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Section 5.07. Security





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(a) The Borrower shall create, perfect, maintain and, as appropriate, renew and amend the Security in a manner satisfactory to EBRD and shall ensure that, promptly following the first Disbursement and at all times thereafter, the Security ranks in priority to any Liens granted in favour of EBRD in connection with the Subordinated Loan or granted in favour of any other person (save as may be otherwise agreed).

(b) Without prejudice to the generality of the Borrower's obligations under (a) above:

(1) to the extent that after the execution of the Pre-Construction Security Documents any new asset or right (including, without limitation, any new Lease Agreement, any new bank account and any policy of insurance that the Borrower may incept (other than third party liability insurance)) is acquired by the Borrower that does not automatically become the subject of a Lien in favour of EBRD pursuant to a Pre-Construction Security Document, the Borrower shall promptly but in any event within fourteen (14) Business Days of such acquisition of any new asset or right enter into a Supplemental Security Document substantially in the form of the appropriate Pre-Construction Security Document in respect of such asset or right and take all necessary steps to perfect the Liens created thereby save that, in connection with any registration or other action which may only be taken by EBRD as the secured party ("Secured Party Action"), the Borrower shall take all necessary steps if and when so required by EBRD in order to assist EBRD when taking Secured Party Action;

(2) within 60 Business Days of the Physical Completion Date the Borrower shall execute all documents necessary to create and perfect the Post-Construction Security and shall procure that the Post-Construction Security shall be perfected within 90 Business Days of the Physical Completion Date save that, in connection with any necessary registration or other action which may only be taken by EBRD as the secured party ("Secured Party Action"), the Borrower shall take all necessary steps if and when so required by EBRD in order to assist EBRD when taking Secured Party Action; and

(3) the Borrower shall ensure that any person that acquires (in any way whatsoever) any interest in the share capital of the Borrower is made aware of the existing security interests created pursuant to the Financing Agreements and of the requirement that such person executes Share Security in respect of such share capital and the Borrower shall not, unless such Share Security shall be created, consent to any such acquisition of its shares.

Section 5.11. Financial Ratios and Minimum Cash Sweep

(a) Actual DSCR. The Borrower shall, starting from the Financial Project Completion Date and at all times thereafter, maintain a ratio (being the "Actual DSCR") of:

(i) CADS for the 12 months preceding the date to which the calculation is being performed; to

(ii) Debt Service for the 12 months preceding the date to which the calculation is being performed,

of not less than 1.3.

For the purpose of this Section 5.11(a):

(1) "CADS" or "Cash Available for Debt Service" means, in respect of any given period, the sum, expressed in EUR, of the inflows (excluding any Loan or Subordinated Loan disbursements or advances and any VAT refunds) (as however defined in any Financing Agreement)) (treating these inflows as a positive figure and excluding any items of a non-recurring nature such as lease deposits and any projected lease revenues from tenants not yet in occupancy) and outflows (excluding any Debt Service) (treating these outflows as a negative figure) of Cash and Cash Equivalents; and

(2) "Debt Service" means, in respect of any given period, the aggregate amount, expressed in Euro, of all payments of principal, interest and commitment charges and other fees and expenses (excluding non-recurring fees and expenses) falling due and payable in respect of the Loan and the Subordinated Loan during such given period.

For the purpose of testing compliance with this Section, the Actual DSCR shall be calculated by reference to periods of twelve months consisting of 4 consecutive Financial Quarters in respect of which Financial Statements have been delivered and ending on the end of the last such Financial Quarter in respect of which Financial Statements have been delivered. For the purposes of testing compliance with this Section, the Actual DSCR shall be calculated by reference to the relevant Financial Statements and the lease payments, including VAT paid by tenants, but only as long as there exists VAT reimbursable in the Financial Statements and VAT declaration of the Borrower, properly filed with (receipt acknowledged by) the relevant Governmental Authorities, in the amount higher than VAT payable by tenants used for calculation purposes.

(b) Projected DSCR. The Borrower shall, at all times before the Financial Project Completion Date maintain a Projected DSCR of not less than 1.0 and starting from the Financial Project Completion Date and at all times thereafter, maintain a Projected DSCR of not less than 1.3. The Projected DSCR shall be the ratio of:

(i) Projected CADS for the 12 months following the date from which the calculation is being performed; to

(ii) Projected Debt Service for the 12 months following the date from which the calculation is being performed.

For the purpose of this Section 5.11(b):

(1) "Projected CADS" means in respect of any given period the sum, expressed in Euro, of the projected inflows from the Pre-Lease Agreements and Lease Agreements of fixed rentals (excluding any VAT refunds, projected disbursements or advances (as howsoever defined in any Financing Agreement)) (treating these inflows as a positive figure and excluding any items of a non-recurring nature such as lease deposits and any projected lease revenues from tenants where occupancy has not yet contractually commenced) and projected outflows (excluding any Projected Debt Service (as defined in any Financing Agreement)) (treating these outflows as a negative figure) of Cash and Cash Equivalents; and

(2) "Projected Debt Service" means in respect of any given period, the aggregate amount, expressed in Euro, of all projected payments of principal, interest and commitment charges and other fees and expenses (excluding non-recurring fees and expenses) falling due and payable in respect of the Loan during such given period where such projections shall be made on the basis of the interest rate being applied to the Loan and the Subordinated Loan at the date in respect of which such calculation is being made.

For the purposes of testing compliance with this Section, the Projected DSCR shall be calculated by reference to the relevant Financial Statements and the scheduled lease payments, including VAT payable by tenants, but only as long as there exists VAT reimbursable in the Financial Statements and VAT declaration of the Borrower, properly filed with (receipt acknowledged by) the relevant Governmental Authorities, in the amount higher than VAT payable by tenants used for calculation purposes. All the calculations shall be made for the relevant period of projection as set out in the Lease Agreements where the relevant tenant is in occupancy. In the period before the Financial Project Completion Date the Borrower shall have 90 days to rectify any noncompliance with its obligations under this Section. For the avoidance of doubt, this 90 day period shall not be extended further by the 30 day period referred to in section 7.01(b).

(c) Loan to Cost ("LTC") Ratio. At all times prior to the Construction Completion Date, the Borrower shall maintain a ratio (the "LTC Ratio") of:

(i) the total outstanding amount of the Loan (expressed in Euro); to

(ii) the aggregate (expressed in Euro) of all costs incurred by the Borrower and all costs forecasted to be incurred by the Borrower in achieving Construction Completion (as certified by the Lender's Supervisor) (such amount the "Total Project Costs"),

of not more than 50:100.

The Lender's Supervisor shall be requested and obliged to certify the Total Project Costs on at least the following occasions: (1) in each LS Monthly Report; and (2) in connection with the determination of the occurrence of the Construction Completion Date.

(d) Loan to Value ("LTV") Ratio. At all times after the Construction Completion Date, the Borrower shall maintain a ratio (the "LTV Ratio") of:

(i) the total outstanding amount of the Loan (expressed in Euro); to

(ii) the value (expressed in Euro) of immovable assets mortgaged to EBRD pursuant to the Security Documents, as determined in the most recent Valuation Report,

of not more than 50:100.

 

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