Disclaimer Due Diligence
Unless otherwise specified, our due diligence reports and any other opinions or summaries of our review (“Report”, “Audit” or “Analysis”) expressed within or outside of a Report but in advance of a Transaction are subject to the following conditions, limitations, assumptions and exclusions.
01//PURPOSE OF THE REPORT
(01) The Report is a concise summary of our assumption-based, legal and, if applicable, tax risk-analysis of relevant areas of the Data Room (” Due Diligence”). The Due Diligence is based on documents of the data room which have been assumed or designated as relevant for the investigation (“Clusters”), which identifies hazards (“Risks”) resulting from legal facts and empirical assumptions for the completion of the Transaction or for the adequacy of the consideration and proposes recommendations for the avoidance or mitigation of such Risks which can be considered under the specific circumstances of the Transaction. This Report does not constitute an expert opinion on the legal situation or an assessment of the likelihood of success of measures proposed for the avoidance or mitigation of Risks, but rather probabilistic statements are made throughout, i.e. probability statements on the existence or non-existence of legal risks with a certain probability.
(02) To the extent that the Report is designated as a Red Flag List, Preliminary, Interim, Pre-Phase or Warning Signal Report or similar, the Special Conditions to Red Flag Reports apply.
(03) The Report is supplemented by opinions or summaries of our findings, in particular our proposals for the form of the contract to be concluded (including within contract revisions), made within or outside the Report but in advance of the conclusion of the contract, to which we refer.
(03) The contents of the Report are confidential and are subject to the attorney’s duty of confidentiality. The addressee of the Report is the client of the Due Diligence (“Client”). This document is intended solely for the addressee for the purpose of the transaction. It may not be used by the addressee for any other purpose and the addressee may not rely on it for any other purpose. The Report or any part thereof may not be disclosed to any third party without our express consent. Even where we have given our consent to disclosure, these terms and conditions shall also apply to the third party. The information contained herein may be extracts from, and form part of, a full report or other communication on the results of our audit, the qualifications, assumptions, reservations and exclusions of which apply also to the Report.
02//SCOPE OF REPORTING
(01) We have not made any review in respect of economic or technical risks and have not performed any due diligence in respect of environmental risks. As agreed with our Client, our due diligence focuses on the scope described in the Report and its components and on material factors and risks relevant to value. Accordingly, we have focused on those such aspects that we believe the Client considers to be material in the course of completing the Transaction. Accordingly, the Report does not contain a detailed description of each document reviewed, but only those descriptions that we have considered critical or that the Client has specifically requested to be evaluated. We have not verified the accuracy of any information contained in tenant lists unless specifically stated otherwise.
(02) We have not been engaged to investigate matters in the Data Room which are not reasonably apparent or to verify any information and documents or statements made by the Transaction Partner. In particular, a matter is not reasonably obvious if the documents relating to the matter are not properly designated in accordance with the systematics of the Data Room or have been placed in the Data Room as a component of or as an attachment to other documents for which the inclusion of corresponding documents as a component or attachment was not to be expected due to their systematic classification or their designation, or if they do not enable even a diligent examiner to assess the nature, scope and extent of a loss event and its consequences. Furthermore, it was not our task to obtain additional or supplementary information and documents from generally accessible sources or from third parties or to systematically compile information scattered in the Data Room.
The Report is based solely on information and documents disclosed to us by the other party or its advisor in the period up to the Effective Date of the Report, as well as the publicly available documents (for example, land register or commercial register extracts) specified in the Report in each case, insofar as these were made available to us physically or in an electronic virtual data room (“Data Room”) up to the Effective Date.
The Report has been prepared as at the date indicated (“Effective Date”). It does not contain any statements about documents or information received by us after that date. We have no obligation to update the Report or to disclose any documents or information obtained after the Effective Date unless expressly instructed to do so. We do not assume any obligation to update or supplement our analysis or the findings with respect to factual circumstances that have come to our attention after the Effective Date or changes in law that have occurred thereafter.
(01) Our analysis is limited to questions of German law.
(02) Unless expressly stated otherwise, the Report is based on the assumptions
- that all documents in the Data Room or otherwise made available to us are complete copies of the originals,
- that the contracts made available to us, in particular lease, tenancy and other user agreements, fully reflect the contents of the agreements of the contracting parties and have not been subsequently amended, in any form whatsoever, without such amendments also having been disclosed to us,
- that the signatures on the documents are authentic,
- that the documents have been validly signed by persons authorised to do so and are binding on the respective parties,
- that any unsigned documents submitted to us or requested by us have been signed without alteration and correspond to the executed originals,
- that all information disclosed to us for the purpose of preparing the Report is and remains accurate, complete and not misleading,
- that no relevant documents or information have been withheld from us.
(03) Where documents provided to us or requested by us were unsigned or undated, we have specifically noted this in the Report where relevant. Where we have not been provided with attachments to contracts or other documents, we have assumed that these attachments actually exist and form an annex to the respective contracts.
(04) Where contracts and agreements are referred to or summarised in the documents we have inspected, we note that they may never have been validly concluded, may have been breached or may have been modified by oral agreements of the parties, whether by implication or in the ordinary course of business, without our having been informed of such transactions in the course of our due diligence. In addition, we cannot exclude the possibility that agreements and contracts that were exclusively oral were not disclosed to us.
(05) The Data Room documents may not include all documents that should have been provided to us for our due diligence and may not contain all information relevant to the proposed transaction. The Report does not contain a complete reproduction of the information provided in the Data Room or in any expert discussions and does not contain a complete account of the topics and matters covered in the Due Diligence.
(06) The Report is limited exclusively to the topics and matters expressly dealt with in the Report and accordingly does not make any statements about topics and matters other than those expressly dealt with in the Report. For example, as agreed with the Client, this report does not deal with technical, financial or accounting, insurance, actuarial, IT or environmental matters which are or have been dealt with either in separate reports by other engaged advisers or by an internal due diligence team of the Client.
(07) To the extent that the Report refers to any other report, memorandum, opinion or advice provided by any third party, including any other legal adviser (such as in other jurisdictions) engaged in connection therewith, such third party is solely responsible for the contents and statements of such report, memorandum, opinion or advice.
06//CORRECTNESS OF STATEMENTS IN THE Q&A
To the extent that we refer to any information as “reportedly” or similar, such information is based on information provided to us by the Transaction sartner, its advisors or third parties engaged by it, whether orally, in writing or through a question and answer (“Q&A”) process. Although information in the Q&A may not be supported by documents, we have assumed for the purposes of the Report that the information is accurate, complete and not misleading, unless this would clearly not be the case.
07//IMPLEMENTATION OF RISK-MINIMISING MEASURES
To the extent that we have proposed risk-mitigating measures, we are not obliged to verify compliance with these measures, in particular with regard to those measures over whose implementation we have no or only limited influence, for example in the assessment of the purchase price, the involvement of other advisors, in particular technical due diligence, or in the event that the transaction partner refuses to provide further information or documents identified as necessary for the purpose of a more detailed analysis. To the extent that we are engaged to advise on, draft and negotiate the sale and purchase agreement or any other transaction document, we will endeavour to implement such measures. However, such measures, e.g. warranties, deferrals or other loss minimisation clauses, are usually a matter of negotiation and require the consent of the transaction partner. To the extent that this cannot be obtained, we are under no obligation to update our analysis to reflect this circumstance. Rather, if we are instructed to proceed with the transaction, we may assume that the risks identified in the report but not settled have been taken into account and accepted by the Client when weighing up the opportunities and risks involved in concluding or terminating the Transaction.
08// SPECIAL LIMITATIONS, EXCLUSIONS AND ASSUMPTIONS
Specific limitations, exclusions and assumptions relating to particular matters arise from components expressly referred to in the Report, in particular lease data sheets. These shall be deemed to form part of these Conditions.
The contents of the Report are confidential and are subject to the lawyer’s duty of confidentiality. The addressee of the Report is our Client. The Report is intended solely for the addressee for the purpose of the Transaction. It may not be used by the addressee or any third party for any other purpose and the addressee and any third party may not rely on it for any other purpose. The information contained herein may be extracts from, and form part of, a full report or other communication on the results of our audit, the qualifications, assumptions, reservations and exclusions of which apply also to the Report.
10//LIMITATION OF LIABILITY
Unless otherwise agreed in writing, our liability for pecuniary loss caused by negligence shall be limited to EUR 2,500,000.00. This limitation of liability applies equally to simple and gross negligence, but not to intent. If this limitation of liability has not been agreed in writing or in an individual case, the liability of the firm for pecuniary loss caused by simple negligence shall be limited to the amount of EUR 10,000,000.00.
We are only liable for our own work; any joint and several liability with other advisors or other third parties involved in the mandate is excluded.
11//AUTHORS OF THE REPORT
In the Report, the terms “We” and “Us” refer to: KUCERA Rechtsanwälte Steuerberater Notar Partnerschaft mbB, registered office: Frankfurt am Main, Local Court Frankfurt am Main PR 1723.
Red Flag Report
(01) To the extent that we are engaged to perform a legal or tax due diligence in a pre-phase or preliminary due diligence, the Report only provisionally highlights the material findings identified in the due diligence report as at the reporting date and such investigation findings that were discovered during the pre-phase and require special attention (“Red Flag Report”).
(02) A Red Flag Report is only intended to provide an overview of warning signals (“Red Flags”) identifiable up to the reporting date and is not intended to replace a formal, i.e. complete Report. The objective of the pre-phase audit is to determine, within a limited period of time,
- to determine whether the object of purchase substantially meets the transaction criteria,
- to detect any obvious but hidden risks that could seriously jeopardise the value of the object of purchase, such as a decline in cash flow, unforeseen major expenses, major litigation and the like.
(03) Transaction Criteria are those items set out in the Letter of Intent (LoI), the Heads of Terms (HoT) or similar pre-transaction agreement and otherwise those factors that typically have a material impact on the value of the Purchase Asset and potentially damaging issues that could trigger unexpected costs after completion of the transaction, but only to the extent that they are identifiable in a helicopter review with reasonable effort in the time remaining until the Effective Date.
(04) Our Red Flag reporting follows the principles of agile project management (“Agile Reporting”). Agile Reporting refers to approaches where the legal team has high tolerances on the scope and depth of legal-tax investigations and focuses on a short-term analysis of the most important information in the data room. On the other hand, the requirement for an exhaustive analysis of the entire data room is given less or no consideration. This step is reserved for the formal due diligence phase.
(05) The documents in the data room were clustered for the Red Flag Report. We only checked the files in the legal cluster. We did not consider files from other clusters, i.e. those outside the scope of our analysis. In particular, we have assumed that technical documents are not relevant to our review because these are examined by technical due diligence, including, but not limited to, planning documents for construction and use permits, inspection documents, maintenance records and the like.
(06) If agreed, the Report will be completed or confirmed with more details in a formal due diligence phase (optional).