Prospectus

Prospectus for Admission to Trading
DigiPlex Fet AS
FRN DigiPlex Fet AS Senior Secured Bond Issue 2014/2019
ISIN NO0010712870
10 December 2014
Important notice
Copies of this Prospectus are not being mailed or otherwise distributed or sent in or into or made available in the
United States other than on the Issuer’s web page. Persons receiving this document (including custodians,
nominees and trustees) must not distribute or send such documents or any related documents in or into the
United States.
Other than in compliance with applicable United States securities laws, no solicitations are being made or will be
made, directly or indirectly, in the United States. Securities will not be registered under the United States
Securities Act of 1933 and may not be offered or sold in the United States absent registration or an applicable
exemption from registration requirements.
The distribution of the Prospectus may be limited by law also in other jurisdictions, for example in Canada,
Japan and in the United Kingdom. The Prospectus has been reviewed and approved by the Norwegian Financial
Supervisory Authority (the "Norwegian FSA") in accordance with sections 7-7 and 7-8, cf. section 7-3 of the
Norwegian Securities Trading Act. The Norwegian FSA has not controlled or approved the accuracy or
completeness of the information given in this Prospectus. The approval given by the Norwegian FSA only relates
to the Issuer's descriptions pursuant to a pre-defined check list of requirements. The Norwegian FSA has not
made any form of control or approval relating to corporate matters described in or otherwise covered by this
Prospectus.
2
TABLE OF CONTENTS
1
RISK FACTORS ............................................................................................... 4
2
PERSONS RESPONSIBLE .............................................................................. 8
3
THIRD PARTY INFORMATION AND FORWARD LOOKING
STATEMENTS ................................................................................................. 9
4
INFORMATION CONCERNING THE SECURITIES.................................. 10
5
COMPANY OVERVIEW ............................................................................... 18
6
TREND INFORMATION ............................................................................... 20
7
ADMINISTRATIVE AND MANAGEMENT BODIES ................................ 21
8
FINANCIAL INFORMATION ...................................................................... 22
9
LEGAL MATTERS ........................................................................................ 23
10
ADDITIONAL INFORMATION ................................................................... 26
11
DOCUMENTS ON DISPLAY........................................................................ 27
12
DEFINITIONS AND GLOSSARY OF TERMS ............................................ 28
APPENDIX 1: THE BOND AGREEMENT
3
1
RISK FACTORS
1.1
General
Investing in the Bonds involves inherent risks. Prospective investors should carefully consider, among other
things, the risk factors set out below before making an investment decision.
1.2
Risks relating to the Issuer's business and industry
1.2.1
Risks related to the construction of the Data Centre
The Issuer has entered into a fixed price construction contract (subject to certain adjustments and additional
sums payable) with AS Miljøbygg (the "Contractor"), a subsidiary of Backe Entreprenør Holding AS, for the
construction of a data centre facility (the "Data Centre") on a property in Fet municipality, Norway (the
"Property"). Hence, the Contractor’s finances and financial strength are critical for completion of the
construction.
There are inherent risks related to the construction of the Data Centre, such as risk of variations (i.e. that the
Contractor requires additional consideration as a result of alleged changes in the scope of work) resulting in costs
above the construction budget, and risk of delays resulting in penalties and loss of rental income from EVRY
AS, which could adversely affect the Issuer’s ability to perform its obligations under the Bond Agreement.
Other risks related to the construction phase include, inter alia, risks of fires, accidents and destruction of the
Data Centre. The occurrence of these events may lead to delays or otherwise adversely impact the project. This
may entitle the tenant to cancel the lease agreement, which is the Issuer's only source of operating income. This
would in turn adversely affect the Issuer's ability to perform its obligations under the Bond Agreement.
1.2.2
No substantial operating history
Although the companies in the DigiPlex sphere of companies has many years of experience in the data centre
business and the same management team running the companies, the Issuer is recently established and as such
has no operating history, which makes the prediction of future results difficult for investors to determine.
1.2.3
Single tenant dependency
The Data Centre will have one tenant, EVRY AS, upon which the Issuer’s income is dependent. Hence, the
tenant's finances and financial strength and ability to service the rent in a satisfactory manner is critical for the
investment. The Issuer's ability to service the Bonds is highly dependent upon EVRY AS's ability to pay the
agreed lease under the lease agreement.
Further, if the lease agreement is terminated, the premises would likely have to be renovated and adjusted to
serve several tenants instead of a single tenant. The investments associated with this could affect the Issuer’s
financial condition negatively. There might also be a period when the Data Centre has no tenant and
consequently no income, which would affect the Issuer’s financial condition and ability to perform its
obligations under the Bond Agreement negatively.
1.2.4
Risk related to rent reduction
The lease agreement with EVRY AS gives the tenant the right to claim rent reduction as the result of material
defects. According to the agreement any defect affecting or interrupting the tenant's operation shall be
considered material. This creates a lower threshold for "material" breach of contract than what is considered
normal in standard commercial lease agreements. As a consequence this might affect the Issuer's income.
4
1.2.5
The lease agreement in case of destruction of the Data Centre
In case of fire or destruction of the Data Centre, the lease agreement with EVRY AS allows the Issuer to force
EVRY AS to continue as tenant during the reconstruction and after the Data Centre has been rebuilt. This is a
lessor friendly regulation. However, the Issuer has a 12 months deadline for rebuilding and repair, and must offer
the tenant suitable replacement premises in the construction period. Such replacement is likely to be challenging
to find. If these conditions are not met, the tenant has the right to revoke the contract. This may result in a period
where the Issuer has no tenant and consequently no income, which would affect the Issuer’s financial condition
and ability to perform its obligations under the Bond Agreement negatively.
1.2.6
Specialised property type
The Data Centre is specialised for a specific type of customer and purpose. Should the lease with EVRY AS be
terminated, finding a replacement tenant might prove more difficult for the Data Centre than for a property
which is not as specialised. If the Issuer fails to find a replacement tenant, the Issuer may not be able to perform
its obligations under the Bond Agreement.
1.2.7
Property risk
The Issuer's income will depend largely upon the amount of rental income generated from the Data Centre, the
costs and expenses incurred in the maintenance and management of the Data Centre, as well as upon changes in
its market value. Rental income and the market value for properties are generally affected by overall conditions
in the economy, such as growth in gross domestic product, employment trends, inflation and changes of interest
rates. Both property values and rental income may also be affected by competition from other property owners,
or the perceptions of prospective buyers or tenants of the attractiveness, convenience and safety of the properties.
1.2.8
Terminal value risk
The Property and property related assets are inherently difficult to value due to the individual nature of each
property and the fact there is not necessarily a liquid market or price mechanism. As a result, valuations may be
subject to substantial uncertainty. There is no assurance that the estimates resulting from the valuation process
will reflect the actual sales price.
Any future property market recession, and, more specifically, a decrease in the demand for data centre spaces,
could materially adversely affect the value of the Property, which, in turn, would affect recovery in the case of
default.
1.2.9
Environmental risk
Due diligence carried out prior to acquisition of the Property has not identified land contamination. Although the
land plot had not been exploited prior to the construction of the Data Centre, it cannot be guaranteed that the
Issuer will not be subject to claims by public authorities or third parties as a result of environmental or other
damages related to the land and the Data Centre. If the aforementioned risks materialize, this may have a
negative impact on the property price and thereby affect recovery in the case of default.
1.2.10
Risks related to third party service providers
The Issuer is dependent upon DigiPlex London 1 Ltd. and DigiPlex Norway AS for the implementation of the
Issuer's strategy and the operation of its activities. In addition, the Issuer will depend upon the services and
products of certain other service providers in order to successfully pursue the business plan of the Issuer. The
inability of such service providers to fulfill their obligations under the respective service agreements could affect
the Issuer’s financial condition and ability to perform its obligations under the Bond Agreement negatively.
5
1.2.11
Legal and regulatory risk
Investments in the Bonds involve certain risks normally associated with investments in property, including for
example the risk that a party may successfully litigate against the Issuer, which may result in a reduction in the
assets of the Issuer. The directors are not aware of any pending litigation against the Issuer.
Changes in laws relating to ownership of land could also have an adverse effect on the value of Bonds. New laws
may be introduced which may be retrospective and affect environmental planning, land use and development
regulations.
Government authorities at all levels are actively involved in the promulgation and enforcement of regulations
relating to taxation, land use and zoning and planning restrictions, environmental protection and safety and other
matters. The institution and enforcement of such regulations could have the effect of increasing the expense and
lowering the income or rate of return from the Issuer, as well as adversely affecting the value of the Property.
Government authorities could use the right of expropriation of the Property if the requirements for expropriations
are satisfied. Although any expropriation will entitle the Issuer to compensation, the Issuer’s financial condition
may be negatively affected irrespective of such compensation.
1.2.12
Risk of changes in the Norwegian tax system
Future actions by the Norwegian government to increase tax rates or to impose additional taxes would reduce the
Issuer’s profitability. Revisions to tax legislation or to its interpretation may also affect the Issuer’s financial
condition in the future. The Issuer may additionally be subject to periodic tax audits which could result in
additional tax assessments relating to past periods of up to six years being made. Any such assessments could be
material and may affect the Issuer’s financial condition in the future.
1.3
Risks relating to the Bonds
1.3.1
Interest and market risk
The Issuer is exposed to interest risks on interest-bearing current and non-current liabilities. Changes in interest
rates on the Issuer’s liabilities affect the Issuer’s results of operations. In addition, the Issuer’s results of
operations and financial position are exposed to the effect of market interest rates. The market value of the
Bonds depends on several factors, including, but not limited to, market interest rate. Investments in the Bonds
involve the risk that fluctuations in market interest rates may adversely affect the value of the Bonds.
1.3.2
Financing risk
The Issuer is deemed to be sufficiently funded following the issuance of the Bonds. However, it cannot be
guaranteed that additional capital needs will not arise in the future. Such capital needs may be due to, inter alia,
unforeseen costs and/or larger than expected capital expenditures. This may negatively impact the Issuer's ability
to perform its obligations under the Bond Agreement.
1.3.3
Credit risk
Credit risk arises when a counterparty fails to meet its obligations towards the Issuer, which could have a
negative effect on future cash flows. For further information on risks related to single tenant dependency, see
section 1.2.3 above.
1.3.4
Liquidity of the Bonds
The Issuer intends to apply for listing of the Bonds on Oslo Børs. However, it cannot be guaranteed that the
Bonds will be admitted to trading. Further, even if the Bonds are admitted to trading, active trading in Bonds
6
does not always occur and hence there is no guarantee that a liquid market for trading in the Bonds will occur or
be maintained. It is emphasized that no market maker has been appointed for the Bonds.
Furthermore, the nominal value of the Bonds may not be indicative compared to the market price of the Bonds if
they are admitted for trading on Oslo Børs. Accordingly, investments in the Bonds are only suitable for investors
who can bear the risks associated with a lack of liquidity in the Bonds.
7
2
PERSONS RESPONSIBLE
DigiPlex Fet AS, registered business address Ulvenveien 89B, 0581 Oslo, Norway, accepts responsibility for the
information contained in the Prospectus. The Company hereby declares that, having taken all reasonable care to
ensure that such is the case, the information contained in the Prospectus is, to the best of our knowledge, in
accordance with the facts and contains no omissions likely to affect its import.
10 December 2014
DigiPlex Fet AS
8
3
THIRD PARTY INFORMATION AND FORWARD LOOKING
STATEMENTS
If not otherwise indicated, DigiPlex Fet AS is the source of information in this Prospectus. Information which
has been sourced from a third party has been accurately reproduced. As far as the Company is aware and able to
ascertain from information published by such third parties, no facts have been omitted which would render the
reproduced information inaccurate or misleading.
This Prospectus contains certain forward-looking information and statements in section 5 — "Company
Overview" and section 6 — "Trend Information". Such forward-looking information and statements reflect
current views with respect to future events and are subject to risks, uncertainties and assumptions. The Company
cannot give assurance to the correctness of such information and statements. These forward-looking information
and statements can generally be identified by the fact that they do not relate only to historical or current facts.
Forward-looking statements sometimes use terminology such as "targets", "believes", "expects", "aims",
"assumes", "intends", "plans", "seeks", "will", "may", "anticipates", "would", "could", "continues", "estimate",
"milestone" or other words of similar meaning and similar expressions or the negatives thereof.
By their nature, forward-looking information and statements involve known and unknown risks, uncertainties
and other important factors that could cause the actual results, performance or achievements of the Company to
differ materially from any future results, performance or achievements that may be expressed or implied by the
forward-looking information and statements in this Prospectus. Should one or more of these risks or
uncertainties materialize, or should any underlying assumptions prove to be incorrect, the Company's actual
results, performance or achievements could differ materially from that or those described herein as anticipated,
believed, estimated or expected. Additional factors that could cause the Company's actual results, performance
or achievements to differ materially include, but are not limited to, those discussed under section 1 — "Risk
Factors".
Any forward-looking information or statements in this Prospectus speak only as at the date of this Prospectus.
Except as required by applicable law, the Company does not intend, and expressly disclaims any obligation or
undertaking, to publicly update, correct or revise any of the information included in this Prospectus, including
forward-looking information and statements, whether to reflect changes in the Company's expectations with
regard thereto or as a result of new information, future events, changes in conditions or circumstances or
otherwise on which any statement in this Prospectus is based.
Given the aforementioned uncertainties, readers are cautioned not to place undue reliance on any of these
forward-looking statements.
9
4
INFORMATION CONCERNING THE SECURITIES
ISIN:
NO 001 0712870
The reference name of the Bond Issue:
FRN DigiPlex Fet AS Senior Secured Bond Issue 2014/2019
Issuer:
DigiPlex Fet AS
Security type:
Bond issue with floating rate
Currency:
NOK
Outstanding Amount:
NOK 500 million
Nominal value:
The Bonds will have a nominal value of NOK 1,000,000 each.
Minimum subscription and allocation amount shall be NOK
1,000,000.
Securities form:
The Bonds are electronically registered in book-entry form with the
Norwegian Central Securities Depository ("VPS")
Issue Date:
11 June 2014
Interest bearing from and including:
Issue Date
Interest bearing to:
Maturity Date
Maturity Date:
11 June 2019
Interest Payment Date:
11 March, 11 June, 11 September and 11 December each year and
the Maturity Date
Date of interest adjustment:
11 March, 11 June, 11 September and 11 December each year
Issue price:
100% of par value
Coupon Rate:
3 month NIBOR + Margin p.a., quarterly interest payments
"Margin" means:
(i) from and including the Issue Date until but excluding the
first Interest Payment Date following the EVRY
Acceptance Date, 4.00% per annum; and
(ii) from and including the first Interest Payment Date
following the EVRY Acceptance Date, 3.75% per annum.
Current rate:
5.71% from and including 11 September 2014 up to and including
10 December 2014
10
Yield:
Investors wishing to invest in the Bonds after the Issue Date must
pay the market price for the Bonds in the secondary market at the
time of purchase. Depending on the development in the bond
market in general and the development of the Issuer, the price of the
Bonds may have increased (above par) or decreased (below par). As
the Bonds have a floating reference rate, it is the market's
expectations of risk premium, i.e. margin that affects the price. If
the price has increased, the yield for the purchaser in the secondary
market, given that the reference rate does not change, will be lower
than the interest rate of the Bonds and vice versa. At par, the yield
will be 5.71% from and including 11 September 2014 up to and
including 10 December 2014.
Day count fraction:
Act/360
Business Day Convention:
Modified Following Business Day Convention
Business Day:
As determined in "Oslo"
Amortization:
The Bonds shall be repaid in full on Maturity Date at price 100.00%
(par)
Change of Control Clause:
Upon the occurrence of a Change of Control Event, each
Bondholder shall have the right to require that the Issuer redeems its
Bonds (a "Put Option") at a price of 101 percent of par (plus
accrued interest). Please see clause 10.5 of the Bond Agreement,
attached hereto as Appendix 1, for further details.
Change of Control Event:
A Change of Control Event means if:
(iii) before the Construction Completion Date, the Sponsors
cease to hold, directly or indirectly, a minimum of 100 per
cent in aggregate of the outstanding shares in and/or voting
rights in the Issuer; or
(iv) after the Construction Completion Date, if the Sponsors
dispose (directly or indirectly) of more than 50 per cent of
the outstanding shares in and/or voting rights in the Issuer;
or
(v) any person or group (as such term is defined in the
Norwegian Limited Liability Companies Act § 1-3) (other
than the Sponsors or any indirectly or directly owned
subsidiary of the Sponsors) becomes the owner, directly or
indirectly, of more than 50 per cent of the outstanding
shares in and/or voting rights in the Issuer.
Call Option:
The Issuer may redeem the Bond Issue in whole or in parts ("Call
Option") as follows:
(i) with settlement date on a Business Day at any time from
11
and including the Interest Payment Date falling 3 years
after the Issue Date to, but not including, the Interest
Payment Date falling 4 years after the Issue Date at a price
equal to 102.30 per cent. of par value plus accrued interests
on redeemed Bonds;
(ii) with settlement date on a Business Day at any time from
and including the Interest Payment Date falling 4 years
after the Issue Date to, but not including, the Interest
Payment Date falling 4 years and 6 months after the Issue
Date at a price equal to 101.15 per cent. of par value plus
accrued interests on redeemed Bonds; and
(iii) with settlement date on a Business Day at any time from
and including the Interest Payment Date falling 4 years and
6 months after the Issue Date to, but not including, the
Maturity Date at a price equal to 100.50 per cent of par
value plus accrued interests on redeemed Bonds.
Please see clause 10.2 of the Bond Agreement, attached hereto as
Appendix 1, for further details.
Mandatory Prepayment:
Upon a Mandatory Prepayment Event occurring, the Issuer shall
within 30 days redeem 100% of the Outstanding Bonds at a price as
follows:
(i) if occurring anytime from the Issue Date to, but not
including, the Interest Payment Date 12 months after the
Issue Date at a price equal to 105.80 per cent of par value
plus accrued interest up to the settlement date on redeemed
Bonds;
(ii) if occurring anytime from and included the Interest
Payment Date 12 months after the Issue Date to, but not
including, the Interest Payment Date 24 months after the
Issue Date, at a price equal to 104.60 per cent of par value
plus accrued interest up to the settlement date on redeemed
Bonds;
(iii) if occurring anytime from and included the Interest
Payment Date 24 months after the Issue Date to, but not
including, the Interest Payment Date 36 months after the
Issue Date, at a price equal to 103.50 per cent of par value
plus accrued interest up to the settlement date on redeemed
Bonds; and
(iv) if occurring anytime thereafter, at the then applicable call
premium as determined in Clause 10.2 of the Bond
Agreement (Call Option), attached hereto as Appendix 1,
plus accrued interest up to the settlement date on redeemed
Bonds.
12
"Mandatory Prepayment Event" means:
(i) the Property is sold or disposed of, or if the Issuer in any
way ceases to own 100 per cent of the Property (in each
case other than pursuant to Permitted Partial Disposal (as
defined in Clause 1.1 of the Bond Agreement, attached
hereto as Appendix 1)); or
(ii) the EVRY Lease Agreement is cancelled in its entirety; or
(iii) the Construction Contract is cancelled in its entirety
provided that the Construction Contract is not, within 90
days, replaced with one or several replacement
construction contracts on terms substantially similar to the
Construction Contract and with counterparties of good
standing in the relevant markets; or
(iv) an Event of Default has been declared; or
(v) a Total Loss Event has occurred.
The occurrence of a Mandatory Prepayment Event shall be
immediately publicly disclosed by the Issuer according to section
3.2.1.1 and/or section 3.3 of the Oslo Børs Bond Rules, unless such
information is deemed inside information and the public disclosure
of such information is delayed pursuant to section 3.2.1.1 of the
Oslo Børs Bond Rules. The Issuer will use the Oslo Børs
information system to publish such information (www.newsweb.no)
Please see clause 10.3 of the Bond Agreement, attached hereto as
Appendix 1, for further details.
Total Loss Prepayment
Upon the occurrence of a Total Loss Event, the Issuer shall
immediately upon receipt of insurance proceeds and in all
circumstances no later than 180 days after the date on which the
Total Loss Event occurred, redeem the Bonds at 100 per cent of par
value (plus accrued interest).
If the Bonds are redeemed according to Clause 10.3 (Mandatory
Prepayment) or Clause 10.4 (Total Loss Prepayment) of the Bond
Agreement, attached hereto as Appendix 1, the entire amount in the
Accounts, together with any insurance proceeds, may be applied to
prepay the Bonds.
"Total Loss Event" means a total loss of the buildings on the
Property, in each case determined as a "total loss" by reference to
the underlying insurance agreement(s) and/or insurance policies.
The occurrence of a Total Loss Event shall be immediately publicly
disclosed by the Issuer according to section 3.2.1.1 and/or section
13
3.3 of the Oslo Børs Bond Rules, unless such information is deemed
inside information and the public disclosure of such information is
delayed pursuant to section 3.2.1.1 of the Oslo Børs Bond Rules.
The Issuer will use the Oslo Børs information system to publish
such information (www.newsweb.no)
Status of the Bonds and Security:
The Bonds shall constitute senior debt obligations of the Issuer. The
Bonds shall rank at least pari passu with all other obligations of the
Issuer (save for such claims which are preferred by bankruptcy,
insolvency, liquidation or other similar laws of general application)
and shall rank ahead of subordinated debt, but behind the
Construction Guarantee up to the Construction Guarantee
Cancellation Date.
The Bonds, including accrued but unpaid interest, costs and
expenses, shall be secured by the Security Interests.
All Security Interests shall rank on first priority, other than the
Property Mortgage, which shall rank on second priority behind the
Construction Guarantee from the Settlement Date up to and
including the Construction Guarantee Cancellation Date, and on a
first priority basis at all times thereafter.
Security Interests:
The Security Interests comprise:
a)
b)
c)
d)
e)
f)
g)
h)
i)
the Escrow Account Pledge;
the Property Mortgage;
the Issuer Share Pledge;
the Assignment of Subordinated Loans;
the Assignment of Insurances;
the EVRY Lease Assignment;
the Earnings Account Pledge;
the Debt Service Retention Account Pledge; and
the Operating Assets Pledge.
Covenants:
See clause 13 of the Bond Agreement, attached hereto as Appendix
1.
Financial Covenants:
See clause 13.5 of the Bond Agreement, attached hereto as
Appendix 1.
Events of Default:
See clause 15 of the Bond Agreement, attached hereto as Appendix
1.
Defeasance:
See clause 18.2 of the Bond Agreement, attached hereto as
Appendix 1.
Listing and admission to trading:
The Issuer shall apply for listing of the Bonds on the Oslo Stock
Exchange and the Issuer shall procure that the Bonds are listed
within 6 months from the Issue Date.
14
Purpose and utilization:
The net proceeds (net of legal costs, fees to the Manager and the
Bond Trustee and any other agreed costs and expenses) of the
Bonds shall be applied towards:
(i) financing Project Costs;
(ii) provide long-term financing of the Property from the
Construction Completion Date;
(iii) funding the Debt Service Retention Account with an
amount of NOK 58,000,000;
(iv) funding of OPEX Costs with an amount of up to NOK
30,000,000;
(v) refinancing of a short term bridge loan provided by the
Sponsors with an amount of NOK 30,000,000; and
(vi) after the Construction Completion Date, financing the
Issuer’s general corporate purposes (including repayment
of Subordinated Loans) with any residual amount standing
to the credit of the Escrow Account.
Approvals:
The Bonds have been issued in accordance with the Issuer’s Board
approval dated 19 March 2014.
Limitation of claims:
All claims under the Bonds and the Bond Agreement for payment,
including interest and principal, shall be subject to the time-bar
provisions of the Norwegian Limitation Act of May 18, 1979 No.
18, p.t. 3 years for interest rates and 10 years for principal.
Bond Agreement:
The Bond Agreement, attached hereto as Appendix 1, has been
entered into between the Issuer and the Bond Trustee. The Bond
Agreement sets out the Bondholders’ rights and obligations in the
Bonds. The Bond Trustee has entered into the Bond Agreement on
behalf of the Bondholders and been granted authority to act on
behalf of the Bondholders to the extent provided for in clause 17 of
the Bond Agreement. When Bonds are purchased, the Bondholder is
deemed to have accepted the Bond Agreement and shall be bound
by its terms.
Bondholders' Meeting:
The Bondholders’ Meeting represents the supreme authority of the
Bondholders community in all matters relating to the Bonds, and
has the power to make all decisions altering the terms and
conditions of the Bonds, including, but not limited to, any reduction
of principal or interest and any conversion of the Bonds into other
capital classes. The Bondholders’ Meeting cannot resolve that any
overdue payment of any instalment shall be reduced unless there is
a pro rata reduction of the principal that has not fallen due, but may
resolve that accrued interest (whether overdue or not) shall be
reduced without a corresponding reduction of principal. If a
15
resolution by or an approval of the Bondholders is required, such
resolution shall be passed at a Bondholders’ Meeting, see however
Clause 17.1 of the Bond Agreement, attached hereto as Appendix 1.
Resolutions passed at the Bondholders’ Meetings shall be binding
upon all Bondholders and prevail for all the Bonds. At the
Bondholders’ Meeting each Bondholder may cast one vote for each
Voting Bond owned at close of business on the day prior to the date
of the Bondholders’ Meeting in accordance with the records
registered in the VPS. The Bond Trustee may, at its sole discretion,
accept other evidence of ownership. Whoever opens the
Bondholders’ Meeting shall adjudicate any question concerning
which Bonds shall count as the Issuer’s Bonds. The Issuer’s Bonds
shall not have any voting rights. For this purpose, a Bondholder that
has a Bond that is nominee registered shall be deemed as the
Bondholder of such Bond (instead of the nominee) provided that the
Bondholder presents relevant evidence stating that the relevant
Bondholder is the Bondholder of the Bond and the amount of Bonds
held by such Bondholder. In order to form a quorum, at least half
(1/2) of the Voting Bonds must as a main rule be represented at the
meeting, see however Clause 16.4 of the Bond Agreement attached
hereto as Appendix 1. As a main rule, resolutions shall be passed by
simple majority of the Voting Bonds represented at the
Bondholders’ Meeting. However, a majority of at least 2/3 of the
Voting Bonds represented at the Bondholders’ Meeting is required
for any waiver or amendment of any terms of the Bond Agreement.
For more details, please see clause 16 of the Bond Agreement,
attached hereto as Appendix 1.
NIBOR:
Means the interest rate which (a) is published on Reuters Screen
NIBR Page (or through another system or on another website
replacing the said system or website respectively) approximately
12.00 noon on the relevant Interest Payment Date (on days on
which the Norwegian money market has shorter opening hours
(New Year’s Eve and the Wednesday before Maundy Thursday),
the data published by the banks at 10 a.m. shall be used), or, if such
publication does not exist, (b) at that time corresponds to (i) the
average of the quoted lending rates of Norwegian commercial banks
on the interbank market in Oslo or, if only one or no such quotes are
provided, (ii) the assessment of the Bond Trustee of the interest rate,
which in the Bond Trustee’s determination is equal to what is
offered by Norwegian commercial banks, for the applicable period
in the Oslo interbank market. If any such rate is below zero, NIBOR
will be deemed to be zero.
Calculation Agent:
Bond Trustee
Bond Trustee:
Nordic Trustee ASA, P.O. Box 1470 Vika, N-0116 Oslo, Norway
Manager:
Pareto Securities AS, Dronning Mauds gate 3, P.O. Box 1411, Vika
N-0115 Oslo, Norway
16
Paying Agent:
Handelsbanken NUF, Tjuvholmen allé 11, P.O. Box 1342, Vika
N-0113 Oslo, Norway
VPS account manager:
Handelsbanken NUF, Tjuvholmen allé 11, P.O. Box 1342, Vika
N-0113 Oslo, Norway
Market-making:
No market-maker agreement has been made for the Bond Issue.
Legislation under which the Bonds
have been created:
Norwegian law
Transfer restrictions:
Bondholders may be subject to purchase or transfer restrictions with
regard to the Bonds, as applicable from time to time under local
laws to which a Bondholder may be subject (due e.g. to its
nationality, its residency, its registered address, its place(s) for
doing business). Each Bondholder must ensure compliance with
applicable local laws and regulations at its own cost and expense.
Notwithstanding the above, a Bondholder which has purchased the
Bonds in breach of applicable mandatory restrictions may
nevertheless exercise its rights (including, but not limited to, voting
rights) under the Bond Agreement
Governing laws:
The Bonds and the Bond Agreement are governed by the laws of
Norway, with the District Court of Oslo as sole legal venue.
Fees and expenses:
Total expenses related to the admission to trading is
approximately NOK 100 000.
17
5
COMPANY OVERVIEW
5.1
Information about the Issuer
DigiPlex Fet AS is a Norwegian private limited liability company incorporated on 3 July 2013 and regulated by
the Norwegian Private Limited Liability Companies Act and supplementing Norwegian laws and regulations.
The Company is registered in the Norwegian Companies Registry with company registration number
912 189 287 and its registered business address Ulvenveien 89B, 0581 Oslo, Norway, Phone: + 47 23 20 78 60,
Fax: + 47 23 20 78 70.
Website: www.digiplex.no
5.2
Business Overview
Upon completion of the Data Centre, Digiplex Fet AS will provide highly secure, high-powered, energy-efficient
and carrier-neutral data centre space at Heiaveien 9 in the municipality of Fet, near Oslo, Norway, for its
customers' information and communication technology equipment.
The Data Centre will have one tenant, EVRY AS, upon which the Issuer’s income is dependent. Hence, the
tenant's finances and financial strength and ability to service the rent in a satisfactory manner is of critical
importance to the Company's business.
5.3
Business Plan
The 20 years contract with EVRY AS, a wholly owned subsidiary of the listed company EVRY ASA, secures
revenue for the 4,200 m2 of net data storage area ("White Space") to be contained in the Data Centre.
Construction of the Data Centre commenced in February 2014 and the Company is currently on target to deliver
the first of its six scheduled phases of 700 m2 each to EVRY AS at the end of 2014 whilst acknowledging the
very tight schedule to completion. The last phase is scheduled to be delivered at the beginning of the second
quarter of 2016.
The Issuer is currently in discussions with EVRY AS regarding the delivery of Milestone 1 (the first 700 m2 of
the Data Centre), which is scheduled to take place in the fourth quarter of 2014. EVRY AS has communicated
certain requirements to the specifications for the Data Centre which in the Issuer´s view are not in accordance
with the contract. As it is not practically possible to meet the demands put forward by EVRY AS by the agreed
delivery date, there is a risk that the delivery of Milestone 1 will be delayed. The Issuer and its advisors are of
the view that EVRY AS´s requirements are unwarranted and constitute a variation to the contract. A refusal by
EVRY AS to accept Milestone 1 on the basis of these requirements would be a breach of the contract. The
parties are currently in negotiations regarding EVRY AS's requirements. The Issuer estimates its maximum
exposure related to the requirements to be in the area of NOK 8 million comprising loss of revenue for a period
of up to 6 months. In the view of the Issuer and its advisors EVRY AS does not have any legal basis for refusing
to take over Milestone 1 during the fourth quarter of 2014 based on the said requirements and the Issuer
accordingly expects to be able to claim payment of potentially withheld rent from EVRY AS.
5.4
Ownership structure
As at the date of this Prospectus, DigiPlex Fet LLC (the "Parent") owns 100 percent of the shares in the
Company, thereby having the ability to significantly influence the outcome of matters submitted for the vote of
the shares of the Company.
18
The Issuer is a single-purpose company formed for the purpose of developing, constructing and operating the
Data Centre. The Parent has funded the Issuer with certain loans as further detailed in section 9.2.7 below.
Consequently, the Issuer is dependent upon the Parent for some of its financing.
19
6
TREND INFORMATION
6.1
General Industry Trends and Outlook
The outlook for this industry is positive as a result of the growth of mobile applications and the behavior of the
general public, where usage of devices such as mobile phones and tablets are on the increase, whether it is the
number of e-mails sent, the number of videos downloaded and watched or the number of searches carried out on
the web.
Furthermore, the proposed development commonly described as the "internet of things", where everyday objects
will be connected through the mobile network, thereby allowing them to send and receive data, will help to push
the growth and demand for data centre space.
6.2
Statement of no material adverse change since 31 December 2013
There has been no material adverse change in the prospects of the Issuer since the date of the last audited
financial statements.
20
7
ADMINISTRATIVE AND MANAGEMENT BODIES
7.1
Board of Directors of DigiPlex Fet AS
James Byrne Murphy, Chairman of the Board:
Mr. Murphy has been responsible for the activities in the DigiPlex sphere of companies since the original
company’s founding in 2002 and has over 25 years of experience of making and managing property-led
investments and businesses in the United States and throughout Europe. Mr. Murphy is the former Deputy Chief
Executive and co-founder of BAA McArthurGlen, Europe’s largest owner and operator of designer outlet
centres. Mr. Murphy is also the founding partner and managing director of Kitebrook Partners Limited, an
international real estate investment company. Mr. Murphy received his MBA from the University of Virginia
and his BA, Cum Laude, from Harvard University.
Gisle Eckhoff, Director:
Mr. Eckhoff has overall responsibility for DigiPlex operations in Scandinavia. Mr. Eckhoff's career started in the
insurance industry, where he worked for six years before moving to what was to become part of the CSC
Computer Sciences Corporation. In CSC, he held at number of senior management roles, both at country and
regional level, heading up the Nordic region financial services vertical and strategy planning operations, before
becoming Vice President and Managing Director of CSC Norway and CSC Sweden. After CSC, Gisle joined
CGI as Senior Vice President and Managing Director of the operation in Norway. He holds a degree in Business
Administration from the Norwegian School of Management.
All the members of the Board can be reached at the Company’s registered business address, Ulvenveien 89B,
0581 Oslo, Norway.
7.2
Management of DigiPlex Fet AS
Gisle Eckhoff, CEO:
Please refer to section 7.1 above.
All the members of the management can be reached at the Company’s registered business address, Ulvenveien
89B, 0581 Oslo, Norway.
7.3
Conflict of interest
There are no potential conflicts of interests between any duties to the issuing entity of the persons referred to
above and their private interests and/or other duties.
21
8
FINANCIAL INFORMATION
8.1
Historical Financial Statements of DigiPlex Fet AS (the Issuer)
DigiPlex Fet AS has prepared its annual financial statements for 2013 in accordance with Norwegian generally
accepted accounting principles ("NGAAP").
The annual financial statements for 2013 have been audited.
In addition, the Issuer has prepared unaudited interim financial statements for the first six and nine months of
2014 in accordance with NGAAP.
The annual financial statements and auditor's report for 2013 and the unaudited interim financial statements for
the first six and nine months of 2014, may be obtained at the registered business address of the Issuer.
8.2
Statutory Auditors
The Issuer’s auditor for the period covered by the historical financial information in this Prospectus has been
PricewaterhouseCoopers AS, Dronning Eufemias gate 8, 0191 Oslo, Norway.
PricewaterhouseCoopers AS is a member of The Norwegian Institute of Public Accountants.
8.3
Major events subsequent to 31 December 2013
Apart from as stated below, no significant changes in the financial or trading position of the Issuer have occurred
since the end of the last financial period for which the Issuer has prepared audited financial information.
•
The entering into of the Construction Contract (as defined in section 9.2.3) in January 2014
•
The entering into of the Consultancy Assistance Agreement (as defined in section 9.2.4) in March 2014
•
The Bond Issue in June 2014
•
The further funding by the sole shareholder of the Company, DigiPlex Fet LLC, of an amount of NOK
105 million in 2014, where NOK 30 million of such amount was repaid in August 2014, leaving a total
funded amount of NOK 209 million as of 31 October 2014, to be used for the construction of the Data
Centre, including any identified or projected cost overruns or variation orders
•
The entering into of the Management and Support Services Agreement (as defined in section 9.2.5) in
November 2014
•
The entering into of the DigiPlex Norway Services Agreement (as defined in section 9.2.6) in
November 2014
22
9
LEGAL MATTERS
9.1
Legal and arbitration proceedings
There are no governmental, legal or arbitration proceedings (including any such proceedings which are pending
or threatened of which the Issuer is aware), during a period covering at least the previous 12 months which may
have, or have had in the recent past, significant effects on the Issuer's financial position or profitability.
9.2
Material contracts
9.2.1
The EVRY Lease Agreement
In July 2013, a lease agreement was entered into between the Issuer and EVRY AS (the "EVRY Lease
Agreement"), under which the Issuer shall construct the Data Centre to be rented out to EVRY AS. The Data
Centre shall comprise of two buildings, each with 2,100 m2 of White Space divided over three floors.
The Data Centre shall be subject to section-by-section delivery to EVRY AS, and the lease term shall be 20
years from the date of delivery of the last of the six sections of the Data Centre, which is planned to be at 1 April
2016.
The rent object under the EVRY Lease Agreement shall consist of gross area, including White Space, for the
exclusive employment of EVRY AS, in addition to a proportionate share of the Data Centre's common and
outdoor areas.
The obligation to pay rent for each section shall commence upon delivery of the relevant section. Based on a
total budgeted project cost of NOK 548 million, the monthly rent will be NOK 1,004.25 per m2 White Space,
excluding VAT. The rent will be index regulated in accordance with Statistics Norway’s CPI index.
The EVRY Lease Agreement cannot be terminated by any of the parties to the EVRY Lease Agreement during
the lease term, except in the event of a material breach of contract.
9.2.2
The Service Agreement
In July 2013, the Issuer and EVRY AS entered into a service agreement (the "Service Agreement") governing
the Issuer's operation of the Data Centre and delivery of certain services to EVRY AS after the date of delivery
of the Data Centre. The Issuer shall deliver such services as are required to provide and maintain round-the-clock
operations for every day of the year. The Issuer shall ensure 100 percent availability of electricity, efficient
power solutions, satisfactory cooling solutions, fibre-optics and physical security, in addition to reparations,
maintenance and replacement of technical components.
EVRY AS shall pay a fixed remuneration of NOK 250 per month per m2 of delivered White Space, excluding
VAT. EVRY AS shall also pay remuneration for additional ordered services based on a fixed economic model.
The Service Agreement shall have a duration of 20 years and cannot be terminated, except in the event of a
material breach of the EVRY Lease Agreement or the Service Agreement.
9.2.3
The Construction Contract
In order to fulfill its obligations under the EVRY Lease Agreement, the Issuer entered into a turnkey
construction contract in January 2014 with the Contractor and GK Norge AS as technical sub-contractor to the
Contractor (the "Construction Contract"). AS Miljøbygg shall accordingly deliver the engineering and
23
construction of the Data Centre, including electrical and mechanical work, in accordance with the delivery
schedule and specifications of the EVRY Lease Agreement.
AS Miljøbygg shall complete and hand over the Data Centre section by section in accordance with a construction
schedule which has been tailored to the Issuer's delivery obligations towards EVRY AS under the EVRY Lease
Agreement. The total contract sum is NOK 506 million (including VAT), subject to minor adjustments and
excluding options.
Both AS Miljøbygg and the Issuer will provide standard guarantees for its obligations under the construction
contract as well as standard insurances. Standard daily penalties apply in the event of non-compliance with the
construction schedule set out in the Construction Contract, with total penalties limited to 10% of the contract
sum, i.e. NOK 50.6 million.
9.2.4
The Consultancy Assistance Agreement
In March 2014, the Issuer entered into a consultancy assistance agreement with Metier AS (the "Consultancy
Assistance Agreement"), pursuant to which Metier AS shall be responsible, on behalf of the Issuer, for the
overall project management function in relation to the construction of the Data Centre. Services to be provided
under the Consultancy Assistance Agreement include planning and progress control, cost control, contract and
change management, document control and HSEQ management. Metier AS shall be remunerated on an hourly
basis, estimated at approximately NOK 500,000 per month in total for the period from and including 1 March
2014. The contract shall have a duration of one year.
9.2.5
Management and Support Services Agreement
In November 2014, the Issuer entered into a management and support services agreement with DigiPlex London
1 Ltd (the "Management and Support Services Agreement"), pursuant to which DigiPlex London 1 Ltd shall
be responsible, on behalf of the Issuer, for (i) management functions including financial oversight, human
resources, sales and marketing support, (ii) investment management functions including consultancy in relation
to the customer and construction contracts of the Data Centre, and investment banking services; and (iii) concept
development and launch activities, capex construction works, operational management, and technical support
functions
in
relation
to
the
construction
and
operations
of
the
Data
Centre.
The remuneration for the services is agreed as follows: (i) for the management functions, DigiPlex London 1 Ltd
shall be remunerated on a monthly basis, estimated at approximately NOK 245.000 – 335.000 per month; (ii) for
the investment management functions, DigiPlex London 1 Ltd shall be remunerated based on a fixed percentage
of the capital invested as well as of the annual value of the customer contracts negotiated; and (iii) DigiPlex
London 1 Ltd's capex fees shall be based on a percentage of actual project costs excluding DigiPlex London 1
Ltd's reimbursements and charges. The agreed capex fee percentage is 5%. The operational management services
fee shall be NOK 75.000 - 125.000 per month. The technical support services fees shall be computed on a time
draw down basis (Man Day Charge Rates). The Man Day Charge Rates shall be NOK 3.400 - 10.200, depending
on the grade of personnel required. DigiPlex London 1 Ltd shall be reimbursed for all reasonable expenses at
cost plus 2%. The Issuer shall reimburse services or goods procured by DigiPlex London 1 Ltd under any
provider contract at cost plus 2% or at cost plus 10% (administration fee).
The agreement shall remain effective unless and until it is terminated by either party with three months written
notice. The services rendered by DigiPlex London 1 Ltd are provided by the company's own personnel and
related and unrelated service providers. DigiPlex London 1 Ltd and the Issuer are ultimately owned by the same
owners.
24
9.2.6
The Digiplex Norway Services Agreement
In November 2014, the Issuer entered into a management and support services agreement with DigiPlex Norway
AS (the "DigiPlex Norway Services Agreement"), pursuant to which DigiPlex Norway AS shall be responsible,
on behalf of the Issuer, for certain management and support functions. Services to be provided under the
DigiPlex Norway Services Agreement include management, strategy, IT, sales and marketing, human resources
and operations support. DigiPlex Norway AS shall be remunerated on a monthly basis, estimated at
approximately NOK 260.000 per month. The DigiPlex Norway Services Agreement shall remain effective unless
and until it is terminated by either party with three months written notice.
9.2.7
Shareholder loan agreements
The Issuer (as borrower) has entered into two shareholder loan agreements with the Parent; one NOK
133,452,470 loan agreement dated 31 December 2013 with further loans totaling NOK 75,630,000 made in
February, March and October 2014 and one NOK 30,000,000 loan agreement dated 27 May 2014 (collectively,
the "Shareholder Loan Agreements"). The loans under both loan agreements have been disbursed in full and
the loans do not accrue interest. The Shareholder Loan Agreements do not contain restrictive covenants.
Although the loans are stated to be payable on demand, there are contractual restrictions that restrict repayment
thereof. Firstly, clause 13.3.2 in the Bond Agreement provides that any repayment of shareholder loans is subject
to no event of default having occurred and that is continuing and that the Issuer satisfies a certain dividend
incurrence test. Secondly, the Shareholder Loan Agreements are subject to a turn-over and subordination
agreement entered into by the Parent and the Bond Trustee and pursuant to which the Parent has agreed to, inter
alia, (i) subordinate its claims under the Shareholder Loan Agreements to any claim the Bond Trustee has against
the Issuer and (ii) not accept any payment from the Issuer which would contravene the abovementioned clause
13.3.2 in the Bond Agreement.
25
10
ADDITIONAL INFORMATION
The involved persons in DigiPlex Fet AS have no interest, nor conflicting interests that are material to the Bond
Issue.
DigiPlex Fet AS has mandated Pareto Securities AS to act as Manager of the Bond Issue. The Manager has acted
as advisor to DigiPlex Fet AS in relation to the pricing of the loan.
26
11
DOCUMENTS ON DISPLAY
For the life of the Prospectus the following documents (or copies thereof), where applicable, may be inspected:
a)
the memorandum and articles of association of the Issuer;
b) all reports, letters, and other documents, historical financial information, valuations and
statements prepared by any expert at the Issuer's request any part of which is included or
referred to in the Prospectus;
c)
the historical financial information of the Issuer or, in the case of a group, the historical financial
information of the Issuer and its subsidiary undertakings for the financial year preceding the publication
of the Prospectus.
The documents may be inspected at the Issuer's registered business address.
27
12
DEFINITIONS AND GLOSSARY OF TERMS
Account Bank:
Means:
a)
until and including the Construction
Cancellation Date, Pareto Bank ASA; and
Guarantee
b) after the Construction Guarantee Cancellation Date, Pareto
Bank ASA or such other first class bank(s) with minimum
"A" credit rating from S&P, Moody’s or Fitch or, in each
case, an affiliate thereof
Accounts:
Means:
a)
the Debt Service Retention Account;
b) the Earnings Account; and
c)
the Escrow Account
Assignment of Insurances:
Means the first priority assignment of all the Issuer’s monetary
claims under insurances over the Property
Assignment of Subordinated
Loans:
Means the first priority assignment of all of the Parent’s monetary
claims under any Subordinated Loans
Bond Agreement:
Means the Bond Agreement between the Issuer and the Bond
Trustee on behalf of the Bondholders dated 10 June 2014, attached
hereto as Appendix 1
Bond Issue / Bonds:
FRN DigiPlex Fet AS Senior Secured Bond Issue 2014/2019 – ISIN
NO 001 0712870
Bondholder:
Means a person registered as a holder of Bond(s) in the VPS, from
time to time
Company / Issuer / DigiPlex:
DigiPlex Fet AS
Consultancy Assistance
Agreement:
Means the consultancy assistance agreement originally dated 5
March 2014 and entered into between the Issuer and Metier AS (as
amended from time to time)
Contractor:
AS Miljøbygg
Construction Completion Date:
Means the date on which the Independent Consultant has certified
to the Account Bank and the Bond Trustee that the construction of
the Data Centre is completed in accordance with the Construction
Contract and pursuant to the requirements of the EVRY Lease
Agreement
28
Construction Guarantee
Cancellation Date:
Means the date on which the final payment to the Contractor under
the Construction Contract has been made
Construction Contract:
Means the turnkey construction contract originally dated 31 January
2014 and entered into between the Issuer, the Contractor and GK
Norge AS as technical sub-contractor to the Contractor (as amended
from time to time)
Construction Guarantee:
Means the guarantee provided by Pareto Bank ASA in relation to
the Issuer’s obligations under the Construction Contract for an
amount of NOK 88,482,882, which will be in force until the
Construction Guarantee Cancellation Date
CPI:
Consumer Price Index
Data Centre:
Means the data centre to be located on the Property, upon
completion consisting of two buildings with a total of 4,200m2 of
White Space
Debt Service Retention Account:
Means the debt service retention account to be held by the Issuer,
pledged and blocked on first priority as security for the Issuer's
obligations under the Finance Documents
Debt Service Retention Account
Pledge:
Means the first priority pledge over the Issuer’s claim against the
Account Bank for the amount from time to time standing to the
credit of the Issuer in the Debt Service Retention Account, in favour
of the Bond Trustee (on behalf of the Bondholders)
DigiPlex Norway Services
Agreement:
Means the management and support services agreement entered into
between the Issuer and DigiPlex Norway AS in November 2014
Earnings Account:
Means the account to be held by the Issuer, into which the lease
income shall be paid by EVRY AS or any other relevant lessee
Earnings Account Pledge:
Means the first priority pledge over the Issuer’s claim against the
Account Bank for the amount from time to time standing to the
credit of the Issuer in the Earnings Account, in favour of the Bond
Trustee (on behalf of the Bondholders)
EVRY Acceptance Date:
Means the date on which EVRY AS has notified the Issuer that it
has accepted delivery of all six sections of the Data Centre, and that
rent is payable for all six sections, in accordance with the EVRY
Lease Agreement
EVRY Lease Agreement:
Means the lease agreement originally entered into between EVRY
AS and the Issuer dated 5 July 2013 (as amended from time to time)
EVRY Lease Assignment:
Means a first priority assignment of the Issuer’s monetary claims
under the EVRY Lease Agreement, in favour of the Bond Trustee
(on behalf of the Bondholders)
29
Finance Documents:
Has the meaning ascribed to such term in Clause 1.1 of the Bond
Agreement, attached hereto as Appendix 1
Escrow Account:
Means an account in the name of the Issuer, pledged and blocked on
first priority as security for the Issuer’s obligations under the
Finance Documents
Escrow Account Pledge:
Means the first priority pledge over the Issuer’s claim against the
Account Bank for the amount from time to time standing to the
credit of the Escrow Account, where the Account Bank has waived
any set-off rights, in favour of the Bond Trustee (on behalf of the
Bondholders).
Forward-looking statements:
Statements made that are not historic and thereby predictive as
defined in section 3 of this Prospectus. Such statements are
identified by forward-looking terms such as “aim”, “expect”,
“believe”, “plan”, “intend”, “estimate”, “anticipate”, “may”, “will”
and “could” or similar words or phrases
HSEQ:
Health, Safety, Environment and Quality
Issuer's Bonds:
Means any Bonds owned by the Issuer, any person or persons who
has Decisive Influence over the Issuer, or any person or persons
over whom the Issuer has Decisive Influence.
Issuer Share Pledge:
Means the first priority pledge over the shares in the Issuer, granted
by the Parent in favour of the Bond Trustee (on behalf of the
Bondholders).
Independent Consultant:
Multiconsult AS
Management and Support
Services Agreement:
Means the management and support services agreement entered into
between the Issuer and DigiPlex London 1 Ltd in November 2014
Man Day Charge Rate:
Means the rate charged for the provision of Services (as defined in
the Management and Support Services Agreement) by any one or
more of DigiPlex London 1 Ltd’s personnel (which shall include
travelling to and from any Site (as defined in the Management and
Support Services Agreement)) to the Company to the extent of a full
working day during which such personnel shall be committed to the
provision of the relevant Services for not less than 7 ½ hours on
any weekday which is not a public holiday and if necessity requires
for such longer period as the circumstances dictate
Milestone 1:
Delivery of the first 700 m2 of the Data Centre to EVRY AS, which
is scheduled to take place in the fourth quarter of 2014
NGAAP:
Norwegian generally accepted accounting principles
Norwegian FSA
Norwegian Financial Supervisory Authority
30
Operating Assets Pledge:
Means the first priority pledge over the Issuer’s operating assets
(Nw: driftstilbehør), in favour of the Bond Trustee (on behalf of the
Bondholders)
OPEX Costs:
Means operational expenses relating to the operations of the
completed sections of the Data Centre up to the Construction
Completion Date (but excluding arrangement and interest costs
related to the Bond Issue)
Outstanding Bonds:
Means the Bonds not redeemed or otherwise discharged
Parent:
DigiPlex Fet LLC
Project:
Means the design, development, construction, equipping and
completion of the Data Centre
Project Costs:
Means any documented project costs required to complete the
Project and incurred by the Issuer in the period from the Issue Date
and up to the Construction Completion Date
Property:
Means the property with land no. (Nw: gårdsnummer) 36 and
property no. (Nw: bruksnummer) 108 in Fet municipality, Norway,
upon which the Data Centre is situated
Property Mortgage:
Means the mortgage granted by the Issuer in favour of the Bond
Trustee (on behalf of the Bondholders) over the Property and all
relevant equipment being legally part of the Property, in favour of
the Bond Trustee (on behalf of the Bondholders), which until the
Construction Guarantee Cancellation Date shall rank on second
priority behind the Construction Guarantee and on first priority
thereafter
Prospectus:
This document dated 10 December 2014
Shareholder Loan Agreements:
Means the shareholder loan agreements entered into between the
Issuer (as borrower) and the Parent (as lender), including one NOK
133,452,470 loan agreement dated 31 December 2013 with further
loans totaling NOK 75,630,000 made in February, March and
October 2014 and one NOK 30,000,000 loan agreement dated 27
May 2014
Sponsors:
Means Mr. Byrne Murphy and Mr. William Conway, and any of
their affiliates
Subordinated Loan:
Means debt financing provided to the Issuer by the Parent or any
third party that (i) is subordinated in right of payment to the Bonds
pursuant to the Subordination and Turn-Over Agreement, (ii) is
only serviced according to the restrictions set out in Clause 13.3.2
of the Bond Agreement, attached hereto as Appendix 1, and (iii)
does not provide for its acceleration or confer any right to declare
any event of default prior to the Maturity Date
31
Subordination and Turn-Over
Agreement
Means an agreement between the Bond Trustee and any provider of
a Subordinated Loan, which shall be in form and substance
satisfactory to the Bond Trustee
VAT:
Value added tax
Voting Bonds:
Means the Outstanding Bonds less the Issuer’s Bonds
VPS:
Verdipapirsentralen ASA (Norwegian Central Securities
Depository), which organises the Norwegian paperless securities
registration system
White Space:
Net data storage area
32
APPENDIX 1