Singapore: Financing The Takeover Of A REIT / Business Trust

Last Updated: 19 July 2017
Article by Liew Kai Zee and Prakash Raja Segaran
Most Read Contributor in Singapore, December 2018

In recent years, there have been several proposed buyout deals involving REITs and Business Trusts, the most recent being the proposed privatisation exercise by Croesus Retail Trust (CRT). Such buyouts typically involve either the purchase of all the units of the trust (as was the case for CRT), or the purchase of all the assets of the trust.1

This note focuses on the financing of the acquisition of units of a REIT or Business trust, and discusses the main acquisition structures and points that a potential lender may wish to consider when funding such a takeover.

THE ACQUISITION STRUCTURES

General Offer

The Singapore Code on Take-overs and Mergers ("the Code") provides that the units of a REIT or Business Trust (as the case may be) may be acquired by way of a general offer.2

The process is similar to a general offer for shares in a company. It usually starts with the offeror making a public announcement of the offer, followed by the offeror issuing an offer document to the target REIT or Business Trust (as the case may be). After reviewing the offer documents, the relevant manager or trustee-manger would have to circulate an offeree circular containing independent advice to the unitholders of the target REIT or Business Trust (as the case may be), and the unitholders would have a window period to decide whether they would want to accept the offer.

Trust Scheme

The second acquisition structure which the Code provides for is the trust scheme.3 In terms of structure and documentation, the trust scheme is very similar to a scheme of arrangement under the Companies Act.

The trust scheme will require an implementation agreement which will set out the terms and conditions on which the trust scheme will be implemented, and a supplemental trust deed to amend the constitutional documents of the REIT or Business Trust (as the case may be) so as to grant the manager or trustee-manager (as the case may be) the necessary powers to implement the trust scheme.

In terms of internal approvals, a scheme meeting would need to be convened to obtain the approval of the unitholders to amend the constitutional documents of the REIT or Business Trust (as the case may be), as well as to obtain the approval of the unitholders to approve the trust scheme.

In addition to these internal approvals, the trust scheme will need to be sanctioned by the Court under Order 80 of the Rules of Court, Chapter 322, R 5 of Singapore. This is because certain provisions of the Code would need to be waived to facilitate a merger or privatisation via a trust scheme, and the Securities Industry Council would, among other conditions, only grant such waivers if court sanction of the trust scheme has been obtained.

HOW DO THE DIFFERENT ACQUISITION STRUCTURES AFFECT THE LENDER?

There are a number of potential issues that lenders should consider before extending a bridging loan to an offeror for the purpose of acquiring the units of a REIT or Business Trust (as the case may be).

Minority Interests

Where a general offer structure is adopted, and the offeror does not manage to acquire all the units of the target REIT or Business Trust (as the case may be), there may be a need to consider the interests of the minority unitholders. This is particularly so if the debt is intended to be pushed down from the offeror to the trust level or if the trust is to provide upstream security for the acquisition, since dissenting unitholders may be able to prevent the trustee from borrowing or providing security.

Existing Indebtedness

Where the target REIT or Business Trust (as the case may be) has outstanding debt issuances, the restrictive covenants applicable to those issuances, and the interests of the bondholders, would also have to be considered. Debt instruments which are not fully redeemed may need to be modified post-acquisition, with the consent of the relevant bondholders.

The target REIT or Business Trust (as the case may be) may also have taken out prior financing with other lenders. Similarly, these documents may contain change of control restrictions, triggering defaults or mandatory prepayments, and as such any financing must be timed such that the existing debt is repaid or refinanced on the completion date.

Sufficient Resources

Lenders should also note that an offeror will typically need to show the target REIT or Business Trust (as the case may be) that it has the necessary financial resources to complete the acquisition. The Code requires that for general offers, the offer document shall include an unconditional confirmation from the offeror's banker (or other appropriate third party, such as a financial adviser) that sufficient resources are available to the offeror to satisfy full acceptance of the offer. Accordingly, the terms of the loan documents would need to provide for certainty of funding, such that in the absence of any major default or misrepresentation, the lender is obliged to fund the acquisition where all conditions precedent are met.

Where a lender is required to provide a financial resources confirmation, it should always seek legal advice on the terms of the confirmation and the certain funds clauses in its documentation.

Financial Assistance and Other Restrictions on Security

As with any acquisition loan, there may be potential financial assistance and commercial benefit issues, particularly where security is sought from the target REIT or Business Trust (as the case may be) or the debt is pushed down to the target REIT or Business Trust (as the case may be).

While there have been recent changes to the Companies Act to narrow the scope of the financial assistance prohibition, and the prohibition on financial assistance is found in the Companies Act, and not specifically in the legislation pertaining to REITs or Business Trusts, issues of financial assistance and commercial benefit may still be relevant in the context of acquisition financings of trusts in certain circumstances.

Where the trust involved has subsidiaries incorporated outside Singapore and these subsidiaries provide collateral support for the acquisition loans, then issues of financial assistance, commercial benefit and other local law security and guarantee restrictions would still be relevant.

Footnotes

1. The disposal of assets by Saizen REIT is an example of an asset acquisition of a trust. On 4 March 2016, Saizen REIT completed the disposal of its entire portfolio of real estate assets in Japan to Triangle TMK.

2. As of the date of this note, there has not been any takeover of a trust via a general offer in Singapore.

3. As of the date of this note, there has not been any takeover of a trust via a trust scheme in Singapore. On 28 June 2017, Croesus Retail Trust announced that it is undergoing a proposed privatisation exercise by way of a trust scheme.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions