​NextDC agrees to conditional third-party access to APDC datacentres

Counsel for both parties have agreed that NextDC will allow a prospective purchaser to inspect the three sites it currently leases off APDC, providing written notice is received 24 hours beforehand.

Asia Pacific Data Centres (APDC) and datacentre services provider NextDC have found themselves in the New South Wales Supreme Court, battling over the latter blocking access to sites owned by APDC as it tries to sell off its business.

Currently, NextDC leases space in three of APDC's datacentres in Perth, Sydney, and Melbourne -- known as P1, S1, and M1, respectively.

Justice F Kunc heard on Friday that as a result of NextDC executing what it believes are its rights of first refusal under the datacentre leasing arrangement in place with APDC, APDC has lost a prospective purchaser.

Rejecting the idea that APDC had an acquisition fall away as a result of blocking actions made by the defendant, counsel for NextDC highlighted the security requirements of the data stored within the three datacentres in question and said a handful of clauses in the arrangement between the pair details limited rights to access for third parties as a result.

NextDC on Tuesday agreed to allow a prospective purchaser to visit the sites on the condition the prospective purchaser agreed that it would be fronting at least AU$265 million if the sale was to proceed.

On Friday, counsel for the defendant held firm on such agreement.

Barristers for both parties took 90 minutes to settle the dispute, which resulted in NextDC agreeing to allow one unnamed third party, highlighted as the prospective purchaser, to inspect the three sites, providing written notice is produced 24 hours ahead of the visits.

"I don't anticipate any issue of them being granted access," counsel for NextDC added.

Kunc J heard NextDC is happy to agree to such terms on the condition that the third party be aware that as part of its lease agreement, it has the first right to refusal.

APDC was originally created as a real estate investment trust that was responsible for the buildings and land upon which NextDC operates its business, and, under the terms of the leases, if any sale of those assets is to occur, NextDC has first right of refusal on any sale of the datacentres.

NextDC and APDC have been involved in an ongoing tussle after ownership of the latter was switched to 360 Capital in November.

NextDC has been pushing to have the real estate trust underpinning APDC wound up, stating that it is unhappy with the direction 360 Capital is taking the company under its steerage, while APDC has been looking to sell off its Australian assets for around AU$300 million.

APDC in February made NextDC a AU$280 million offer for it to acquire the three datacentres it currently leases. At the time, the property trust of APDC explained that the multimillion-dollar figure equates to a 5 percent initial yield and a premium of AU$67.2 million -- or 31.6 percent -- to the last valuation.

A gentleman's agreement between APDC and NextDC CEO Craig Scroggie was on Thursday exposed, which saw the former offer NextDC AU$2 per share for the securities it owns.

The agreement was made verbally on April 18, and APDC immediately issued Scroggie with a proposal outlining the terms. APDC said it was awaiting response.

NextDC on Friday said the agreement is not a proposal warranting its response.

NextDC also told shareholders it continues to be of the view that APDC is no longer operated with sound governance practices, and as such it remains appropriate that the "vehicle be wound up".

"Accordingly, the company continues to process with its proposal to wind up the APDC Trust and related court proceedings," NextDC told the ASX on Friday morning.

NextDC last month announced it was seeking AU$281 million from the market, at the time noting the funds would be used to purchase a trio of new sites around the country, with a third location in Sydney and Melbourne, and a second site in Perth, where the S1, M1, and P1 sites are located.

If NextDC is to progress to wholly acquire APDC, a similar kitty of funds will be required.


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