Contents | Page | |
1. | Interpretation | 3 |
2. | Sale and purchase | 23 |
3. | Conditions | 24 |
4. | Conduct of business before Completion | 25 |
5. | Consideration | 27 |
6. | Completion | 29 |
7. | Sellers’ warranties and undertakings | 32 |
8. | Sellers’ Guarantor | 38 |
9. | Purchasers’ warranties and undertakings | 40 |
10. | Purchasers’ Guarantor | 42 |
11. | Purchasers’ remedies and Sellers’ limitations on liability | 45 |
12. | Transferring Contracts and Carve-out Memorandum | 45 |
13. | Wrong pockets | 47 |
14. | Sale, purchase and assignment of the Frankfurt Payables | 50 |
15. | Sale, purchase and assignment of the Amsterdam DivestCo Payables | 50 |
16. | Intellectual Property and Business Information | 50 |
17. | Restrictions on the Sellers’, the AMS04 SPV Seller’s and the Purchasers’ business activities and additional post-Completion undertakings | 52 |
18. | Customer Contracts | 53 |
19. | Bonnington House | 54 |
20. | Residual liabilities from statutory demergers | 54 |
21. | Employment matters | 55 |
22. | Access | 60 |
23. | Permitted Transfer | 60 |
24. | Transfer of AMS04 SPV Shares | 61 |
25. | Effect of Completion | 61 |
26. | Remedies and waivers | 61 |
27. | Assignment | 62 |
28. | Further assurance | 62 |
29. | Entire agreement | 62 |
30. | Notices | 63 |
31. | Announcements | 65 |
32. | Confidentiality | 65 |
33. | Costs and expenses | 66 |
34. | Counterparts | 67 |
35. | Invalidity | 67 |
36. | Contracts (Rights of Third Parties) Act 1999 | 67 |
37. | Payments | 67 |
38. | Choice of governing law | 68 |
39. | Jurisdiction | 68 |
40. | Agent for service | 68 |
41. | Language | 69 |
Schedule 1 (Conditions to Completion) | 70 | |
Schedule 2 (Completion arrangements) | 71 | |
Schedule 3 (Sellers’ Warranties) | 81 | |
Schedule 4 (AMS04 SPV Warranties) | 94 | |
Schedule 5 (Purchasers’ Warranties) | 98 | |
Schedule 6 (Conduct of Business before Completion) | 100 | |
Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability) | 103 | |
Schedule 8 (Completion Accounts) | 108 | |
Schedule 9 (Dutch Notification and Consultation Matters) | 121 | |
Schedule 10 (Form of German Deed of Transfer) | 123 | |
Schedule 11 (Form of Amsterdam DivestCo Deed of Transfer) | 126 |
Schedule 12 (Form of AMS04 SPV Deed of Transfer) | 129 | |
Schedule 13 (Frankfurt Payables Deed of Assignment) | 133 | |
Schedule 14 (Amsterdam DivestCo Payables Deed of Transfer of Contract) | 138 | |
Schedule 15 (AMS04 SPV Payables Deed of Transfer of Contract) | 143 | |
Schedule 16 (Form of Deed of Adherence) | 148 | |
Schedule 17 (Ongoing Arrangements) | 150 | |
Schedule 18 (Specified Retained Group Guarantees) | 152 | |
Schedule 19 (Amsterdam Expansion Agreements) | 154 | |
Schedule 20 (Customer Networks) | 157 | |
Schedule 21 (Bonus Accruals) | 161 | |
Attachment 1 (Basic information about London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV) | 165 | |
Attachment 2 (Relevant Properties) | 169 | |
Attachment 3 (LON 1 Documents) | 171 |
1. | TelecityGroup International Limited, whose registered office is at Masters House, 107 Hammersmith Road, London, W14 0QH, the United Kingdom (registered in England No. 00153088) (the "London DivestCo Seller"); |
2. | TelecityGroup Netherlands B.V., whose registered office is at 1042 AB Amsterdam, the Netherlands, Gyroscoopweg 2e / 2f, the Netherlands (registered in the Netherlands No. 34149253) (the "Amsterdam DivestCo Seller"); |
3. | TelecityGroup Germany GmbH, whose seat is at Gutleutstraße 310, 60327 Frankfurt am Main, Germany (registered in Frankfurt am Main No. HRB 48864) (the "Frankfurt DivestCo Seller"), |
4. | Equinix (Real Estate) B.V., whose registered office is at 1101 EC Amsterdam Zuidoost, the Netherlands, Luttenbergweg 4 (registered in the Netherlands No.51504219) (the "AMS04 SPV Seller"); |
5. | Equinix, Inc., whose principal office is at One Lagoon Drive, Redwood City, California 94065 (registered in the State of Delaware) (the "Sellers’ Guarantor"); |
6. | Digital Stout Holdings LLC, whose registered office is at 2711 Centerville Road, Suite 400 Wilmington, Delaware, 19808, United States of America (registered in the State of Delaware) (the "London DivestCo Purchaser"); |
7. | Digital Netherlands I BV, whose registered office is at Fred. Roeskestraat 123,1076 EE Amsterdam, The Netherlands (registered in The Netherlands No. 27274897) (the "Amsterdam DivestCo Purchaser"); |
8. | Digital Germany Cheetah GmbH i.Gr. (DGC), whose registered office is at Thomasiusstr.11, 10557, Berlin, Germany, (incorporated with notorial deed Nr. 369/2016) (the "Frankfurt DivestCo Purchaser"); |
9. | Digital Realty Trust, L.P., whose registered office is at Four Embarcadero, Suite 3200, San Francisco, California 94111, United States of America (registered in Maryland No. M10114858) (the "Purchasers’ Guarantor"). |
(A) | Particulars of each of London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV (each as defined in this Agreement) are set out in Attachment 1 (Basic information about London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV). |
(B) | The London DivestCo Seller has agreed to sell or procure the sale of, and the London DivestCo Purchaser has agreed to purchase and pay for, the London DivestCo Shares (as defined in this Agreement), in each case on the terms and subject to the conditions of this Agreement. |
(C) | The Amsterdam DivestCo Seller has agreed to sell or procure the sale of, and the Amsterdam DivestCo Purchaser has agreed to purchase and pay for, the Amsterdam DivestCo Shares, the Amsterdam DivestCo Payables (if any) and the AMS04 SPV Payables (in each case, as defined in this Agreement), in each case on the terms and subject to the conditions of this Agreement. |
(D) | The Frankfurt DivestCo Seller has agreed to sell or procure the sale of, and the Frankfurt DivestCo Purchaser has agreed to purchase and pay for, the Frankfurt DivestCo Shares and the Frankfurt Payables (if any) (as defined in this Agreement), in each case on the terms and subject to the conditions of this Agreement. |
(E) | The AMS04 SPV Seller has agreed to transfer AMS04 SPV to Amsterdam DivestCo immediately prior to Completion (as defined in this Agreement) on the terms and subject to the conditions of this Agreement. |
(F) | The Sellers’ Guarantor has agreed to guarantee the obligations of the members of the Retained Group under the Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger and the Frankfurt Demerger Agreement on the terms and subject to the conditions of this Agreement. |
(G) | The Purchasers’ Guarantor has agreed to guarantee the obligations of the members of the Purchasers’ Group under the Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger and the Frankfurt Demerger Agreement on the terms and subject to the conditions of this Agreement. |
1. | Interpretation |
1.1 | In this Agreement, the Schedules and the Attachments to it: |
"Additional Overlay Employee" | means any Overlay Employee who the Purchasers notify to the Sellers (in accordance with clause 9.4 (Purchasers’ warranties and undertakings)) they do not want to retain in the Target Group after the Completion Date; |
"Agents" | means a party's affiliates and its and their respective directors, officers, employees, agents, partners, professional advisers and contractors; |
"AMS04 Site" | the real property located in Amsterdam consisting of the right of leasehold on the parcel of land recorded in the Land Registry as municipality of Amsterdam, section AG, number 1127, the freehold to the parcel of land recorded in the Land Registry as municipality of Amsterdam, section AG, number 1060, and the freehold to the parcel of land recorded in the Land Registry as municipality of Amsterdam, section AG, number 1734, to which AMS04 SPV is entitled and locally known as Wenckenbachweg 127 in Amsterdam; |
"AMS04 SPV" | means Equinix Real Estate (TCY AMS04) B.V., basic information concerning which is set out in Attachment 1 (Basic information about London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV); |
"AMS04 SPV Anti-bribery Warranties" | means the warranties set out in paragraph 12 of Schedule 4 (AMS04 SPV Warranties) given by the Amsterdam DivestCo Seller and "AMS04 SPV Anti-bribery Warranty" shall be construed accordingly; |
"AMS04 SPV Completion Payment" | has the meaning given in clause 6.2(G) (Completion); |
"AMS04 SPV Consideration" | has the meaning given in clause 5.4 (Consideration); |
"AMS04 SPV Fundamental Warranties" | means the warranties set out in paragraphs 1, 2, 3 and 6 of Schedule 4 (AMS04 SPV Warranties) given by the Amsterdam DivestCo and “AMS04 SPV Fundamental Warranty” shall be construed accordingly; |
"AMS04 SPV Loans" | means any loans made by any member of the Retained Group to AMS04 SPV outstanding as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date; |
"AMS04 SPV Loan Adjustment Amount" | means the total aggregate amount of principal and accrued interest outstanding under the AMS04 SPV Loan immediately prior to Completion, less the AMS04 SPV Completion Payment, provided that such amount is greater than zero; |
"AMS04 SPV Payable" | means the aggregate of the amounts owing from the AMS04 SPV to any members of the Retained Group under any AMS04 SPV Loans, including in respect of interest accrued on such amounts in accordance with the terms of the AMS04 SPV Loans, as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date; |
"AMS04 SPV Payables Deeds of Transfer of Contract" | has the meaning given in clause 24.3 (Transfer of AMS04 SPV Shares); |
"AMS04 SPV Payables Purchase Price" | has the meaning given in clause 24.3 (Transfer of AMS04 SPV Shares); |
"AMS04 SPV Purchase Price" | has the meaning given in clause 5.4(A) (Consideration); |
“AMS04 SPV Shares” | means one share and any new shares in AMS04 SPV issued pursuant to clause 7.21 , such shares together representing all the issued shares in the capital of AMS04 SPV (Sellers’ warranties and undertakings); |
“AMS04 SPV Transfer” | has the meaning given in clause 24.1 (Transfer of AMS04 SPV Shares); |
"AMS04 SPV Tax Warranties" | means the warranties set out in paragraph 13 of Schedule 4 (AMS04 SPV Warranties) given by the Amsterdam DivestCo Seller and “AMS04 SPV Tax Warranty” shall be construed accordingly; |
"AMS04 SPV Warranties" | means the warranties set out in Schedule 4 (AMS04 SPV Warranties) given by the Amsterdam DivestCo Seller and "AMS04 SPV Warranty" shall be construed accordingly; |
"AMS1e Consent Letter" | means the letter issued by Caransa Datacenters B.V dated 9 May 2016 as disclosed to the Purchasers; |
"AMS1e Lease" | means the lease of premises at Science Park 120, 1098 XG Amsterdam dated 15 November 2013 and made between (1) Caransa Datacenters B.V. and (2) TelecityGroup Netherlands B.V.; |
"Amsterdam Accounts Date" | means 31 December 2015; |
"Amsterdam Additional Overlay Employee" | means any Additional Overlay Employee of Amsterdam DivestCo; |
"Amsterdam Deed of Demerger" | means the deed of demerger dated 31 March 2016 of TelecityGroup Netherlands B.V. contained in section 7.2.2-A of the Data Room; |
"Amsterdam DivestCo" | means Telecity Netherlands AMS01 AMS04 BV, basic information concerning which is set out in Attachment 1 (Basic information about London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV); |
"Amsterdam DivestCo Completion Payment" | has the meaning given in clause 6.2(E) (Completion); |
"Amsterdam DivestCo Consideration" | has the meaning given in clause 5.2 (Consideration); |
"Amsterdam DivestCo Financial Statement" | means the special purpose unaudited balance sheet as at the Amsterdam Accounts Date in relation to the Amsterdam Divestment Business set out on page 17 of the report entitled “Project Cheetah Volume 2b – Amsterdam Market” dated 25 February 2016; |
“Amsterdam DivestCo Loans” | means any loans made by any member of the Retained Group to Amsterdam DivestCo outstanding as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date; |
"Amsterdam DivestCo P&L" | means the pro forma profit and loss statement as at the Amsterdam Accounts Date in relation to the Amsterdam Divestment Business set out on page 5 of the report entitled “Project Cheetah Volume 2b – Amsterdam Market” dated 25 February 2016 but excluding the KPIs set out therein; |
"Amsterdam DivestCo Payable" | means the aggregate of the amounts owing from the Amsterdam DivestCo to any members of the Retained Group under any Amsterdam DivestCo Loans, including in respect of interest accrued on such amounts in accordance with the terms of the Amsterdam DivestCo Loans, as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date; |
"Amsterdam DivestCo Payables Deeds of Transfer of Contract" | has the meaning given in clause 15 (Sale, purchase and assignment of the Amsterdam DivestCo Payables); |
"Amsterdam DivestCo Payables Notice" | means in respect of any Amsterdam DivestCo Payables Deed of Transfer of Contract, the notice scheduled to such Amsterdam DivestCo Payables Deed of Transfer of Contract; |
"Amsterdam DivestCo Payables Purchase Price" | has the meaning given in clause 15 (Sale, purchase and assignment of the Amsterdam DivestCo Payables); |
"Amsterdam DivestCo Purchase Price" | has the meaning given in clause 5.2(A) (Consideration); |
"Amsterdam DivestCo RETT Payment" | means any RETT payable by Amsterdam DivestCo in connection with the purchase of the AMS04 SPV Shares; |
"Amsterdam DivestCo Purchaser RETT Payment" | means any RETT payable by the Amsterdam DivestCo Purchaser in connection with the purchase of the AMS04 SPV Shares; |
"Amsterdam DivestCo Shares" | means two shares representing all the issued shares in the capital of Amsterdam DivestCo; |
"Amsterdam Divestment Business" | means the business of the data centres located at Amstel Business Park I and Science Park as described in the Amsterdam Deed of Demerger and the Carve-out Memorandum; |
"Amsterdam Easement" | means the deed of establishment of real rights to be entered into pursuant to the agreement to establish real rights dated 10 May 2016 and made between (1) TelecityGroup Netherlands B.V. and (2) Equinix Real Estate (TCY AMS04) B.V.; |
"Amsterdam Expansion Agreements" | means the Amsterdam Phase 1 Fit-out Agreements and the Amsterdam Phase 2 Fit-out Agreements; |
"Amsterdam Expansion Cost" | means the sum of (i) the fixed amounts paid or to be paid to the relevant contractors under the Amsterdam Phase 1 Fit-out Agreements, as set out in those agreements; and (ii) the fixed amounts to be paid to the contractors under the Amsterdam Phase 2 Fit-out Agreements, as set out in those agreements; |
"Amsterdam Market VDD Report" | means the report prepared by the Sellers’ Accountants entitled ‘Project Cheetah Volume 2 – Amsterdam Market VDD report’ dated 8 February 2016, a copy of which is attached to the Disclosure Letter; |
"Amsterdam Phase 1 Fit-out Agreements" | means the agreements entered into or to be entered into between various contractors and Amsterdam DivestCo required to complete the Phase 1 Science Park Fit-out including those contracts set out in Schedule 19 (Amsterdam Expansion Agreements); |
"Amsterdam Phase 2 Fit-out Agreements" | means the agreements to be entered into between various contractors and Amsterdam DivestCo which will require those contractors to complete the Phase 2 Science Park Fit-out to substantially the same standard and quality as the Phase 1 Science Park Fit-out; |
"Amsterdam Relevant Employees" | means: (a) those individuals whose names are listed in the Disclosure Letter against the warranty at Schedule 3, paragraph 19.1: (a) who transferred to Amsterdam DivestCo by operation of law pursuant to the Reorganisation; (b) whose employment transferred to Amsterdam DivestCo with their express consent pursuant to the Reorganisation; and (c) who have been offered and have accepted and commenced employment with Amsterdam DivestCo following the date of completion of the Amsterdam Deed of Demerger (whether as a Replacement Relevant Employee or otherwise); |
"Amsterdam Reorganisation" | means (i) the Amsterdam Statutory Demerger; and (ii) ancillary measures described in the Carve-out Memorandum; |
"Amsterdam RetainCo" | means TelecityGroup Netherlands B.V. after completion of the Amsterdam Statutory Demerger; |
"Amsterdam Statutory Demerger" | means the statutory demerger in accordance with article 2:334a subsection 3 and article 2:334hh subsection 1 of the DCC pursuant to which Amsterdam DivestCo acquired a part of the assets and liabilities of the TelecityGroup Netherlands B.V. by universal succession; |
"Anti-bribery Laws" | means in each case to the extent that they have been applicable to AMS04 SPV, a member of the Target Group or a member of the Retained Group (as the case may be) at any time prior to the date of this Agreement: (i) the UK Bribery Act 2010; (ii) the U.S. Foreign Corrupt Practices Act of 1977 (as amended); (iii) any applicable law, rule or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed on 17 December 1997; and (iv) any other applicable law, rule or regulation of similar purpose and scope in any jurisdiction, including books and records offences relating directly or indirectly to a bribe; |
"Approval Condition" | means the Condition set out in paragraph 1 of Schedule 1 (Conditions to Completion); |
"Arup Reports" | means the reports prepared by Ove Arup & Partners International Ltd detailing the findings of a technical due diligence review of each of the eight data centres of the Target Group, contained in folders 2.5.1.6.1, 2.5.2.6.1, 2.5.3.6.1, 2.5.4.6.1, 2.5.5.6.1, 3.5.1.5.1, 3.5.2.5.1 and 4.5.1.5.1 of the Data Room; |
"Books and Records" | has its common law meaning and includes, without limitation, all notices, correspondence, orders, inquiries, drawings, plans, books of account and other documents and all computer disks or tapes or other machine legible programs or other records (excluding software); |
"Borrowings" | means, in respect of AMS04 SPV and each member of the Target Group, all outstanding borrowings and outstanding indebtedness in the nature of borrowings of AMS04 SPV or such member of the Target Group (as applicable) for the payment or repayment of money, determined in accordance with the policies set out in Part B of Schedule 8 (Completion Accounts), including without limitation any bank debit balances, bonds, notes, commercial paper, loan stock, debentures or other debt instruments, any overdraft or finance lease and also interest on the foregoing items, the relevant bonus amounts in Schedule 21 (Bonus Accruals) and the Customer Deposit, but excluding (including any accrued and outstanding interest thereon): |
(i) ordinary trade credit; | |
(ii) acceptances of trade bills in respect of purchases in the ordinary course of trading; | |
(iii) any amount taken into consideration in calculating the Inter-Company Payables in respect of AMS04 SPV or such member of the Target Group (as applicable); | |
(iv) in the case of Frankfurt DivestCo, the Frankfurt Payables; | |
(v) in the case of Amsterdam DivestCo, the Amsterdam DivestCo Payables; and | |
(vii) in the case of AMS04 SPV, the AMS04 SPV Payables; | |
"Business Day" | means a day (other than a Saturday or a Sunday) on which banks are open for general business in London, Amsterdam and Frankfurt; |
"Business Information" | means all information (in whatever form held) including (without limitation) all: |
(i) formulas, designs, specifications, drawings, know-how, manuals and instructions; | |
(ii) lists and particulars of customers and suppliers, sales, marketing and promotional information; | |
(iii) business plans and forecasts; | |
(iv) technical or other expertise; and | |
(v) all accounting and tax records, correspondence, orders and enquiries; | |
"Business Names" | means (i) TELECITY; (ii) EQUINIX; and (iii) in each case, any associated logo or device; |
"Carve-out Memorandum" | means the Carve-out Memorandum in the agreed form as may be amended from time to time by the Sellers (subject to the Purchasers’ prior written approval and, if necessary, the Commission's approval); |
"Cash" | means, in respect of AMS04 SPV and each member of the Target Group, any cash, bank deposits or cash equivalents owned by AMS04 SPV or such member of the Target Group (as applicable), determined in accordance with the policies set out in Schedule 8 (Completion Accounts) including, without limitation, cash at bank and in hand, rent deposits and liquid or easily realisable stocks, shares, bonds, treasury bills and other such securities and interest accrued and outstanding on each of the foregoing but excluding (i) any amount taken into consideration in calculating the Inter-Company Receivables in respect of AMS04 SPV or such member of the Target Group (as applicable); (ii) the aggregate cash value of any declared but unpaid dividends and other distributions attributable to the Shares or the AMS04 SPV Shares; and (iii) the aggregate of all cash received between the date of this Agreement and the Completion Date by any member of the Target Group or AMS04 SPV which comprises the proceeds of any insurance claims; |
"Check the Box Election" | means an entity classification election made pursuant to Treasury Regulation Section 301.7701-3(c) of the United States Internal Revenue Code of 1986, as amended; |
"Clean Team" | has the meaning given in clause 4.4(C)(i) (Conduct of business before Completion); |
"Clearance Decision" | means the Commission's decision of 13 November 2015 in Case M.7678 – Equinix / Telecity pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation no. 139/2004 and Article 57 of the Agreement on the European Economic Area; |
"Commission" | means the European Commission; |
"Commitments" | means the commitments entered into by Equinix, Inc. and Telecity Group plc (now Telecity Group Limited) with the Commission pursuant to article 6(2) of Council Regulation (EC) no. 139/2004 and which are conditions and obligations to the Clearance Decision (as such commitments may be amended or varied from time to time by agreement between Equinix, Inc., Telecity Group plc and the Commission); |
"Compensation Payment" | has the meaning given in clause 18.1 (Customer Contracts); |
"Completion" | means, subject to clause 6.5, completion of the sale and purchase of the Shares under this Agreement; |
"Completion Accounts" | has the meaning given in paragraph 1.3(A) of Part A of Schedule 8 (Completion Accounts) or, if relevant, paragraph 1.3(B)(i) of Part A of Schedule 8 or paragraph 1.4(B) of Part A of Schedule 8; |
"Completion Date" | means, subject to clause 6.5: |
(i) 1 July 2016, provided that the last in time of the Conditions shall have been satisfied or waived at least three Business Days before such date; | |
(ii) if Completion does not occur on 1 July 2016, to the extent the last in time of the Conditions shall have been satisfied or waived in accordance with this Agreement (a) before 26 July 2016, then 29 July 2016, or (b) on 26 July 2016, then 1 August 2016, or (c) on or after 27 July 2016, paragraph (iii) of this definition shall apply; | |
(iii) in all other cases, the last Business Day of the month in which the last in time of the Conditions shall have been satisfied or waived in accordance with this Agreement, provided always that, if such Condition is fulfilled on one of the last three Business Days of a month or in the last month of a calendar quarter, the Completion Date shall be the last Business Day of the next month immediately following, further provided always that, where that would cause the Completion Date to occur outside the Completion Period, the Completion Date shall be the date falling three Business Days after the date on which the last in time of the Conditions shall have been fulfilled or waived in accordance with this Agreement; or | |
(iv) such other date as the parties may agree; | |
"Completion Period" | means the period of three months from (and excluding) the date on which the Commission gives its approval as referred to in paragraph 1 of Schedule 1 (Conditions to Completion); |
"Conditions" | has the meaning given in clause 3.1 (Conditions); |
"Continuing Provisions" | means clause 1 (Interpretation), clause 8 (Sellers’ Guarantor), clause 10 (Purchasers’ Guarantor), clause 11 (Purchasers’ remedies and Sellers’ limitations on liability), clause 26 (Remedies and waivers), clause 27 (Assignment), clause 29 (Entire Agreement), clause 30 (Notices), clause 31 (Announcements), clause 32 (Confidentiality), clause 33 (Costs and expenses), clause 35 (Invalidity), clause 36 (Contracts (Rights of Third Parties) Act 1999), clause 37 (Payments), clause 38 (Choice of governing law), clause 39 (Jurisdiction), and clause 40 (Agent for Service); |
"Control" | means in relation to a body corporate the ability of a person to ensure that the activities and business of that body corporate are conducted in accordance with the wishes of that person and (without prejudice to the generality of the foregoing) a person shall be deemed to have Control of a body corporate if that person possesses or is entitled to acquire the majority of the issued share capital or the voting rights in that body corporate; |
"CTA 2009" | means the Corporation Tax Act 2009; |
"CTA 2010" | means the Corporation Tax Act 2010; |
"Customer Deposit" | means the sum of EUR 3,000,000; |
"Data Room" | means the electronic data room made available prior to the date hereof to the Purchasers by way of an on-line data room facility which was closed to new additions at 2:30a.m. on Wednesday 11 May 2016 (as verified in writing by the provider of the on-line data room facility in writing), a copy of which was subsequently provided by the Sellers and the AMS04 SPV Seller to the Purchasers on a DVD (initialled by or on behalf of the Sellers, the AMS04 SPV Seller and the Purchasers) on the date of this Agreement; |
"DCC" | means the Dutch Civil Code (Burgerlijk Wetboek); |
"Disclosure Letter" | means the letter of the same date as this Agreement written by the Sellers and the AMS04 SPV Seller to the Purchasers for the purposes of paragraph 1.2 of Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability) and delivered to the Purchasers before the execution of this Agreement; |
"Disputed Items" | has the meaning given in paragraph 1.2(A) of Part A of Schedule 8 (Completion Accounts); |
"Draft Completion Accounts" | has the meaning given in paragraph 1.1(A) of Part A of Schedule 8 (Completion Accounts); |
"Dutch Notary" | means J.D.M. Schoonbrood, a civil law notary (notaris) keeping an office in Amsterdam, The Netherlands or one of his deputies; |
"Dutch Notification and Consultation Matters" | has the meaning given in Schedule 9 (Dutch Notification and Consultation Matters); |
"Dutch Works Council" | has the meaning given in Schedule 9 (Dutch Notification and Consultation Matters); |
"Encumbrance" | means any pre-emptive right, option, right to acquire, Security or other form of encumbrance, equity or other third party right or claim of any nature whatsoever; |
"Environment" | means living organisms including humans and the ecological systems of which they form part and the following media: |
(i) air (including air within natural or man-made structure, whether above or below ground); | |
(ii) water (including territorial, coastal and inland waters, water under or within land, surface water and water in drains and sewers); and | |
(iii) land (including surface and sub- surface soil land under water); | |
"Estimated External Cash Value" | means, in respect of AMS04 SPV and each member of the Target Group, the amount of the External Cash Value of AMS04 SPV or such member (as applicable) as estimated by the AMS04 SPV Seller or Seller of the Shares of such member (as applicable) in good faith; |
"Estimated External Debt Value" | means, in respect of AMS04 SPV and each member of the Target Group, the amount of the External Debt Value of AMS04 SPV or such member (as applicable) as estimated by the AMS04 SPV Seller or Seller of the Shares of such member (as applicable) in good faith; |
"Estimated Inter-Company Payables" | means, in respect of AMS04 SPV and each member of the Target Group, the amount of the Inter-Company Payables of AMS04 SPV or such member (as applicable) as estimated by the AMS04 SPV Seller or Seller of the Shares of such member (as applicable) in good faith; |
"Estimated Inter-Company Receivables" | means, in respect of AMS04 SPV and each member of the Target Group, the amount of the Inter-Company Receivables of AMS04 SPV or such member (as applicable) as estimated by the AMS04 SPV Seller or Seller of the Shares of such member (as applicable) in good faith; |
"Estimated Net External Cash Balance" | means, in respect of AMS04 SPV and each member of the Target Group, the Estimated External Cash Value of AMS04 SPV or such member (as applicable) less the Estimated External Debt Value of AMS04 SPV or such member (as applicable), which may be a positive or a negative amount; |
"Estimated Net Inter-Company Debt" | means, in respect of AMS04 SPV and each member of the Target Group, the Estimated Inter-Company Receivables of AMS04 SPV and such member (as applicable) less the Estimated Inter-Company Payables of AMS04 SPV or such member (as applicable), which may be a positive or a negative amount; |
"EUL Intercompany Loan Agreement" | means the intercompany loan agreement between Equinix (UK) Limited and London DivestCo dated 1 April 2016 disclosed in section 2.2.4-B of the Data Room; |
"Excess" | has the meaning given in paragraph 1.6 of Part A of Schedule 8 (Completion Accounts); |
"Excluded Business Information" | means Business Information that relates to the business of the Target Group and that is contained within books and records required to be retained by any member of the Retained Group pursuant to any statute, rule, regulation or ordinance (including the historical financial information on the EXACT application that resides on the systems of the Retained Group); |
"Excluded Missing Asset" | means any asset (except any Intellectual Property or Business Information) held by any member of the Retained Group after Completion which: |
(i) is required for, or used in, the Target Group as at the Completion Date; and | |
(ii) is not required for, or used in, the Retained Group or the business of the Retained Group as at the Completion Date, | |
to which the Target Group is granted access or which is used for the provision of services by any member of the Retained Group under the Transitional Services Agreements or any agreement listed in Schedule 17 (Ongoing Arrangements); | |
"Excluded Required Asset" | means any asset (except any Intellectual Property or Business Information) held by any member of the Target Group after Completion which: |
(i) is required for, or used in, the Retained Group as at the Completion Date; and | |
(ii) is not required for, or used in, the Target Group or the business of the Target Group as at the Completion Date, | |
to which the Retained Group is granted access or which is used for the provision of services by any member of the Target Group under any ancillary agreement between such member of the Target Group and the Retained Group; | |
"Expert" | has the meaning given in paragraph 1.3(B)(ii) of Part A of Schedule 8 (Completion Accounts); |
"External Cash Value" | means, in respect of AMS04 SPV and each member of the Target Group, the aggregate of the amounts of Cash held by AMS04 SPV or such member of the Target Group (as applicable) as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date; |
"External Debt Value" | means, in respect of AMS04 SPV and each member of the Target Group, the aggregate of the amounts of Borrowings of AMS04 SPV or such member of the Target Group (as applicable) as at close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date; |
"Force Majeure Event" | means events including but not limited to: |
(i) acts of God (such as, but not limited to, fires, explosions, earthquakes and floods); | |
(ii) war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation, requisition or embargo; | |
(iii) rebellion, revolution, insurrection, or military or usurped power, or civil war; | |
(iv) disease, epidemic, contamination by nuclear failure or other public health issue; | |
(v) riot, commotion, strikes, go slows, lock outs or disorder; or | |
(vi) acts or threats of terrorism; | |
"Frankfurt Accounts Date" | means 31 December 2016; |
"Frankfurt Additional Overlay Employee" | means any Additional Overlay Employee of Frankfurt DivestCo; |
"Frankfurt Demerger Agreement" | means the spin-off and transfer agreement dated 1 April 2016 between TelecityGroup Germany GmbH and Frankfurt DivestCo contained in section 4.9.1-D of the Data Room; |
"Frankfurt DivestCo" | means TelecityGroup Germany Fra2 GmbH, basic information concerning which is set out in Attachment 1 (Basic information about London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV); |
"Frankfurt DivestCo Completion Payment" | has the meaning given in clause 6.2(G) (Completion); |
"Frankfurt DivestCo Consideration" | has the meaning given in clause 5.4(A) (Consideration); |
"Frankfurt DivestCo Financial Statement" | means the special purpose unaudited balance sheet as at the Frankfurt Accounts Date in relation to the Frankfurt Divestment Business set out on page 10 of the report entitled “Project Cheetah Volume 3b – Frankfurt Market” dated 25 February 2016; |
"Frankfurt DivestCo P&L" | means the pro forma profit and loss statement as at the Frankfurt Accounts Date in relation to the Frankfurt Divestment Business set out on pages 21 to 22 of the report entitled “Project Cheetah Volume 2b – Frankfurt Market” dated 25 February 2016 but excluding the KPIs set out therein; |
"Frankfurt DivestCo Purchase Price" | has the meaning given in clause 5.3(A) (Consideration); |
"Frankfurt DivestCo Shares" | means two shares representing all the issued shares in the capital of Frankfurt DivestCo; |
"Frankfurt Divestment Business" | means the business of the data centre located at Lyoner Straße as described in the Carve-out Memorandum; |
"Frankfurt Lease" | means the lease agreement dated 11/16 August 2000 as amended by the 1st Amendment dated 2 March 2001, the 2nd Amendment dated 12 March 2001 and the 3rd Amendment dated 29 December 2010, the 4th Amendment dated 30 December 2015/11 January 2016 and the 5th Amendment dated 30 December 2015/11 January 2016 regarding the building located at Lyoner Str. 28, 60528 Frankfurt am Main, Germany; |
"Frankfurt Lease Amendment Documentation" | has the meaning given in clause 9.9(A) (Purchasers’ warranties and undertakings); |
"Frankfurt Loans" | means any loans made by any member of the Retained Group to Frankfurt DivestCo outstanding as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date; |
"Frankfurt Market VDD Report" | means the report prepared by the Sellers’ Accountants entitled ‘Project Cheetah Volume 3 – Frankfurt Market VDD report’ dated 8 February 2016, a copy of which is attached to the Disclosure Letter; |
"Frankfurt Payables" | means the aggregate of the amounts owing from Frankfurt DivestCo to any members of the Retained Group under any Frankfurt Loans, including in respect of interest accrued on such amounts in accordance with the terms of the Frankfurt Loans, as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date; |
"Frankfurt Payables Deeds of Assignment" | has the meaning given in clause 14.1 (Sale, purchase and assignment of the Frankfurt Payables); |
"Frankfurt Payables Notice" | means in respect of any Frankfurt Payables Deed of Assignment, the notice scheduled to such Frankfurt Payables Deed of Assignment; |
"Frankfurt Payables Purchase Price" | has the meaning given in clause 14.1 (Sale, purchase and assignment of the Frankfurt Payables); |
"Frankfurt Relevant Employees" | means those individuals whose names are listed in the Disclosure Letter against the warranty at Schedule 3, paragraph 19.3: (a) who transferred to Frankfurt DivestCo by operation of law pursuant to the Reorganisation; (b) whose employment transferred to Frankfurt DivestCo with their express consent pursuant to the Reorganisation; and (c) who have been offered and have accepted and commenced employment with Frankfurt DivestCo following the date of completion of the Frankfurt Demerger Agreement (whether as a Replacement Relevant Employee or otherwise); |
"Frankfurt Reorganisation" | means (i) the statutory demerger by way of a spin-off by way of absorption pursuant to sec. 123 (3) no. 1 of the German Transformation Act transferring the portion of assets, liabilities, legal relationships and employees specified in the Frankfurt Demerger Agreement in their entirety to Frankfurt DivestCo; and (ii) ancillary measures described in the Carve-out Memorandum; |
"Guarantee" | means any letter of credit, guarantee, indemnity or similar instrument issued at the request of a borrower by an issuing bank under a facility agreement or otherwise; |
"Hazardous Material" | means any wastes, pollutants, contaminants and any other natural or artificial substance or material (whether in the form of a solid, liquid, gas or vapour) which is a pollutant or contaminant which is capable of causing harm to the Environment or a nuisance to any person or which is regulated, prohibited, controlled or restricted under applicable laws or legislation; |
"IASB" | means the International Accounting Standards Board; |
"IFRS" | means the body of pronouncements issued or adopted by the IASB, including International Financial Reporting Standards and associated interpretations issued by the IASB and International Accounting Standards and associated interpretations adopted by the IASB; |
"Information Technology" | means computer hardware, software and networks; |
"Insolvency Proceedings" | means, in respect of the Purchasers’ Guarantor: |
(i) the suspension of payments by it or the declaration or imposition of a moratorium; | |
(ii) an order being made or resolution being passed for its winding up; | |
(iii) an administration order being made (or application for such an order); | |
(iv) a composition or similar arrangement with any of its creditors; | |
(v) the appointment of a liquidator, administrator or receiver (including an administrative receiver), in respect of it or any of its assets; | |
(vi) the enforcement of any security over any of its assets; or | |
(vii) the occurrence of any procedure or step analogous to any of the foregoing in any jurisdiction; | |
"Intellectual Property" | means patents, trade marks, rights in designs, copyrights and database rights (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world; |
"Inter-Company Payables" | means, in respect of AMS04 SPV and each member of the Target Group, the aggregate of the amounts owing, including in respect of interest accrued and outstanding on all such amounts, as at as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date by AMS04 SPV or such member of the Target Group (as applicable) to any members of the Retained Group (including any distribution declared by AMS04 SPV or such member of the Target Group (as applicable) in favour of or payable to any member of the Retained Group), but excluding (i) the Ordinary Trading Payables in respect of AMS04 SPV or such member (as applicable); (ii) in the case of Frankfurt DivestCo, any Frankfurt Payables; (iii) in the case of Amsterdam DivestCo, any Amsterdam DivestCo Payables; and (iv) in the case of AMS04 SPV, any AMS04 SPV payables; |
"Inter-Company Receivables" | means, in respect of AMS04 SPV and each member of the Target Group, the aggregate of the amounts owing, including in respect of interest accrued and outstanding on all such amounts, as at the close of business (or, if the Completion Date is on the first Business Day of a month, 12:01 a.m.) on the Completion Date by any members of the Retained Group to AMS04 SPV or such member of the Target Group (as applicable), excluding the Ordinary Trading Receivables in respect of AMS04 SPV or such member (as applicable); |
"Key Employee" | means those individuals defined as "Key Personnel" in the Commitments (as in effect on the date of this Agreement), and (ii) employed by any member of the Target Group at the date of this Agreement; |
"Lease" | has the meaning given in paragraph 18.7(A) of Schedule 3 (Sellers’ Warranties); |
"London Accounts Date" | means 31 December 2015; |
"London Additional Overlay Employee" | means any Additional Overlay Employee of London DivestCo; |
"London BTA Sellers" | means Telecity Group Limited and Equinix (UK) Limited; |
"London Business Transfer Agreement" | means the business transfer agreement dated 31 March 2016 among the London BTA Sellers, London DivestCo and others contained in section 2.9.1-B of the Data Room, as amended immediately prior to the date of this Agreement by a deed of amendment in the agreed form; |
"LON1 Agreement for Lease" | means the agreement to lease to be entered into between (1) 356 ACQ Limited, (2) London DivestCo, (3) Telecity UK Limited, (4) Telecitygroup UK Limited and (5) Meadow Real Estate Fund III, LP relating to Archway House and Bonnington House in the form set out in Attachment 3 (LON 1 Documents); |
"LON1 Contribution" | means the payment of £7,000,000 to be made to 356 ACQ Limited pursuant to clause 2.1 of the LON1 Agreement for Lease; |
“LON1 Lease” | means the lease agreement to be entered into between (1) 356 ACQ Limited, (2) London DivestCo and (3) Telecitygroup UK Limited relating to Bonnington House in the form set out in Attachment 3 (LON 1 Documents); |
“LON1 Legal Opinions” | means the legal opinions relating to capacity, execution and enforceability addressed to London DivestCo in a form and issued by a law firm approved by the London DivestCo Purchaser relating to covenants and obligations pursuant to the LON1 Agreement for Lease and the LON1 Lease of 356 ACQ Limited (in respect of Jersey law) and Meadow Real Estate Fund III (in respect of Delaware law); |
"London DivestCo" | means TelecityGroup UK LON Limited, basic information concerning which is set out in Attachment 1 (Basic information about London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV); |
"London DivestCo Completion Payment" | has the meaning given in clause 6.2(D) (Completion); |
"London DivestCo Consideration" | has the meaning given in clause 5.1 (Consideration); |
"London DivestCo Financial Statement" | means the special purpose unaudited balance sheet as at the London Accounts Date in relation to the London Divestment Business set out on page 28 of the report entitled “Project Cheetah Volume 1b – London Market” dated 25 February 2016; |
"London DivestCo P&L" | means the pro forma profit and loss statement as at the London Accounts Date in relation to the London Divestment Business set out on page 5 of the report entitled “Project Cheetah Volume 1b – London Market” dated 25 February 2016 but excluding the KPIs set out therein; |
"London DivestCo Purchase Price" | has the meaning given in clause 5.1(A) (Consideration); |
"London DivestCo Shares" | means two shares and any new shares in London DivestCo issued pursuant to clause 7.20, (Sellers’ warranties and undertakings) and paragraph 4(H) of Schedule 6 (Conduct of Business before Completion), such shares together representing all the issued shares in the capital of London DivestCo; |
"London Divestment Business" | means the business of the data centres at Bonnington House, Sovereign House, Meridian Gate, Oliver's Yard and West Drayton as described in the London Business Transfer Agreement and the Carve-out Memorandum; |
"London Market VDD Report" | means the report prepared by the Sellers’ Accountants entitled ‘Project Cheetah Volume 1 – London Market VDD report’ dated 8 February 2016, a copy of which is attached to the Disclosure Letter; |
"London Relevant Employees" | means those individuals whose names are listed in the Disclosure Letter against the warranty at Schedule 3, paragraph 19.5: (a) who transferred to London DivestCo by operation of law pursuant to the Reorganisation; (b) whose employment transferred to London DivestCo with their express consent pursuant to the Reorganisation; and (c) who have been offered and have accepted and commenced employment with London DivestCo following the date of completion of the London Business Transfer Agreement (whether as a Replacement Relevant Employee or otherwise); |
"London Reorganisation" | means the transfer of the portion of assets, liabilities, legal relationships and employees specified in and pursuant to the London Business Transfer Agreement in their entirety to London DivestCo and ancillary measures described in the Carve-out Memorandum; |
"Long Stop Date" | means 31 December 2016; |
"Losses" | means losses, liabilities, claims, demands, costs and expenses, including any legal costs which a party incurs in order to defend itself against any claim made by a third party (excluding any liabilities in respect of Tax) and "Loss" shall be construed accordingly; |
"LTTA" | means the Dutch Legal Transactions Tax Act (Wet op belastingen van rechtsverkeer); |
"Material Contract" | means: |
(i) any contract or arrangement of any member of the Target Group or any member of the Retained Group (but only to the extent its business relates to the Target Business as carried on as at the date of this Agreement) calling for payments by any party thereto in excess of £500,000 in any one year; | |
(ii) any joint venture agreement or arrangement under which any member of the Target Group participates with any other person in any business; | |
(iii) any contract or arrangement of any member of the Target Group which is expressed to be of three years or greater duration and cannot be terminated on less than 12 months’ notice; or | |
(iv) any contract or arrangement which materially restricts any member of the Target’s Group freedom to carry on its business in any part of the world in such manner as it may think fit; | |
"Material Customer Contract" | means any customer contract of the London Divestment Business with an aggregate yearly revenue over £500,000 (excluding costs of power), including any related work orders; |
"Merger Completion Date" | means 15 January 2016; |
"Monitoring Trustee" | means Advolis SA, which has been appointed as monitoring trustee pursuant to the Commitments and which has the duty to monitor compliance with the conditions and obligations attached to the Clearance Decision; |
"Net External Cash Balance" | means, in respect of AMS04 SPV and each member of the Target Group, the External Cash Value of AMS04 SPV or such member (as applicable) less the External Debt Value of AMS04 SPV or such member (as applicable), which may be a positive or a negative amount; |
"Net Inter-Company Debt" | means, in respect of AMS04 SPV and each member of the Target Group, the Inter-Company Receivables of AMS04 SPV or such member (as applicable) less the Inter-Company Payables of AMS04 SPV or such member (as applicable), which may be a positive or a negative amount; |
"Net Sum" | has the meaning given in paragraph 1.9 of Part A of Schedule 8 (Completion Accounts); |
"Non-disclosure Agreements" | means the non-disclosure agreements entered into by any member of the Retained Group and potential purchasers (other than the Purchasers) in relation to the sale of the Shares; |
"Notice" | has the meaning given in paragraph 1.2(A) of Part A of Schedule 8 (Completion Accounts); |
"Ordinary Trading Payables" | means ordinary trade payables pursuant to the agreements listed in Schedule 17 (Ongoing Arrangements) owing at Completion and relating to the period up to Completion only, by London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo or AMS04 SPV (as applicable) to any members of the Retained Group; |
"Ordinary Trading Receivables" | means ordinary trade receivables pursuant to the agreements listed in Schedule 17 (Ongoing Arrangements) owing at Completion and relating to the period up to Completion only, by members of the Retained Group to London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo or AMS04 SPV (as applicable); |
"Other Retained Group Guarantee" | has the meaning given in clause 9.6 (Purchasers’ warranties and undertakings); |
“Other Retained Group Guarantee Side Letter” | means the side letter in the agreed form to be entered at Completion between the Sellers and each member of the Target Group; |
"Outstanding Amsterdam Expansion Cost" | means the amount of the Amsterdam Expansion Cost which has not been paid to the relevant contractors, as at Completion, as notified (together with copies of each Amsterdam Expansion Agreement, any invoices issued pursuant to such agreements and evidence of payment thereof) by (or on behalf of) the Amsterdam DivestCo Seller to the Amsterdam DivestCo Purchaser no fewer than five Business Days prior to Completion; |
"Outstanding Transferring Contract" | has the meaning given in clause 12.2 (Transferring Contracts); |
"Overlay Employees" | means those Relevant Employees whose employment transferred to a member of the Target Group with their express consent or who have received an offer of employment with a member of the Target Group following the date of completion of the Amsterdam Deed of Demerger, the Frankfurt Demerger Agreement or the London Business Transfer Agreement (as applicable) but prior to the date of this Agreement (but excluding any Replacement Relevant Employee); |
"payee" | has the meaning given in paragraph 1.9 of Part A of Schedule 8 (Completion Accounts); |
"payer" | has the meaning given in paragraph 1.9 of Part A of Schedule 8 (Completion Accounts); |
"Pension Schemes" | means, in respect of Amsterdam DivestCo: |
(i) (the pension benefits provided for in) the pension scheme rules of TelecityGroup Netherlands B.V. dated 2 January 2013, which rules will be laid down in separate pension scheme rules for DivestCo, as confirmed by the pension administrator ASR in its letter dated 29 March 2016 to TelecityGroup Netherlands B.V.; | |
(ii) the WIA additional income pension scheme as laid down in the relevant pension scheme rules ('Reglement WIA-excedentpensioen') dated 22 March 2016, under policy number 5355_300557; | |
(iii) the WIA shortfall pension scheme as laid down in the relevant pension scheme rules ('Reglement WIA-onderbouwpensioen') (incorrectly) dated 22 March 2015 rather than 22 March 2016, under policy number 5355_300556; and | |
(iv) the Surviving Dependants Act shortfall pension scheme as laid down in the Surviving Dependants Act shortfall pension scheme rules ('Reglement ANW-Hiaatpensioen') dated 22 March 2016; | |
in respect of London DivestCo: | |
(i) TelecityGroup UK LON Group Personal Pension Plan provided by Scottish Widows; and | |
(ii) TelecityGroup UK LON Group Self Invested Personal Pension provided by Standard Life; | |
and in respect of Frankfurt DivestCo: | |
(i) any employer-financed or employee-financed capital-forming benefits (vermögenswirksame Leistungen) for the benefit of Frankfurt Relevant Employees; and | |
(ii) any employer-financed or employee-financed support fund commitments (Unterstützungskassenzusagen) for the benefit of Frankfurt Relevant Employees; | |
"Permitted Transfer" | has the meaning given in clause 23.1 (Permitted Transfer); |
"Permitted Transferee" | has the meaning given in clause 23.1 (Permitted Transfer); |
"Phase 1 Science Park Fit-out" | means the first phase of the fit out of Science Park to a total capacity of approximately 3,400 kW and 1,870m2 that is on-going at the date of this Agreement; |
"Phase 2 Science Park Fit-out" | means the second phase of the fit out of Science Park to achieve a total capacity of 7,081 kW and 4,979m2; |
"Proceedings" | means any proceeding, suit or action arising out of or in connection with this Agreement or the negotiation, existence, validity or enforceability of this Agreement, whether contractual or non-contractual; |
"Property" or "Properties" | means freehold, leasehold or other immovable property in any part of the world; |
"Property Owner" | means, in relation to any Relevant Property, the person referred to as the owner in Attachment 2 (Relevant Properties); |
"Purchasers’ Accountants" | means KPMG LLP (San Francisco); |
"Purchasers’ Fundamental Warranties" | means the warranties set out in paragraphs 1, 2 and 4 of Schedule 5 (Purchasers’ Warranties) given by the Purchasers and "Purchasers’ Fundamental Warranty" shall be construed accordingly; |
"Purchasers’ Guarantor Warranties" | means the warranties set out in clause 10.7 (Purchasers’ Guarantor) and "Purchasers’ Guarantor Warranty" shall be construed accordingly; |
"Purchasers’ Group" | means each Purchaser, such Purchaser’s subsidiaries and subsidiary undertakings, any holding company of such Purchaser and all other subsidiaries of any such holding company, in each case, from time to time, including, from Completion, the Target Group and AMS04 SPV; |
"Purchasers’ Solicitors" | means White & Case LLP; |
"Purchasers’ Warranties" | means the warranties set out in Schedule 5 (Purchasers’ Warranties) given by the Purchasers and "Purchasers’ Warranty" shall be construed accordingly; |
"Reasoned Proposal" | means the reasoned proposal to be submitted by Equinix, Inc. to the Commission under paragraph 18 of the Commitments substantially in the agreed form; |
"Relevant Employees" | means the London Relevant Employees, Amsterdam Relevant Employees and Frankfurt Relevant Employees; |
"Relevant Property" | means the Property or Properties referred to in Attachment 2 (Relevant Properties); |
"Relevant Shares" | means, in the case of (i) the London DivestCo Seller, the London DivestCo Shares; (ii) the Amsterdam DivestCo Seller, the Amsterdam DivestCo Shares; and (iii) the Frankfurt DivestCo Seller, the Frankfurt DivestCo Shares; |
"Reorganisation" | means the Amsterdam Reorganisation, the Frankfurt Reorganisation and the London Reorganisation; |
"Replacement Guarantee" | has the meaning given in clause 10.5 (Purchasers’ Guarantor); |
“Replacement Relevant Employee” | means any person who receives and accepts an offer of employment from a member of the Target Group to directly replace any individual who transferred to that member of the Target Group by operation of law pursuant to the Reorganisation but who resigns or otherwise leaves that member of the Target Group, provided that such offer of employment is on terms and conditions which are not materially different to the terms of that individual’s contract of employment whom he has replaced; |
"Retained Group" | means each Seller and the AMS04 SPV Seller, their respective subsidiaries and subsidiary undertakings from time to time, any holding company of such Seller or the AMS04 SPV Seller and all other subsidiaries or subsidiary undertakings of any such holding company (other than, from Completion, London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV); |
"Retention Plan" | means the incentive arrangements entered into by the Retained Group in relation to certain of the Relevant Employees prior to the Reorganisation; |
"RETT" | means the real estate transfer tax (overdrachtsbelasting) within the meaning of the LTTA; |
"Run-Off Licence Termination Date" | has the meaning given in clause 16.5 (Intellectual Property and Business Information); |
"Science Park" | means Amsterdam DivestCo’s AMS01(e) data centre, located in the Science Park in Amsterdam at Science Park 120/122, 1098 XG Amsterdam; |
"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; |
"Sellers’ Accountants" | means KPMG LLP (London); |
"Sellers’ Anti-bribery Warranties" | means the warranties set out in paragraph 22 of Schedule 3 (Sellers’ Warranties) given by each Seller in respect of itself only, such Seller’s Relevant Shares and the relevant member of the Target Group and "Sellers’ Anti-bribery Warranty" shall be construed accordingly; |
"Sellers’ Announcement" | means the announcement to be made by the Sellers and the AMS04 SPV Seller (or any member of the Retained Group) on or about the date of this Agreement concerning the transactions contemplated by this Agreement and the other Share Purchase Documents, in the agreed form; |
"Sellers’ Fundamental Warranties" | means the warranties set out in paragraphs 1, 2, 3, 8.7, 13 and 23 of Schedule 3 (Sellers’ Warranties) given by each Seller in respect of itself only, such Seller’s Relevant Shares and the relevant member of the Target Group and "Sellers’ Fundamental Warranty" shall be construed accordingly; |
"Sellers’ Guarantor Warranties" | means the warranties set out in clause 8.5 (Sellers’ Guarantor) and "Sellers’ Guarantor Warranty" shall be construed accordingly; |
"Sellers’ Solicitors" | means Slaughter and May; |
"Sellers’ Warranties" | means the warranties set out in Schedule 3 (Sellers’ Warranties) given by each Seller in respect of itself only, such Seller’s Relevant Shares and the relevant member of the Target Group and "Sellers’ Warranty" shall be construed accordingly; |
"Senior Employees" | means (i) Relevant Employees who are not directors and who are entitled to a basic salary at an average annual rate over the last three financial years in excess of £100,000 per annum (or local currency equivalent), and (ii) directors who are also Relevant Employees; |
"Senior Retained Group Employees" | means (i) employees of the Retained Group who are not directors and who are entitled to a basic salary at an average annual rate over the last three financial years in excess of £100,000 per annum (or local currency equivalent), and (ii) directors who are also employees of the Retained Group; |
"Service Document" | means a claim form, application notice, order or judgment; |
"Share Purchase Documents" | means this Agreement, the Tax Covenant, the Disclosure Letter, the Transitional Services Agreements, the London Business Transfer Agreement, the Amsterdam Deed of Demerger, the Frankfurt Demerger Agreement and any other agreements entered into pursuant to this Agreement (other than the Other Retained Group Guarantee Side Letter); |
"Shared Required Assets" | has the meaning given in clause 13.3 (Wrong pockets); |
"Shared Transferring Contracts" | means those Transferring Contracts which are specified as being shared contracts in Schedule 1 to the Carve-out Memorandum; |
"Shares" | means the London DivestCo Shares, Amsterdam DivestCo Shares, and the Frankfurt DivestCo Shares; |
"Shortfall" | has the meaning given in paragraph 1.6 of Part A of Schedule 8 (Completion Accounts); |
"Specified Retained Group Guarantee" | has the meaning given in clause 9.5 (Purchasers’ warranties and undertakings); |
"Target Business" | means the Amsterdam Divestment Business, the Frankfurt Divestment Business and the London Divestment Business; |
"Target Group" | means, together, London DivestCo, Amsterdam DivestCo and Frankfurt DivestCo; |
"Target Group Guarantee" | has the meaning given to it in clause 7.11 (Sellers’ warranties and undertakings); |
"Tax" | has the meaning given in the Tax Covenant; |
"Tax Authority" | has the meaning given in the Tax Covenant; |
"Tax Covenant" | means the tax covenant to be entered into between London DivestCo Seller, Amsterdam DivestCo Seller, Frankfurt DivestCo Seller, London DivestCo Purchaser, Amsterdam DivestCo Purchaser and Frankfurt DivestCo Purchaser, at Completion substantially in the agreed form; |
"Tax Warranties" | means the warranties set out in paragraph 24 of Schedule 3 (Sellers’ Warranties); |
"Telecity Group Accounts" | means the audited consolidated balance sheet and consolidated profit and loss accounts of Telecity Group plc as at, and for the period ended on, 31 December 2014 (including all notes, reports, statements and other documents annexed to these accounts), prepared in accordance with IFRS; |
"TGL Intercompany Loan Agreement" | means the intercompany loan agreement between Telecity Group Limited and London DivestCo dated 1 April 2016 disclosed in section 2.2.4-A of the Data Room; |
"TGL Prepayment Amount" | has the meaning given in clause 7.19(C) (Sellers’ warranties and undertakings); |
"Third Party Consent" | means any consent, approval, authorisation or waiver required by a third party; |
"Top 20 Customer Contracts" | means the customer contracts disclosed in folders 2.6.1, 3.6.3 and 4.6.3 of the Data Room; |
"Transferring Contracts" | means those contracts set out in Schedule 1 to the Carve-out Memorandum, and any other contracts to be transferred to any member of the Target Group after the date of this Agreement pursuant to the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement; |
"Transitional Services Agreements" | means the transitional services agreements in the agreed form (i) between the Telecity Group Limited, Equinix (UK) Limited and London DivestCo to be dated on or around the date of this Agreement; (ii) between the Amsterdam DivestCo Seller and Amsterdam DivestCo to be dated on or around the date of this Agreement; (iii) between the Frankfurt DivestCo Seller and Frankfurt DivestCo dated 20 April 2016 and to be amended and restated immediately prior to the execution of this agreement; and (iv) between Telecity Group Limited, London DivestCo, Amsterdam DivestCo and Frankfurt DivestCo to be dated on or around the date of this Agreement; |
"Trigger Event" | means: |
(i) the disposal by the Purchasers’ Guarantor of all or a material proportion of its assets; | |
(ii) Control of the Purchasers’ Guarantor being acquired by any person (excluding any holding company of the Purchasers’ Guarantor or any subsidiary of such holding company, provided that in each case the financial standing of such company is at least equivalent to that of the Purchasers’ Guarantor) who does not currently Control the Purchasers’ Guarantor; | |
(iii) the commencement of any Insolvency Proceedings; or | |
(iv) any other event or circumstance which has a material adverse effect on the ability of the Purchasers’ Guarantor to meet its obligations as they fall due under clause 10 (Purchasers’ Guarantor); | |
"Underlying Claim" | has the meaning given in paragraph 3.2 of Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability); |
"VAT" | means: |
(i) within the European Union, any tax imposed by any Member State in conformity with the Directive of the Council of the European Union on the common system of value added tax (2006/112/EC); and | |
(ii) outside the European Union, any tax corresponding to, or substantially similar to, the common system of value added tax referred to in paragraph (i) of this definition; | |
"Working Capital" | means, in respect of AMS04 SPV and each member of the Target Group, the sum of the values of each of the items to be set out in the column entitled "Working Capital" in the Completion Accounts of such member (as shown in the pro-forma balance sheet for each member of the Target Group and AMS04 SPV set out in Part D of Schedule 8 (Completion Accounts)) (whether positive or negative) determined in accordance with the policies set out in Part B of Schedule 8(Completion Accounts); |
"Working Capital Reference Amount" | means, in respect of: |
(i) London DivestCo, minus £9,781,000; | |
(ii) Amsterdam DivestCo, minus EUR 6,458,000; | |
(iii) Frankfurt DivestCo, minus EUR 1,051,000; and | |
(iv) AMS04 SPV, minus EUR 54,000; and | |
"Working Hours" | means 8.30 a.m. to 6.30 p.m. on a Business Day. |
1.2 | In this Agreement, unless otherwise specified: |
(A) | references to clauses, paragraphs, Schedules and Attachments are to clauses and paragraphs of, and Schedules and Attachments to, this Agreement; |
(B) | references to any document in the "agreed form" means that document in a form agreed by the parties and initialled for the purposes of identification by or on behalf of the Purchasers, the Sellers and the AMS04 SPV Seller; |
(C) | use of any gender includes the other genders; |
(D) | a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted; |
(E) | references to a "company" shall be construed so as to include any corporation or other body corporate, wherever and however incorporated or established; |
(F) | references to a "person" shall be construed so as to include any individual, firm, company, corporation, body corporate, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality); |
(G) | the expressions "body corporate", "debentures", "holding company", "subsidiary" and "subsidiary undertaking" shall have the meaning given in the Companies Act 2006; |
(H) | the expressions “include” and “including” are to be construed as being by way of illustration or emphasis only and are not to be construed so as to limit the generality of any words preceding them; |
(I) | any reference to a "day" (including the phrase "Business Day") shall mean a period of 24 hours running from midnight to midnight; |
(J) | references to times are to London time; |
(K) | any indemnity or obligation to pay (the "Payment Obligation") being given on an "after-Tax basis" or expressed to be "calculated on an after-Tax basis" means that the amount payable pursuant to such Payment Obligation (the "Payment") shall be calculated in such a manner as will ensure that, after taking into account: |
(i) | any Tax required to be deducted or withheld from the Payment; |
(ii) | the amount and timing of any additional Tax which becomes payable as a result of the Payment’s being subject to Tax; and |
(iii) | the amount and timing of any Tax benefit which is obtained to the extent that such Tax benefit is attributable to the matter giving rise to the Payment Obligation or to the receipt of the Payment, |
(L) | references to "costs" and/or "expenses" incurred by a person shall not include any amount in respect of VAT comprised in such costs or expenses for which either that person or, if relevant, any other member of the VAT group to which that person belongs is entitled to credit as input tax; |
(M) | a person shall be deemed to be connected with another if that person is connected with another within the meaning of sections 1122 and 1123 CTA 2010; |
(N) | references to writing shall include any modes of reproducing words in a legible and non-transitory form; |
(O) | the obligations of each Seller and the AMS04 SPV Seller under the Share Purchase Documents shall be several and not joint or joint and several obligations; |
(P) | the obligations of each Purchaser under the Share Purchase Documents shall be several and not joint or joint and several obligations; |
(Q) | references to the knowledge, belief or awareness of the AMS04 SPV Seller, any Seller or the Sellers (or similar phrases) shall be limited to the actual knowledge of Harro Beusker, Rob Coupland, Jeremy Nicholls, Mark Pestridge, Petran van Hugten, Martin Essig, Sheryl Hope, Tom Newton, Herman Vlug and Chris Truman; |
(R) | references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official, or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates in that jurisdiction to the English legal term; |
(S) | all headings and titles are inserted for convenience only and are to be ignored in the interpretation of this Agreement; |
(T) | the Schedules and Attachments form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include the Schedules and Attachments; and |
(U) | where an amount is expressed in any Share Purchase Document in pounds sterling and the parties thereto need to know the equivalent amount in euros, or expressed in euros and the parties thereto need to know the equivalent amount in pounds sterling, such amount shall be converted into pounds sterling or euros, as the case may be, at an exchange rate equal to the mid-point closing rate for converting that currency into pounds sterling or euros as the case may be on the date on which the conversion takes place, as quoted in the London edition of the Financial Times first next published (or, if no such rate is quoted in the Financial Times, the mid-point closing rate quoted by Barclays Bank PLC in London). In relation to a claim, the date of such conversion shall be the date of receipt of notice of that claim in accordance with Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability). For the avoidance of doubt, this provision under no circumstances applies to the amounts referred to in clause 5 (Consideration). |
2. | Sale and purchase |
2.1 | On the terms and subject to the conditions of this Agreement: |
(A) | the London DivestCo Seller shall sell or procure the sale of, and the London DivestCo Purchaser shall purchase, the London DivestCo Shares; |
(B) | the Amsterdam DivestCo Seller shall sell or procure the sale of, and the Amsterdam DivestCo Purchaser shall purchase, the Amsterdam DivestCo Shares; and |
(C) | the Frankfurt DivestCo Seller shall sell or procure the sale of, and the Frankfurt DivestCo Purchaser shall purchase, the Frankfurt DivestCo Shares, |
2.2 | Each Seller shall transfer legal and beneficial title to the Relevant Shares to the relevant Purchaser at Completion. |
2.3 | Each Seller shall procure the waiver of all rights of pre-emption over the Relevant Shares. |
3. | Conditions |
3.1 | The sale and purchase of the Shares pursuant to this Agreement are in all respects conditional upon those matters listed in Schedule 1 (Conditions to Completion) (the "Conditions"). |
3.2 | The Sellers and the AMS04 SPV Seller shall use reasonable endeavours to fulfil or procure the fulfilment of the Approval Condition as soon as reasonably practicable and in any event before the Long Stop Date and will notify the Purchasers in writing as soon as reasonably practicable of the satisfaction of the Approval Condition. The Purchasers shall, and shall procure that all other members of the Purchasers’ Group shall, provide the Sellers, the AMS04 SPV Seller and all other members of the Retained Group with such assistance, information and documentation as the Sellers or the AMS04 SPV Seller may reasonably request in connection with the fulfilment of the Approval Condition, including for the purpose of any necessary submissions to be made to the Commission or the Monitoring Trustee, including the Reasoned Proposal, as soon as reasonably practicable following any such request. |
3.3 | The Approval Condition may not be waived by any party. The Condition set out in paragraph 2 of Schedule 1 (Conditions to Completion) may be waived in whole or in part by the Sellers, the AMS04 SPV Seller and the Purchasers acting jointly. |
3.4 | The Amsterdam DivestCo Seller and the Amsterdam DivestCo Purchaser shall use reasonable endeavours, and shall co-operate with the other as required, to fulfil or procure the fulfilment of the Condition listed in paragraph 2 of Schedule 1 (Conditions to Completion) as soon as possible and in any event on or before the Long Stop Date. |
3.5 | Each of the Sellers, the AMS04 SPV Seller and the Purchasers undertakes to disclose in writing to the others anything which will or may prevent any Condition from being fulfilled on or prior to the Long Stop Date, in each case as soon as reasonably practicable and, in any event, promptly after it comes to their attention. |
3.6 | If: |
(A) | any of the Conditions is not fulfilled or waived by 5.00 p.m. on the Long Stop Date; |
(B) | Completion has not occurred by the end of the Completion Period and the Commission has not agreed to extend the Completion Period (provided that any such extension shall require the prior written consent of all parties hereto); or |
(C) | the parties agree in writing at any time before the Long Stop Date that the Approval Condition cannot be fulfilled on the basis of responses received from the Commission in respect of the Approval Condition, |
3.7 | If this Agreement is terminated in accordance with clause 3.6, and without limiting any party's right to claim damages, all obligations of the parties under this Agreement shall end |
4. | Conduct of business before Completion |
4.1 | Subject to clause 4.3 and 4.4: |
(A) | between the date of this Agreement and Completion the London DivestCo Seller shall procure that London DivestCo will conduct its business in the ordinary course and will not undertake any act which is outside the ordinary course of business (in each case, as carried on by London DivestCo since the date of incorporation of London DivestCo); |
(B) | between the date of this Agreement and Completion the Amsterdam DivestCo Seller shall procure that Amsterdam DivestCo will conduct its business in the ordinary course and will not undertake any act which is outside the ordinary course of business (in each case, as carried on by Amsterdam DivestCo since the date of incorporation of Amsterdam DivestCo); |
(C) | between the date of this Agreement and Completion the Frankfurt DivestCo Seller shall procure that Frankfurt DivestCo will conduct its business in the ordinary course and will not undertake any act which is outside the ordinary course of business (in each case, as carried on by Frankfurt DivestCo since the date of incorporation of Frankfurt DivestCo); and |
(D) | between the date of this Agreement and the date on which AMS04 SPV is transferred from AMS04 SPV Seller to Amsterdam DivestCo in accordance with clause 24 (Transfer of AMS04 SPV Shares), the AMS04 SPV Seller shall procure that AMS04 SPV will conduct its business in the ordinary course and will not undertake any act which is outside the ordinary course of business (in each case, as carried on by AMS04 SPV since the date of incorporation of AMS04 SPV); and |
(E) | between the date on which AMS04 SPV is transferred from AMS04 SPV Seller to Amsterdam DivestCo in accordance with clause 24 and Completion, the Amsterdam DivestCo Seller shall procure that AMS04 SPV will conduct its business in the ordinary course and will not undertake any act which is outside the ordinary course of business (in each case, as carried on by AMS04 SPV since the date of incorporation of AMS04 SPV), |
4.2 | Each Seller and the AMS04 SPV Seller shall send any request for approval to Chris Kenney and Stephen Taylor at s.taylor@digitalrealty.com and c.kenney@digitalrealty.com (or such other person as may be notified by the Purchasers to the Sellers and the AMS04 SPV Seller in writing). |
4.3 | Clause 4.1 and Schedule 6 shall not operate so as to restrict or prevent: |
(A) | any matter reasonably undertaken in the case of an emergency or disaster with the intention of minimising any adverse effect (and of which the relevant Purchaser will be promptly notified); |
(B) | completion or performance of any obligation undertaken pursuant to any contract entered into by or relating to any member of the Target Group or AMS04 SPV prior to the date of this Agreement; |
(C) | any ordinary course payment for or in respect of any Tax; |
(D) | any matter contemplated by the Share Purchase Documents or the Carve-out Memorandum or necessary to implement the transfer of the Shares to the Purchasers; |
(E) | any matter undertaken at the written request, or with the written consent, of any Purchaser; |
(F) | the entry by Amsterdam DivestCo into (i) any Amsterdam Phase 1 Fit-out Agreements not entered into by the date of this Agreement; and (ii) the Amsterdam Phase 2 Fit-out Agreements, provided that, prior to the execution of such agreements, the Amsterdam DivestCo Purchaser is provided with drafts of such agreements and the reasonable comments of the Amsterdam DivestCo Purchaser are taken into consideration; |
(G) | any matter undertaken pursuant to the Commitments (in the form which the Commitments are in at the date of this Agreement); |
(H) | without prejudice to clause 4.3(G), any matter required to comply with any law or regulation (including the requirements of any governmental or regulatory authority); |
(I) | the appointment of Robert Coupland as a managing director of Frankfurt DivestCo; |
(J) | the entry by London DivestCo into the LON1 Agreement for Lease and the LON1 Lease; and |
(K) | the entry by Amsterdam Divestco into the Amsterdam Easement. |
4.4 | Between the date of this Agreement and Completion, if any member of the Target Group proposes to enter into a customer contract which would: |
(A) | call on any party thereto to make payments in excess of £500,000 (excluding costs of power) in any one year; and/or |
(B) | be incapable of being terminated by such member of the Target Group for convenience within 24 months’ of the date of entry into such contract; or |
(C) | include terms which are more onerous than the terms of any Top 20 Customer Contract, |
(i) | the relevant Seller shall procure that the relevant member of the Target Group will request the consent of the relevant Purchaser before entering into such contract by contacting Stephen Taylor, Chris Kenney and the Purchasers’ Solicitors (the “Clean Team”); and |
(ii) | the relevant Purchaser shall (i) respond to such request within 3 Business Days after receipt of such request and shall not unreasonably withhold or delay its consent; and (ii) procure that, prior to Completion, within the |
4.5 | The Amsterdam DivestCo Seller shall use reasonable endeavours between the date of this Agreement and Completion to agree with the relevant landlord of the AMS1e Lease an amendment to the AMS1e Lease to reflect the arrangements recorded in the AMS1e Consent Letter, but shall not enter into such amendment without the consent of the Amsterdam DivestCo Purchaser (such consent not to be unreasonably withheld or delayed). |
5. | Consideration |
5.1 | The total consideration for the sale of the London DivestCo Shares shall be the payment by the London DivestCo Purchaser of: |
(A) | the sum of £357,298,850 (the "London DivestCo Purchase Price"); |
(B) | plus an amount equal to the Net External Cash Balance of London DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the London DivestCo Purchase Price in this calculation); |
(C) | plus an amount equal to the Net Inter-Company Debt of London DivestCo (it being acknowledged that such amount may be a positive or negative number, and if negative, the absolute value of such amount shall be subtracted from the London DivestCo Purchase Price in this calculation); and |
(D) | (i) plus, if there is any Excess in respect of London DivestCo, an amount equal to such Excess, or (ii) minus, if there is any Shortfall in respect of London DivestCo, an amount equal to such Shortfall, |
5.2 | The total consideration for the sale of the Amsterdam DivestCo Shares shall be the payment by the Amsterdam DivestCo Purchaser of: |
(A) | the Amsterdam DivestCo Consideration; |
(B) | plus the AMS04 SPV Consideration. |
5.3 | The “Amsterdam DivestCo Consideration” shall be an amount equal to: |
(A) | the sum of EUR263,364,243 (the "Amsterdam DivestCo Purchase Price"); |
(B) | minus an amount equal to the Outstanding Amsterdam Expansion Cost; |
(C) | minus an amount equal to the Amsterdam DivestCo Payables Purchase Price; |
(D) | plus an amount equal to the Net External Cash Balance of Amsterdam DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the Amsterdam DivestCo Purchase Price in this calculation); |
(E) | plus an amount equal to the Net Inter-Company Debt of Amsterdam DivestCo (it being acknowledged that such amount may be a positive or negative number and, |
(F) | (i) plus, if there is any Excess in respect of Amsterdam DivestCo, an amount equal to such Excess, or (ii) minus, if there is any Shortfall in respect of Amsterdam DivestCo, an amount equal to such Shortfall, |
5.4 | The “AMS04 SPV Consideration” shall be an amount equal to: |
(A) | the sum of EUR21,034,307 (the “AMS04 SPV Purchase Price”); |
(B) | minus an amount equal to the AMS04 SPV Payables Purchase Price; |
(C) | minus an amount equal to any Amsterdam DivestCo Purchaser RETT Payment; |
(D) | plus an amount equal to the Net External Cash Balance of AMS04 SPV (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the AMS04 SPV Purchase Price in this calculation); |
(E) | plus an amount equal to the Net Inter-Company Debt of AMS04 SPV (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the AMS04 SPV Purchase Price in this calculation); and |
(F) | (i) plus, if there is any Excess in respect of AMS04 SPV, an amount equal to such Excess, or (ii) minus, if there is any Shortfall in respect of AMS04 SPV, an amount equal to such Shortfall, |
5.5 | The total consideration for the sale of the Frankfurt DivestCo Shares shall be the payment by the Frankfurt DivestCo Purchaser of: |
(A) | the sum of EUR34,898,550 (the "Frankfurt DivestCo Purchase Price"); |
(B) | minus an amount equal to the Frankfurt Payables Purchase Price; |
(C) | plus an amount equal to the Net External Cash Balance of Frankfurt DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the Frankfurt DivestCo Purchase Price in this calculation); |
(D) | plus an amount equal to the Net Inter-Company Debt of Frankfurt DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the Frankfurt DivestCo Purchase Price in this calculation); and |
(E) | (i) plus, if there is any Excess in respect of Frankfurt DivestCo, an amount equal to such Excess, or (ii) minus, if there is any Shortfall in respect of Frankfurt DivestCo, an amount equal to such Shortfall, |
5.6 | The London DivestCo Consideration, the Amsterdam DivestCo Consideration, the AMS04 SPV Consideration and the Frankfurt DivestCo Consideration shall be calculated and paid |
5.7 | Any payment made by any party under this Agreement shall (so far as possible) be treated as an adjustment to the consideration for the Shares (as the case may be) to the extent of the payment. |
5.8 | The Amsterdam DivestCo Purchaser undertakes to pay, or procure the payment by Amsterdam DivestCo of, an amount in aggregate equal to the Outstanding Amsterdam Expansion Cost (which is to be deducted from the total consideration for the Amsterdam DivestCo Shares in accordance with clause 5.3(B)) to the relevant contractor as it falls due under the Amsterdam Phase 1 Fit-out Agreements and the Amsterdam Phase 2 Fit-out Agreements (as applicable). |
6. | Completion |
6.1 | Completion shall take place at 10 a.m. on the Completion Date at the offices of the Sellers’ Solicitors at One Bunhill Row, London, EC1Y 8YY. |
6.2 | No fewer than three Business Days prior to Completion, the Sellers shall notify the Purchasers of: |
(A) | in respect of each member of the Target Group and AMS04 SPV, |
(i) | the Estimated External Cash Value; |
(ii) | the Estimated External Debt Value; |
(iii) | the Estimated Net External Cash Balance; |
(iv) | the Estimated Inter-Company Receivables; |
(v) | the Estimated Inter-Company Payables; |
(vi) | the Estimated Net Inter-Company Debt; |
(B) | the Outstanding Amsterdam Expansion Cost; |
(C) | the Amsterdam DivestCo Purchaser RETT Payment (if any); |
(D) | the amount payable by the London DivestCo Purchaser at Completion (the "London DivestCo Completion Payment"), being an amount calculated as follows: |
(i) | the London DivestCo Purchase Price; |
(ii) | plus an amount equal to the Estimated Net External Cash Balance of London DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the London DivestCo Purchase Price in this calculation); and |
(iii) | plus an amount equal to the Estimated Net Inter-Company Debt of London DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the London DivestCo Purchase Price in this calculation); |
(E) | the amount payable by the Amsterdam DivestCo Purchaser at Completion being an amount equal to: |
(i) | the Amsterdam DivestCo Completion Payment; |
(ii) | plus the AMS04 SPV Completion Payment; |
(F) | the "Amsterdam DivestCo Completion Payment" shall be calculated as follows: |
(i) | the Amsterdam DivestCo Purchase Price; |
(ii) | minus an amount equal to the Outstanding Amsterdam Expansion Cost; |
(iii) | minus an amount equal to the Amsterdam DivestCo Payables Purchase Price; |
(iv) | plus an amount equal to the Estimated Net External Cash Balance of Amsterdam DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the Amsterdam DivestCo Purchase Price in this calculation); |
(v) | plus an amount equal to the Estimated Net Inter-Company Debt of Amsterdam DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the Amsterdam DivestCo Purchase Price in this calculation); |
(G) | the “AMS04 SPV Completion Payment” shall be calculated as follows: |
(i) | the AMS04 SPV Purchase Price; |
(ii) | minus an amount equal to the AMS04 SPV Payables Purchase Price; |
(iii) | minus an amount equal to any Amsterdam DivestCo Purchaser RETT Payment; |
(iv) | plus an amount equal to the Estimated Net External Cash Balance of AMS04 SPV (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the AMS04 SPV Purchase Price in this calculation); |
(v) | plus an amount equal to the Estimated Net Inter-Company Debt of AMS04 SPV (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the AMS04 SPV Purchase Price in this calculation); |
(H) | the amount payable by the Frankfurt DivestCo Purchaser at Completion (the "Frankfurt DivestCo Completion Payment"), being an amount calculated as follows: |
(i) | the Frankfurt DivestCo Purchase Price; |
(ii) | plus an amount equal to the Estimated Net External Cash Balance of Frankfurt DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the Frankfurt DivestCo Purchase Price in this calculation); |
(iii) | plus an amount equal to the Estimated Net Inter-Company Debt of Frankfurt DivestCo (it being acknowledged that such amount may be a positive or negative number and, if negative, the absolute value of such amount shall be subtracted from the Frankfurt DivestCo Purchase Price in this calculation); and |
(iv) | minus an amount equal to the Frankfurt Payables Purchase Price; |
6.3 | Subject to clause 6.5, at Completion, the Sellers shall do those things listed in Part A (Sellers’ obligations) of Schedule 2 (Completion arrangements) and the Purchasers shall do those things listed in Part B (Purchasers’ obligations) of Schedule 2 (Completion arrangements). Completion shall take place in accordance with Part C (General) of Schedule 2 (Completion arrangements). |
6.4 | Subject to clause 6.5, none of the Purchasers nor the Sellers shall be obliged to complete the sale and purchase of any of the Shares unless the sale and purchase of all of the Shares is completed simultaneously. |
6.5 | Notwithstanding the provisions of clauses 6.3 and 6.4, if, following the submission of the Reasoned Proposal to the Commission for the approval of the Purchasers in connection with the Approval Condition pursuant to clause 3.2, the Commission notifies the Sellers’ Guarantor in writing that it approves the London DivestCo Purchaser and the Amsterdam DivestCo Purchaser but that it requires further time to consider the approval of Frankfurt DivestCo Purchaser or adopts a final written decision that it shall not approve the Frankfurt DivestCo Purchaser: |
(A) | the Sellers’ Guarantor shall promptly notify the other parties to this Agreement in writing (and provide the other parties to this Agreement with a copy of the relevant notice from the Commission); |
(B) | the Approval Condition shall be deemed to have been satisfied in part for the purposes of the transfer of the Amsterdam DivestCo Shares, the London DivestCo Shares (but not for the purposes of the transfer of the Frankfurt DivestCo Shares); |
(C) | subject to the satisfaction or waiver of the Condition set out in paragraph 2 of Schedule 1 (Conditions to Completion): |
(i) | the Amsterdam DivestCo Seller and the Amsterdam DivestCo Purchaser shall proceed to complete the sale and purchase of the Amsterdam DivestCo Shares; and |
(ii) | the London DivestCo Seller and the London DivestCo Purchaser shall proceed to complete the sale and purchase of the London DivestCo Shares, |
(D) | with respect to the Frankfurt DivestCo Shares, where the Commission notifies the Sellers’ Guarantor in writing that it approves the London DivestCo Purchaser and the Amsterdam DivestCo Purchaser but that it requires further time to consider the approval of Frankfurt DivestCo Purchaser: |
(i) | clause 3.2 shall continue to apply to the Frankfurt DivestCo Seller and the Frankfurt DivestCo Purchaser with respect to the remaining outstanding part of the Approval Condition relating to the approval of Frankfurt DivestCo Purchaser; |
(ii) | if, prior to the Long Stop Date, the Commission subsequently notifies the Sellers’ Guarantor in writing that it approves the Frankfurt DivestCo Purchaser, the Frankfurt DivestCo Seller and Frankfurt DivestCo Purchaser shall proceed to complete the sale and purchase of the Frankfurt DivestCo Shares and the provisions of clauses 6.1 to 6.4, 6.6 to 6.8, 7.1 and 7.2 (and the definitions of “Completion” and “Completion Date”) shall apply to the sale and purchase of such shares mutatis mutandis, save that clause 6.6(C) shall not apply; |
(iii) | if completion of the sale and purchase of the Amsterdam DivestCo Shares and the London DivestCo Shares occurs pursuant to clause 6.5(C), but the Commission does not approve the Frankfurt DivestCo Purchaser by 5.00 p.m. on the Long Stop Date, the provisions of this Agreement (other than the Continuing Provisions) shall cease to apply in respect of the Frankfurt DivestCo Shares only; |
(E) | with respect to the Frankfurt DivestCo Shares, where the Commission notifies the Sellers’ Guarantor in writing that it approves the London DivestCo Purchaser and the Amsterdam DivestCo Purchaser and adopts a final written decision that it shall not approve Frankfurt DivestCo Purchaser the provisions of this Agreement (other than the Continuing Provisions) shall cease to apply in respect of the Frankfurt DivestCo Shares only. |
6.6 | If (i) the obligations of the Sellers under clause 6.3 and Schedule 2 are not complied with on the Completion Date, the Purchasers may, or (ii) the obligations of the Purchasers under clause 6.3 and of Schedule 2 (Completion arrangements) are not complied with on the Completion Date, the Sellers may: |
(A) | defer Completion to a date not beyond the Long Stop Date (so that the provisions of this clause 6 shall apply to Completion as so deferred); |
(B) | proceed to Completion as far as practicable (without limiting its rights under this Agreement); or |
(C) | in the event of a material breach of such obligations, terminate this Agreement with immediate effect by way of notice in writing to the other parties. |
6.7 | If this Agreement is terminated in accordance with clause 6.6(C) and without limiting any party’s right to claim damages, all obligations of the parties under this Agreement shall end (except for the Continuing Provisions) but (for the avoidance of doubt) all rights and liabilities of the parties which have accrued before termination shall continue to exist. |
6.8 | Following Completion, the parties will comply with their respective obligations set out in Schedule 8 (Completion Accounts). |
6.9 | Immediately prior to Completion the Sellers shall procure that any and all Encumbrances over the Shares or the AMS04 SPV Shares or assets of any member of the Target Group or AMS04 SPV are irrevocably and unconditionally released. |
7. | Sellers’ warranties and undertakings |
7.1 | Subject to clause 7.5: |
(A) | the London DivestCo Seller warrants to the London DivestCo Purchaser; |
(B) | the Amsterdam DivestCo Seller warrants to the Amsterdam DivestCo Purchaser; and |
(C) | the Frankfurt DivestCo Seller warrants to the Frankfurt DivestCo Purchaser, |
7.2 | The Amsterdam DivestCo Seller warrants to the Amsterdam DivestCo Purchaser that (i) each of the AMS04 SPV Warranties set out in Schedule 4 (AMS04 SPV Warranties) is true and accurate at the date of this Agreement, and (ii) each of the AMS04 SPV Fundamental Warranties and AMS04 SPV Anti-bribery Warranties is true and accurate immediately before Completion (by reference to the facts and circumstances existing on such date). |
7.3 | Except in the case of fraud, each Purchaser acknowledges that it does not rely on and has not been induced to enter into this Agreement on the basis of any warranties, representations, covenants, undertakings, indemnities or other statements whatsoever, other than those which are set out in the Share Purchase Documents, and acknowledges that none of the Sellers, the AMS04 SPV Seller, any member of the Retained Group, AMS04 SPV, any member of the Target Group or any of their respective agents, officers or employees has given any warranties, representations, covenants, undertakings, indemnities or other statements which are not set out in the Share Purchase Documents. |
7.4 | Each of the Sellers’ Warranties and the AMS04 SPV Warranties shall be construed as being separate and independent and (except where expressly provided to the contrary) shall not be limited or restricted by reference to or inference from the terms of any other Sellers’ Warranty or AMS04 SPV Warranty. |
7.5 | The only Sellers’ Warranties given: |
(A) | in respect of Property are those contained in paragraphs 6, 15, 18 and 25 of Schedule 3 (Sellers’ Warranties), none of the other Sellers’ Warranties shall be deemed to be, whether directly or indirectly, a Sellers’ Warranty in respect of Property and each Purchaser acknowledges and agrees that each Seller makes no other warranty in relation to Property; |
(B) | in respect of Intellectual Property or rights in information (or agreements relating thereto) are those contained in paragraphs 6, 15 and 17 of Schedule 3 (Sellers’ Warranties), none of the other Sellers’ Warranties shall be deemed to be, whether directly or indirectly, a Sellers’ Warranty in respect of Intellectual Property or rights in information (or agreements relating thereto) and each Purchaser acknowledges and agrees that each Seller makes no other warranty in relation to Intellectual Property or rights in information (or agreements relating thereto); |
(C) | in respect of Information Technology (or agreements relating thereto) are those contained paragraphs 6, 15 and 17 of Schedule 3 (Sellers’ Warranties), none of the other Sellers’ Warranties shall be deemed to be, whether directly or indirectly, a Sellers’ Warranty in respect of Information Technology (or agreements relating thereto) and each Purchaser acknowledges and agrees that each Seller makes no other warranty in relation to Information Technology (or agreements relating thereto); |
(D) | in respect of pensions and employment matters are those contained paragraphs 6, 15, 19 and 20 of Schedule 3 (Sellers’ Warranties), none of the other Sellers’ Warranties shall be deemed to be, whether directly or indirectly, a Sellers’ Warranty in respect of pensions and employment matters and each Purchaser acknowledges and agrees that each Seller makes no other warranty in relation to pensions and employment matters; and |
(E) | in respect of Tax are the Tax Warranties and those contained in paragraphs 6, 15 and 24 of Schedule 3 (Sellers’ Warranties), none of the other Sellers’ Warranties shall be deemed to be, whether directly or indirectly, a Sellers’ Warranty in respect of Tax and each Purchaser acknowledges and agrees that each Seller makes no other warranty in relation to Tax. |
7.6 | The only AMS04 SPV Warranties given: |
(A) | in respect of Property are those contained in paragraph 8 and paragraph 9 of Schedule 4 (AMS04 SPV Warranties), none of the other AMS04 SPV Warranties shall be deemed to be, whether directly or indirectly, an AMS04 SPV Warranty in respect of Property and each Purchaser acknowledges and agrees that the Amsterdam DivestCo Seller make no other AMS04 SPV Warranty in relation to Property; and |
(B) | in respect of Tax are those contained in paragraph 8 and paragraph 13 of Schedule 4 (AMS04 SPV Warranties), none of the other AMS04 SPV Warranties shall be deemed to be, whether directly or indirectly, an AMS04 SPV Warranty in respect of Tax and each Purchaser acknowledges and agrees that the Amsterdam DivestCo Seller makes no other AMS04 SPV Warranty in relation to Tax. |
7.7 | The Amsterdam DivestCo Seller undertakes to pay to the Amsterdam DivestCo Purchaser such amount as is required to hold and keep the Amsterdam DivestCo Purchaser indemnified on an after-Tax basis from and against any and all Losses (or, under clauses 7.7(A), 7.7(B) and 7.7(D) any and all Losses and Tax) suffered or incurred by Amsterdam DivestCo or any member of the Purchasers’ Group: |
(A) | in relation to, or arising out of, or as a result of, any failure to fully implement the Amsterdam Reorganisation; |
(B) | in relation to, or arising out of, or as a result of, any failure to carry out the Amsterdam Reorganisation in accordance with the Carve-out Memorandum and the Amsterdam Deed of Demerger; |
(C) | as a result of the steps taken to implement the Amsterdam Reorganisation; or |
(D) | in relation to, or arising out of, or as a result of, any failure of the AMS04 SPV Seller to transfer AMS04 SPV to Amsterdam DivestCo in accordance with the provisions of clause 24 (Transfer of AMS04 SPV Shares). |
7.8 | The Frankfurt DivestCo Seller undertakes to pay to the Frankfurt DivestCo Purchaser such amount as is required to hold and keep the Frankfurt DivestCo Purchaser indemnified on an after-Tax basis from and against any and all Losses (or, under clauses 7.8(A) and 7.8(B), any and all Losses and Tax) suffered or incurred by Frankfurt DivestCo or any member of the Purchasers’ Group: |
(A) | in relation to, or arising out of, or as a result of, any failure to fully implement the Frankfurt Reorganisation; |
(B) | in relation to, or arising out of, or as a result of, any failure to carry out the Frankfurt Reorganisation in accordance with the Carve-out Memorandum and the Frankfurt Demerger Agreement; or |
(C) | as a result of the steps taken to implement the Frankfurt Reorganisation. |
7.9 | The London DivestCo Seller undertakes to pay to the London DivestCo Purchaser such amount as is required to hold and keep the London DivestCo Purchaser indemnified on an after-Tax basis from and against any and all Losses (or, under clauses 7.9(A), 7.9(B) |
(A) | in relation to, or arising out of, or as a result of, any failure to fully implement the London Reorganisation; |
(B) | in relation to, or arising out of, or as a result of, any failure to carry out the London Reorganisation in accordance with the Carve-out Memorandum and the London Business Transfer Agreement; |
(C) | as a result of the steps taken to implement the London Reorganisation; or |
(D) | as a result of any claim by or on behalf of a London BTA Seller under clauses 9.3(B) or 9.5 of the London Business Transfer Agreement. |
7.10 | For the avoidance of doubt, the undertakings given by the Sellers in clauses 7.7 to 7.9 shall not apply to any Loss that is a result of, or related to, the ongoing operation of any member of the Target Group following the completion of the Reorganisation, any historic liabilities of the Target Business which have transferred to the Target Group pursuant to completion of the Reorganisation, or where such member has provided any indemnity (but excluding clauses 9.3(B) and 9.5 of the London Business Transfer Agreement) or other assurance against loss, or assumed liabilities, under the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement (as relevant). |
7.11 | The Sellers and the AMS04 SPV Seller shall use best endeavours to procure the absolute and unconditional release and discharge in full at Completion (or as soon as reasonably practicable thereafter) of each letter of credit, guarantee, indemnity (excluding the indemnities given under the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement (as relevant)), security obligation or other assurance against loss (including any undertaking or commitment to provide any such letter of credit, guarantee, indemnity, security obligation or other assurance against loss), granted or entered into by any member of the Target Group or AMS04 SPV in relation to, or arising out of, an obligation or liability of the Sellers, the AMS04 SPV Seller or any member of the Retained Group, or any of its or their employees, agents, advisers or persons otherwise connected with them (each a “Target Group Guarantee”), at the cost of the Sellers and the AMS04 SPV Seller, and prior to any such release, each Seller and the AMS04 SPV Seller undertakes to each Purchaser, for itself and as trustee for each other member of the Retained Group: |
(A) | to hold and keep each member of the Purchasers’ Group indemnified on an after-Tax basis from and against any and all Losses and Tax incurred by the relevant member of the Purchasers’ Group in relation to, or arising out of, any Target Group Guarantee after Completion; and |
(B) | that it will not, and will procure that no other person shall, enter into any variation of any agreement which may have the effect of varying any Target Group Guarantee in any way which may adversely affect the interests of any member of the Purchasers’ Group, including by way of increasing the liability of the Target Group or AMS04 SPV under such Target Group Guarantee, without the prior written consent of the Purchasers. |
7.12 | Each Seller and the AMS04 SPV Seller shall (and shall procure that the Retained Group shall): |
(A) | co-operate with the Purchasers in relation to actions required to be taken by the Purchasers in accordance with clauses 9.5, 9.6 and 9.9 (Purchasers’ warranties |
(B) | enter into the Frankfurt Lease Amendment Documentation (as applicable) and all such documentation (including deeds of assignment, novation or release) as may be reasonably necessary to effect the release and discharge of the Target Group Guarantees and the Retained Group Guarantees. |
7.13 | The Amsterdam DivestCo Seller undertakes to procure the entry prior to Completion by Amsterdam DivestCo into the Amsterdam Phase 1 Fit-out Agreements and Amsterdam Phase 2 Fit-out Agreements not already entered into at the date of this Agreement. |
7.14 | Each Seller and the AMS04 SPV Seller agrees and undertakes that (in the absence of fraud) it has no rights against and shall not make any claim against any member of the Target Group, AMS04 SPV, or any employee director, agent, officer or adviser of such member or AMS04 SPV, arising in connection with any Share Purchase Document. |
7.15 | The Sellers shall procure that no claims shall be brought by any member of the Retained Group under the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement, the Transitional Services Agreements, the agreements listed in Schedule 17 (Ongoing Arrangements), the Amsterdam DivestCo Loans, the AMS04 SPV Loans, the Frankfurt Loans and any loans between London DivestCo and any member of the Target Group in relation to any fact, matter or circumstance existing prior to Completion, save for any claims relating to (i) payments made under clauses 8.5 or 8.6 of the London Business Transfer Agreement, or (ii) claims made by third parties. |
7.16 | The London DivestCo Seller undertakes to pay to the London DivestCo Purchaser such amount as is required to hold and keep the London DivestCo Purchaser indemnified on an after-Tax basis against any Losses suffered or incurred by London DivestCo which London DivestCo would not have otherwise suffered or incurred had the final form settlement agreement disclosed at section 2.5.2-A of the Data Room been signed by the parties thereto at the date of this Agreement. |
7.17 | The London DivestCo Seller undertakes to procure at its sole cost the payment of the LON1 Contribution in accordance with the provisions of the LON1 Agreement for Lease. |
7.18 | The London DivestCo Seller hereby covenants pay to London DivestCo (or the relevant member of the Purchaser Group) an amount equal to any stamp duty land tax payable by London DivestCo in connection with the grant of the LON1 Lease should the liability to pay such stamp duty land tax arise after Completion. |
7.19 | The London DivestCo Seller shall procure that no more than 5 Business Days prior to Completion: |
(A) | London DivestCo, Telecity Group Limited and Equinix (UK) Limited enter into a side letter to effect the determination and allocation of the final consideration payable under clause 4 of the London Business Transfer Agreement, provided that the total aggregate amount of consideration payable under the London Business Transfer Agreement shall not exceed an amount equal to the London DivestCo Purchase Price minus the Bonnington House Consideration Amount; |
(B) | the principal amount of the loans advanced pursuant to the terms of the TGL Intercompany Loan Agreement and the EUL Intercompany Loan Agreement are amended to reflect the side letter referred to in paragraph (a) above and the |
(C) | part of the principal amount payable under the TGL Intercompany Loan Agreement (as amended pursuant to paragraph (b) above) (the “TGL Prepayment Amount”) shall be prepaid (and accrued interest shall be prepaid first before the principle) to ensure that the total aggregate amount of principal and (where applicable) accrued interest outstanding immediately prior to Completion under the TGL Intercompany Loan Agreement and the EUL Intercompany Loan Agreement does not exceed an amount equal to the London DivestCo Purchase Price minus the Bonnington House Consideration Amount. |
7.20 | In order to fund the prepayment referred to in clause 7.19, the London DivestCo Sellers shall procure that no more than 5 Business Days prior to Completion: |
(A) | Telecity Group Limited subscribes for, and TelecityGroup Investments Limited allots and issues, one or more ordinary shares in the share capital of TelecityGroup Investments Limited in consideration for the payment by Telecity Group Limited to TelecityGroup Investments Limited of an amount equal to the TGL Prepayment Amount; |
(B) | TelecityGroup Investments Limited subscribes for, and the London DivestCo Seller allots and issues, one or more ordinary shares in the share capital of London DivestCo Seller in consideration for the payment by TelecityGroup Investments Limited to London DivestCo Seller of an amount equal to the TGL Prepayment Amount; and |
(C) | London DivestCo Seller subscribes for, and the London DivestCo allots and issues, one or more ordinary shares in the share capital of London DivestCo in consideration for the payment by London DivestCo Seller to London DivestCo of an amount equal to the TGL Prepayment Amount. |
7.21 | The Amsterdam DivestCo Seller shall procure that, no earlier than 5 Business Days prior to Completion, the amount owing under the AMS04 SPV Loan shall be adjusted to ensure that the total aggregate amount of principal and accrued interest outstanding under the AMS04 SPV Loan following such adjustment and immediately prior to Completion is equal to the AMS04 SPV Completion Payment, provided that: |
(A) | none of Amsterdam DivestCo, AMS04 SPV or the Amsterdam DivestCo Purchaser shall have any greater liability on any basis whatsoever (including under any of the Share Purchase Documents, common law or otherwise); and |
(B) | no shares in the share capital of AMS04 SPV shall be allotted and/or issued to any person other than AMS04 SPV Seller and no interest shall be created in any of the AMS04 SPV Shares, |
7.22 | In consideration of the payment of the Network Service Charges pursuant to paragraph 5 of Schedule 20 (Customer Networks), the London DivestCo Seller will provide, or procure the provision of, the Network Services in accordance with the terms of Schedule 20 (Customer Networks). |
7.23 | The Sellers undertake on behalf of themselves and the Retained Group not to make any claims against Ove Arup & Partners International Ltd and the Sellers’ Accountants that would as a result reduce the amount that any Purchaser would be entitled to claim under the reliance letters from Ove Arup & Partners International Ltd and the Sellers’ Accountants to be issued to the Purchasers on Completion in accordance with Part A of Schedule 2. |
7.24 | The Amsterdam DivestCo Seller undertakes to pay to the Amsterdam DivestCo Purchaser such amount as is required to hold and keep the Amsterdam DivestCo Purchaser indemnified on an after-Tax basis against any Losses up to EUR2,650,000 suffered or incurred by Amsterdam DivestCo as a result of it being necessary for Amsterdam DivestCo to enter into additional contracts or revise the scope of existing contracts because the Amsterdam Phase 2 Fit-out Agreements do not contain provisions to the substantive effect that the contractors will carry out the Phase 2 Science Park Fit-out to substantially the same standard and quality as the Phase 1 Science Park Fit-out. |
7.25 | The Amsterdam DivestCo Seller undertakes to pay to the Amsterdam DivestCo Purchaser such amount as is required to hold and keep the Amsterdam DivestCo Purchaser indemnified on an after-Tax basis against any Losses up to EUR500,000 incurred as a result of a penalty amount being paid by Amsterdam DivestCo to SURFsara B.V in accordance with the terms of an agreement dated 20 December 2013 between SURFsara B.V. and Telecity Netherlands B.V. (transferred to Amsterdam DivestCo under the Amsterdam Deed of Demerger) in the event that Science Park is not available for SURFsara B.V. to deploy into by 1 September 2016. |
8. | Sellers’ Guarantor |
8.1 | The Sellers’ Guarantor hereby unconditionally and irrevocably guarantees to each Purchaser the full, due and punctual performance by each Seller, the AMS04 SPV Seller and each member of the Retained Group of their respective obligations under: |
(A) | in the case of any Seller or the AMS04 Seller, this Agreement and any other Share Purchase Document to which that Seller or AMS04 Seller is a party; and |
(B) | in the case of any member of the Retained Group, the London Business Transfer Agreement, the Amsterdam Deed of Demerger and the Frankfurt Demerger Agreement. |
8.2 | If and whenever any Seller, the AMS04 SPV Seller or any member of the Retained Group (or any of their respective successors and assigns) defaults for any reason whatsoever in the performance of any of its obligations under this Agreement, any of the other Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement, as the case may be, the Sellers’ Guarantor shall forthwith upon demand: |
(A) | whenever any Seller, the AMS04 SPV Seller or member of the Retained Group does not pay any amount when due under or in connection with this Agreement, any of the other Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement immediately pay that amount as if it were the principal obligor; and |
(B) | whenever any Seller, the AMS04 SPV Seller or member of the Retained Group (or any of their respective successors and assigns) does not perform any other |
8.3 | The Sellers’ Guarantor undertakes that if any amount guaranteed pursuant to clause 8.1 is not recoverable on the basis of a guarantee for any reason it will (as a separate and independent obligation) pay to the relevant Purchaser on demand an amount equal to the amount it would have been liable to pay but for such irrecoverability, together with an amount equal to any Losses and Tax suffered or incurred by the relevant Purchaser as a result of such irrecoverability. |
8.4 | This guarantee is to be a continuing guarantee and accordingly is to remain in force until all of each of the Seller’s, the AMS04 SPV Seller’s and any member of the Retained Group’s obligations under this Agreement and all of the Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger and the Frankfurt Demerger Agreement shall have been performed notwithstanding the winding up, liquidation, dissolution or other incapacity of any Seller, the AMS04 SPV Seller or any member of the Retained Group (or any of their respective successors and assigns) or any change in the status, control or ownership of any Seller, the AMS04 SPV Seller or any member of the Retained Group (or any of their respective successors and assigns). This guarantee is in addition to and not substitution for any rights or security which the Purchasers may have or hold for the performance of each of the Seller’s, the AMS04 SPV Seller’s or any member of the Retained Group’s obligations pursuant to the Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger and the Frankfurt Demerger Agreement. |
8.5 | The Sellers’ Guarantor warrants to the Purchasers that (i) at the date of this Agreement, and (ii) immediately before Completion: |
(A) | the Sellers’ Guarantor has the requisite power and authority to enter into and perform this Agreement and the other Share Purchase Documents to which it is a party; |
(B) | the obligations of the Sellers’ Guarantor under this Agreement constitute, and the obligations of the Sellers’ Guarantor under the other Share Purchase Documents will, when delivered, constitute binding obligations of the Sellers’ Guarantor in accordance with their respective terms; |
(C) | the execution and delivery of, and the performance by the Sellers’ Guarantor of its obligations under, this Agreement and the other Share Purchase Documents will not: |
(i) | result in a breach of any provision of the bylaws of the Sellers’ Guarantor; |
(ii) | result in a breach of, or constitute a default under, any instrument to which the Sellers’ Guarantor is a party or by which the Sellers’ Guarantor is bound; |
(iii) | result in a breach of any order, judgment or decree of any court or governmental agency to which the Sellers’ Guarantor is a party or by which the Sellers’ Guarantor is bound; or |
(iv) | require the consent of its shareholders; |
(D) | no order has been made and no resolution has been passed for the winding up of the Sellers’ Guarantor and no petition has been presented for the purpose of winding up the Sellers’ Guarantor; |
(E) | no administration order has been made and no petition or application for such an order has been made or presented and no administrator has been appointed in respect of the Sellers’ Guarantor; |
(F) | no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Sellers’ Guarantor or all or any of its assets; and |
(G) | no composition or similar arrangement with creditors including, but not limited to, a voluntary arrangement has been proposed in respect of the Sellers’ Guarantor. |
9. | Purchasers’ warranties and undertakings |
(B) | The Amsterdam DivestCo Purchaser warrants to the Amsterdam DivestCo Seller; and |
(C) | The Frankfurt DivestCo Purchaser warrants to the Frankfurt DivestCo Seller, |
9.2 | Subject to clause 9.3, each Purchaser covenants to the Sellers that: |
(A) | subject to clause 9.2(B) below, between the date of this Agreement and 31 July 2016, it shall not, and it shall procure that no member of the Purchasers’ Group shall, undertake any act, matter or course of action which directly and solely results in the Approval Condition not being satisfied; and |
(B) | if and to the extent a Force Majeure Event occurs before the Approval Condition is satisfied and results in any delay to the satisfaction of the Approval Condition, the time period applying to the covenant in clause 9.2(A) shall be extended by a period equal to the length of the Force Majeure Event or to 31 August 2016, whichever is earlier. |
9.3 | The parties agree that upon satisfaction of the Approval Condition in respect of the London DivestCo Purchaser and the Amsterdam DivestCo Purchaser, the covenant in clause 9.2 shall cease to have effect. |
9.4 | Not less than thirty days before the Completion Date, the Purchasers shall notify the Sellers in writing of the Overlay Employees they do not wish to retain following Completion. |
9.5 | The Purchasers shall promptly use best endeavours to procure the absolute and unconditional release and discharge in full at Completion (or as soon as reasonably practicable thereafter) of the guarantees (i) listed in Schedule 18 (Specified Retained Group Guarantees) and (ii) entered into after the date of this Agreement but before Completion |
(A) | in relation to any Specified Retained Group Guarantee that is a granted or entered into by any Seller, the AMS04 SPV Seller or any other member of the Retained Group, replace such Specified Retained Group Guarantee with either: (i) a guarantee, indemnity, security obligation or other assurance against loss from a member of the Purchasers’ Group of appropriate financial standing; or (ii) a guarantee provided by a bank or other financial institution, in each case sufficient to secure the release of such Specified Retained Group Guarantee; and |
(B) | in relation to any Specified Retained Group Guarantee that is provided by any bank or other financial institution at the request of any Seller, the AMS04 SPV Seller or any other member of the Retained Group, take all necessary action (including the entering into of deeds of transfer, novation or assignment) to assume all obligations (including the payment of any ongoing fees) of any Seller, the AMS04 SPV Seller or any other member of the Retained Group (as applicable) in relation to such Specified Retained Group Guarantee. If and to the extent that the benefit of any such Specified Retained Group Guarantee is received by the Purchaser, any member of the Target Group or AMS04 SPV, on or after the Completion Date, but any payment (by way of deposit, prepayment or otherwise) has been made by any Seller, the AMS04 Seller or any other member of the Retained Group, in respect of the price or cost of any such Specified Retained Group Guarantee, then the Purchaser shall, or shall procure that the relevant member of the Target Group or AMS04 SPV shall, pay a sum equal to the relevant pro rata proportion of that payment relating to the period after Completion to the relevant Seller or the AMS04 Seller and shall hold such sum on trust for the relevant Seller or AMS04 Seller until it is paid over. |
9.6 | Subject to clause 9.7, the Purchasers shall use reasonable endeavours to procure the absolute and unconditional release and discharge in full of each guarantee, including any undertaking or commitment to provide any such guarantee not listed in Schedule 18 and: |
(A) | granted or entered into by any Seller, the AMS04 SPV Seller or any other member of the Retained Group; or |
(B) | provided by any bank or other financial institution at the request of any Seller, the AMS04 SPV Seller or any other member of the Retained Group, |
9.7 | Notwithstanding clause 9.6, once the Purchasers have released and discharged Other Retained Group Guarantees guaranteeing a sum in aggregate in excess of £500,000 the covenant in clause 9.6 shall cease to apply and the Purchasers, Sellers and AMS04 SPV Seller shall, acting reasonably, co-operate with each other in good faith to procure the absolute and unconditional release and discharge of any further Other Retained Group Guarantees in a mutually satisfactory manner. |
9.8 | Prior to any release under clauses 9.5, each Purchaser undertakes to each Seller and the AMS04 SPV Seller, for itself and as trustee for each other member of the Retained Group: |
(A) | to hold and keep each member of the Retained Group indemnified on an after-Tax basis from and against any and all Losses and Tax incurred by the relevant member of the Retained Group in relation to, or arising out of, any Specified Retained Group Guarantee after Completion; and |
(B) | that it will not, and will procure that no other person shall, enter into any variation of any agreement which may have the effect of varying any Specified Retained Group Guarantee in any way which may adversely affect the interests of any member of the Retained Group, including by way of increasing the liability of the Sellers or the AMS04 SPV Seller (or other relevant member of the Retained Group) under such Specified Retained Group Guarantee, without the prior written consent of the relevant Seller or the AMS04 SPV Seller (as the case may be). |
9.9 | The Frankfurt DivestCo Purchaser shall use best endeavours to, at Completion (or as soon as practicable thereafter): |
(A) | enter into documentation with the landlord under the Frankfurt Lease and the Sellers' Guarantor with the effect that the 4th and 5th amendments to the Frankfurt Lease would cease to have effect or that the Sellers’ Guarantor is fully released from any and all obligations thereunder (the "Frankfurt Lease Amendment Documentation"); and |
(B) | procure the entry into of any letter of credit, guarantee, indemnity, security obligation or other assurance against loss (including any undertaking or commitment to provide any such letter of credit, guarantee, indemnity, security obligation or assurance) that, in each case, may be lawfully required or requested by the landlord under the Frankfurt Lease (with respect to release of obligations only) or the Sellers' Guarantor in connection with the Frankfurt Lease Amendment Documentation, and |
9.10 | Each Purchaser shall (and shall procure that the Purchasers’ Group shall): |
(A) | co-operate with the Sellers and the AMS04 SPV Seller in relation to actions required to be taken by the Sellers and the AMS04 SPV Seller in accordance with clause 7.11 (Sellers’ warranties and undertakings) to procure the release and discharge of the Target Group Guarantees; and |
(B) | shall enter into all such documentation (including deeds of assignment, novation or release) as may be reasonably necessary to effect the release and discharge of the Target Group Guarantees. |
9.11 | The Purchasers shall procure that each member of the Purchasers’ Group complies with their respective obligations under Schedule 20 (Customer Networks). |
10. | Purchasers’ Guarantor |
10.1 | The Purchasers’ Guarantor hereby unconditionally and irrevocably guarantees to each Seller and the AMS04 SPV Seller the full, due and punctual performance by each Purchaser and by each member of the Purchasers’ Group of their respective obligations under: |
(A) | in the case of any Purchaser, this Agreement and any other Share Purchase Document to which that Purchaser is a party; and |
(B) | in the case of any member of the Purchasers’ Group, the London Business Transfer Agreement, the Amsterdam Deed of Demerger and the Frankfurt Demerger Agreement. |
10.2 | If and whenever any Purchaser or any member of the Purchasers’ Group (or any of their respective successors and assigns) defaults for any reason whatsoever in the performance of any of its obligations under this Agreement, any of the other Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement, as the case may be, the Purchasers’ Guarantor shall forthwith upon demand: |
(A) | whenever any Purchaser or member of the Purchasers’ Group does not pay any amount when due under or in connection with this Agreement, any of the other Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement, immediately pay that amount as if it were the principal obligor; and |
(B) | whenever any Purchaser or member of the Purchasers’ Group (or any of their respective successors and assigns) does not perform any other obligations under or in connection with this Agreement, any of the other Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement, the Purchasers’ Guarantor shall unconditionally perform (or procure the performance of) such obligation and satisfy (or procure satisfaction of) the obligation, commitment or undertaking in regard to which such default has been made in the manner prescribed by this Agreement, any of the other Share Purchase Documents, the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement, |
10.3 | The Purchasers’ Guarantor undertakes that if any amount guaranteed pursuant to clause 10.1 is not recoverable on the basis of a guarantee for any reason it will (as a separate and independent obligation) pay to the relevant Seller on demand an amount equal to the amount it would have been liable to pay but for such irrecoverability, together with an amount equal to any Losses and Tax suffered or incurred by the relevant Seller as a result of such irrecoverability. |
10.4 | This guarantee is to be a continuing guarantee and accordingly is to remain in force until all of each of the Purchaser’s and any member of the Purchasers’ Group’s obligations under this Agreement and all of the Share Purchase Documents, the London Business |
10.5 | The Purchasers’ Guarantor undertakes not (without the prior written consent of the Sellers and the AMS04 SPV Seller) to effect, enter into or permit to occur any Trigger Event without first procuring the execution and delivery in favour of the Sellers and the AMS04 SPV Seller of either: |
(A) | a replacement third party guarantee from a sufficiently credit-worthy entity reasonably acceptable to the Sellers and the AMS04 SPV Seller; or |
(B) | a bank guarantee from a reputable financial institution reasonably acceptable to the Sellers and the AMS04 SPV Seller, |
10.6 | The Purchasers’ Guarantor shall notify the Sellers and the AMS04 SPV Seller in writing as soon as practicable after it becomes aware that any Trigger Event is reasonably likely to occur. Such notice shall include: |
(A) | details of the Trigger Event; |
(B) | details of the party which the Purchasers’ Guarantor proposes would provide the Replacement Guarantee; and |
(C) | the draft form of the Replacement Guarantee. |
10.7 | The Purchasers’ Guarantor warrants to each Seller and the AMS04 SPV Seller that (i) at the date of this Agreement, and (ii) immediately before Completion: |
(A) | the Purchasers’ Guarantor has the requisite power and authority to enter into and perform this Agreement and the other Share Purchase Documents to which it is a party; |
(B) | the obligations of the Purchasers’ Guarantor under this Agreement constitute, and the obligations of the Purchasers’ Guarantor under the other Share Purchase Documents will, when delivered, constitute binding obligations of the Purchasers’ Guarantor in accordance with their respective terms; |
(C) | the execution and delivery of, and the performance by the Purchasers’ Guarantor of its obligations under, this Agreement and the other Share Purchase Documents will not: |
(i) | result in a breach of any provision of the memorandum or articles of association or other constitutional documents of the Purchasers’ Guarantor; |
(ii) | result in a breach of, or constitute a default under, any instrument to which the Purchasers’ Guarantor is a party or by which the Purchasers’ Guarantor is bound; |
(iii) | result in a breach of any order, judgment or decree of any court or governmental agency to which the Purchasers’ Guarantor is a party or by which the Purchasers’ Guarantor is bound; or |
(iv) | require the consent of its shareholders; |
(D) | no order has been made and no resolution has been passed for the winding up of the Purchasers’ Guarantor and no petition has been presented for the purpose of winding up the Purchasers’ Guarantor; |
(E) | no administration order has been made and no petition or application for such an order has been made or presented and no administrator has been appointed in respect of the Purchasers’ Guarantor; |
(F) | no receiver (which expression shall include an administrative receiver) has been appointed in respect of the Purchasers’ Guarantor or all or any of its assets; and |
(G) | no composition or similar arrangement with creditors including, but not limited to, a voluntary arrangement has been proposed in respect of the Purchasers’ Guarantor. |
10.8 | Notwithstanding any other provision of this clause 10 the Purchasers’ Guarantor shall not be liable for any obligation or liability of any member of the Retained Group which is not expressly assumed by a member of the Target Group pursuant to the terms of this Agreement, the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement (including, for the avoidance of doubt, any obligation or liability of the Amsterdam DivestCo Seller or Frankfurt DivestCo Seller for which any member of the Target Group may become liable upon the occurrence of any insolvency, liquidation, winding-up or analogous event in respect of the Amsterdam DivestCo Seller or Frankfurt DivestCo Seller). |
11. | Purchasers’ remedies and Sellers’ limitations on liability |
11.1 | The Purchasers shall not be entitled to claim that any fact, matter or circumstance causes any of the Sellers’ Warranties or the AMS04 SPV Warranties to be breached if fairly disclosed in the Disclosure Letter or in any document delivered or deemed to be delivered with the Disclosure Letter. |
11.2 | No liability shall attach to any Seller in respect of claims under the Sellers’ Warranties or the AMS04 SPV Warranties, if and to the extent that the limitations set out in Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability) apply. |
11.3 | Save as provided in clauses 3.6 or 6.6, if the Purchasers become aware, whether before or after Completion, that there has been any breach of the Sellers’ Warranties or the AMS04 SPV Warranties or any other term of this Agreement, the Purchasers shall not be entitled to terminate or rescind this Agreement. |
12. | Transferring Contracts and Carve-out Memorandum |
12.1 | To the extent that there are any steps set out in the London Business Transfer Agreement, Amsterdam Deed of Demerger, Frankfurt Demerger Agreement or the Carve-out Memorandum the completion of which remains outstanding at the date of this Agreement, the Sellers shall complete or procure the completion of such steps as soon as reasonably practicable following the date of this Agreement in accordance with the relevant provisions of the London Business Transfer Agreement, Amsterdam Deed of Demerger, Frankfurt Demerger Agreement or the Carve-out Memorandum (as the case may be), subject to the following provisions of this clause 12. |
12.2 | In respect of each Transferring Contract, from the date of this Agreement the relevant Seller shall use reasonable endeavours to procure that such contract (or, in the case of a Shared Transferring Contract, that part of such contract that relates to the Target Business) is transferred from the Retained Group to the relevant member of the Target Group (which shall include (i) taking such reasonable steps to obtain all Third Party Consents required in connection with such transfer, including continuing to send communications to any counterparty which has not responded to a request for consent, together with any further engagement and communication with a third party to address any issues or concerns that such third party has in respect of granting the Third Party Consent and (ii) any other reasonable steps as may be necessary to effect the transfer of such Transferring Contract) in accordance with the provisions of the London Business Transfer Agreement, Amsterdam Deed of Demerger, Frankfurt Demerger Agreement or the Carve-out Memorandum (as the case may be). The relevant Seller shall indemnify the relevant Purchaser (or the relevant member of the Purchasers’ Group) on an after-Tax basis against any Losses and Tax suffered or incurred by such member of the Purchasers’ Group in relation to the act of transfer of such Transferring Contract but, for the avoidance of doubt, such indemnity shall not extend to any Losses and Tax incurred or suffered by any member of the Purchasers’ Group in relation to: (i) performance of past or ongoing obligations under that Transferring Contract; or (ii) the provision or procurement of any credit, guarantee, indemnity, security obligation or other assurance against loss in relation to that Transferring Contract. |
12.3 | In relation to each Transferring Contract which has not expired prior to the Completion Date and which has not been transferred from the Retained Group to the Target Group pursuant to clause 12.2 prior to the Completion Date (an “Outstanding Transferring Contract”), from the Completion Date to the date on which such Outstanding Transferring Contract (or, in the case of a Shared Transferring Contract, that part of such contract that relates to the Target Business) is transferred from the Retained Group to the Target Group: |
(A) | the relevant Seller shall continue to use reasonable endeavours to procure that such contract (or, in the case of a Shared Transferring Contract, that part of such contract that relates to the Target Business) is transferred from the Retained Group to the relevant member of the Target Group (which shall include (i) taking such reasonable steps to obtain all Third Party Consents required in connection with such transfer, including continuing to send communications to any counterparty which has not responded to a request for consent, together with any further engagement and communication with a third party to address any issues or concerns that such third party has in respect of granting the Third Party Consent and (ii) any other reasonable steps as may be necessary to effect the transfer of such Transferring Contract, including co-operating with the Purchasers (acting reasonably) in respect of any steps taken by the Purchasers to effect such transfer); |
(B) | the relevant Seller shall (or shall procure that the relevant member of the Retained Group shall) hold the benefit of that Outstanding Transferring Contract (or in the case of a Shared Transferring Contract, that part of such contract that relates to the Target Business) as trustee on trust for the relevant member of the Target |
(C) | (i) to the extent permissible under such Outstanding Transferring Contract, the relevant Purchaser shall procure that the relevant member of the Target Group shall perform on behalf of the relevant Seller (or the relevant member of the Retained Group), at the expense of such Purchaser (on behalf of the relevant member of the Target Group), all the obligations (or, in the case of a Shared Transferring Contract, the obligations relating to the Target Business) of the relevant Seller (or the relevant member of the Retained Group) under such Outstanding Transferring Contract as agent for the relevant Seller (or the relevant member of the Retained Group) and the relevant Purchaser shall indemnify the relevant Seller (or the relevant member of the Retained Group) on an after-Tax basis against any Losses and Tax incurred or suffered by the relevant member of the Retained Group in relation to such performance (save to the extent that (i) such Loss arises or is increased as a result of any occupational lease agreement not having been validly transferred to London DivestCo prior to the Completion Date; or (ii) the relevant Seller is itself in breach of its obligations in relation to such contract under this clause 12); or (ii) to the extent such Outstanding Transferring Contract does not permit the relevant member of the Target Group from acting as agent for the relevant Seller (or the relevant member of the Retained Group) the relevant Seller shall (or shall procure that the relevant member of the Retained Group shall), at the expense of the relevant Purchaser promptly do all such acts and things as the relevant Purchaser may reasonably require to enable due performance and enforcement of such Outstanding Transferring Contract to the extent relating to the Target Business and to provide to the relevant member of the Target Group the benefits, subject to the burdens, of such Outstanding Transferring Contract (or, in the case of a Shared Transferring Contract, to the extent relating to the Target Business), and the relevant Seller shall indemnify the relevant Purchaser (or the relevant member of the Purchasers’ Group) on an after-Tax basis against any Losses and Tax incurred or suffered by the relevant member of the Purchasers’ Group in relation to any such acts and things; |
(D) | the relevant Seller shall (or shall procure that the relevant member of the Retained Group shall) do all such acts and things as the relevant Purchaser may reasonably request to enable the relevant Purchaser to enforce its rights under such Outstanding Transferring Contract; and |
(E) | the relevant Seller shall (or shall procure that the relevant member of the Retained Group shall) not agree to any amendment or waiver of any provision of such Outstanding Transferring Contract without the prior written consent of the relevant Seller. |
12.4 | The relevant Seller shall indemnify the relevant Purchaser (or the relevant member of the Purchasers’ Group) on an after-Tax basis against any Losses incurred or suffered by the relevant member of the Purchasers’ Group in relation to any breach of any Outstanding Transferring Contract caused by the arrangements set out in clauses 12.3(B) and 12.3(C) and in clause 7.6 of the London Business Transfer Agreement. |
13. | Wrong pockets |
13.1 | If the legal title to, and/or the contractual right to use, any asset (except any Excluded Required Asset, Intellectual Property or Business Information or asset to be transferred in accordance with clause 12 (Transferring Contracts and Carve-out Memorandum)) which (i) is not required for, or used in, the Target Business as at the Completion Date, and (ii) is required for, or used in, any member of the Retained Group or the business of the |
(A) | execute all such documents as may be necessary for the purpose of transferring (free from any Encumbrances created after the Completion Date) the legal title to, and/or the right to use, such Required Asset to the relevant Seller (or, at the relevant Seller's option, another member of the Retained Group); and |
(B) | do, or procure the doing of, all such further acts or things as the relevant Seller may reasonably request for the purpose of transferring the legal title to, and/or the right to use, such Required Asset to the relevant Seller (or, at the relevant Seller's option, another member of the Retained Group). |
13.2 | If the legal title to, and/or the contractual right to use, any asset (except any Excluded Missing Asset, Intellectual Property, Business Information or asset to be transferred in accordance with clause 12 (Transferring Contracts and Carve-out Memorandum)) which (i) is required for, or used in, the Target Business as at the Completion Date, and (ii) is not required for, or used in, any member of the Retained Group or the business of the Retained Group as at the Completion Date (such asset, a "Missing Asset") is held by any member of the Retained Group after the Completion Date, the relevant Seller shall procure that the relevant member of the Retained Group shall hold such Missing Asset for the account of the relevant Purchaser (or, at the relevant Purchaser's option, a member of the Purchasers’ Group) and shall, as soon as reasonably practicable, procure that, subject to any required Third Party Consents being obtained, the legal title to, and/or the right to use, such Missing Asset is transferred to the relevant Purchaser (or, at the relevant Purchaser's option, a |
(A) | execute all such documents as may be necessary for the purpose of transferring (free from any Encumbrances created after the Completion Date) the legal title to, and/or the right to use, such Missing Asset to the relevant Purchaser (or, at the relevant Purchaser's option, a member of the Target Group); and |
(B) | do, or procure the doing of, all such further acts or things as the relevant Purchaser may reasonably request for the purpose of transferring the legal title to, and/or the right to use, such Missing Asset to the relevant Purchaser (or, at the relevant Purchaser's option, a member of the Target Group). |
13.3 | If the legal title to, and/or the contractual right to use, any asset (except any (i) asset to which the Target Group is granted access under any Share Purchase Document or which is used for the provision of services by any member of the Retained Group under the Transitional Services Agreements or any other ancillary agreement between any member of the Target Group and the Retained Group, (ii) Intellectual Property, (iii) Business Information or (iv) asset to be transferred in accordance with clause 12 (Transferring contracts and Carve-out Memorandum)) which (i) is required for, or used in, the Target Business as at the Completion Date, and (ii) is required for, or used in, any member of the Retained Group or the business of the Retained Group as at the Completion Date (such asset, a “Shared Required Asset”) is held by any member of the Target Group or any member of the Retained Group after the Completion Date, the relevant Purchaser and the relevant Seller shall, as soon as reasonably practicable after notification of such Shared Required Asset by the relevant Purchaser to the relevant Seller or the relevant Seller to the relevant Purchaser (as applicable), negotiate in good faith the appropriate allocation of the ownership and/or use of that Shared Required Asset. |
13.4 | Where a Third Party Consent is required for the transfer of legal title to and/or the contractual right to use any Required Asset or Missing Asset pursuant to clause 13.1 or 13.2, the party responsible for effecting such transfer shall use all reasonable endeavours, at the expense of the relevant Seller, to obtain any such Third Party Consent as soon as reasonably practicable following the date of this Agreement. |
13.5 | Each party shall promptly notify the other parties in writing upon it becoming aware of any Required Asset being in the possession, custody or control of any member of the Target Group or of any Missing Asset being in the possession, custody or control of any member of the Retained Group. |
13.6 | Clauses 13.1 to 13.5 (inclusive) shall apply only where the relevant notification pursuant to, and in accordance with clause 13.5 is given within six months after the Completion Date. Such clauses are without prejudice to the rights and remedies of the parties arising out of this Agreement, including without limitation, in respect of any breach of the Sellers’ Warranties, the AMS04 SPV Warranties, and the Sellers’ Guarantor’s Warranties. |
14. | Sale, purchase and assignment of the Frankfurt Payables |
14.1 | The Frankfurt DivestCo Seller shall sell, or procure the sale of, the Frankfurt Payables on Completion for a purchase price equal to the aggregate amount of the Frankfurt Payables to the Frankfurt DivestCo Purchaser (the “Frankfurt Payables Purchase Price”) and assign the Frankfurt Payables to the Frankfurt DivestCo Purchaser by executing, or procuring the execution by the relevant members of the Retained Group of, separate deeds of assignment substantially in the form set out in Schedule 13 (Frankfurt Payables Deed of Assignment) (“Frankfurt Payables Deeds of Assignment”). The Frankfurt DivestCo Seller shall notify the Frankfurt DivestCo Purchaser of the Frankfurt Payables Purchase Price no later than three Business Days prior to Completion. The Frankfurt DivestCo Purchaser acknowledges and accepts the sale of the Frankfurt Payables and undertakes to execute the Frankfurt Payables Deeds of Assignment on Completion and to procure the delivery to the Frankfurt DivestCo Seller as soon as practicable after Completion of the Frankfurt Payables Notice duly executed by Frankfurt DivestCo. |
14.2 | The Frankfurt DivestCo Purchaser shall procure that no member of the Purchasers’ Group shall repay or otherwise settle, whether in whole or in part, any of the Frankfurt Payables for a period of one year following Completion. |
15. | Sale, purchase and assignment of the Amsterdam DivestCo Payables |
15.1 | The Amsterdam DivestCo Seller shall sell, or procure the sale of, the Amsterdam DivestCo Payables on Completion for a purchase price equal to the aggregate amount of the Amsterdam DivestCo Payables to the Amsterdam DivestCo Purchaser (the “Amsterdam DivestCo Payables Purchase Price”) and transfer the Amsterdam DivestCo Payables to the Amsterdam DivestCo Purchaser by executing, or procuring the execution by the relevant members of the Retained Group of, separate deeds of transfer of contract (contractsovername) substantially in the form set out in Schedule 14 (Amsterdam DivestCo Payables Deed of Transfer of Contract) (“Amsterdam DivestCo Payables Deeds of Transfer of Contract”). The Amsterdam DivestCo Seller shall notify the Amsterdam DivestCo Purchaser of the Amsterdam DivestCo Payables Purchase Price and the agreements to be transferred to effectuate the transfer of the Amsterdam DivestCo Payables no later than three Business Days prior to Completion. The Amsterdam DivestCo Purchaser acknowledges and accepts the transfer of the Amsterdam DivestCo Payables and undertakes to execute the Amsterdam DivestCo Payables Deeds of Transfer of Contract on Completion. The Amsterdam DivestCo Payables Purchase Price shall be paid in full without set-off or counter-claim and free from any deduction or withholding whatsoever, except as required by law. |
15.2 | The Amsterdam DivestCo Seller shall procure that no Amsterdam DivestCo Payables are repaid in whole or in part prior to Completion. |
16. | Intellectual Property and Business Information |
16.1 | Without prejudice to paragraph 17 of Schedule 3 (Sellers’ Warranties), if any Seller, the AMS04 SPV Seller or any member of the Retained Group owns after Completion any Intellectual Property (excluding trade marks) or rights in Business Information (other than Excluded Business Information) which relate exclusively to the business of any member of the Target Group, such Seller or the AMS04 SPV Seller (as the case may be) shall |
16.2 | Without prejudice to paragraph 17 of Schedule 3 (Sellers’ Warranties), if any member of the Target Group owns after Completion any Intellectual Property or rights in Business Information (other than customer contract records, client relationship management records and historic invoicing records which relate to the business of any member of the Target Group) which relate exclusively to the business of any member of the Retained Group, the relevant Purchaser shall procure that such Intellectual Property and/or rights in Business Information are transferred to the relevant Seller or a company nominated by such Seller for nominal consideration as soon as reasonably practicable upon becoming aware of the ownership of such rights. |
16.3 | Without prejudice to paragraph 17 of Schedule 3 (Sellers’ Warranties) and subject to the terms of the Transitional Services Agreements, each Seller and the AMS04 SPV Seller hereby grant, and shall procure the grant by each relevant member of the Retained Group, (with effect from Completion) to the Purchasers a non-exclusive, perpetual, worldwide, assignable, royalty-free licence (with the right to sub-license to all members of the Purchasers’ Group) of all Intellectual Property (excluding trade marks) and rights in Business Information owned by such Seller, the AMS04 SPV Seller or a member of the Retained Group at Completion which relates to the business of the Target Group. |
16.4 | Without prejudice to paragraph 17 of Schedule 3 (Sellers’ Warranties) and subject to the terms of the Transitional Services Agreements, each Purchaser hereby grants, and shall procure the grant by each relevant member of the Purchasers’ Group, (with effect from Completion) to the Sellers and the AMS04 SPV Seller a non-exclusive, perpetual, worldwide, assignable, royalty-free licence (with the right to sub-license to all members of the Retained Group) of all Intellectual Property (excluding trade marks) and rights in Business Information owned by such Purchaser at Completion or a member of the Purchasers’ Group which is necessary for the operation and/or viability of the business of the Retained Group. |
16.5 | Subject to clause 17.4 (Restrictions on the Sellers’, the AMS04 SPV Seller’s and the Purchasers’ business activities and additional post-Completion undertakings), each Seller and the AMS04 SPV Seller hereby grants, and shall procure the grant by each relevant member of the Retained Group, (with effect from Completion) to the Purchasers a non-exclusive, worldwide, royalty-free licence (with the right to sub-license to all members of the Purchasers’ Group) to use all Intellectual Property in the Business Names owned by such Seller, the AMS04 SPV Seller or a member of the Retained Group solely for the purposes for which such Intellectual Property in the Business Names was used by such Seller, the AMS04 SPV Seller or member of the Retained Group in relation to the activities of the Target Group during the six month period immediately preceding Completion. The licence granted pursuant to this clause 16.5 (and any sub-licences) shall terminate on the date that falls five months after Completion (the “Run-Off Licence Termination Date”). |
16.6 | The Purchasers shall procure, with effect from the Run-Off Licence Termination Date, that the Target Group and AMS04 SPV shall cease to use the Business Name in any signage, advertising, promotional and sales materials, product literature, software, stationery, business cards, websites and any other materials. |
16.7 | Save for any licences granted pursuant to the Transitional Services Agreements and the licences granted pursuant to this clause 16 the Sellers and the AMS04 SPV Seller shall procure that all licences of any Intellectual Property or rights in Business Information owned by any member of the Target Group (or to be owned by the Purchasers or their nominee |
16.8 | Save for any licences granted pursuant to the Transitional Services Agreements and the licences granted pursuant to this clause 16 the Purchasers shall procure that all licences of any Intellectual Property or rights in Business Information owned by any member of the Retained Group (or to be owned by any Seller, the AMS04 SPV Seller or any of their nominees pursuant to clause 16.2) granted to any member of the Target Group terminate at Completion. |
16.9 | Subject to clause 16.5 and clause 17.4 and without prejudice to the trade mark rights of the Retained Group, the Purchasers shall procure that for: |
(A) | a minimum period of five years following Completion; and |
(B) | thereafter for so long as any member of the Retained Group continues to retain an interest in any Business Name, |
17. | Restrictions on the Sellers’, the AMS04 SPV Seller’s and the Purchasers’ business activities and additional post-Completion undertakings |
17.1 | Each Seller and the AMS04 SPV Seller undertakes that it will not (and will procure that no other member of the Retained Group will), neither pending nor within twelve months after Completion, solicit or entice away any person who is a Senior Employee (or any other person who is a Key Employee) except for those who (i) answer a general advertisement, or (ii) those who are approached when they are no longer employed by, or have resigned from their employment with, a member of the Target Group, in each case, without any coercion, solicitation or enticement from such Seller, the AMS04 SPV Seller or any other member of the Retained Group. |
17.2 | Each Purchaser undertakes that it will not (and will procure that no other member of the Purchasers’ Group will), neither pending nor within twelve months after Completion, solicit or entice away any Senior Retained Group Employee of the Retained Group except for those who (i) answer a general advertisement, or (ii) those who are approached when they are no longer employed by, or have resigned from their employment with, a member of the Retained Group, in each case, without any coercion, solicitation or enticement from such Purchaser or any other member of the Purchasers’ Group. |
17.3 | The parties acknowledge and agree that, for a period of ten years after Completion, no member of the Retained Group shall acquire, whether directly or indirectly, the possibility of exercising influence over the whole or part of the Target Group unless, following the submission of a reasonable request from the Sellers’ Guarantor showing good cause and accompanied by a report from the Monitoring Trustee, the Commission has given its prior written consent. |
17.4 | The Purchasers shall procure that London DivestCo, Amsterdam DivestCo and Frankfurt DivestCo whose corporate name contains the word Telecity, as soon as reasonably practicable following Completion and in any event by the date falling thirty days after Completion, pass all required resolutions to change their corporate names to a name which does not include the name Equinix or Telecity or any confusingly similar name and shall procure the prompt registration of the new name with the appropriate court or registry. Upon receipt of confirmation from the appropriate court or registry that such name change |
17.5 | The Amsterdam DivestCo Purchaser shall procure that AMS04 SPV, whose corporate name contains the word Equinix, as soon as reasonably practicable following Completion and in any event by the date falling thirty days after Completion, passes all required resolutions to change its corporate name to a name which does not include the name Equinix or Telecity or any confusingly similar name and shall procure the prompt registration of the new name with the appropriate court or registry. Upon receipt of confirmation from the appropriate court or registry that such name change has been effected, the Amsterdam DivestCo Purchaser shall provide the AMS04 SPV Seller with written proof that such name change has been effected. |
17.6 | Other than in respect of Schedule 1 of the London Business Transfer Agreement: |
(A) | the Sellers and the AMS04 SPV Seller shall procure that no member of the Retained Group shall bring any claim against any member of the Purchasers’ Group or the Target Group; and |
(B) | the Purchasers shall procure that no member of the Purchasers’ Group shall bring any claim against any member of the Retained Group, |
18. | Customer Contracts |
18.1 | Notwithstanding any other provision of this Agreement, if following Completion: |
(A) | a Material Customer Contract is lawfully terminated by a customer of the London Divestment Business solely on the basis of a breach of that Material Customer Contract as a result of the London Reorganisation; |
(B) | at that time such customer has no right to terminate for convenience that would allow it to terminate that Material Customer Contract within 6 months of the termination referred to in clause 18.1(A); and |
(C) | such customer does not enter into a new contract with London DivestCo in replacement of that Material Customer Contract within one month from the termination and generating revenue equal to or more than the revenue from the previous contract, |
18.2 | For the avoidance of doubt, no Compensation Payment shall be due under clause 18.1 unless and until the requirements of paragraph 2.1(B)(ii) of Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability) are satisfied. |
18.3 | In the event that the London DivestCo Seller becomes aware of any customer alleging that such customer has a termination right under a Material Customer Contract which may |
18.4 | For the avoidance of doubt, nothing in this clause 18 shall require any member of the Purchasers’ Group to bring proceedings against any customer in respect of any Material Customer Contract. |
19. | Bonnington House |
19.1 | The London DivestCo Seller shall procure that as soon as reasonably practicable following the date of this Agreement and in any event prior to Completion, the LON1 Agreement for Lease and the LON1 Lease are duly executed, delivered and completed by the parties thereto, in each case in the form set out in Attachment 3 (LON 1 Documents), and simultaneously with the completion of such documents, the LON1 Legal Opinions are issued by the relevant law firms. For the avoidance of doubt, no amendment, variation or supplement shall be made to the agreed forms of the LON1 Agreement for Lease or the LON1 Lease set out in Attachment 3 (LON 1 Documents) prior to their execution, or to any approved form of the LON1 Legal Opinions, without the prior written consent of the London DivestCo Purchaser (which may be withheld at the sole and absolute discretion of the London DivestCo Purchaser). |
19.2 | Notwithstanding any other provision of this Agreement, if the LON1 Agreement for Lease and the LON1 Lease have not been duly executed and completed by the parties thereto prior to Completion and the LON1 Legal Opinions have not been simultaneously issued: |
(A) | the London DivestCo Consideration and the London DivestCo Completion Payment shall be reduced by £30,000,000 (the “Bonnington House Consideration Amount”) and the London DivestCo Purchaser shall not be entitled to any other remedy arising from the breach of London DivestCo’s obligation under clause 19.1; and |
(B) | following Completion, the London DivestCo Seller shall continue to use its best endeavours to procure that the LON1 Agreement for Lease and the LON1 Lease are duly executed by the parties thereto. |
19.3 | If, after Completion but prior to 31 December 2016, the LON1 Agreement for Lease and the LON1 Lease are duly executed by the parties thereto, the London DivestCo Purchaser shall, within 5 Business Days on the date on which such agreements are executed, pay to the London DivestCo Seller an amount equal to the Bonnington House Consideration Amount. |
19.4 | If the LON1 Agreement for Lease and the LON1 Lease have not been duly executed by the parties thereto prior to 31 December 2016, then the obligation in clause 19.2(B) shall cease to apply, the London DivestCo Purchaser shall have no obligation to pay the Bonnington House Consideration Amount to the London DivestCo Seller and the London DivestCo Seller shall have no liability in respect of Bonnington House / Archway House to the London DivestCo Purchaser under this clause 19. |
20. | Residual liabilities from statutory demergers |
20.1 | As from Completion, the Frankfurt DivestCo Seller agrees to perform its obligations under sections 2.12.4 and 5.1 of the Frankfurt Demerger Agreement. |
20.2 | As from Completion, the Frankfurt DivestCo Purchaser shall procure that Frankfurt DivestCo performs its obligations under sections 1.4.3, 2.10.1, 2.12.4, 2.13.13, 5.2, 5.3 and 10.1.3 of the Frankfurt Demerger Agreement. |
20.3 | As from Completion, the Amsterdam DivestCo Seller shall indemnify and hold harmless, on an after-Tax basis, the Amsterdam DivestCo Purchaser and Amsterdam DivestCo from and against any and all Losses, relating to Amsterdam RetainCo (pursuant to and in accordance with article 2:334t DCC) incurred or suffered by Amsterdam DivestCo. |
20.4 | The indemnification given under clause 20.3 is limited to: |
(A) | any and all indivisible obligations (ondeelbare verbintenissen) that Amsterdam RetainCo had at the time of completion of the Amsterdam Statutory Demerger and that were retained or intended to be retained with Amsterdam RetainCo in accordance with the Amsterdam Statutory Demerger; and |
(B) | in the case of any and all divisible obligations (deelbare verbintenissen) which were retained or intended to be retained with Amsterdam RetainCo in accordance with the Amsterdam Statutory Demerger, the value of the assets and liabilities which were transferred to Amsterdam DivestCo. |
20.5 | As from Completion, the Amsterdam DivestCo Purchaser undertakes to pay to the Amsterdam DivestCo Seller, on an after-Tax basis, such amount as is required to hold and keep the Amsterdam DivestCo Seller and Amsterdam RetainCo indemnified on an after-Tax basis from and against any and all Losses relating to Amsterdam DivestCo (pursuant to and in accordance with article 2:334t DCC) incurred or suffered by Amsterdam RetainCo (or any of its legal successors) or the Amsterdam DivestCo Seller. |
20.6 | The payment given under clause 20.5 is limited to: |
(A) | any and all indivisible obligations (ondeelbare verbintenissen) that the Amsterdam RetainCo had at the time of completion of the Amsterdam Statutory Demerger and that were transferred or intended to be transferred to Amsterdam DivestCo in accordance with the Amsterdam Statutory Demerger; and |
(B) | in the case of any and all divisible obligations (deelbare verbintenissen) which were transferred or intended to be transferred to Amsterdam DivestCo in accordance with the Amsterdam Statutory Demerger, the value of the assets and liabilities which were retained with Amsterdam RetainCo. |
20.7 | Each of the parties shall take all commercially reasonable efforts to procure that any obligation for which the other party is liable pursuant to article 2:334t DCC is duly fulfilled. |
21. | Employment matters |
21.1 | Upon being notified of any amounts to which an Amsterdam Relevant Employee is entitled under their Retention Plan, the Amsterdam DivestCo Seller undertakes to pay to the Amsterdam DivestCo Purchaser, within fourteen days of such notification by the Amsterdam DivestCo Purchaser, an amount equal to the amount due under the Retention Plan (inclusive of all payroll Taxes, social security contributions or other associated costs), and the Amsterdam DivestCo Purchaser shall then, at the next payroll date after the entitlements under the Retention Plan have become due, pay to that Amsterdam Relevant Employee the amounts notified to the Amsterdam DivestCo Seller as being attributable to them. |
21.2 | Upon being notified of any amounts to which a Frankfurt Relevant Employee is entitled under their Retention Plan, the Frankfurt DivestCo Seller undertakes to pay to the Frankfurt DivestCo Purchaser, within fourteen days of such notification by the Frankfurt DivestCo |
21.3 | Upon being notified of any amounts to which a London Relevant Employee is entitled under their Retention Plan, the London DivestCo Seller undertakes to pay to the London DivestCo Purchaser, within fourteen days of such notification by the London DivestCo Purchaser, an amount equal to the amount due under the Retention Plan (inclusive of all payroll Taxes, social security contributions or other associated costs), and the London DivestCo Purchaser shall then, at the next payroll date after the entitlements under the Retention Plan have become due, pay to that London Relevant Employee the amounts notified to the London DivestCo Seller as being attributable to them. |
21.4 | Subject to clause 21.1, to the extent that an Amsterdam Additional Overlay Employee remains employed by Amsterdam DivestCo on or after the Completion Date, the Amsterdam DivestCo Seller undertakes to pay to the Amsterdam DivestCo Purchaser (for itself and on behalf of Amsterdam DivestCo) such amount as is required to hold and keep the Amsterdam DivestCo Purchaser (for itself and on behalf of Amsterdam DivestCo) indemnified on an after-Tax basis against any costs or liabilities arising out of or in accordance with the employment of such Amsterdam Additional Overlay Employee following the Completion Date and any transitional payments (transitievergoeding) due in respect of the termination of employment of such Amsterdam Additional Overlay Employee, provided that (i) notice of dismissal (if not already served prior to the Completion Date) is validly served upon the Amsterdam Additional Overlay Employee, or that (ii) a request to the court to dissolve the employment agreement of an Amsterdam Additional Overlay Employee is filed, or that (iii) a termination agreement in accordance with article 7:670b DCC has been received by the Additional Overlay Employee, on a date falling on or before one month following the Completion Date and that the Amsterdam DivestCo Purchaser uses reasonable endeavours to minimise the costs and liabilities arising from such termination of employment, save that this indemnity shall not extend to any costs, expenses, damages, compensation, fines or other liabilities arising out of or in connection with any allegations against Amsterdam DivestCo for unlawful discrimination and/or any allegations in connection with Amsterdam DivestCo’s manner of dismissal (including any claims for fair payments (billijke vergoeding) on the basis of book 7 title 10 of the DCC), in each case resulting from the acts or omissions of Amsterdam DivestCo on or after the Completion Date. |
21.5 | Subject to clause 21.2, to the extent that a Frankfurt Additional Overlay Employee remains employed by Frankfurt DivestCo on or after the Completion Date, the Frankfurt DivestCo Seller undertakes to pay to the Frankfurt DivestCo Purchaser (for itself and on behalf of Frankfurt DivestCo) such amount as is required to hold and keep the Frankfurt DivestCo Purchaser (for itself and on behalf of Frankfurt DivestCo), in case of termination of employment of any Frankfurt Additional Overlay Employee, indemnified on an after-Tax basis in respect of the respective Frankfurt Additional Overlay Employee’s salary (including social dues and other employment costs) and benefits payable up to and during the notice period plus a severance up to the amount calculated in accordance with section 6.2 of the Compromise of Interests (Interessenausgleich) dated 17 February 2016, and in respect of any costs for legal representation and legal fees in connection with the termination of employment of such Additional Overlay Employee, provided that notice of dismissal (if not already served prior to the Completion Date) is served upon the relevant Frankfurt Additional Overlay Employee on a date falling on or before one month following the Completion Date and that the Frankfurt DivestCo Purchaser uses reasonable endeavours to minimise the costs and liabilities arising from such termination of employment. In case |
21.6 | Subject to clause 21.3, to the extent that a London Additional Overlay Employee remains employed by London DivestCo on or after the Completion Date, the London DivestCo Seller undertakes to pay to the London DivestCo Purchaser (for itself and on behalf of London DivestCo) such amount as is required to hold and keep the London DivestCo Purchaser (for itself and on behalf of London DivestCo) indemnified on an after-Tax basis against any costs or liabilities arising out of or in accordance with the employment of such London Additional Overlay Employee following the Completion Date and the termination of employment of any London Additional Overlay Employee, provided that notice of dismissal (if not already served prior to the Completion Date) is validly served upon the London Additional Overlay Employee on a date falling on or before one month following the Completion Date and that the London DivestCo Purchaser uses reasonable endeavours to minimise the costs and liabilities arising from such termination of employment, save that this indemnity shall not extend to any costs, expenses, damages, compensation, fines or other liabilities arising out of or in connection with any allegations against London DivestCo for unlawful discrimination resulting from the acts or omissions of London DivestCo on or after the Completion Date. |
21.7 | Subject to clause 21.8, the Amsterdam DivestCo Purchaser shall procure that Amsterdam DivestCo shall agree that for a period of two years following the Completion Date, the Amsterdam Relevant Employees will: |
(A) | continue to receive basic salary and contractual benefits including pension benefits which are no less favourable than the salary and contractual benefits of the Amsterdam Relevant Employees as at the Completion Date; |
(B) | not suffer any change to their terms and conditions of employment (whether contractual or otherwise) and including, without limitation, any related to length of service, which could reasonably be regarded as detrimental to any of the Amsterdam Relevant Employees. |
21.8 | Clause 21.7 shall not apply where changes are agreed with the Amsterdam Relevant Employees individually or collectively, or from the date of termination of employment of a Amsterdam Relevant Employee whose employment terminates for any reason. |
21.9 | If the employment of any Amsterdam Relevant Employee is terminated by reason of redundancy within two years following the Completion Date, the Amsterdam DivestCo Purchaser shall procure that Amsterdam DivestCo shall apply in respect of such Amsterdam Relevant Employee such redundancy payments (whether contractual or otherwise and giving due credit for any additional service or earnings of the Amsterdam Relevant Employee following the Completion Date) as are no less favourable than those applicable in respect of the particular Amsterdam Relevant Employee at the date of this |
21.10 | The Amsterdam DivestCo Purchaser’s agreement to the provisions of clauses 21.7 to 21.9 inclusive is given by the Amsterdam DivestCo Purchaser on the express understanding that, notwithstanding any lack of direct enforceability by any Amsterdam Relevant Employee, if the Amsterdam DivestCo Purchaser is in breach of any such provisions, the Amsterdam DivestCo Seller (for itself and as agent for each Amsterdam Relevant Employee) may enforce such provisions on the Amsterdam Relevant Employee’s behalf. |
21.11 | Subject to clause 21.12, the Frankfurt DivestCo Purchaser shall procure that Frankfurt DivestCo shall agree that for a period of two years following the Completion Date, the Frankfurt Relevant Employees will: |
(A) | continue to receive basic salary and contractual benefits including pension benefits which are no less favourable than the salary and contractual benefits of the Frankfurt Relevant Employees as at the Completion Date; and |
(B) | not suffer any change to their terms and conditions of employment (whether contractual or otherwise) and including, without limitation, any related to length of service, which could reasonably be regarded as detrimental to any of the Frankfurt Relevant Employees. |
21.12 | Clause 21.10 shall not apply where changes are agreed with the Frankfurt Relevant Employees individually or collectively or from the date of termination of employment of a Frankfurt Relevant Employee whose employment terminates for any reason. |
21.13 | If the employment of any Frankfurt Relevant Employee is terminated by reason of redundancy on or prior to 30 June 2018, the Frankfurt DivestCo Purchaser shall procure that Frankfurt DivestCo shall, in respect of such Frankfurt Relevant Employee, comply with the stipulations of the Compromise of Interests (Interessenausgleich) dated 17 February 2016. |
21.14 | The Frankfurt DivestCo Purchaser's agreement to the provisions of clauses 21.10 to 21.13 inclusive is given by the Frankfurt DivestCo Purchaser on the express understanding that, notwithstanding any lack of direct enforceability by any Frankfurt Relevant Employee, if the Frankfurt DivestCo Purchaser is in breach of any such provisions, the Frankfurt DivestCo Seller (for itself and as agent for each Frankfurt Relevant Employee) may enforce such provisions on the Frankfurt Relevant Employee’s behalf. |
21.15 | Subject to clause 21.16 the London DivestCo Purchaser shall procure that London DivestCo shall agree that for a period of two years following the Completion Date, the London Relevant Employees will: |
(A) | continue to receive basic salary and contractual benefits including pension benefits which are no less favourable than the salary and contractual benefits of the London Relevant Employees as at the Completion Date; and |
(B) | not suffer any change to their terms and conditions of employment (whether contractual or otherwise) and including, without limitation, any related to length of service, which could reasonably be regarded as detrimental to any of the London Relevant Employees; |
21.16 | Clause 21.15 shall not apply where changes are agreed with the London Relevant Employees individually or collectively or from the date of termination of employment of a London Relevant Employee whose employment terminates for any reason. |
21.17 | If the employment of any London Relevant Employee is terminated by reason of redundancy within two years following the Completion Date, the London DivestCo Purchaser shall procure that London DivestCo shall apply in respect of such London Relevant Employee such redundancy payments (whether contractual or otherwise and giving due credit for any additional service or earnings of the London Relevant Employee following the Completion Date) as are no less favourable than those applicable in respect of the particular London Relevant Employee at the date of this Agreement provided that details of such policies and benefits are set out in the Disclosure Letter. |
21.18 | The London DivestCo Purchaser's agreement to the provisions of clauses 21.15 to 21.17 inclusive is given by the London DivestCo Purchaser on the express understanding that, notwithstanding any lack of direct enforceability by any London Relevant Employee, if the London DivestCo Purchaser is in breach of any such provisions, the London DivestCo Seller (for itself and as agent for each London Relevant Employee) may enforce such provisions on the London Relevant Employee’s behalf. |
21.19 | As from Completion, the Amsterdam DivestCo Purchaser shall procure that, for a period of not less than two years after the Completion Date, the directors of Amsterdam DivestCo will be covered by directors’ and officers’ liability insurance cover in respect of that individual’s position as a director of Amsterdam DivestCo, subject to the terms of the applicable scheme as in force from time to time. |
21.20 | As from Completion, the Frankfurt DivestCo Purchaser shall procure that, for a period of not less than two years after the Completion Date, the directors of Frankfurt DivestCo will be covered by directors’ and officers’ liability insurance cover in respect of that individual’s position as a director of Frankfurt DivestCo, subject to the terms of the applicable scheme as in force from time to time. |
21.21 | As from Completion, the London DivestCo Purchaser shall procure that, for a period of not less than two years after the Completion Date, the directors of London DivestCo will be covered by directors’ and officers’ liability insurance cover in respect of that individual’s position as a director of London DivestCo, subject to the terms of the applicable scheme as in force from time to time. |
21.22 | Save as permitted by clause 4 (Conduct of business before Completion), the Amsterdam DivestCo Seller undertakes that it will not, and will procure that Amsterdam DivestCo will not, during the time period between the date of this Agreement and the Completion Date make any offer of employment to any person who would become an Amsterdam Relevant Employee if they accepted such offer, without the prior written consent of the Amsterdam DivestCo Purchaser. For the avoidance of doubt, this clause shall not operate to restrict or prevent the offer of employment to any individual in the ordinary course of business between the date of this Agreement and the Completion Date who would become a Replacement Relevant Employee if they accepted such an offer. |
21.23 | Save as permitted by clause 4, the Frankfurt DivestCo Seller undertakes that it will not, and will procure that Frankfurt DivestCo will not, during the time period between the date of this Agreement and the Completion Date make any offer of employment to any person who would become a Frankfurt Relevant Employee if they accepted such offer, without the prior written consent of the Frankfurt DivestCo Purchaser. For the avoidance of doubt, this clause shall not operate to restrict or prevent the offer of employment to any individual in the ordinary course of business between the date of this Agreement and the Completion Date who would become a Replacement Relevant Employee if they accepted such an offer. |
21.24 | Save as permitted by clause 4, the London DivestCo Seller undertakes that it will not, and will procure that London DivestCo will not, during the time period between the date of this |
22. | Access |
22.1 | The Purchasers shall make available to each Seller and the AMS04 SPV Seller any Books and Records of any of London DivestCo, Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV (or, if practicable, the relevant parts of those Books and Records) relating to the period prior to Completion which are required by such Seller, the AMS04 SPV Seller or any other member of the Retained Group for the purpose of dealing with its or any other member of the Retained Group's Tax, regulatory and accounting affairs and, accordingly, the Purchasers shall, upon being given reasonable notice by any Seller or the AMS04 SPV Seller and subject to such Seller or the AMS04 SPV Seller (as the case may be) giving such undertaking as to confidentiality as the Purchasers shall reasonably require, procure that such Books and Records are made available to such Seller or the AMS04 SPV Seller (as the case may be) for inspection (during Working Hours) and copying (at the relevant Seller's or the AMS04 SPV Seller’s (as the case may be) expense) for and only to the extent necessary for such purpose and for a period of seven years from Completion. |
22.2 | Subject to clause 22.1, the Sellers and the AMS04 SPV Seller shall make available to each Purchaser any Books and Records of the Retained Group (or, if practicable, the relevant parts of those Books and Records) which are required by such Purchaser or any other member of the Purchasers’ Group for the purpose of dealing with its or any member of the Target Group's or AMS04 SPV’s Tax, regulatory and accounting affairs and, accordingly, the Sellers and the AMS04 SPV Seller shall, upon being given reasonable notice by the Purchasers and subject to the Purchasers giving such undertaking as to confidentiality as the Sellers or the AMS04 SPV Seller (as the case may be) shall reasonably require, procure that such Books and Records are made available to the Purchasers for inspection (during Working Hours) and copying (at the relevant Purchaser's expense) for and only to the extent necessary for such purpose and for a period of seven years from Completion. |
22.3 | Without limiting clause 22.2, the Sellers and the AMS04 SPV Seller shall make available to the Purchasers any Books and Records of the Retained Group (or, if practicable, the relevant parts of those Books and Records) that contain Excluded Business Information and accordingly, the Sellers and the AMS04 SPV Seller shall, upon being given reasonable notice by the Purchasers and subject to the Purchasers giving such undertakings as to confidentiality as the Sellers or the AMS04 SPV Seller (as the case may be) shall reasonably require, procure that such Books and Records are made available to the Purchasers for inspection (during Working Hours) and copying (at the relevant Seller's or the AMS04 SPV Seller’s (as the case may be) expense) for a period of seven years from Completion. |
23. | Permitted Transfer |
23.1 | The Amsterdam DivestCo Seller may transfer the Amsterdam DivestCo Shares to Virtu Secure Webservices B.V. (the “Permitted Transferee”) provided that the Permitted Transferee shall first have entered into a Deed of Adherence in the form set out in Schedule 16 (Form of Deed of Adherence) (a “Permitted Transfer”). |
23.2 | Upon completion of a Permitted Transfer, save in respect of the definition of “Amsterdam RetainCo”, all references to the “Amsterdam DivestCo Seller” and “TelecityGroup Netherlands B.V.” herein, and in any document in the agreed form (including the Tax |
23.3 | For the avoidance of doubt, upon completion of a Permitted Transfer, the obligations of TelecityGroup Netherlands B.V. under this Agreement and its liability in respect thereof shall cease except for the provisions of clauses 31 (Announcements) and 32 (Confidentiality). |
24. | Transfer of AMS04 SPV Shares |
24.1 | The Amsterdam DivestCo Seller shall procure that the AMS04 SPV Seller transfers the legal and beneficial title to the AMS04 SPV Shares to Amsterdam DivestCo immediately prior to Completion, free from all Encumbrances and together with all rights attached or accruing to the AMS04 SPV Shares (the “AMS04 SPV Transfer”) in consideration for the payment by Amsterdam DivestCo to AMS04 SPV Seller of EUR 1, the foregoing to be effected by the signing by the AMS04 SPV Seller, Amsterdan DivestCo, AMS04 SPV and the Dutch Notary of to the deed of transfer substantially in the form at Schedule 12 (Form of AMS04 SPV Deed of Transfer). |
24.2 | Notwithstanding clause 24.1, the provisions of Schedule 8 (Completion Accounts) shall apply without amendment as if the AMS04 SPV Transfer had not occurred. |
24.3 | At Completion, the Amsterdam DivestCo Seller shall sell, or procure the sale of, the AMS04 SPV Payables for a purchase price equal to the aggregate amount of the AMS04 SPV Payables (which, for the avoidance of doubt, are equal to the value of the AMS04 Site) to the Amsterdam DivestCo Purchaser (the “AMS04 SPV Payables Purchase Price”) and assign the AMS04 SPV Payables to the Amsterdam DivestCo Purchaser by executing, or procuring the execution by the relevant members of the Retained Group of, separate deeds of transfer of contract (contractsovername) substantially in the form set out in Schedule 15 (AMS04 SPV Payables Deed of Transfer of Contract) in (“AMS04 SPV Payables Deeds of Transfer of Contract”). The Amsterdam DivestCo Seller shall notify the Amsterdam DivestCo Purchaser of the AMS04 SPV Payables Purchase Price and the agreements to be transferred to effectuate the transfer of the AMS04 SPV Payables no later than three Business Days prior to Completion. The Amsterdam DivestCo Purchaser acknowledges and accepts the transfer of the AMS04 SPV Payables and undertakes to execute the AMS04 SPV Payables Deeds of Transfer of Contract on Completion. The AMS04 SPV Payables Purchase Price shall be paid in full without set-off or counter-claim and free from any deduction or withholding whatsoever, except as required by law. |
25. | Effect of Completion |
26. | Remedies and waivers |
26.1 | Except as provided in Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability), no delay or omission by any party to this Agreement in exercising any right, power or remedy provided by law or under this Agreement or any other documents referred to in it shall: |
(A) | affect that right, power or remedy; or |
(B) | operate as a waiver of it. |
26.2 | Except as provided in Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability), the single or partial exercise of any right, power or remedy provided by law or under this Agreement shall not, unless otherwise expressly stated, preclude any other or further exercise of it or the exercise of any other right, power or remedy provided by law or under this Agreement. |
26.3 | Without prejudice to any other rights or remedies that the parties may have, the parties acknowledge and agree that damages would not be an adequate remedy for any breach of clause 17 (Restrictions on the Sellers’, the AMS04 SPV Seller’s and the Purchasers’ business activities and additional post-Completion undertakings) and/or clause 32 (Confidentiality) and that the remedies of injunction, specific performance and other equitable remedies are appropriate for any threatened or actual breach of such clauses. |
27. | Assignment |
27.1 | Except as expressly set out in this Agreement (including clause 27.2) or the other Share Purchase Documents, no party shall assign, or purport to assign, all or any part of the benefit of, or its rights or benefits under, this Agreement or the other Share Purchase Documents (together with any causes of action arising in connection with any of them) without the prior written consent of the other parties. |
27.2 | From Completion, any Purchaser may assign all or any of its rights and benefits under this Agreement or any other Share Purchase Document (including any claim of action arising in connection with any of them) to any member of the Purchasers’ Group provided that if such assignee subsequently ceases to be a member of the Purchasers’ Group, such Purchaser shall procure that prior to its ceasing to be so such assignee reassigns to such Purchaser or (upon giving written notice to the Sellers and the AMS04 SPV Seller) to another member of the Purchasers’ Group such rights and benefits under this Agreement or the other Share Purchase Documents as have been assigned to it. |
27.3 | If an assignment is made in accordance with clause 27.2, the liabilities of the members of the Retained Group under the Share Purchase Documents shall be no greater than such liabilities would have been if the assignment had not occurred. |
27.4 | Except as expressly set out in this Agreement or the other Share Purchase Documents, no party shall make a declaration of trust in respect of or enter into any arrangement whereby it agrees to hold in trust for any other person all or any part of the benefit of, or its rights or benefits under, this Agreement or the other Share Purchase Documents. |
27.5 | Except as expressly set out in this Agreement or the other Share Purchase Documents, no party shall sub-contract or enter into any arrangement whereby another person is to perform any or all of its obligations under this Agreement or the other Share Purchase Documents. |
28. | Further assurance |
29. | Entire agreement |
29.1 | The Share Purchase Documents constitute the whole and only agreement between the parties relating to the sale and purchase of the Shares. |
29.2 | In the event of conflict between the provisions of this Agreement and the provisions of the London Business Transfer Agreement, the Amsterdam Deed of Demerger or the Frankfurt Demerger Agreement, the provisions of this Agreement shall take precedence. |
29.3 | Except in the case of fraud, each party acknowledges that, in entering into the Share Purchase Documents, it is not relying upon any pre contractual statement which is not repeated in any Share Purchase Document. |
29.4 | Except in the case of fraud, no Purchaser shall have any right of action against any other party to this Agreement arising out of or in connection with any pre contractual statement except to the extent that it is repeated in any Share Purchase Document. |
29.5 | For the purposes of this clause, "pre contractual statement" means any draft, agreement, undertaking, representation, warranty, promise, assurance or arrangement of any nature whatsoever, whether or not in writing, relating to the subject matter of the Share Purchase Documents made or given by any person at any time prior to this Agreement becoming legally binding. |
29.6 | This Agreement may only be varied in writing signed by each of the parties. |
30. | Notices |
30.1 | Except where expressly stated otherwise, a notice under this Agreement shall only be effective if it is in writing. E-mail is permitted. |
30.2 | Notices under this Agreement shall be sent to a party at its address or number and for the attention of the individual set out below: |
Party and title of individual | Address | E-mail address |
FAO: Peter Waters, Vice President EMEA Legal TelecityGroup International Limited | 80 Cheapside, London EC2V 6EE | Peter.Waters@eu.equinix.com |
FAO: Peter Waters, Vice President EMEA Legal TelecityGroup Netherlands B.V. | 80 Cheapside, London EC2V 6EE | Peter.Waters@eu.equinix.com |
FAO: Peter Waters, Vice President EMEA Legal TelecityGroup Germany GmbH | 80 Cheapside, London EC2V 6EE | Peter.Waters@eu.equinix.com |
FAO: Peter Waters, Vice President EMEA Legal Equinix (Real Estate) B.V. | 80 Cheapside, London EC2V 6EE | Peter.Waters@eu.equinix.com |
FAO: Peter Waters, Vice President EMEA Legal Equinix, Inc. | 80 Cheapside, London EC2V 6EE | Peter.Waters@eu.equinix.com |
FAO: General Counsel Digital Stout Holdings LLC | Four Embarcadero Center, Suite 3200, San Francisco, CA 94111, USA | jmills@digitalrealty.com |
FAO: General Counsel Digital Netherlands I BV | Four Embarcadero Center, Suite 3200, San Francisco, CA 94111, USA | jmills@digitalrealty.com |
FAO: General Counsel Digital Germany Cheetah GmbH i.Gr. (DGC) | Four Embarcadero Center, Suite 3200, San Francisco, CA 94111, USA | jmills@digitalrealty.com |
FAO: General Counsel Digital Realty Trust, L.P. | Four Embarcadero Center, Suite 3200, San Francisco, CA 94111, USA | jmills@digitalrealty.com |
30.3 | Any notice given under this Agreement shall, in the absence of earlier receipt, be deemed to have been duly given as follows: |
(A) | if delivered personally, on delivery; |
(B) | if sent by first class inland post, two clear Business Days after the date of posting; and |
(C) | if sent by airmail, six clear Business Days after the date of posting; and |
(D) | if sent by e-mail, when sent. |
30.4 | Any notice given under this Agreement outside Working Hours in the place to which it is addressed shall be deemed not to have been given until the start of the next period of Working Hours in such place. |
30.5 | The provisions of this clause shall not apply in relation to the service of Service Documents. |
31. | Announcements |
31.1 | No announcement concerning the sale of the Shares, the AMS04 SPV Shares or any ancillary matter shall be made by any party without the prior written approval of the other parties, such approval not to be unreasonably withheld or delayed. This clause 31.1 does not apply to the Sellers’ Announcement or in the circumstances described in clause 31.2. |
31.2 | A party may make an announcement concerning the sale of the Shares, the AMS04 SPV Shares or any ancillary matter if required by: |
(A) | law; or |
(B) | any securities exchange or regulatory or governmental body or any Tax Authority to which that party is subject or submits, wherever situated, whether or not the requirement has the force of law, |
31.3 | The restrictions contained in this clause shall continue to apply after Completion or the termination of this Agreement without limit in time. |
32. | Confidentiality |
32.1 | Each party shall treat as confidential all information obtained as a result of entering into or performing this Agreement which relates to: |
(A) | the provisions of this Agreement; |
(B) | the negotiations relating to this Agreement; |
(C) | the subject matter of this Agreement; or |
(D) | the other parties, |
32.2 | The Purchasers shall treat as confidential all information obtained as a result of entering into or performing this Agreement which relates to the Retained Group. |
32.3 | The Sellers and the AMS04 SPV Seller shall treat as confidential all information obtained as a result of entering into or performing this Agreement which relates to the Purchasers’ Group. |
32.4 | Notwithstanding the other provisions of this clause, a party may disclose any such confidential information: |
(A) | to the extent required by law or for the purpose of any judicial proceedings; |
(B) | to the extent required by any securities exchange or regulatory or governmental body or any Tax Authority to which that party is subject or submits, wherever situated, whether or not the requirement for information has the force of law; |
(C) | to the extent required to vest the full benefit of this Agreement in that party; |
(D) | to the other members of the Retained Group, the Target Group or the Purchasers’ Group (as the case may be) and/or to its or their respective directors, officers, employees, agents, professional advisers, auditors, bankers and other finance providers, in any such case, on a need-to-know basis and provided that each such person has a duty to keep such information confidential; |
(E) | to the extent the information has come into the public domain through no fault of that party; |
(F) | to a provider or prospective provider or arranger of debt or equity financing to you who reasonably need to receive and consider the confidential information for the purposes of evaluating its financing, provided that details of the provider to whom such disclosure has been made are notified to the other party in writing prior to such disclosure being made, or where this is not practicable, promptly thereafter; or |
(G) | to the extent the other parties have given prior written consent to the disclosure, such consent not to be unreasonably withheld or delayed. |
32.5 | Any information to be disclosed pursuant to clauses 32.1(A) and 32.1(B) shall, where practicable, be disclosed only after notice to the other parties. |
32.6 | In the event that Completion does not occur and this Agreement is terminated by either party in accordance with the terms of this Agreement, the Purchasers will upon written demand of the Sellers or the AMS04 SPV Seller or on sending or receiving a notice of termination: |
(A) | within fourteen days of such demand or sending or receiving a notice of termination, destroy or return to the Sellers or the AMS04 SPV Seller (as the case may be) all hard copy documents and all other materials which are in a form reasonably capable of delivery containing or reflecting any confidential information and all copies thereof which have been made by or on behalf of the Purchasers or any of their Agents other than the Purchasers’ or their Agents’ own proprietary information which the Purchasers and their Agents will destroy; and |
(B) | ensure that where confidential information has not been returned or destroyed under clause 32.6(A) above, no step will be taken to access or recover such confidential information from any computer, word-processor, telephone or other device containing such information or which is otherwise stored or held in electronic, digital or other machine readable form. The Purchasers and their Agents will continue to hold such confidential information subject to the terms of this clause 32. |
32.7 | Notwithstanding the obligations in this clause 32, each Purchaser may retain such copies of such information as is required to be retained by law, such Purchaser’s internal compliance policies or the rules of any applicable regulatory, governmental or supervisory organisation to which such Purchaser or its Agents are subject and such information will continue to be held subject to the terms of this clause 32. |
32.8 | The restrictions contained in this clause shall continue to apply after Completion or the termination of this Agreement without limit in time. |
33. | Costs and expenses |
33.1 | Except as otherwise stated in this Agreement, each party shall pay its own costs and expenses in relation to the negotiations leading up to the sale and purchase of the Shares and the AMS04 SPV Shares and the preparation, execution and carrying into effect of this |
33.2 | If anything done under this Agreement is a supply or service on which VAT is chargeable, the recipient of that supply or service shall pay to the maker of it (in addition to any other amounts payable under this Agreement) an amount equal to any VAT so chargeable for which the maker of the supply or service is liable to account on production of a valid VAT invoice. |
33.3 | Any RETT due from AMS04 SPV or Amsterdam DivestCo in connection with any transaction contemplated by this Agreement shall be at the cost of the Amsterdam DivestCo Seller. |
34. | Counterparts |
34.1 | This Agreement may be executed in any number of counterparts, and by the parties to it on separate counterparts, but shall not be effective until each party has executed at least one counterpart. |
34.2 | Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one and the same instrument. |
35. | Invalidity |
(A) | the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or |
(B) | the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement. |
36. | Contracts (Rights of Third Parties) Act 1999 |
36.1 | Clauses 7.11 and 7.12 (Sellers’ warranties and undertakings), 8 (Sellers’ Guarantor), 9.5 to 9.9 (Purchasers’ warranties and undertakings), 10 (Purchasers’ Guarantor), 12 (Wrong pockets), 16 (Intellectual Property and Business Information) and 16.1 (Restrictions on the Sellers’, the AMS04 SPV Seller’s and the Purchasers’ business activities and additional post-Completion undertakings) 21 (Employment Matters) and paragraph 1.3 of Schedule 7 (Limitations on the Sellers’ and AMS04 SPV Seller’s liability) (Limitations on the Sellers’ and AMS04 SPV Seller’s liability) (the "Third Party Provisions") confer a benefit on certain members of the Retained Group, the Purchasers’ Group, the Target Group and AMS04 SPV and, subject to the remaining provisions of this clause 36, are intended to be enforceable by such members by virtue of the Contracts (Rights of Third Parties) Act 1999. |
36.2 | The parties to this Agreement do not intend that any term of this Agreement, apart from the Third Party Provisions, should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, by any person who is not a party to this Agreement. |
36.3 | Notwithstanding the provisions of clause 36.1, this Agreement may be varied in any way and at any time by the parties to this Agreement without the consent of any member of the Retained Group, the Target Group, AMS04 SPV or the Purchasers’ Group (including their directors and employees). |
37. | Payments |
37.1 | Any amount payable by any Seller, the AMS04 SPV Seller or the Sellers’ Guarantor to, or at the direction of, any Purchaser under this Agreement shall, so far as possible, be deemed to be a reduction of the London DivestCo Purchase Price, the Amsterdam DivestCo Purchase Price, the Frankfurt DivestCo Purchase Price or the AMS04 SPV Purchase Price (as the case may be). |
37.2 | Any amount payable by: |
(A) | any Seller, the AMS04 SPV Seller or the Sellers’ Guarantor to any Purchaser; or |
(B) | any Purchaser or the Purchasers’ Guarantor to any Seller or the AMS04 SPV Seller, |
38. | Choice of governing law |
39. | Jurisdiction |
39.1 | The courts of England are to have exclusive jurisdiction to settle any dispute, whether contractual or non-contractual, arising out of or in connection with this Agreement. Any Proceedings shall be brought only in the courts of England. |
39.2 | Each party irrevocably submits and agrees to submit to the jurisdiction of the courts of England. |
40. | Agent for service |
40.1 | Each of the Sellers, the Sellers’ Guarantor, the Purchasers and the Purchasers’ Guarantor irrevocably appoints the following respective party to be its agent for the receipt of Service Documents: |
Amsterdam DivestCo Purchaser: | Digital Realty UK Ltd, 40 Gracechurch Street, London, EC3V 0BT |
Frankfurt DivestCo Purchaser | Digital Realty UK Ltd, 40 Gracechurch Street, London, EC3V 0BT |
Purchasers’ Guarantor: | Digital Realty UK Ltd, 40 Gracechurch Street, London, EC3V 0BT |
40.2 | Each party agrees that any Service Document may be effectively served on it in connection with Proceedings in England and Wales by service on its agent effected in any manner permitted by the Civil Procedure Rules. |
40.3 | If any agent at any time ceases for any reason to act as such, the relevant appointing party shall appoint a replacement agent having an address for service in England or Wales and shall notify the other parties of the name and address of the replacement agent. Failing such appointment and notification: |
(A) | in the case of any Purchaser or the Purchasers’ Guarantor, the Sellers, the AMS04 SPV Seller and the Sellers’ Guarantor (or any one of them) shall be entitled by notice to such Purchaser or the Purchasers’ Guarantor (as applicable) to appoint a replacement agent on that party’s behalf; and |
(B) | in the case of any Seller, the AMS04 SPV Seller or the Sellers’ Guarantor, the Purchasers and the Purchasers’ Guarantor (or any one of them) shall be entitled by notice to such Seller, the AMS04 SPV Seller or the Sellers’ Guarantor (as applicable) to appoint a replacement agent on that party’s behalf. |
40.4 | The provisions of this clause 40 applying to the service on an agent shall apply equally to service on a replacement agent. |
40.5 | A copy of any Service Document served on an agent shall be sent by post to the relevant party. |
41. | Language |
1. | Approval having been received from the Commission of the Purchasers and terms of each relevant Share Purchase Document (including, for the avoidance of doubt, this Agreement) to the extent required by, and in accordance with, paragraph 18 of the Commitments. |
2. | The Dutch Notification and Consultation Matters (as defined below) in respect of the sale of the Amsterdam DivestCo Shares shall have been complied with and completed in accordance with Schedule 9 (Dutch Notification and Consultation Matters). |
1. | At Completion, the London DivestCo Seller shall: |
(A) | procure that a board meeting of London DivestCo is held at which: |
(i) | the sale of the London DivestCo Shares to the London DivestCo Purchaser be approved and it shall be resolved that the transfer of the London DivestCo Shares shall be approved for registration and (subject only to the transfers being duly stamped) the transferee entered into the register of members; |
(ii) | new directors shall be appointed in accordance with the London DivestCo Purchaser’s nominations delivered to the London DivestCo Seller no fewer than 10 Business Days prior to Completion; |
(iii) | the resignations of the directors of London DivestCo referred to in paragraph 1(D) below shall be tendered and accepted with effect from the close of the meeting; and |
(iv) | all existing mandates to banks shall be revoked and authority shall be given to such persons as the London DivestCo Purchaser may nominate to operate the relevant bank accounts; |
(B) | transfer the London DivestCo Shares, or procure that the London DivestCo Shares are transferred, to the Purchasers and, in that respect, deliver to the relevant Purchaser or the Purchasers’ Solicitors duly executed transfers in respect of the London DivestCo Shares in favour of the relevant Purchaser, such transfers to be those, and executed in a manner as, required by the law of England and Wales to transfer the London DivestCo Shares; |
(C) | deliver or make available to the relevant Purchaser or the Purchasers’ Solicitors: |
(i) | an original counterpart of the Tax Covenant, the London Business Transfer Agreement and the Other Retained Group Guarantee Side Letter duly executed by the London DivestCo Seller, the relevant member of the Retained Group and/or the relevant member of the Target Group in a manner required by the relevant governing law of such documents (including, for the avoidance of doubt and where required, notarisation of any such documents and of any other Share Purchase Documents required to be notarised with them); |
(ii) | evidence satisfactory to the Purchasers that any and all security over the London DivestCo Shares and assets of London DivestCo has been irrevocably and unconditionally released; |
(iii) | documentation effecting the release of any security that may have been entered into by London DivestCo in favour of the Sellers' Guarantor; |
(iv) | an election under section 792 CTA 2009 in the agreed form duly executed by London DivestCo and a member of the Retained Group entitled to enter into an effective election under Section 792 CTA 2009; |
(v) | such waivers or consents as are necessary to enable the London DivestCo Purchaser or its nominees to be registered as holders of such London DivestCo Shares; |
(vi) | powers of attorney in the agreed form from the London DivestCo Seller to allow the London DivestCo Purchaser or its nominee to vote such London DivestCo Shares; |
(vii) | a certified copy of each power of attorney under which any document to be delivered to the Purchasers by the London DivestCo Seller has been executed; |
(viii) | a certified copy of the minutes of a duly held meeting of the directors of the London DivestCo Seller authorising the execution by the London DivestCo Seller of each of the Share Purchase Documents to which it is a party; |
(ix) | a certified copy of the minutes of a duly held meeting of the directors of the Sellers’ Guarantor authorising the execution of each of the Share Purchase Documents to which it is a party; |
(x) | a certified copy of the minutes of the duly held meeting of the directors of London DivestCo referred to in paragraph 1 above; and |
(xi) | a copy and proof of mailing of a Check the Box Election made in respect of London DivestCo; |
(D) | deliver to the relevant Purchaser (or make available to relevant Purchaser at the registered office of London DivestCo): |
(i) | the statutory books of London DivestCo which shall be written up to but not including the Completion Date (for the avoidance of doubt, excluding the accounting records); |
(ii) | the title deeds relating to the Relevant Properties held by London DivestCo; |
(iii) | written resignations in the agreed terms to take effect from Completion of all the directors of London DivestCo (other than such persons who, as agreed with the London DivestCo Purchaser, will remain in office) in each case executed as a deed and relinquishing any right (past, present or future) against London DivestCo for loss of office (whether contractual, statutory or otherwise); |
(E) | procure that, where permissible under the terms of the Non-disclosure Agreements without consent, the benefit of the Non-disclosure Agreements shall be assigned to the relevant Purchaser; and |
(F) | procure the issuance of a duly executed reliance letter in the agreed form from each of Ove Arup & Partners International Ltd addressed to the Purchasers in respect of the Arup Reports and the Sellers’ Accountants in respect of the London Market VDD Report. |
2. | At Completion, the Amsterdam DivestCo Seller shall: |
(A) | transfer the Amsterdam DivestCo Shares, or procure that the Amsterdam DivestCo Shares are transferred, to the Purchasers and, in that respect, deliver to the relevant Purchaser or the Purchasers’ Solicitors duly executed transfers (by the relevant member of the Retained Group and, if required, the relevant member of the Target Group) in respect of the Amsterdam DivestCo Shares in favour of the |
(B) | deliver or make available to the relevant Purchaser or the Purchasers’ Solicitors: |
(i) | an original counterpart of the Tax Covenant and the Amsterdam DivestCo Payables Deeds of Transfer of Contract (if any) executed by the Amsterdam DivestCo Seller, Amsterdam DivestCo, the relevant member of the Retained Group and/or the relevant member of the Target Group in a manner required by the relevant governing law of such documents (including, for the avoidance of doubt and where required, notarisation of any such documents and of any other Share Purchase Documents required to be notarised with them); |
(ii) | evidence satisfactory to the Purchasers that any and all security over the Amsterdam DivestCo Shares and assets of Amsterdam DivestCo has been irrevocably and unconditionally released; |
(iii) | documentation effecting the release of any security that may have been entered into by Amsterdam DivestCo in favour of the Sellers' Guarantor; |
(iv) | such waivers or consents as are necessary to enable the relevant Purchaser or its nominees to be registered as holders of such Amsterdam DivestCo Shares; |
(v) | a certified copy of each power of attorney under which any document to be delivered to the Purchasers by the Amsterdam DivestCo Seller has been executed; |
(vi) | a certified copy of the minutes of a duly held meeting of the directors of the Amsterdam DivestCo Seller authorising the execution by the Amsterdam DivestCo Seller of each of the Share Purchase Documents to which it is a party; |
(vii) | a certified copy of the minutes of a duly held meeting of the directors of the Sellers’ Guarantor authorising the execution of each of the Share Purchase Documents to which it is a party; and |
(viii) | a copy and proof of mailing of a Check the Box Election made in respect of Amsterdam DivestCo; |
(C) | deliver to the relevant Purchaser (or make available to relevant Purchaser at the registered office of Amsterdam DivestCo): |
(i) | the statutory books, or equivalent thereof under the relevant jurisdiction of incorporation of Amsterdam DivestCo, of Amsterdam DivestCo which shall be written up to but not including the Completion Date (for the avoidance of doubt, excluding the accounting records); and |
(ii) | the title deeds relating to the Relevant Properties held by Amsterdam DivestCo; |
(D) | procure the provision of a bank guarantee on terms reasonable acceptable to the relevant landlord and in accordance with the AMS1(e) Consent Letter; |
(E) | deliver to the Dutch Notary (with a copy to the Amsterdam DivestCo Purchaser) (i) the written resignation letters of the statutory directors of Amsterdam DivestCo (other than such persons who, as agreed with the Amsterdam DivestCo Purchaser, will remain in office) (if required by the Dutch Notary, notarised and apostilled) |
(F) | procure that, where permissible under the terms of the Non-disclosure Agreements without consent, the benefit of the Non-disclosure Agreements shall be assigned to the relevant Purchaser; |
(G) | procure the issuance of a duly executed reliance letter in the agreed form from each of Ove Arup & Partners International Ltd addressed to the Purchasers in respect of the Arup Reports and the Sellers’ Accountants in respect of the Amsterdam Market VDD Report; |
(H) | deliver or make available to the relevant Purchaser or the Purchasers’ Solicitors: |
(i) | an original counterpart of the AMS04 SPV Payables Deeds of Transfer of Contract (if any) executed by the Amsterdam DivestCo Seller, AMS04 SPV, the relevant member of the Retained Group and/or the relevant member of the Target Group in a manner required by the relevant governing law of such documents (including, for the avoidance of doubt and where required, notarisation of any such documents and of any other Share Purchase Documents required to be notarised with them); |
(ii) | evidence satisfactory to the Purchasers that any and all security over the AMS04 SPV Shares has been unconditionally released; |
(iii) | documentation effecting the release of any security that may have been entered into by AMS04 SPV in favour of the Sellers' Guarantor; |
(iv) | a certified copy of each power of attorney under which any document to be delivered to the Purchasers by the AMS04 SPV Seller has been executed; |
(v) | a certified copy of the minutes of a duly held meeting of the directors of the AMS04 SPV Seller authorising the execution by the AMS04 SPV Seller of each of the Share Purchase Documents to which it is a party; |
(vi) | a certified copy of the minutes of a duly held meeting of the directors of the Sellers’ Guarantor authorising the execution of each of the Share Purchase Documents to which it is a party; and |
(vii) | a copy and proof of mailing of a Check the Box Election made in respect of AMS04 SPV; |
(I) | deliver to the relevant Purchaser (or make available to relevant Purchaser at the registered office of AMS04 SPV): |
(i) | the statutory books, or equivalent thereof under the relevant jurisdiction of incorporation of AMS04 SPV, of AMS04 SPV which shall be written up to but not including the Completion Date (for the avoidance of doubt, excluding the accounting records); and |
(ii) | the title deeds relating to the Relevant Properties held by AMS04 SPV; and |
(J) | deliver to the Dutch Notary (with a copy to the Amsterdam DivestCo Purchaser) (i) the written resignation letters of the statutory directors of AMS04 SPV (other than such persons who, as agreed with the Amsterdam DivestCo Purchaser, will remain in office) (if required by the Dutch Notary, notarised and apostilled) stating |
(K) | Procure that, where permissible under the terms of the Non-Disclosure Agreements without consent, the benefit of the Non-Disclosure Agreements shall be assigned to the relevant Purchaser. |
3. | At Completion, the Frankfurt DivestCo Seller shall: |
(A) | transfer the Frankfurt DivestCo Shares, or procure that the Frankfurt DivestCo Shares are transferred, to the Purchasers and, in that respect, deliver to the relevant Purchaser or the Purchasers’ Solicitors duly executed transfers (by the relevant member of the Retained Group and, if required, the relevant member of the Target Group) in respect of the Frankfurt DivestCo Shares in favour of the relevant Purchaser, such transfers to be those, and executed in a manner as, required by the law of Germany to transfer the Frankfurt DivestCo Shares; |
(B) | deliver or make available to the relevant Purchaser or the Purchasers’ Solicitors: |
(i) | an original counterpart of the Tax Covenant and the Frankfurt Payables Deeds of Assignment (if any), in each case, duly executed by the Frankfurt DivestCo Seller, the relevant member of the Retained Group and/or the relevant member of the Target Group in a manner required by the relevant governing law of such documents (including, for the avoidance of doubt and where required, notarisation of any such documents and of any other Share Purchase Documents required to be notarised with them); |
(ii) | evidence satisfactory to the Purchasers that any and all security over the Frankfurt DivestCo Shares and assets of Frankfurt DivestCo has been irrevocably and unconditionally released; |
(iii) | documentation effecting the release of any security that may have been entered into by Frankfurt DivestCo in favour of the Sellers' Guarantor; |
(iv) | such waivers or consents as are necessary to enable the relevant Purchaser or its nominees to be registered as holders of such Frankfurt DivestCo Shares; |
(v) | powers of attorney in the agreed form from the Frankfurt DivestCo Seller (or relevant member of the Retained Group) to allow the Frankfurt DivestCo Purchaser or its nominee to vote such Frankfurt DivestCo Shares; and |
(vi) | a certified copy of each power of attorney under which any document to be delivered to the Purchasers by the Frankfurt DivestCo Seller has been executed; |
(vii) | a certified copy of the minutes of a duly held meeting of the directors of the Frankfurt DivestCo Seller authorising the execution by the Frankfurt DivestCo Seller of each of the Share Purchase Documents to which it is a party; |
(viii) | a certified copy of the minutes of a duly held meeting of the directors of the Sellers’ Guarantor authorising the execution of each of the Share Purchase Documents to which it is a party; and |
(ix) | a copy and proof of mailing of a Check the Box Election made in respect of Frankfurt DivestCo; |
(C) | deliver to the relevant Purchaser (or make available to relevant Purchaser at the registered office of Frankfurt DivestCo): |
(i) | the statutory books, or equivalent thereof under the relevant jurisdiction of incorporation of Frankfurt DivestCo, of Frankfurt DivestCo which shall be written up to but not including the Completion Date (for the avoidance of doubt, excluding the accounting records); and |
(ii) | the title deeds relating to the Relevant Properties held by Frankfurt DivestCo; |
(D) | procure that, where permissible under the terms of the Non-disclosure Agreements without consent, the benefit of the Non-disclosure Agreements shall be assigned to the relevant Purchaser; and |
(E) | procure the issuance of a duly executed reliance letter in the agreed form from each of Ove Arup & Partners International Ltd addressed to the Purchasers in respect of the Arup Reports and the Sellers’ Accountants in respect of the Frankfurt Market VDD Report. |
1. | At Completion, the London DivestCo Purchaser shall: |
(A) | pay to the London DivestCo Seller the London DivestCo Completion Payment in immediately available funds by way of telegraphic transfer to such account of the London DivestCo Seller the details of which the London DivestCo Seller shall have notified to the Purchasers not less than three Business Days before Completion; |
(B) | deliver to the Sellers’ Solicitors a counterpart original of the Tax Covenant duly executed by the London DivestCo Purchaser in a manner required by the relevant governing law of such documents (including, for the avoidance of doubt and where required, notarisation of any such documents and of any other Share Purchase Documents required to be notarised with them); and |
(C) | deliver to the London DivestCo Seller a certified copy of the minutes of a duly held meeting of the directors of London DivestCo Purchaser authorising the execution by London DivestCo Purchaser of each of the Share Purchase Documents to which it is a party. |
2. | At Completion, the Amsterdam DivestCo Purchaser shall: |
(A) | deliver to the Amsterdam DivestCo Seller countersigned copies of the Amsterdam DivestCo Payables Deeds of Transfer of Contract (if any) and pay to the Amsterdam DivestCo Seller the Amsterdam DivestCo Payables Purchase Price in immediately available funds by way of telegraphic transfer to such account as the Amsterdam DivestCo Seller shall notify to the Amsterdam DivestCo Purchaser not less than three Business Days before Completion; |
(B) | pay to the Amsterdam DivestCo Seller the Amsterdam DivestCo Completion Payment in immediately available funds by way of telegraphic transfer to such account of the Amsterdam DivestCo Seller the details of which Amsterdam |
(C) | deliver to the Sellers’ Solicitors a counterpart original of the Tax Covenant duly executed by the Amsterdam DivestCo Purchaser in a manner required by the relevant governing law of such documents (including, for the avoidance of doubt and where required, notarisation of any such documents and of any other Share Purchase Documents required to be notarised with them); |
(D) | deliver to the Amsterdam DivestCo Seller a certified copy of the minutes of a duly held meeting of the directors of the Amsterdam DivestCo Purchaser authorising the execution by the Amsterdam DivestCo Purchaser of each of the Share Purchase Documents to which it is a party; |
(E) | procure that (statutory) directors shall be appointed to their positions with Amsterdam DivestCo; |
(F) | procure the provision of a parent company guarantee on terms reasonably acceptable to the relevant landlord and in accordance with the AMS1(e) Consent Letter; |
(G) | deliver to the Amsterdam DivestCo Seller countersigned copies of the AMS04 SPV Payables Deeds of Transfer of Contract (if any) and pay to the Amsterdam DivestCo Seller the AMS04 SPV Payables Purchase Price in immediately available funds by way of telegraphic transfer to such account as the Amsterdam DivestCo Seller shall notify to the Amsterdam DivestCo Purchaser not less than three Business Days before Completion; |
(H) | pay to the Amsterdam DivestCo Seller the AMS04 SPV Completion Payment in immediately available funds by way of telegraphic transfer to such account of the Amsterdam DivestCo Seller the details of which the Amsterdam DivestCo Seller shall have notified to the Purchasers not less than three Business Days before Completion; and |
(I) | procure that (statutory) directors shall be appointed to their positions with AMS04 SPV. |
3. | At Completion, the Frankfurt DivestCo Purchaser shall: |
(A) | pay to the Frankfurt DivestCo Seller the Frankfurt DivestCo Completion Payment in immediately available funds by way of telegraphic transfer to such account of the Frankfurt DivestCo Seller the details of which Frankfurt DivestCo Seller shall have notified to the Purchasers not less than three Business Days before Completion; |
(B) | deliver to the Frankfurt DivestCo Seller countersigned copies of the Frankfurt Payables Deeds of Assignment (if any) and pay to the Frankfurt DivestCo Seller the Frankfurt Payables Purchase Price in immediately available funds by way of telegraphic transfer to such account as the Frankfurt DivestCo Seller shall notify to the Frankfurt DivestCo Purchaser not less than three Business Days before Completion; |
(C) | deliver to the Sellers’ Solicitors a counterpart original of the Tax Covenant duly executed by the Frankfurt DivestCo Purchaser in a manner required by the relevant governing law of such documents (including, for the avoidance of doubt and where required, notarisation of any such documents and of any other Share Purchase Documents required to be notarised with them); and |
(D) | deliver to the Frankfurt DivestCo Seller a certified copy of the minutes of a duly held meeting of the directors of the Frankfurt DivestCo Purchaser authorising the execution by the Frankfurt DivestCo Purchaser of each of the Share Purchase Documents to which it is a party. |
4. | The Purchasers shall deliver to the Sellers a certified copy of the minutes of a duly held meeting of the directors of the Purchasers’ Guarantor authorising the execution of each of the Share Purchase Documents to which it is a party. |
1. | All documents and items delivered at Completion pursuant to this Schedule shall be held by the recipient to the order of the person delivering the same until such time as Completion shall be deemed to have taken place. Simultaneously with: |
(A) | delivery of all documents and items required to be delivered at Completion in accordance with this Schedule (or waiver of the delivery of it by the person entitled to receive the relevant document or item); and |
(B) | receipt of an electronic funds transfer by the Sellers and the AMS04 SPV Seller of an amount equal to the aggregate of the London DivestCo Completion Payment, the Amsterdam DivestCo Completion Payment, the Frankfurt DivestCo Completion Payment and the AMS04 SPV Completion Payment, |
2. | With regard to the Amsterdam DivestCo Shares, the Amsterdam DivestCo Seller shall procure that it and Amsterdam DivestCo will deliver, and the Amsterdam DivestCo Purchaser shall deliver, to the Dutch Notary an executed and, to the extent required by the Dutch Notary, legalised and apostilled, power of attorney to execute the deed of transfer of the Amsterdam DivestCo Shares substantially in the form at Schedule 11 (Form of Amsterdam DivestCo Deed of Transfer). |
3. | The Amsterdam DivestCo Seller shall transfer to the Amsterdam DivestCo Purchaser the Amsterdam DivestCo Shares, the Amsterdam DivestCo Purchaser shall accept such transfer, and the Amsterdam DivestCo Seller shall procure that Amsterdam DivestCo acknowledges such transfer, the foregoing to be effected by the signing by the Amsterdam DivestCo Seller, the Amsterdam DivestCo Purchaser, Amsterdam DivestCo and the Dutch Notary of the deed of transfer substantially in the form at Schedule 11. |
4. | The transfer of the Frankfurt DivestCo Shares pursuant to paragraph 1(A) of Part A |