Legal

KBRA EUROPE VIRTUAL DATA ROOM
TERMS AND CONDITIONS

These terms and conditions (“Agreement”) govern the use of this virtual data room (“VDR”). The Agreement is between:

1. Kroll Bond Rating Agency Europe Limited of 6-8 College Green, Dublin 2 (“KBRA Europe”); and
2. the individual invited by KBRA Europe or its client (“Client”) to access this VDR; and, as applicable, any company, firm or other entity whose employees, nominated individuals or agents are invited by the Client or KBRA Europe to access the VDR (“Organization”, and each individual and any Organization referred to as a “Recipient”, and each individual, Client, Organization and Recipient, collectively, “Users”).

THIS VIRTUAL DATA ROOM AND ANY CONFIDENTIAL RATING DOCUMENTS ACCESSIBLE USING THE VDR ARE INTENDED ONLY FOR AND MAY ONLY BE USED BY, DISTRIBUTED TO AND/OR ACCESSED BY USERS IN ACCORDANCE WITH THE ENGAGEMENT LETTER BETWEEN KBRA EUROPE AND CLIENT, AS APPLICABLE, THE PROVISIONS OF THESE TERMS AND CONDITIONS, AND APPLICABLE REGULATIONS AND REGULATORY GUIDANCE OF THE EUROPEAN SECURITIES AND MARKET AUTHORITY.

1. VDR Access

Subject to the provisions of this Agreement and applicable regulations and regulatory guidance, KBRA Europe may provide Users with access to and limited use of this VDR (“VDR Access”) hosted by Finsight Group, Inc. and/or its affiliates (“Finsight”). KBRA Europe may distribute unpublished rating(s) and/or related content (“Rating Documents”) through the VDR and Users are aware of, and must abide by, all European Securities and Markets Authority (“ESMA”) regulations and regulatory guidance applicable to them, including regarding the distribution or receipt of the Rating Documents via the VDR to or by Recipients in connection with the VDR Access. User acknowledges that (i) the use, access and distribution of the Rating Documents through the VDR will be monitored and limited to 150 persons (“150 Recipient Limit”); (ii) Client will monitor, abide by and implement the 150 Recipient Limit; and (iii) KBRA Europe will report any distribution above the 150 Recipient Limit to regulatory authorities, in accordance with and subject to the applicable ESMA regulations and guidance. KBRA Europe reserves the right in its sole discretion to amend the permissions of any User or cease providing the VDR Access to any User, in whole or in part with or without out notice, including, for example, if KBRA Europe becomes aware of any actual or suspected non-compliance with this Agreement and/or applicable ESMA regulations and regulatory guidance related to the VDR Access. In particular, Users acknowledge that KBRA Europe may (i) access, disclose, restrict or remove accounts and User data in or from the VDR and (ii) monitor, restrict, or terminate a User's access to the VDR, each in accordance with this Agreement, KBRA Europe's policies, and applicable regulations and regulatory guidance. User requests for the addition of new Recipients to the VDR must be directed to the applicable Client from whom User has obtained access to the VDR. User shall notify KBRA Europe and Client if any User should have its VDR Access suspended or revoked, as applicable, including if any User is no longer employed with the applicable Organization.

Any inclusion in the 150 Recipient Limit provided by KBRA Europe to Users (“KBRA Count”), whether as part of the VDR Access or separately, is provided as a courtesy, is not authoritative, and is provided solely as an estimate for informational purposes based on information KBRA Europe has at such time. Client acknowledges and agrees that it shall maintain its own count towards the 150 Recipient Limit separate from the KBRA Count (“Client Count”). KBRA Europe or its affiliates shall not be liable to Users if ESMA implements or revises regulations or regulatory guidance that clarifies or otherwise affects the count towards the 150 Recipient Limit (the “ESMA Revised Count”) such that the resulting ESMA Revised Count is different from the KBRA Count or the Client Count (the ESMA Revised Count, Client Count and KBRA Count, collectively “Any Count”).

KBRA Europe shall have no liability for any Users, including the Client or Recipient, internal management or administration of the VDR Access.

Additional Client Terms

Client acknowledges that the receipt of or access of the Rating Documents has regulatory and legal ramifications and will result in the count of any Recipient towards the “150 Recipient Limit” pursuant to ESMA regulations and guidance unless such Recipient falls within an exception clearly identified by ESMA.

2. Personal Data

By being provided with access to the VDR, User's personal data will be processed in accordance with KBRA Europe's VDR Privacy Statement above. The Privacy Statement is subject to change over time. KBRA Europe will notify Users of any changes to the Privacy Statement. Users acknowledge that personal data processed in connection with the VDR shall involve the processing of personal data outside the European Union.

Each Organization agrees and represents to KBRA Europe that where it or any of its Users provides personal data to KBRA Europe that: (i) the Organization will have complied with its responsibilities under applicable data protection and privacy laws in respect of that personal data and (ii) the processing by KBRA Europe of that personal data in accordance with this Agreement will not result in KBRA Europe being in breach of applicable data protection and privacy laws.

Each Organization agrees to comply with its obligations under applicable data protection and privacy laws.

3. Limitations on Use

Users shall not (i) distribute, make available or otherwise provide the Rating Documents through any means, directly or indirectly to any party, except as expressly authorized by KBRA Europe in writing; (ii) license, sublicense, sell, resell, transfer, assign, or otherwise commercially exploit or make available to any party the Rating Documents in any way or download any portion of, or modify (including altering, obscuring or removing watermarks) or make derivative works based upon the Rating Documents other than as expressly permitted pursuant to the terms of this Agreement or the applicable engagement letter between KBRA Europe and the Client; (iii) create Internet “links” to the Rating Documents or “frame” or “mirror” the Rating Documents on any other server or wireless or Internet-based device; (iv) use web crawlers, robots or other computer programs or techniques to extract data from the Rating Documents; or (v) upload, post, email, or otherwise transmit through the VDR any computer code that contains any virus, Trojan horse, or other program that is likely to harm or impair the functioning of the VDR, the VDR Access, or the provision of the Rating Documents.

Users shall not use Rating Documents for any purpose that is unlawful or prohibited by this Agreement, including but not limited to attempting or actually (i) changing, disrupting, impairing or interfering with the Rating Documents; (ii) collecting any information about other Users, including passwords, accounts or other information; or (iii) systematically extracting data contained in the Rating Documents, including for the purpose of populating databases for internal or external business use.

4. User's Responsibilities in respect of the VDR

The sharing of username and/or password information to access the VDR and/or Rating Documents is strictly prohibited. User agrees to take all necessary steps to protect the confidentiality of username and password information and to ensure that appropriate procedures are in place to prevent misuse. User is responsible for all activity occurring under User's account and shall abide by all applicable regulations and regulatory guidance in connection with User's use and access of the VDR and/or Rating Documents. User shall: (i) notify KBRA Europe immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the VDR and/or Rating Documents; (ii) report to KBRA Europe immediately, and use reasonable efforts to immediately stop, any copying or distribution of information from the VDR and/or Rating Documents that is known or suspected by User; (iii) not impersonate another User; and (iv) not provide Finsight and/or KBRA Europe false identity or employment information for any reason, including to falsely lower Any Count or to gain access to or use the VDR and/or Rating Documents.

5. Confidentiality

Except as expressly provided in this Agreement, Recipient shall maintain the existence and content of the Rating Documents as confidential. Recipient shall not possess, access, use or disclose any of the Rating Documents outside of the VDR except as expressly set forth in this Section 5. Requests to add new Recipients to the VDR Access shall be made in accordance with Section 1 above. Recipient shall use the same degree of care as it uses to keep its own confidential information confidential to protect the confidentiality of the Rating Documents, but in any event no less than a reasonable degree of care. Recipient shall be responsible for any breach of confidentiality by its Users. Promptly after any termination of this Agreement (or at KBRA Europe's request at any other time), Recipient shall destroy all of the tangible confidential information related to the Rating Documents, provided that Recipient may retain information for the purposes of complying with and for so long as is required by any law, court, regulation, regulatory authority, or its internal compliance procedures. The restrictions herein will not prevent Recipient from (a) disclosing the Rating Documents to applicable regulatory authorities with jurisdiction over Recipient on a confidential basis and only if Recipient requests appropriate confidential treatment, or (b) complying with any law, regulation, court order or other legal requirement that compels disclosure of the Rating Documents, provided that Recipient promptly notifies KBRA Europe upon learning of any such legal requirement, and cooperates with KBRA Europe in the exercise of its right to protect the confidentiality of the Rating Documents.

6. Intellectual Property Ownership

KBRA Europe (or its affiliates and/or its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights (as defined below), in and to Rating Documents, any technology or software used to provide Rating Documents, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by User or any other party relating to any of the foregoing. To the extent required by KBRA Europe (or its affiliates), User hereby grants KBRA Europe (or its affiliates) a non-exclusive, royalty-free worldwide and perpetual, license to use aggregated or individual data based on User activity. Any such materials produced using User data are the sole and exclusive property of KBRA Europe and/or its affiliates (as applicable, collectively, “KBRA”). The KBRA name, the KBRA logo, and the product names associated with the Rating Documents are trademarks of KBRA or third parties, and no right or license is granted to use them. Recipient may not use or disseminate research, data, or other information in association with KBRA's name or trademarks without the prior written consent of KBRA Europe; provided, however that Client may distribute Rating Documents in accordance with the applicable engagement letter between KBRA Europe and the Client. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. All rights not expressly granted to User are reserved by KBRA and its licensors.

7. Availability of VDR

KBRA Europe intends the VDR to be available on a 24-hour basis. However, KBRA Europe cannot guarantee uninterrupted access to the VDR. Finsight may suspend access to the VDR temporarily in accordance with its own terms of use and without notice if, for example, Finsight is required to conduct updating, maintenance or repair, or if such suspension is necessary due to an occurrence beyond KBRA Europe's reasonable control. However, KBRA Europe will use reasonable effort(s) to minimize such periods to the extent practicable. It is the User's responsibility to undertake its own appropriate checks to satisfy itself as to the security of the VDR prior to use. KBRA Europe does not accept any responsibility for any loss or damage howsoever arising or resulting from any period of unavailability or security incidents or technical problems related to the VDR Access.

8. Termination

User may terminate this Agreement with written notice to KBRA Europe, and KBRA Europe may terminate User's use of or access to the VDR and Rating Documents, at any time, for any reason or no reason (or as may otherwise be agreed between KBRA Europe and Client) with or without notice. Upon expiration or termination of this Agreement for any reason, all of User's rights in and to the VDR Access and Rating Documents shall immediately terminate. Expiration or termination shall not relieve any party of any liability for breach of this Agreement. In the event this Agreement expires or terminates for any reason, Recipient will immediately cease to use and access the VDR and Rating Documents, and destroy all copies of the data obtained from the VDR and Rating Documents (in any form or media) within its possession, custody or control; provided that, Recipient may retain such data in accordance with Section 5 above.

9. Disclaimers

KBRA EUROPE AND/OR ITS LICENSORS, WHERE APPLICABLE, MAKE(S) NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE INFORMATION RELIED ON IN CONNECTION WITH THE RATING DOCUMENTS OR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION. KBRA EUROPE AND ITS LICENSORS, WHERE APPLICABLE, DO(ES) NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE VDR WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (II) THE VDR OR THE SERVER(S) THAT MAKE RATING DOCUMENTS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE VDR AND THE RATING DOCUMENTS ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. USER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ALL INFORMATION THAT IS BASED ON OR INCORPORATES INFORMATION OR DATA PROVIDED BY THIRD PARTIES IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY KBRA EUROPE AND/OR ITS LICENSORS. THE RATING DOCUMENTS AND OTHER VIEWS OF KBRA EUROPE OBTAINED THROUGH THE RATING DOCUMENTS ARE STATEMENTS OF OPINION AND NOT STATEMENTS OF FACT OR RECOMMENDATIONS TO PURCHASE, SELL OR HOLD ANY SECURITIES. THEY ARE NOT A RECOMMENDATION OR SUGGESTION, DIRECTLY OR INDIRECTLY, TO USER OR ANY OTHER PERSON, TO BUY, SELL, MAKE OR HOLD ANY INVESTMENT, LOAN OR SECURITY OR TO UNDERTAKE ANY INVESTMENT STRATEGY WITH RESPECT TO ANY INVESTMENT, LOAN OR SECURITY OR ANY ISSUER. THE RATING DOCUMENTS DO NOT COMMENT ON THE ADEQUACY OF MARKET PRICE, MARKETABILITY, THE SUITABILITY OF ANY INVESTMENT, LOAN OR SECURITY FOR A PARTICULAR INVESTOR (INCLUDING WITHOUT LIMITATION, ANY ACCOUNTING AND/OR REGULATORY TREATMENT), OR THE TAX-EXEMPT NATURE OR TAXABILITY OF PAYMENTS MADE IN RESPECT OF ANY INVESTMENT, LOAN OR SECURITY. USER ACKNOWLEDGES THAT KBRA EUROPE IS NOT USER'S ADVISOR AND IS NOT PROVIDING USER ANY FINANCIAL OR INVESTMENT ADVICE (INCLUDING WITHIN THE MEANING OF 29 C.F.R. § 2510.3-21(C) OF THE U.S. DEPARTMENT OF LABOR REGULATIONS), OR ANY LEGAL, AUDITING, ACCOUNTING, APPRAISAL, VALUATION OR ACTUARIAL SERVICES. THE RATING DOCUMENTS SHOULD NOT BE VIEWED AS A REPLACEMENT FOR SUCH ADVICE OR SERVICES. NOTHING IN THIS AGREEMENT IS INTENDED TO OR SHOULD BE CONSTRUED AS CREATING A FIDUCIARY RELATIONSHIP BETWEEN USER AND KBRA EUROPE OR BETWEEN KBRA EUROPE AND ANY USER OF THE RATING DOCUMENTS DESCRIBED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY, USER UNDERSTANDS AND AGREES THAT KBRA EUROPE HAS NOT CONSENTED TO, AND WILL NOT CONSENT TO, (I) BEING NAMED AN “EXPERT” PURSUANT TO APPLICABLE SECURITIES LAWS INCLUDING, WITHOUT LIMITATION , SECTION 7 OF THE SECURITIES ACT OF 1933; OR (II) IDENTIFICATION OF KBRA EUROPE IN ANY REGISTRATION STATEMENT OR PROSPECTUS (INCLUDING THROUGH INCORPORATION) WITHIN THE MEANING OF APPLICABLE SECURITIES LAWS SUCH THAT KBRA EUROPE COULD REASONABLY BE EXPECTED TO BE CONSIDERED AN “EXPERT” PURSUANT TO APPLICABLE SECURITIES LAWS INCLUDING, WITHOUT LIMITATION, SECTION 7 OF THE SECURITIES ACT OF 1933. USER UNDERSTANDS THAT CURRENT AND FUTURE LAWS AND REGULATIONS, AS SUCH LAWS AND REGULATIONS MAY BE AMENDED OR SUPPLEMENTED, MAY APPLY TO KBRA EUROPE AND KBRA EUROPE MAY BE REQUIRED TO COMPLY WITH SUCH LAWS AND REGULATIONS BY IMPLEMENTING INTERNAL POLICIES AND PROCEDURES. USER ACKNOWLEDGES THAT THE VDR ACCESS AND RATING DOCUMENTS CONTEMPLATED HEREUNDER MAY BE SUBJECT TO SUCH LAWS AND REGULATIONS AND USER AGREES TO COOPERATE WITH KBRA EUROPE IF USER'S COOPERATION IS NECESSARY FOR KBRA EUROPE'S COMPLIANCE. USER ALSO ACKNOWLEDGES THAT KBRA EUROPE MAY BE REQUIRED TO DISCLOSE CERTAIN INFORMATION IF REQUIRED BY LAW OR A REGULATORY AUTHORITY.

10. Limitation of Liability

KBRA EUROPE AND ITS AFFILIATES AND LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES (INCLUDING WITHOUT LIMITATION ANY DIRECT INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OR ANY LOSS OF PROFITS, BUSINESS, GOODWILL OR DATA) HOWSOEVER ARISING OR INCURRED BY ANY USER OR ANY OTHER PERSON DIRECTLY OR INDIRECTLY IN CONNECTION WITH OR RELATING TO (i) THE VDR, THE VDR ACCESS, OR ANY DOCUMENTS, MATERIALS OR OTHER CONTENT IN THE VDR OR REFERRED TO IN IT INCLUDING THE RATING DOCUMENTS, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED TO, OR COULD REASONABLY HAVE BEEN FORESEEN BY IT; AND/OR (ii) THE USE OF OR ACCESS TO THE VDR AND RATING DOCUMENTS BY ANY USER IN BREACH OF THIS AGREEMENT.

USER ACKNOWLEDGES AND AGREES THAT IT SHALL ASSUME SOLE RESPONSIBILITY FOR EVALUATING THE MERITS AND RISKS ASSOCIATED WITH ANY INVESTMENT DECISION THAT USER MAY MAKE BASED ON INFORMATION OBTAINED THROUGH ACCESS TO THE VDR OR RATING DOCUMENTS. USER EXPRESSLY ACKNOWLEDGES THAT NEITHER KBRA EUROPE NOR ANY OF ITS EMPLOYEES, AGENTS, DIRECTORS, OFFICERS, LICENSORS OR AFFILIATES SHALL HAVE ANY LIABILITY TO USER FOR ANY CLAIM OR DAMAGES THAT ARISE FROM OR RELATE TO ANY DECISION BASED ON THE INFORMATION RECEIVED THROUGH THE RATING DOCUMENTS.

11. Indemnification

User shall indemnify and hold KBRA Europe, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with User's use of or access to the VDR and Rating Documents.

12. Assignment

Users may not assign, novate, subcontract, and/or transfer any rights or obligations under this Agreement to any party in whole or in part, without KBRA Europe's prior written consent. User acknowledges that any such assignment may count towards the 150 Recipient Limit unless the assignee falls within an exception clearly identified by ESMA. KBRA Europe may assign, novate, subcontract and/or transfer any rights or obligations under this Agreement, in whole or in part, without consent. Any purported assignment in violation of this section shall be void.

13. General

This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions, and it is irrevocably agreed by the parties that in respect of all disputes arising out of or in connection with the VDR Access or this Agreement, the courts of the State of New York shall have exclusive jurisdiction over such disputes. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. Misappropriation or misuse of the VDR Access and Rating Documents may cause serious damage to KBRA Europe for which money damages may not constitute a sufficient remedy. KBRA Europe shall have the right to apply for an injunction or other equitable relief in addition to other remedies. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. No waiver, alteration or modification of any of the provisions of this Agreement will be binding on KBRA Europe unless made in writing and signed by an authorized representative of KBRA Europe. KBRA Europe reserves the right, at its sole discretion, to modify or replace the terms of this Agreement, in whole or in part, at any time. Nothing in this Agreement, the rating when issued, or the Rating Documents when provided, is intended or should be construed as creating any rights on behalf of any third parties. Recipient is not intended as a third-party beneficiary of the applicable engagement letter between KBRA Europe and the Client or of the applicable rating in connection with the Rating Documents. User's continued use of the VDR and Rating Documents constitute acceptance of those changes. Except as set out below, this Agreement comprises the entire agreement between Recipient and KBRA Europe regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter; Client acknowledges that this Agreement together with the engagement letter (including any supplements and amendments thereto) shall comprise the entire agreement between Client and KBRA Europe; provided, however, in the event of any conflict between the terms, conditions and provisions of this Agreement and the terms, conditions and provisions of the applicable engagement letter between KBRA Europe and the Client (as may be amended, restated, supplemented, modified or replaced from time to time), the terms, conditions and provisions of such engagement letter shall control and take precedence. Sections 3-6, 9-11, and 13 shall survive any expiration or termination of this Agreement. Except as otherwise indicated herein, any written notice under this Agreement should be sent to [email protected].

(Last Updated: 9 February 2024)