1999 | Agreement for Lease | Norwich Union Pensions Management Limited (1) Wickes Building Supplies Limited (2) Wickes Developments Limited (3) | ||
08.12.1999 | Lease | Norwich Union Pensions Management Limited (1) Wickes Building Supplies Limited (2) | ||
16.12.1999 | Licence to Alter | Norwich Union Pensions Management Limited (1) Wickes Building Supplies Limited (2) | ||
26.01.2006 | Rent review memorandum | Norwich Union Pensions Management Limited (1) Wickes Building Supplies Limited (2) |
THE THIRD SCHEDULE - UNREGISTERED DOCUMENTS AFFECTING THE PROPERTY
30.09.1999 | S278 Agreement | Blackpool Borough Council (1) Wickes Developments Limited (2) Norwich Union Pensions Management Limited (3) |
Signed by Richard David Woodrow | ) | ||
duly authorised signatory/attorney | ) | ||
for and on behalf of Aviva Investors Pensions Limited | ) | /s/ Richard David Woodrow | |
) |
Signed by | |||
Duly authorised for and on behalf of | |||
THE BUYER | ARC WKBPLUK001, LLC, a Delaware limited | ||
liability company | |||
By: | /s/ Jesse C. Galloway | ||
Name: | Jesse C. Galloway | ||
Title: | Authorised Signatory |
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APPENDIX 1
(Transfer)
19 |
APPENDIX 2
(Rent authority letter)
20 |
APPENDIX 3
(Opinion letter)
21 |
Exhibit 10.10
[to be typed on the headed notepaper of
Santander Corporate Banking]
To: | ARC WKBPLUK001, LLC |
(registered in the state of Delaware) (Borrower) | |
Address: | 2711 Centerville Road |
Suite 400 | |
Wilmington | |
Delaware | |
19808 USA | |
Date: | May 3, 2013 |
Dear Sirs
1 | Facility |
This letter sets out the terms and conditions on which the Lender agrees to make available to the Borrower a term loan facility in an amount not exceeding £1,946,500.
2 | Definitions and interpretation |
Words and expressions used in this letter are defined in Schedule 1 and this letter shall be construed in accordance with Schedule 1.
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 £1,946,500); 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). |
7.3 |
(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, |
the Borrower may, whilst the circumstance giving rise to the requirement to pay an increased amount or indemnification continues, give the Lender written notice of its intention to prepay the Loan in full.
(b) | On the date specified by the Borrower in a notice under clause 7.3(a), the Borrower shall repay the Loan in full. |
7.4 |
(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 |
8.1 |
(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 |
(a) | The first Interest Period for the Loan shall start on the Utilisation Date and end on the first Interest Payment Date thereafter. |
(b) | Each subsequent Interest Period shall start on the expiry of the previous Interest Period and end on the next Interest Payment Date. |
(c) | 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. |
8.5 |
(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: |
(i) | the Margin; |
(ii) | 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 |
(iii) | 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, no later than 1 Business Day after 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. The Borrower shall provide the Lender with all such information as the Lender may reasonably request from time to time in relation to the Hedging Arrangements. |
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 with the Lender that are required to be held pursuant to any additional facility arrangement entered into between the Borrower and the Lender. |
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: |
(a) | 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; |
(b) | while a Default is continuing, only the Lender may withdraw sums from the Rent Account; |
(c) | 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; |
(d) | 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 |
(e) | the Lender may delegate its powers of withdrawal under this clause 9 to any administrator, receiver and/or manager. |
10 | Fees |
The Borrower shall pay to the Lender a non-refundable arrangement fee of £19,465 on the Utilisation Date.
11 | Tax gross up and indemnities |
11.1
(a) | 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. |
(b) | 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. |
11.4 | Subject to clause 11.6 below, each of the Borrower and the Lender shall, within ten Business Days of a reasonable request by the other party: |
(a) | confirm to the other whether it is: |
(A) | a FATCA Exempt Party; or |
(B) | not a FATCA Exempt Party; and |
(b) | supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable "passthru payment percentage" or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other party reasonably requests for the purposes of that other party's compliance with FATCA. |
11.5 | If a Party confirms to the other pursuant to 11.4(a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. |
11.6 | Clause 11.4 above shall not oblige the Lender to do anything which would or might in its reasonable opinion constitute a breach of: |
(a) | any law or regulation; |
(b) | any fiduciary duty; or |
(c) | any duty of confidentiality. |
11.7 | If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with clause 11.4 above (including, for the avoidance of doubt, where clause 11.6) above applies), then: |
(a) | if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and |
(b) | if that Party failed to confirm its applicable "passthru payment percentage" then such party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable "passthru payment percentage" is 100%, |
until (in each case) such time as the Party in question provides the requested confirmation, forms, documentation or other information.
11.8 | Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. |
11.9 | Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment. |
12 | Increased Costs |
12.1
(a) | 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. |
(b) | 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, |
which is incurred or suffered by the Lender to the extent that it is attributable to the Lender having entered into the Facility or funding or performing its obligations 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; |
(c) | attributable to the wilful breach by the Lender of any law or regulation; or |
(d) | attributable to a FATCA Deduction required to be made by the Borrower. |
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: |
(a) | the occurrence of any Event of Default; or |
(b) | 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 £8,000 plus VAT thereon where applicable and disbursements; |
(b) | the preparation of the initial Valuation, subject to an overall limit in the amount of £5,436 (including VAT and disbursements); |
(c) | any other Finance Document executed after the Utilisation Date; and |
(d) | 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 |
The Borrower makes the representations and warranties set out in this clause 15 to the Lender on the date of this letter and on the Utilisation Date.
15.1 |
(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. The Lender agrees that the Borrower shall not be in breach of this clause 15.2 as a result of the Hedging Arrangements being entered into by the Borrower within 1 Business Day of the Utilisation Date in accordance with clause 8.6. |
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, |
have been obtained or effected (as appropriate) and are in full force and effect.
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. |
15.11 |
(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 |
The undertakings in this clause 16 remain in force from the date of this letter for so long as any amount is outstanding under the Finance Documents or the Facility is available for drawing.
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: |
(a) | 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 |
(b) | 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: |
(i) | the name of the tenant, or occupier; |
(ii) | the rent, service charge, VAT and any other payments payable and (separately) paid in that Quarter; |
(iii) | details of any rent or service charges arrears; |
(iv) | 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; |
(v) | details of any expiry, termination or surrender or any notice of expiry, termination or surrender given by the tenant; |
(vi) | details of any new lettings and licences proposed; |
(vii) | details of any new insurance claims and the progress of existing insurance claims; |
(viii) | 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; |
(ix) | details of any sinking fund in respect of the Property; |
(x) | details of any proposed disposal of the Property (including negotiations for the grant of any Occupational Lease); and |
(xi) | 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: |
(a) | in respect of each Relevant Period, Annual Rent shall be at least 200 per cent of Annual Interest Costs; and |
(b) | 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). |
17.4
(a) | 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). |
(b) | The Lender may request a Valuation no more than once in each three year period. |
(c) | 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. |
(d) | The Lender may call for a Valuation at any time at its own cost. |
(e) | The Borrower shall provide all reasonable assistance to a Valuer to enable it to carry out a Valuation. |
(f) | 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 |
The undertakings in this clause 18 remain in force from the date of this letter for so long as any amount is outstanding under the Finance Documents or the Facility is available for borrowing.
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. |
18.3 |
(a) | The Borrower shall not create or permit to subsist any Security over any of its assets other than Permitted Security. |
(b) | 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 subletting or sub-lease of any lessee's or tenant's interest under any Occupational Lease; 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. |
18.8 |
(a) | 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). |
(b) | 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. |
(c) | 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). |
18.10 |
(a) | 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, |
all such insurances to be in amount and in a form and with an insurance company or underwriters acceptable to the Lender (acting reasonably).
(b) | 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. |
(c) | 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. |
(d) | The Borrower shall not do or permit to be done anything which may make void or voidable any of the Insurances. |
(e) | The Borrower shall promptly pay all premiums and do all other things necessary to keep all of the Insurances. |
(f) | 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. |
(g) | 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. |
(h) | 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, |
be used to prepay the Loan.
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 |
Each of the events or circumstances set out in this clause 19 is an Event 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. |
19.3 |
(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. |
19.4 |
(a) | 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. |
(b) | 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). |
19.8 |
(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), |
or any analogous procedure or step is taken in any jurisdiction.
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, |
and at any time thereafter the Lender may, without prejudice to its rights under the Security Documents, enforce any or all of the Security Documents.
20 | Changes to the parties |
20.1 | The Lender may: |
(a) | assign any of its rights; or |
(b) | transfer by novation any of its rights and obligations, |
under the Finance Documents to any Qualifying Lender and the Borrower shall promptly take (at the cost of the Lender) all steps necessary or desirable to facilitate any such assignment or transfer.
20.2 | The Lender may disclose to any person: |
(a) | 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; |
(b) | 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; |
(c) | to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation; or |
(d) | who is an Affiliate of the Lender, |
any information about the Borrower and the Finance Documents as the Lender shall consider appropriate provided that, in each case, any person to whom such information is to be given is informed in writing of its confidential nature and (except in the case of 20.2(c) above) gives an appropriate confidentiality undertaking in respect of such information.
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 |
No provision of this letter will:
(a) | interfere with the right of the Lender to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; or |
(b) | 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. |
22.4 |
(a) | Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). |
(b) | During any extension of the due date for payment of any principal 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. |
22.6 | Set off |
The Lender may set off any matured obligation due from the Borrower under the Finance Documents against any matured obligation owed by the Lender to the Borrower under the Finance Documents, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Lender may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the 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: |
(a) | the Charged Assets; and |
(b) | any proceeds of realisation or enforcement of any such Security, |
and the Borrower shall not be personally liable for such amounts (and the Lender on behalf of itself and any parties claiming through it (whether by assignment, novation, subrogation, reimbursement or otherwise) waives all rights against the Borrower personally in respect of such amounts).
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: |
(a) | in the case of the Borrower: Moor Park Capital Partners LLP |
Address: | York House | |
45 Seymour Street | ||
London | ||
W1H 7JT | ||
Fax number: | +44 (0) 207 152 1153 | |
Attention: | Graydon Butler; and |
(b) | in the case of the Lender: |
Address: | Santander UK plc 298 Deansgate Manchester M3 4HH |
Fax number: | 0161 953 3517 |
Attention: | Commercial Property Administration Manager, |
or any substitute address, fax number or department or officer as either party may notify to the other by not less than 5 Business Days' notice.
24.3
(a) | Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective: |
(i) | if by way of fax, when received in legible form; or |
(ii) | if by way of letter, when it has been left at the relevant address or 5 days after being deposited in the post postage prepaid in an envelope addressed to it at that address, |
and, if a particular department or officer is specified as part of its address details provided under clause 24.2, if addressed to that department or officer.
(b) | 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). |
(c) | 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). |
(d) | 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 |
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
27 | Remedies and waivers |
No failure to exercise, nor any delay in exercising, on the part of the Lender, any right or remedy available to it under the Finance Documents or otherwise shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in the Finance Documents are cumulative and not exclusive of any rights or remedies provided by law.
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 |
The Borrower agrees that the Lender may, with the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed), publicise details of the Facility.
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. |
Yours faithfully
/s/ Steve Rees | |
For and on behalf of Santander UK plc |
We acknowledge receipt of the facility letter of which this is a copy. We accept the terms set out in that letter.
Signed by: | /s/ Jesse C. Galloway | ||
Authorised Signatory, Jesse C. Galloway | |||
on behalf of: | ARC WKBPLUK001, LLC a Delaware limited liability company | ||
Date: | 2013 | ||
Schedule 1
Definitions and construction
Affiliate means in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company
Annual Interest Costs means, in relation to any Relevant Period, the amount determined by the Lender to be the aggregate amount of interest, commission and similar amounts payable by the Borrower under clause 8 during that Relevant Period
Annual Rent means, in relation to any Relevant Period, the amount determined by the Lender to be the aggregate Rental Income received by or on behalf of the Borrower in respect of the Property during that Relevant Period
Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing or registration
Availability Period means the period of 20 Business Days from and including the date of this letter
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London
Certificate of Title means a certificate prepared by the Lender's lawyers, in form and substance satisfactory to the Lender, relating to the Borrower's title to the Property
Charged Assets means the undertaking, property and assets of the Borrower which are subject to Security created by the Security Documents in favour of the Lender
CML Lenders' Handbook means the Council of Mortgage Lenders Lenders' Handbook for England and Wales for the time being, a copy of the latest edition of which is available at www.cml.org.uk
Code means the US Internal Revenue Code of 1986
Compliance Certificate means a certificate signed by a special member of the Borrower and substantially in the form set out in Schedule 3
Default means an Event of Default or any event or circumstance which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default
Duty of Care Deed means the deed executed or to be executed by each of the Borrower, the Lender and a Managing Agent
Event of Default means any event or circumstance specified as such in clause 19
Facility means the term loan facility made available under this letter as described in clause 1
FATCA means:
(a) | sections 1471 to 1474 of the Code or any associated regulations or other official guidance; |
(b) | any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or |
(c) | any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction |
FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA
FATCA Exempt Party means a party that is entitled to receive payments free from any FATCA Deduction
Final Repayment Date means 5 (five) years after the Utilisation Date
Finance Document means this letter, the Subordination Deed, each Security Document, each Duty of Care Deed, each Hedging Arrangement, each Compliance Certificate and each other document designated as such by the Lender and the Borrower
Financial Indebtedness means any indebtedness for or in respect of:
(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 |
GAAP means generally accepted accounting principles in the country of incorporation of the Borrower
Hedging Arrangement means any interest rate management agreement or arrangement entered into by the Borrower to hedge its floating rate interest payment obligations under this letter
Holding Company means in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary
Insurances means all contracts or policies of insurance in which the Borrower has an interest
Interest Payment Date means:
(a) | 31 July 2013 and then quarterly thereafter; and |
(b) | the Final Repayment Date |
Interest Period means in relation to the Loan each period determined in accordance with clause 8.2 and, in relation to any sum due and payable but unpaid by the Borrower under the Finance Documents, each period determined in accordance with clause 8.4
ITA means the Income Tax Act 2007
Legal Charge means a charge by way of legal mortgage of the Property executed or to be executed by the Borrower in favour of the Lender
Lender means Santander UK plc
LIBOR means in relation to the Loan:
(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, |
as of 11.00 am on the first day of an Interest Period for the offering of deposits in the currency of that Loan and for a period comparable to such Interest Period for that Loan
LIBOR Break Costs means the amount (if any) by which:
(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 |
exceeds:
(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, |
Provided that if the LIBOR Break Costs as calculated above should be a negative figure, that figure shall be a LIBOR Break Gain
Loan means the principal amount of the borrowing by the Borrower made or to be made under the Facility or the principal amount outstanding for the time being of that borrowing
Management Agreement means the management agreement entered into between the Borrower and the Managing Agent in a form and substance satisfactory to the Lender
Managing Agent means a managing agent of the Property or other person having authority to collect the Rental Income in respect of the Property, in each case approved by the Lender (such approval not to be unreasonably withheld, delayed or conditioned)
Mandatory Cost means the cost to the Lender of compliance with the requirements of the Bank of England and/or the Financial Services Authority (or, in each case, any other authority which replaces all or any of its functions) or the requirements of the European Central Bank, calculated by the Lender and expressed as a percentage rate per annum
Margin means 2.8 per cent per annum
Market Value means the market value (as defined in the Statements of Asset Valuation Practice and Guidance Notes issued by the Royal Institution of Chartered Surveyors from time to time)
Material Adverse Effect means, in the opinion of the Lender, a material adverse effect on:
(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 |
Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
(a) | (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; |
(b) | if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
(c) | if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end |
provided that the rules in (a), (b) and (c) above will only apply to the last Month of any period
Net Rental Income means Rental Income less amounts properly deducted by the Managing Agent in accordance with the Management Agreement, in respect of repairs, insurance, management and other professional fees in relation to the Property
Occupational Lease means any agreement for lease or for licence or any occupational lease or licence to which the Property may be subject from time to time
Permitted Security means:
(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 |
Property means Wickes Building Supplies, Preston New Road, Blackpool, FY3 9TN and registered at the Land Registry with title number LA498569
Qualifying Lender means:
(a) the Lender provided that it is (on the date a payment falls due) within the charge to United Kingdom corporation tax as respects that payment and is the Lender in respect of an advance made by a person that was a bank (as defined in section 879 of the ITA) at the time that advance was made; or (b) the Lender which is:
(i) | a company resident in the United Kingdom for United Kingdom tax purposes; |
(ii) | a partnership each member of which is: |
(A) | a company so resident in the United Kingdom; or |
(B) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which 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 |
Quarter means each consecutive three month period ending on an Interest Payment Date save that the first such period shall commence on the Utilisation Date and end on the first Interest Payment Date thereafter
Relevant Jurisdiction means, in relation to the Borrower:
(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 |
Relevant Period means:
(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 |
Rent Account means the account referred to in clause 9.1 and any account which replaces it from time to time with the prior written consent of the Lender
Rental Income means the aggregate of all amounts payable to, or for the benefit or account of, the Borrower in connection with the letting or permitted third party occupation or use of the whole or any part of the Property, including each of the following amounts:
(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 |
Repeating Representations means each of the representations in clause 15.1 to clause 15.10 (inclusive)
Reports means the Certificate of Title and the initial Valuation referred to in Schedule 2 and any other third party reports and assessments referred to in paragraph 4 of Schedule 2
Reservations means:
(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 |
Screen Rate means, in relation to LIBOR, the British Bankers' Association Interest Settlement Rate for Sterling and the relevant period displayed on the relevant page of the Reuters screen save that if the agreed page is replaced or the service ceases to be available, the Lender may specify another page or service displaying the appropriate rate after consultation with the Borrower
Security means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect
Security Document means the Legal Charge, the Subordination Deed and any other document which confers Security on the Lender or constitutes a guarantee, indemnity or other assurance in favour of the Lender in respect of liabilities of the Borrower in connection with the Finance Documents and any other document designated as such by the Lender and the Borrower
Shareholder means [ARC Global Holdco, LLC] (registered in the State of Delaware)
Sterling and £ means the lawful currency of the United Kingdom
Subordinated Creditor means [ARC Global Holdco, LLC] (a limited liability company incorporated in the state of Delaware)
Subordinated Loans means at any time the aggregate of any loans outstanding to the Subordinated Creditor from the Borrower
Subordination Deed means a subordination deed executed or to be executed by the Borrower and the Subordinated Creditor in favour of the Lender in connection with the Facility Letter
Subsidiary means a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same)
Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction
Taxes Act means the Income and Corporation Taxes Act 1988
Tenant Contributions means any amount paid or payable to the Borrower by any tenant under an Occupational Lease or any other occupier of the Property, by way of:
(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 |
Utilisation Date means the date on which the Loan is, or is to be, made
Valuation means a valuation report by the Valuer addressed to the Lender, containing in particular a valuation of the Property on the basis of the market value in accordance with the Statements of Asset Valuation Practice and Guidance Notes issued by the Royal Institution of Chartered Surveyors from time to time
Valuer means Jones Lang LaSalle or such other surveyor or valuer as may be appointed or approved by the Lender from time to time
VAT means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature which may be imposed from time to time
Construction
1 | Any reference in this letter to: |
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. |
Schedule 2
Conditions precedent
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 £1,946,500 (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 |
Evidence of the extent and level of insurance cover in force (including the extent and level of insurance cover in respect of acts of terrorism), that the insurance accords with the terms of this letter and the Legal Charge and that the Lender is either joint insured or noted on each relevant policy as mortgagee and loss payee.
4 | Valuation |
The initial Valuation in a form and substance satisfactory to the Lender confirming that:
(a) | the maximum amount of the Facility (as shown in clause 1) does not exceed 50% 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 the payment of SDLT, the title deeds to the Property, the Occupational Lease 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 | 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. |
5.7 | 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. |
5.8 | Confirmation from the Valuer that it has received the Certificate of Title and specifying any resulting alteration to the initial Valuation. |
5.9 | A copy of the Inland Revenue land transaction return in connection with the Property signed by the Borrower. |
6 | Rent Account |
Evidence that the Rent Account has been opened.
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 | Hedging arrangements in accordance with clause 8.6. |
7.5 | 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 |
The following legal opinions, each addressed to the Lender a legal opinion of Proskauer Rose LLP, legal advisers to the Lender as to Delaware law in substantially in the form provided to the Lender prior to execution and delivery of this letter.
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 | Such information and documentation as the Lender may require in order to comply with its "know your customer" procedures. |
Schedule 3
Form of Compliance Certificate
To: | Santander UK plc | |
From: | ARC WKBPLUK001, LLC |
Dated:
Dear Sirs
ARC WKBPLUK001, LLC – Facility Letter dated ¨ 2013 (Facility Letter)
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. |
Signed: | ||
Authorised Signatory of | ||
ARC WKBPLUK001, LLC |
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 10th day of May, 2013 | /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 10th day of May, 2013 | /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) |
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Common Stock (Narrative)(Details) (USD $)
In Thousands, except Share data, unless otherwise specified |
0 Months Ended | 3 Months Ended | 18 Months Ended | 21 Months Ended | |
---|---|---|---|---|---|
Oct. 05, 2012
|
Mar. 31, 2013
|
Mar. 31, 2012
|
Dec. 31, 2012
|
Mar. 31, 2013
|
|
Common Stock [Abstract] | |||||
Common stock, outstanding | 1,028,161 | 256,500 | 1,028,161 | ||
Proceeds from issuance of common stock | $ 7,239 | $ 0 | $ 2,200 | $ 9,900 | |
Common Stock, Dividends, Per Share Per Day, Declared | $ 0.0019452055 |
Derivative and Hedging Activities (Details) (Cash Flow Hedging [Member], Interest Rate Swap [Member], Designated as Hedging Instrument [Member], USD $)
|
3 Months Ended | |
---|---|---|
Dec. 31, 2012
|
Mar. 31, 2013
Interest Expense [Member]
|
|
Derivative [Line Items] | ||
Derivative Instruments, Gain (Loss) Reclassification from Accumulated OCI to Income, Estimate of Time to Transfer | 12 months | |
Derivative Instruments, Gain (Loss) Reclassification from Accumulated OCI to Income, Estimated Net Amount to be Transferred | $ 8,000 | |
Assets Needed for Immediate Settlement, Aggregate Fair Value | $ 0 |
Related Party Transactions and Arrangements (Tables)
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3 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Mar. 31, 2013
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Related Party Transactions and Arrangements [Abstract] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Schedule of Selling Commissions and Dealer Manager Fees Payable to Affiliate [Table Text Block] | The following table details total selling commissions and dealer manager fees incurred from and payable to the Dealer Manager related to the sale of common stock as of and for the periods presented:
|
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Schedule Of Offering Costs Reimbursements to Related Party [Table Text Block] | The following table details fees and offering cost reimbursements incurred from and payable to the Advisor and Dealer Manager related to the sale of common stock as of and for the periods presented:
|
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Schedule of Amount Contractually Due and Forgiven in Connection With Operation Related Services [Table Text Block] | The following table reflects related party fees incurred, forgiven and contractually due as of and for the periods presented:
|
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Schedule of General and Administrative Expenses Absorbed by Affiliate [Table Text Block] | The following table details property operating and general and administrative expenses absorbed by the Advisor during the three months ended March 31, 2013 and 2012:
______________________ (1) The Company had a receivable from the Advisor related to absorbed costs of $0.2 million and $0.1 million as of March 31, 2013 and December 31, 2012, respectively. |
Share-Based Compensation (Details) (USD $)
|
3 Months Ended | 3 Months Ended | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Mar. 31, 2013
|
Mar. 31, 2012
|
Mar. 31, 2013
Stock Option Plan [Member]
Stock Options [Member]
|
Mar. 31, 2013
Director Stock Plan [Member]
Restricted Stock [Member]
|
Mar. 31, 2013
Restricted Share Plan [Member]
Restricted Stock [Member]
|
Dec. 31, 2012
Restricted Share Plan [Member]
Restricted Stock [Member]
|
Mar. 31, 2013
Contract Purchase Price [Member]
Maximum [Member]
Restricted Share Plan [Member]
Restricted Stock [Member]
|
Mar. 31, 2013
Average Invested Assets [Member]
Maximum [Member]
Restricted Share Plan [Member]
Restricted Stock [Member]
|
Mar. 31, 2013
Net Income, Excluding Additions to Non-cash Reserves and Gains on Sales of Assets [Member]
Maximum [Member]
Restricted Share Plan [Member]
Restricted Stock [Member]
|
Mar. 31, 2013
Disposition Fees [Member]
Maximum [Member]
Restricted Share Plan [Member]
Restricted Stock [Member]
|
Mar. 31, 2013
Net Sale Proceeds, after Return of Capital Contributions and Annual Targeted Investor Return [Member]
Maximum [Member]
Restricted Share Plan [Member]
Restricted Stock [Member]
|
Mar. 31, 2013
Pre-tax Non-compounded Return on Capital Contribution [Member]
Maximum [Member]
Restricted Share Plan [Member]
Restricted Stock [Member]
|
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Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | ||||||||||||
Share Price | $ 9.00 | |||||||||||
Number of shares authorized, in shares | 500,000 | 7,500,000 | ||||||||||
Shares issued | 9,000 | 9,000 | ||||||||||
Shares granted automatically upon election to board of directors, in shares | 3,000 | |||||||||||
Restricted share vesting period | 5 years | |||||||||||
Periodic vesting percentage | 20.00% | |||||||||||
Fair Value of Restricted Share Grants | 6.00% | 2.00% | 25.00% | 3.00% | 15.00% | 6.00% | ||||||
Maximum authorized amount as a percentage of shares authorized | 5.00% | |||||||||||
Fair value at grant date | $ 9.00 | $ 9.00 | ||||||||||
Share-based compensation | $ 4,000 | $ 0 | $ 4,000 |
Derivative and Hedging Activities Schedule of Derivative Instruments, Gain (Loss) in Statement of Financial Performance (Details) (Interest Rate Swap [Member], Cash Flow Hedging [Member], USD $)
In Thousands, unless otherwise specified |
3 Months Ended |
---|---|
Mar. 31, 2013
|
|
Derivative Instruments, Gain (Loss) [Line Items] | |
Amount of gain recognized in accumulated other comprehensive loss from derivatives (effective portion) | $ 106 |
Amount of gain (loss) recognized in income on derivative instruments (ineffective portion and amount excluded from effectiveness testing) | 0 |
Interest Expense [Member]
|
|
Derivative Instruments, Gain (Loss) [Line Items] | |
Amount of loss reclassified from accumulated other comprehensive income into income as interest expense (effective portion) | $ (2) |
Real Estate Investments
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3 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Mar. 31, 2013
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Real Estate [Abstract] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Real Estate Investments | Real Estate Investments The Company acquires and operates commercial properties. All such properties may be acquired and operated by the Company alone or jointly with another party. The Company owned one property as of March 31, 2013, located in Carlisle, United Kingdom. This property was acquired in October 2012 for a base purchase price of $2.6 million, based on the exchange rate at the time of purchase. There were no assets acquired during the three months ended March 31, 2013. The following presents future minimum base rental cash payments due to the Company over the next five years and thereafter as of March 31, 2013. These amounts exclude contingent rent payments, as applicable, that may be collected from certain tenants based on provisions related to sales thresholds and increases in annual rent based on exceeding certain economic indexes among other items.
The following table lists the tenant whose annualized rental income on a straight-line basis represented all of the Company's annualized rental income on a straight-line basis as of March 31, 2013. The Company did not own any properties at March 31, 2012:
The termination, delinquency or non-renewal of leases by the above tenant may have a material adverse effect on revenues. |