EXHIBIT D
Execution
copy.
|
USD 1,400,000,000
bridge facilities AGREEMENT |
| ___ March 2025 |
|
for
▇▇▇.▇▇▇▇ NV
with
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT
BANK
KBC BANK NV
SOCIÉTÉ GÉNÉRALE
as Bookrunning Mandated Lead Arrangers and Underwriters
with
KBC BANK NV
acting as Coordinator
and
KBC BANK NV
acting as Agent and Security Agent
|
| |
|
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Belgium) LLP
|
Contents
| Clause |
|
Page |
| |
|
|
| 1. |
Definitions and Interpretation |
1 |
| 2. |
The Facilities |
27 |
| 3. |
Purpose |
30 |
| 4. |
Conditions of Utilisation |
31 |
| 5. |
Utilisation |
31 |
| 6. |
Repayment |
32 |
| 7. |
Prepayment and Cancellation |
32 |
| 8. |
Interest |
38 |
| 9. |
Interest Periods |
39 |
| 10. |
Changes to the Calculation of Interest |
39 |
| 11. |
Fees |
40 |
| 12. |
Tax Gross Up and Indemnities |
41 |
| 13. |
Increased Costs |
48 |
| 14. |
Other Indemnities |
51 |
| 15. |
Mitigation by the Lenders |
52 |
| 16. |
Costs and Expenses |
53 |
| 17. |
Guarantee and indemnity |
54 |
| 18. |
Representations |
57 |
| 19. |
Information Undertakings |
65 |
| 20. |
General Undertakings |
68 |
| 21. |
Events of Default |
80 |
| 22. |
Changes to the Lenders |
84 |
| 23. |
Changes to the Obligors |
89 |
| 24. |
Security |
90 |
| 25. |
Role of the Agent, the Security Agent, the Arranger and others |
94 |
| 26. |
Conduct of Business by the Finance Parties |
103 |
| 27. |
Sharing among the Finance Parties |
103 |
| 28. |
Payment Mechanics |
104 |
| 29. |
Set-Off |
108 |
| 30. |
Notices |
108 |
| 31. |
Calculations and Certificates |
110 |
| 32. |
Partial Invalidity |
111 |
| 33. |
Remedies and Waivers |
111 |
| 34. |
Amendments and Waivers |
111 |
| 35. |
Confidential information |
116 |
| 36. |
Confidentiality of Funding Rates |
119 |
| 37. |
Counterparts |
120 |
| 38. |
Bail-in |
120 |
| 39. |
Governing Law |
122 |
| 40. |
Enforcement |
122 |
| 41. |
Service of process |
122 |
Schedule
| 1. |
The Original Parties |
124 |
| 2. |
Part 1 |
124 |
| 3. |
The Original Guarantors |
124 |
| 4. |
Part 2 |
125 |
| 5. |
The Original Lenders |
125 |
| 6. |
Conditions Precedent |
126 |
| |
Part 1 |
Conditions Precedent to signing |
126 |
| |
Part 2 |
SPA Acquisition Conditions Precedent |
129 |
| |
Part 3 |
Conditions precedent required to be delivered by an Additional Guarantor |
130 |
| 7. |
Requests |
|
132 |
| |
Part 1 |
Utilisation Request |
132 |
| |
Part 2 |
Selection Notice |
133 |
| 8. |
Form of Transfer Certificate |
134 |
| 9. |
Form of Accession Deed |
137 |
| 10. |
Form of Resignation Letter |
139 |
| 11. |
Form of Hedge Counterparty Accession Deed |
140 |
| 12. |
Timetables |
141 |
| 13. |
Form of Increase Confirmation |
142 |
| 14. |
Form of Extension Request |
145 |
| 15. |
Reference Rate Terms |
146 |
| 16. |
Daily Non-Cumulative Compounded RFR Rate |
150 |
| 17. |
Cumulative Compounded RFR Rate |
152 |
THIS AGREEMENT is dated ___ March 2025
and made
BETWEEN:
| (1) | ▇▇▇.▇▇▇▇ NV, a limited liability company (naamloze vennootschap/société anonyme)
with its statutory seat at De ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, registered with the Crossroads Bank for Enterprises under number
0860.402.767, Business Court of Antwerp (division Antwerp) (the Borrower); |
| (2) | THE SUBSIDIARIES of the Borrower listed in Part 1 of Schedule 1 (The Original Parties) as original
guarantors (together with the Borrower, the Original Guarantors); |
| (3) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, KBC BANK NV and SOCIÉTÉ
GÉNÉRALE as bookrunning mandated lead arrangers and underwriters (whether acting individually or together the Arranger); |
| (4) | THE FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 (The Original Parties) as lenders (the
Original Lenders); |
| (5) | KBC BANK NV as coordinator (the Coordinator); |
| (6) | KBC BANK NV as agent of the other Finance Parties (the Agent); and |
| (7) | KBC BANK NV as security agent for the Finance Parties (the Security Agent). |
IT IS AGREED as follows:
| 1. | Definitions and Interpretation |
In this Agreement:
Accession Deed means a document
substantially in the form set out in Schedule 5 (Form of Accession Deed).
Acquisition Document means the
Share Purchase Agreement and any other document designated as an “Acquisition Document” by the Agent and the Borrower.
Acquisition Proceeds has the meaning
given to that term in Clause 7.7 (Mandatory Prepayment – Acquisition Proceeds).
Additional Business Day means
any day specified as such in the Reference Rate Terms.
Additional Guarantor means a company
which becomes an Additional Guarantor in accordance with Clause 23 (Changes to the Obligors).
Additional Share Purchase Facility
means the term loan bridge facility made available under this Agreement as described in paragraph (b) of Clause 2.1 (The Facilities).
Additional Share Purchase Facility
Commitment means:
| (a) | in relation to an Original Lender, the amount set opposite its name under the heading “Additional
Share Purchase Facility Commitment” in Part 2 of Schedule 1 (The Original |
Parties) and the amount of any other Additional
Share Purchase Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and
| (b) | in relation to any other Lender, the amount of any Additional Share Purchase Facility Commitment transferred
to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), |
to the extent not cancelled, reduced
or transferred by it under this Agreement.
Additional Share Purchase Facility
Loan means a loan made or to be made under the Additional Share Purchase Facility or the principal amount outstanding for the time
being of that loan.
Affiliate means, in relation to
any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company, and in relation
to Crédit Agricole Corporate and Investment Bank, any member of Crédit Agricole group, including any Caisse Régionale
de Crédit Agricole Mutuel, Crédit Lyonnais and any financial institution of Crédit Agricole group which is affiliated
to the central body of Crédit Agricole.
Artemis Net Asset Value Estimates
means the excel file entitled “NAV ▇▇▇▇ ▇▇▇▇▇▇▇▇ – valuation date 31122024 FINAL” dated 9 January 2025.
Authorisation means an authorisation,
consent, approval, resolution, licence, exemption, filing, notarisation or registration.
Availability Period means:
| (a) | in relation to the SPA Acquisition Bridge Facility, the period from and including the date of this Agreement
to and including the earlier of (i) the SPA Closing Date or (ii) the date falling 15 Business Days after the date of this Agreement; and |
| (b) | in relation to the Additional Share Purchase Facility, the period from and including the SPA Closing Date
to and including the earlier of (i) the Takeover Closing Date, (ii) the date on which the Borrower obtains more than 50 per cent. of the
issued share capital or voting rights of the Target or (iii) the date falling five Months after the date of this Agreement. |
Available Commitment means, in
relation to a Facility, a ▇▇▇▇▇▇’s Commitment under that Facility minus:
| (a) | its participation in any outstanding Loans under that Facility; and |
| (b) | in relation to any proposed Loan, its participation in any other Loans that are due to be made under that
Facility on or before the proposed Utilisation Date. |
Available Facility means, in relation
to a Facility the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.
Baseline CAS means any rate which
is either:
| (a) | specified as such in the Reference Rate Terms; or |
| (b) | determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of
the Agent) in accordance with the methodology specified in the Reference Rate Terms. |
Belgian Financial Collateral Law
means the Belgian law of 15 December 2004 on financial collateral, as amended from time to time.
Belgian Guarantor means a Guarantor
having its statutory seat in Belgium.
Belgian Income Tax Code means
the Wetboek van de Inkomstenbelastingen 1992/Code des impôts sur les revenus 1992, as amended from time to time.
Belgian MAS Law means Title XVII
of Book III of the Belgian Civil Code, as amended by the law of 11 July 2013 amending the Belgian Civil Code in respect of security on
movable assets and abolishing various relevant provisions, as amended from time to time.
Borrower Change of Control means,
in relation to the Borrower, if two or more persons acting in concert or any individual person in each case other than the Permitted Holders
(a) acquire legally and/or beneficially and either directly or indirectly, more than 50 per cent. of the issued share capital or voting
rights of the Borrower or (b) have the right or the ability to control, either directly or indirectly, the affairs or composition of the
majority of the board of directors (or equivalent governing body) of the Borrower.
Break Costs means the amount (if
any) by which:
| (a) | the interest (excluding the Margin) which a Lender should have received for the period from the date of
receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that
Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period; |
exceeds:
| (b) | the amount which that ▇▇▇▇▇▇ would be able to obtain by placing an amount equal to the principal amount
or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period. |
Business Day means a day (other
than a Saturday or Sunday) on which banks are open for general business in New York City, Oslo, Antwerp and Paris and in relation to:
| (a) | any date for payment or purchase of an amount relating to a Loan or Unpaid Sum; or |
| (b) | the determination of the first day or the last day of an Interest Period for a Loan or Unpaid Sum, or
otherwise in relation to the determination of the length of such an Interest Period), |
which is an Additional Business Day relating
to that Loan or Unpaid Sum.
Central Bank Rate has the meaning
given to that term in the Reference Rate Terms.
Central Bank Rate Adjustment has
the meaning given to that term in the Reference Rate Terms.
Charged Property means all of
the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.
Clean-Up Default means:
| (a) | an Event of Default which arises pursuant to Clause 21.3 (Other obligations) and results from a failure
to comply with a Clean-Up Undertaking; |
| (b) | an Event of Default which arises pursuant to Clause 21.4 (Misrepresentation) and which results from any
representation or warranty set out in a Clean-Up Representation being or proving to have been incorrect or misleading when made or deemed
to be made; and |
| (c) | any Event of Default arising under Clause 21.5 (Cross Default), Clause 21.9 (Creditors’ process)
and Clause 21.14 (Litigation). |
Clean-Up Period means the period
from and including the date of this Agreement and ending on the date falling 3 Months after the SPA Closing Date.
Clean-Up Representation means
any of the representations and warranties under Clause 18.11 (No default), Clause 18.14 (Financial statements), Clause 18.16 (No proceedings),
Clause 18.19 (Compliance with Environmental Laws), Clause 18.20 (No Environmental Claim), Clause 18.24 (No outstanding tax debt).
Clean-Up Undertaking means any
of the undertakings specified in Clause 20.5 (Environmental Claims).
CMB Group means CMB NV and its
Subsidiaries for the time being.
CMB Net Asset Value Estimates
means the excel file entitled “CMB Legacy NAV31122024” dated 19 February 2025.
CMBT Action Plan means the excel
file gathering all excel files provided by the Borrower on 23 February 2025.
CMBT Net Asset Value Estimates
means the excel file entitled “NAV ▇▇▇▇ ▇▇▇▇▇▇▇▇ – valuation date 31122024 FINAL” dated 9 January 2025.
▇▇▇.▇▇▇▇ Vessel Facilities Agreement
means the loan facilities agreement dated 7 November 2023 between the Borrower as borrower and, among others, Nordea Bank Abp Filial I
Norge as lender, as may have been amended and/or restated from time to time.
Code means the US Internal Revenue
Code of 1986, as amended from time to time.
Commitment means a SPA Acquisition
Bridge Facility Commitment or an Additional Share Purchase Facility Commitment.
Commodity Exchange Act means the
Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Compounded Reference Rate means,
in relation to any RFR Banking Day during the Interest Period of a Loan, the percentage rate per annum which is the aggregate of:
| (a) | the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and |
| (b) | the applicable Baseline CAS. |
Compounding Methodology Supplement
means, in relation to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which:
| (a) | is agreed in writing by the Borrower, the Agent (in its own capacity) and the Agent (acting on the instructions
of the Majority Lenders); |
| (b) | specifies a calculation methodology for that rate; and |
| (c) | has been made available to the Borrower and each Finance Party. |
Confidential Information means
all information relating to the Borrower, any Obligor, the Group, the Target Group, the Finance Documents or a Facility of which a Finance
Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation
to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:
| (a) | any member of the Group, the Target Group or any of its advisers; or |
| (b) | another Finance Party, if the information was obtained by that Finance Party directly or indirectly from
any member of the Group or the Target Group or any of its advisers, |
in whatever form, and includes information
given orally and any document, electronic file or any other way of representing or recording information which contains or is derived
or copied from such information but excludes:
| (A) | is or becomes public information other than as a direct or indirect result of any breach by that Finance
Party of Clause 35 (Confidential); or |
| (B) | is identified in writing at the time of delivery as non-confidential by any member of the Group or the
Target Group or any of its advisers; or |
| (C) | is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs
(a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is
aware, unconnected with the Group or the Target Group and which, in either case, as far as that Finance Party is aware, has not been obtained
in breach of, and is not otherwise subject to, any obligation of confidentiality; |
Confidentiality Undertaking means
a confidentiality undertaking substantially in a form as most recently recommended and published by the LMA or in any other form agreed
between the Borrower and the Agent.
Contribution means the contribution
(in kind) of all shares in MergeCo held by the Borrower in ▇▇▇.▇▇▇▇ Enterprises NV and subsequently by ▇▇▇.▇▇▇▇ Enterprises NV in ▇▇▇.▇▇▇▇
Belgium NV.
Cumulative Compounded RFR Rate
means, in relation to an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party
which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 13 (Cumulative Compounded
RFR Rate) or in any relevant Compounding Methodology Supplement.
Daily Non-Cumulative Compounded RFR
Rate means, in relation to any RFR Banking Day during an Interest Period for a Loan, the percentage rate per annum determined by the
Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set
out in Schedule 12 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.
Daily Rate means the rate specified
as such in the Reference Rate Terms.
DAC6 means the Council Directive
of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU.
Default means
an Event of Default or any event or circumstance specified in Clause 21 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing)
be an Event of Default.
Defaulting Lender means any Lender:
| (a) | which has failed to make its participation in a Loan available (or has notified the Agent or the Borrower
(which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance
with Clause 5.4 (Lenders' participation); |
| (b) | which has otherwise rescinded or repudiated a Finance Document; |
| (c) | with respect to which an Insolvency Event has occurred and is continuing, |
unless, in the case of paragraph (a)
above:
| (i) | its failure to pay is caused by: |
| (A) | administrative or technical error; or |
| (B) | a Disruption Event; and |
payment is made within three (3) Business
Days of its due date; or
| (ii) | the Lender is disputing in good faith whether it is contractually obliged to make the payment in question. |
Disruption Event means either
or both of:
| (a) | a material disruption to those payment or communications systems or to those financial markets which are,
in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions
contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties;
or |
| (b) | the occurrence of any other event which results in a disruption (of a technical or systems-related nature)
to the treasury or payments operations of a Party preventing that, or any other Party: |
| (i) | from performing its payment obligations under the Finance Documents; or |
| (ii) | from communicating with other Parties in accordance with the terms of the Finance Documents, |
and which (in either such case) is not
caused by, and is beyond the control of, the Party whose operations are disrupted.
Distribution means any dividend
or other distribution (or interest on any unpaid dividend, or other distribution) on or in respect of its share capital (or any class
of its share capital) or any repayment or distribution of any dividend or share premium reserve (including any decrease of share capital).
DTC means the Depository Trust
Company, a New York limited purpose trust company.
Eligible Institution means any
Lender or other bank, financial institution, trust, fund or other entity selected by the Borrower and which, in each case, is not a member
of the Group, the Target or any of its Subsidiaries.
Environment means humans, animals,
plants and all other living organisms including the ecological systems of which they form part and the following media:
| (a) | air (including, without limitation, air within natural or man-made structures, whether above or below
ground); |
| (b) | water (including, without limitation, territorial, coastal and inland waters, water under or within land
and water in drains and sewers); and |
| (c) | land (including, without limitation, land under water). |
Environmental Approval means any
present or future permit, ruling, variance or other Authorisation required under Environmental Law.
Environmental Claim means any
claim by any governmental, judicial or regulatory authority or any other person which arises out of an Environmental Incident or an alleged
Environmental Incident or which relates to any Environmental Law and, for this purpose, claim includes a claim for damages, compensation,
contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-up and removal, whether
or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action;
and any form of enforcement or regulatory action, including the arrest or attachment of any asset.
Environmental Incident means:
| (a) | any release of Environmentally Sensitive Material from a Ship into any other vessel or into or upon the
air, water, land or soils (including the seabed) or surface water; or |
| (b) | any incident in which Environmentally Sensitive Material is released from a vessel other than any Ship
and which involves a collision between any Ship and such other vessel or some other incident of navigation or operation, in either case,
in connection with which a Ship is actually or reasonably likely to be arrested, attached, detained or injuncted and/or a Ship and/or
any Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or is reasonably likely to be subject to any legal
or administrative action; or |
| (c) | any other incident in which Environmentally Sensitive Material is released otherwise than from a Ship
and in connection with which a Ship is actually or reasonably likely to be arrested and where any Obligor and/or any operator or manager
of a Ship is at fault or allegedly at fault or is reasonably likely to be subject to any legal or administrative action. |
Environmental Law means any applicable
law or regulation which relates to:
| (a) | the pollution or protection of the Environment; or |
| (b) | the carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally
Sensitive Material which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation,
any waste. |
Environmentally Sensitive Material
means oil, oil products and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is
capable of being or becoming) polluting, toxic or hazardous.
EUR or euro means the single
currency of the Participating Member States.
Event of Default
means any event or circumstance specified as such in Clause 21 (Events of Default).
Exchange Act means the U.S. Securities
Exchange Act of 1934, as amended.
Excluded Swap Obligation means,
with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of,
or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal
under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official
interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant”
as defined in the Commodity Exchange Act at the time the guarantee of such Guarantor or the grant of such security interest becomes effective
with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion
shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is
or becomes illegal.
Existing Transfer Restrictions
means any Transfer Restrictions under or arising in connection with (i) the Borrower being an "affiliate" (within the meaning
of Rule 144) of the Target or (ii) a Lender being an "affiliate" (within the meaning of Rule 144) of the Target as a result
of such Lender holding equity interests in the Target or engaging in other transactions or arrangements not contemplated by the Finance
Documents.
Extension has the meaning given
to that term in paragraph (c) of Clause 2.4 (Extension option).
Extension Request means a notice
substantially in the form set out in Schedule 10 (Form of Extension Request) or any other form agreed between the Agent and the Borrower.
Facility means the SPA Acquisition
Bridge Facility or the Additional Share Purchase Facility.
Facility Office means the office
or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less
than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.
FATCA means:
| (a) | sections 1471 to 1474 of the Code or any associated regulations; |
| (b) | any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement
between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to
in paragraph (a) above; or |
| (c) | any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs
(a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. |
FATCA Application Date means:
| (a) | in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which
relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or |
| (b) | in relation to a "pass thru payment" described in section 1471(d)(7) of the Code not falling
within paragraphs (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA. |
FATCA Deduction means a deduction
or withholding from a payment under a Finance Document required by FATCA.
FATCA Exempt Party means a Party
that is entitled to receive payments free from any FATCA Deduction.
Fee Letter means any letter or
letters dated on or about the date of this Agreement between the Arranger and the Borrower (or the Agent and the Borrower, or the Security
Agent and the Borrower or the Coordinator and the Borrower) setting out any of the fees referred to in Clause 11 (Fees) or any other letter
designated as such by the Agent and the Borrower.
Finance Document means this Agreement,
any Accession Deed, any Fee Letter, any Hedging Agreement, any Utilisation Request, any Transaction Security Document, the Syndication
Letter, the Resignation Letter, the Subordination Agreement any Selection Notice, any Extension Request, any Reference Rate Supplement,
any Compounding Methodology Supplement and any other document designated as such by the Agent and the Borrower provided that where
the term "Finance Document" is used in, and construed for the purposes of, this Agreement, a Hedging Agreement shall be a Finance
Document only for the purposes of:
| (a) | the definition of "Default"; |
| (b) | the definition of "Material Adverse Effect"; |
| (c) | the definition of "Transaction Document"; |
| (d) | the definition of "Transaction Security Document"; |
| (e) | paragraph (a)(iii) of Clause 1.2 (Construction); |
| (f) | Clause 17 (Guarantee and indemnity); and |
| (g) | Clause 21 (Events of Default) (other than paragraph (b) of Clause 21.12 (Repudiation) and Clause 21.16
( Acceleration)). |
Finance Party means the Agent,
the Security Agent, the Arranger, the Coordinator, a Lender or a Hedge Counterparty provided that where the term "Finance
Party" is used in, and construed for the purposes of, this Agreement, a Hedge Counterparty shall be a Finance Party only for the
purposes of:
| (a) | the definition of "Finance Parties"; |
| (b) | paragraph (a)(i) of Clause 1.2 (Construction); |
| (c) | paragraph (c) of the definition of "Material Adverse Effect"; |
| (d) | Clause 17 (Guarantee and indemnity); |
| (e) | Clause 20.23 (Further assurance); and |
| (f) | Clause 26 (Conduct of Business by the Finance Parties). |
Financial Forecast means the excel
documents entitled:
| (a) | “P&L CF pro forma combined 22022025 client copy”; |
| (b) | “CMBT Consol CF 2025-2027 v18022025”; |
| (c) | “CMBT Consol P&L v18022025 v2”; |
| (d) | “▇▇ ▇▇▇▇ 2025-2026 – v18022025”; |
| (e) | “CF CMB CONV. 2025-2025 19022025”; and |
| (f) | “BS Proforma Consolidated 19022025”. |
Financial Indebtedness means,
in relation to a person (the debtor), a liability of the debtor:
| (a) | for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor; |
| (b) | under any loan stock, bond, note or other security issued by the debtor; |
| (c) | under any acceptance credit, guarantee or letter of credit facility made available to the debtor; |
| (d) | under a financial lease, a deferred purchase consideration arrangement or any other agreement having the
commercial effect of a borrowing or raising of money by the debtor; |
| (e) | under any foreign exchange transaction, any interest or currency swap or any other kind of derivative
transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual
liabilities, the liability of the debtor for the net amount; or |
| (f) | under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability
of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person. |
Financial Information Package
means each of:
| (a) | the Financial Forecast; |
| (b) | the CMBT Net Asset Value Estimates; |
| (c) | the Artemis Net Asset Value Estimates; and |
| (d) | the CMB Net Asset Value Estimates. |
Free Liquid Assets has the meaning
given to that term in Clause 20.14 (Financial covenants).
Funding Rate means any individual
rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 10.3 (Cost of funds).
GAAP means generally accepted
accounting principles in Belgium, including IFRS.
Group means the Borrower and its
Subsidiaries for the time being.
Group Structure Chart means the
group structure chart in the agreed form which shows the Group assuming the SPA Acquisition and the Takeover Acquisition have occurred
delivered to the Agent under Clause 4.1 (Initial conditions precedent).
Guarantor means an Original Guarantor
or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 23 (Changes to the Obligors).
Hedge Counterparty means any entity
which has become a Party as a "Hedge Counterparty" in accordance with Clause 22.8 (Accession of Hedge Counterparties).
Hedge Counterparty Accession Deed
means a document substantially in the form set out in Schedule 7 (Form of Hedge Counterparty Accession Deed).
Hedging Agreement means any master
agreement, confirmation, schedule or other agreement entered into or to be entered into by the Borrower and a Hedge Counterparty for the
purpose of hedging the types of liabilities in relation to the Facilities.
Helios Bridge Facilities Agreement
means the bridge facilities agreement originally dated 20 November 2023 between, among others, CMB NV as borrower and KBC Bank NV,
Crédit Agricole Corporate and Investment Bank, Société Générale, Belfius Bank NV/SA, DNB (UK) Limited,
Nordea Bank Abp Filial I Norge, ING Belgium NV/SA and Skandinaviska Enskilda Bank AB (Publ) as original lenders, as may have been amended
and/or restated from time to time and most recently on 16 October 2024.
Holding Company means, in relation
to a person, any other person in respect of which it is a Subsidiary.
IFRS means international accounting
standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
Impaired Agent means the Agent
or the Security Agent at any time when:
| (a) | it has failed to make (or has notified a Party that it will not make) a payment required to be made by
it under the Finance Documents by the due date for payment; |
| (b) | the Agent or the Security Agent, as applicable, otherwise rescinds or repudiates a Finance Document; |
| (c) | (if the Agent or the Security Agent, as applicable, is also a Lender) it is a Defaulting Lender under
paragraph (a) or (b) of the definition of "Defaulting Lender"; or |
| (d) | an Insolvency Event has occurred and is continuing with respect to the Agent or the Security Agent, as
applicable; |
unless, in the case of paragraph (a)
above:
| (i) | its failure to pay is caused by: |
| (A) | administrative or technical error; or |
| (B) | a Disruption Event; and |
payment is made within three (3) Business
Days of its due date; or
| (ii) | the Agent or the Security Agent, as applicable, is disputing in good faith whether it is contractually
obliged to make the payment in question. |
Increase Confirmation means a
confirmation substantially in the form set out in Schedule 9 (Form of increase confirmation).
Increase Lender has the meaning
given to that term in Clause 2.2 (Increase).
Information Package means the
Structure Memorandum, the CMBT Action Plan and the Financial Information Package.
Initial Conditions Precedent means
the documents and other evidence listed in Part 1 of Schedule 2 (Conditions Precedent).
Insolvency Event in relation to
a Finance Party means that the Finance Party:
| (a) | is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
| (b) | becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally
to pay its debts as they become due; |
| (c) | makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
| (d) | institutes or has instituted against it, by a regulator, supervisor or any similar official with primary
insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction
of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator,
supervisor or similar official; |
| (e) | has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up
or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is
instituted or presented by a person or entity not described in paragraph (d) above and: |
| (i) | results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of
an order for its winding-up or liquidation; or |
| (ii) | is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation
thereof; |
| (f) | has a resolution passed for its winding-up, official management or liquidation (other than pursuant to
a consolidation, amalgamation or merger); |
| (g) | seeks or becomes subject to the appointment of an administrator, provisional liquidator, liquidator, conservator,
receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it
is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity
described in paragraph (d) above); |
| (h) | has a secured party take possession of all or substantially all its assets or has a distress, execution,
attachment, sequestration or other legal process levied, enforced or sued on or |
against all or substantially all its assets
and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within
30 days thereafter;
| (i) | causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction,
has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or |
| (j) | takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any
of the foregoing acts. |
Interest Payment means the aggregate
amount of interest that is, or is scheduled to become, payable under any Finance Document.
Interest Period means, in relation
to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined
in accordance with Clause 8.3 (Default interest).
Lender means:
| (a) | any Original Lender; and |
| (b) | any bank, financial institution, trust, fund or other entity which has become a Party as a "Lender"
in accordance with Clause 2.2 (Increase) or Clause 22 (Changes to the Lenders), |
which in each case has not ceased to
be a Party as such in accordance with the terms of this Agreement.
Listing Rules means, in relation
to Nasdaq, the rules and regulations applicable to companies listed thereon that are contained in its listed company manual, or in the
case of the Norwegian SE, the rules and regulations applicable to companies admitted to trading on a regulated market operated by the
Norwegian SE as are set out in the applicable Euronext Oslo Børs Rule Books, the Norwegian Securities Trading Act (Nw. verdipapirhandelloven)
and ancillary regulations, any EU regulations that are applicable in respect of companies admitted to trading on a regulated market operated
by the Norwegian SE and any other rules or regulations required for the admission of securities to, and continued trading on, such regulated
markets.
LMA means the Loan Market Association.
Loan means a SPA Acquisition Bridge
Facility Loan or an Additional Share Purchase Facility Loan.
Lookback Period means the number
of days specified as such in the Reference Rate Terms.
Majority Lenders means a Lender
or Lenders whose Commitments aggregate more than 662/3 of the Total Commitments (or, if the Total Commitments have
been reduced to zero, aggregated more than 662/3 per cent. of the Total Commitments immediately prior to the reduction).
Majority Shareholder means any
two or more persons acting in concert or any individual person:
| (a) | owning legally and/or beneficially, and either directly or indirectly, in excess of 50 per cent. of the
issued share capital or voting rights of the Borrower; or |
| (b) | that has the right or the ability to control, either directly or indirectly, the affairs or composition
of the majority of the board of directors (or equivalent) of the Borrower. |
Margin means the percentage per
annum set out below in the column opposite that range:
| Period |
Margin per cent. per annum |
| From the date of this Agreement to (but excluding) the date falling 6 Months after the date of this Agreement |
3.00 |
| From the date falling 6 Months after the date of this Agreement to (but excluding in case of an Extension) the date falling 9 Months after the date of this Agreement |
3.50 |
| Subject to the First Extension being exercised, from the date falling 9 Months after the date of this Agreement to (but excluding) the date falling 12 Months after the date of this Agreement |
3.75 |
| Subject to the First Extension being exercised, from the date falling 12 Months after the date of this Agreement to (but excluding) the date falling 15 Months after the date of this Agreement |
4.50 |
| Subject to the Second Extension being exercised, from the date falling 15 Months after the date of this Agreement to (but excluding) the date falling 18 Months after the date of this Agreement |
5.00 |
| Subject to the Second Extension being exercised, from the date falling 18 Months after the date of this Agreement to the Termination Date |
5.50 |
However, while an Event of Default has
occurred and as long as it is continuing, the Margin for each Loan shall be the highest percentage per annum set out above.
Margin Regulations means Regulations
T, U and X issued by the Board of Governors of the United States Federal Reserve System.
Margin Stock means “margin
stock” or “margin securities” as defined in the Margin Regulations.
Market Disruption Rate means the
rate (if any) specified as such in the Reference Rate Terms.
Material Adverse Effect means,
in the reasonable opinion of the Majority Lenders, a material adverse effect on:
| (a) | the business, operations, property, assets, condition (financial or otherwise) or prospects of (i) the
Group taken as a whole; or |
| (b) | the ability of an Obligor to perform its obligations under the Finance Documents; or |
| (c) | the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting
to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents. |
Material Non-Public Information
means information regarding Target and/or its subsidiaries that is not generally available to the public and that a reasonable investor
would likely consider important in deciding whether to buy or sell shares issued by the Target.
MergeCo means ▇▇▇.▇▇▇▇ Bermuda
Ltd., an exempted company limited by shares incorporated under the laws of Bermuda with its registered office at Clarendon House, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇, registered with the Bermuda Registrar of Companies under registration number 202504541.
Merger means the triangular merger
under Bermuda law between MergeCo (as surviving entity) and the Target, as described in the Structure Memorandum.
Merger Agreement has the meaning
given to that term in paragraph (i) of Clause 19.3 (Information: miscellaneous).
Month means a period starting
on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, subject to adjustment in accordance
with the rules specified as Business Day Conventions in the Reference Rate Terms.
Nasdaq means Nasdaq Global Select
Market segment operated by Nasdaq, Inc.
Non-Cooperative Jurisdiction means
a tax heaven country, a low-tax jurisdiction, within the meaning of Article 307, §1/2 of the Belgian Income Tax Code or any successor
provision.
Norwegian SE means Euronext Oslo
Børs, a regulated market operated by the Oslo Stock Exchange.
Obligor means the Borrower or
a Guarantor.
Obligors' Agent means the Borrower,
appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.5 (Obligors’ Agent).
Original Financial Statements
means:
| (a) | in relation to the Borrower, the audited consolidated financial statements of the Group for the financial
year ended 31 December 2023; |
| (b) | in relation to the Target, its consolidated audited financial statements for the financial year ended
31 December 2023; |
| (c) | in relation to each Obligor (other than the Borrower and MergeCo), its audited financial statements for
the financial year ended 31 December 2023; and |
| (d) | in relation to any other Obligor, its financial statements delivered to the Agent as required by Clause
23 (Changes to the Obligors). |
Original Obligor means the Borrower
or an Original Guarantor.
Original Termination Date means:
| (a) | in relation to the SPA Acquisition Bridge Facility, the date falling nine (9) Months after the date of
this Agreement; and |
| (b) | in relation to the Additional Share Purchase Facility, the date falling nine (9) Months after the date
of this Agreement. |
Participating Member States means
any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating
to Economic and Monetary Union.
Party means a party to this Agreement.
Perfection Requirements means
the making or procuring of filings, stampings, registrations, notarisations, endorsements, translations and/or notifications of any Finance
Document (and/or any Security created under it) necessary for the validity, enforceability (as against the relevant Obligor or any relevant
third party) and/or perfection of that Finance Document.
Permitted Convertible Bond means
one or more convertible bonds issued by the Borrower, provided that the convertible bond(s) have the following characteristics:
| (a) | the bondholder is granted an option to convert the bond into shares of the Borrower; |
| (b) | the maturity date of the convertible bonds falls at least 3 months after the Termination Date (including
the Extensions); and |
| (c) | the proceeds are used in prepayment of the Facilities. |
Permitted Holders means each of
(i) CMB NV, (ii) Saverco NV and (iii) ▇▇▇▇ ▇▇▇▇▇▇▇, his direct lineal descendants, the personal estate of any of them and any trust or
similar entity created for the sole benefit of any of those persons or their estates and family (and, as may be the case, any parallel
vehicle thereof and their respective alternative investment vehicles) and their affiliates.
Permitted Take-Out Financing means
each of the Target Fleet Refinancing Facilities, the Permitted Convertible Bond and any other take-out debt financing, debt capital market
instrument or debt instrument qualifying as equity not used for the ordinary course of business or ship financing.
Permitted Transaction means the
acquisition of the Target by the Borrower following the SPA Acquisition, the Takeover Acquisition, the Merger, the Contribution, the Restructuring
and any other intermediary or subsequent steps, in each case as set out in and in accordance with the Structure Memorandum, as well as
any other transaction which will result in a (p)repayment of the Facilities or the Facilities under and as defined in the Helios Bridge
Facilities Agreement.
Qualifying Lender has the meaning
given to that term in Clause 12 (Tax Gross Up and Indemnities).
Reference Rate Supplement means
a document which:
| (a) | is agreed in writing by the Borrower and the Agent (acting on the instructions of the Majority ▇▇▇▇▇▇▇); |
| (b) | specifies the relevant terms which are expressed in this Agreement to be determined by reference to Reference
Rate Terms; and |
| (c) | has been made available to the Borrower and each Finance Party. |
Reference Rate Terms means the
terms set out in Schedule 11 (Reference Rate Terms) or in any Reference Rate Supplement.
Related Fund in relation to a
fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first
fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser
is an Affiliate of the investment manager or investment adviser of the first fund.
Relevant Market means the market
specified as such in the Reference Rate Terms.
Relevant Target Shares means all
Target Shares held by MergeCo (or its successor) on the date hereof or later acquired (through the SPA Acquisition, the Takeover Acquisition
or otherwise).
Relevant Target Shares – DTC
means Relevant Target Shares that are Target Shares – DTC.
Relevant Target Shares – Norwegian
SE means Relevant Target Shares that are Target Shares – Norwegian SE.
Repeating Representations means
each of the representations set out in Clause 18.1 (Status) to and including Clause 18.7 (Governing law and enforcement), Clause 18.11
(No default), paragraph (g) of Clause 18.12 (No misleading information), Clause 18.13 (Centre of main interests) to and including Clause 18.16
(No proceedings), Clause 18.18 (No breach of laws) to and including Clause 18.23 (DAC6) and Clause 18.25 (Good title to assets) to
and including Clause 18.30 (U.S. beneficial ownership reporting).
Reporting Day means the day (if
any) specified as such in the Reference Rate Terms.
Reporting Time means the relevant
time (if any) specified as such in the Reference Rate Terms.
Resignation Letter means a letter
substantially in the form set out in Schedule 6 (Form of Resignation Letter).
Restructuring means the reflagging
of the majority of the Target’s and/or SPC’s vessels to EER flags and the merger of the SPCs into a single entity (the Super
SPC), in preparation of the intended merger of the Super SPC into MergeCo, and of MergeCo into ▇▇▇.▇▇▇▇ Belgium NV.
RFR means the rate specified as
such in the Reference Rate Terms.
RFR Banking Day means any day
specified as such in the Reference Rate Terms.
Representative means any delegate,
agent, manager, administrator, nominee, attorney, trustee or custodian.
Rule 144 means 17 C.F.R. §
230.144 (persons deemed not to be engaged in a distribution and therefore not underwriters) promulgated under the Securities Act.
Sanctioned Country has the meaning
given to that term in Clause 18.22 (Sanctions).
Sanctioned Person has the meaning
given to that term in Clause 18.22 (Sanctions).
Sanctions means any economic,
financial or trade sanctions or restrictive measures enacted, administered, imposed or enforced by the US Department of Treasury's Office
of Foreign Assets Control (OFAC), the US Department of State, the United Nations Security Council, the United Kingdom Government (including
His Majesty's Treasury of the United Kingdom, the Foreign Commonwealth & Development Office and the Department for Business, Energy
& Industrial Strategy), the Bermuda Government’s Financial Sanctions Implementation Unit, the European Union, any member state
of the European Union, the Kingdom of Norway or any other relevant sanctions authority.
Sanctions Event means:
| (a) | any representation contained in Clause 18.22 (Sanctions) made or deemed to be made by an Obligor
is or proves to have been incorrect or misleading when made or deemed to be made; |
| (b) | any undertaking in Clause 20.18 (Sanctions) including any information undertaking, relating to Sanctions
is not complied with; |
| (c) | any Sanctions Relevant Person is or becomes a Sanctioned Person; and/or |
| (d) | an act or omission of a Sanctions Relevant Person or any other event relating to the Finance Documents
which is likely to result in a Lender or any of its Affiliates violating any Sanctions or otherwise could result in a Lender or any of
its Affiliates becoming a Sanctioned Person. |
Sanctions Relevant Person means:
| (a) | the Borrower and/or each member of the Group and/or the Target Group; and |
| (b) | each of their relevant directors, officers, affiliates, agents and employees (other than any crew members). |
SEC means the U.S. Securities
and Exchange Commission.
Securities Act means the U.S.
Securities Act of 1933, as amended.
Security means a mortgage (hypotheek/hypothèque),
a ship mortgage (scheepsverband/mortgage), pledge (pand/nantissement), mandate (mandaat/mandat) to grant a
mortgage, a pledge or any other real security, privilege (voorrecht/privilège), reservation of title arrangement (eigendomsvoorbehoud/réserve
de propriété), any real security (zakelijke zekerheid/sûreté réelle) and any transfer
by way of security (overdracht ten titel van zekerheid/transfert à titre de garantie) or any other in rem security
interest securing any obligation of any person or any other agreement or arrangement having a similar effect under any applicable law.
Selection Notice means a notice
substantially in the form set out in Part 2 of Schedule 3 (Requests) given in accordance with Clause 9 (Interest Periods).
Share Purchase Agreement means
the share sale and purchase agreement dated on or about the date of this Agreement between MergeCo as purchaser and Hemen Holding Limited
as seller in respect of all Hemen Holding Limited’s Target Shares.
Ship means any ship owned by an
Obligor.
SPA Acquisition means the acquisition
by MergeCo of Hemen Holding Limited’s Target Shares (being 40.8% of all Target Shares (excluding the treasury shares)) pursuant
to the Acquisition
Documents, it being understood that the
Borrower shall pay, on behalf of MergeCo, an aggregate purchase price of USD 1,178,960,447.70 for such Target Shares (being USD 14.49
/ Target Share).
SPA Acquisition Bridge Facility
means the term loan bridge facility made available under this Agreement as described in paragraph (a) of Clause 2.1 (The Facilities).
SPA Acquisition Bridge Facility Commitment
means:
| (a) | in relation to an Original Lender, the amount set opposite its name under the heading “SPA Acquisition
Bridge Facility Commitment” in Part 2 of Schedule 1 (The Original Parties) and the amount of any other SPA Acquisition Bridge Facility
Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and |
| (b) | in relation to any other Lender, the amount of any SPA Acquisition Bridge Facility Commitment transferred
to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), |
to the extent not cancelled, reduced
or transferred by it under this Agreement.
SPA Acquisition Bridge Facility Loan
means a loan made or to be made under the SPA Acquisition Bridge Facility or the principal amount outstanding for the time being of that
loan.
SPA Acquisition Costs means all
fees, costs and expenses, stamp, registration and other Taxes incurred by the Borrower and/or MergeCo in connection with, or incidental
to, the Share Purchase Agreement, the SPA Acquisition and the Finance Documents or the reimbursement of such fees, costs and expenses,
stamp, registration and other Taxes by the Borrower.
SPA Acquisition Conditions Precedent
means the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent).
SPA Closing Date means the date
of first utilisation under the SPA Acquisition Bridge Facility.
SPC has the meaning given to that
term in the definition “Target Fleet Refinancing Facilities Multilender”.
Specified Event of Default means
an Event of Default under:
| (a) | Clause 21.1 (Non-payment); |
| (b) | Clause 21.6 (Insolvency); |
| (c) | Clause 21.7 (Insolvency proceedings); |
| (d) | Clause 21.8 (U.S. Bankruptcy Laws); and |
| (e) | paragraph (b) of Clause 21.10 (Unlawfulness). |
Specified Time means a day or
time determined in accordance with Schedule 8 (Timetables).
Structure Memorandum means the
structure paper entitled "High-Level Structure Memorandum" and dated 4 March 2025 prepared by ▇▇▇▇ ▇▇▇ delivered to the Agent
under Clause 4.1 (Initial conditions precedent).
Subordination Agreement means
the subordination agreement dated on or about the date of this Agreement between the Borrower, MergeCo and the Agent subordinating any
claim of the Borrower on MergeCo.
Subsidiary means an entity of
which a person has direct or indirect control or owns directly or indirectly more than 50 per cent. of the voting capital or similar right
of ownership and control means the power to direct the management and policies of an entity, whether through the ownership of voting
capital, by contract or otherwise.
Super SPC has the meaning given
to that term in the definition “Restructuring”.
Swap Obligation means, with respect
to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap”
within the meaning of section 1a(47) of the Commodity Exchange Act.
Syndication Letter means the syndication
letter dated on or about the date of this Agreement between the Borrower, the Arrangers, the Coordinator, the Agent and the Security Agent.
Takeover means the acquisition
of all of the Target Outstanding Shares through the Merger and as a result of which, shareholders of the Target have received shares in
MergeCo which have been subsequently contributed (in kind) into the equity of the Borrower (via an exchange agent) in exchange for shares
in the Borrower.
Takeover Acquisition means the
acquisition under the Takeover.
Takeover Closing Date means the
date on which the Takeover completion (including the exchange for shares in the Borrower) has occurred.
Target means Golden Ocean Group
Limited, an exempted company limited by shares incorporated under the laws of Bermuda with its registered office at Front Ocean Management
Ltd., ▇▇▇ ▇▇▇▇▇, ▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, HM 08, Bermuda, registered with the Bermuda
Registrar of Companies under registration number 22353.
Target Change of Control means:
| (a) | as from the SPA Closing Date, the Borrower no longer holding, directly or indirectly, 40.8 per cent. of
the issued share capital (excluding the treasury shares) or voting rights of the Target and 100 per cent. of the issued share capital
or voting rights of MergeCo (or any of its successors); or |
| (b) | as from the Takeover Closing Date, the Borrower no longer holding, directly or indirectly, 100 per cent.
of the issued share capital or voting rights of MergeCo. |
Target Fleet Refinancing means
the refinancing of vessels owned by and/or operated by the Target or the SPCs under the Target Fleet Refinancing Facilities, where the
amount of the refinancing could, directly or indirectly, be partially used in prepayment of all existing debt of the Target (circa USD
1,250,000,000).
Target Fleet Refinancing Facilities
means each of the Target Fleet Refinancing Facilities HCOB and the Target Fleet Refinancing Facilities Multilender.
Target Fleet Refinancing Facilities
HCOB means a USD 120,000,000 facility made available to the Borrower by 31 December 2025 at the latest by HCOB for the purpose refinancing
vessels operated by the Target, including payments in the framework of the SFL purchase options.
Target Fleet Refinancing Facilities
Multilender means a USD 2,000,000,000 facilities underwritten by Nordea Bank Abp, Filial I Norge, BNP Paribas NV/SA, Crédit
Agricole Corporate and Investment Bank and Société Générale to be made available to the Target shortly after
the SPA Closing Date, to be (partially) on-lent by the Target to the Target’s special purpose companies (the SPCs) for the
purpose of an (increased) refinancing of the vessels owned by the SPC’s and consisting of the following tranches:
| (a) | a first tranche of USD 1,250,000,000 (drawn shortly after SPA Closing Date) (the First Tranche),
and |
| (b) | a top-up tranche of USD 750,000,000 (drawable at or shortly after the refinancing of the vessels owned
by the SPCs) (the Top-Up Tranche). |
Target Group means the Target
and its Subsidiaries for the time being.
Target Outstanding Shares means
all or part of the then outstanding shares in the Target (other than the treasury shares at the date of completion of the Takeover) at
the time of the Takeover not held, directly or indirectly, by MergeCo.
Target Shares means any shares
in the Target.
Target Shares – DTC means
Target Shares that trade on Nasdaq and settle through DTC.
Target Shares – Norwegian SE
means Target Shares that trade on Norwegian SE and settle through Euronext Securities Oslo (VPS).
Tax means any tax, levy, impost,
duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay
or any delay in paying any of the same).
Termination Date means, subject
to Clause 2.4 (Extension option), the Original Termination Date.
Top-Up Tranche has the meaning
given to that term in the definition “Target Fleet Refinancing Facilities Multilender, which could, directly or indirectly, be applied
in prepayment of the Facilities in accordance with Clause 7 (Prepayment and Cancellation).
Total Additional Share Purchase Facility
Commitments means the aggregate of the Additional Share Purchase Facility Commitments, being USD 250,000,000 at the date of this Agreement
Total Commitments means the aggregate
of the Total Additional Share Purchase Facility Commitments and the Total SPA Acquisition Bridge Facility Commitments, being USD 1,400,000,000
at the date of this Agreement.
Total SPA Acquisition Bridge Facility
Commitments means the aggregate of the SPA Acquisition Bridge Facility Commitments, being USD 1,150,000,000 at the date of this Agreement.
Transaction Document means each
of the Finance Documents, the Acquisition Documents, the Merger Agreement and any other document designated as such by the Agent and the
Borrower.
Transaction Security means the
Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.
Transaction Security Documents
means (i) the security agreements listed in paragraphs 2 (c), (d) and (e) of Part 1 of Schedule 2 (Conditions Precedent), (ii) paragraphs
(a) and (b) of Clause 20.34
(Conditions subsequent) and (iii) any
document required to be delivered to the Agent under paragraph 2(b) of Part 3 of Schedule 2 (Conditions Precedent), together with any
other document entered into by any Obligor or any other person creating or expressed to create Security over all or any part of its assets
in respect of the obligations of any or all of the Obligors under any of the Finance Documents.
Transfer Certificate means a certificate
substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrower.
Transfer Date means, in relation
to a transfer, the later of:
| (a) | the proposed Transfer Date specified in the relevant Transfer Certificate; and |
| (b) | the date on which the Agent executes the relevant Transfer Certificate. |
Transfer Restrictions means, with
respect to the Relevant Target Shares, any condition to or restriction on the ability of the owner or chargee thereof to charge, sell,
assign or otherwise transfer such Relevant Target Shares or enforce the provisions thereof or of any document related thereto whether
set forth in such Relevant Target Shares or in any document related thereto, including, without limitation:
| (a) | any requirement that any sale, assignment or other transfer or enforcement for such Relevant Target Shares
be subject to any volume limitations or be consented to or approved by any person, including, without limitation, the Target or any other
obligor thereon; |
| (b) | any limitations on the type or status, financial or otherwise, of any purchaser, pledgee, assignee or
transferee of such Relevant Target Shares; |
| (c) | any requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or
any other document of any person to the issuer of, any other obligor on or any registrar or transfer agent for such Relevant Target Shares,
prior to the sale, pledge, assignment or other transfer or enforcement of such Relevant Target Shares; |
| (d) | any registration or qualification requirement or prospectus delivery requirement for such Relevant Target
Shares pursuant to any federal, state, local or foreign securities law (including, without limitation, any such requirement arising under
Section 5 of the Securities Act, as a result of such Relevant Target Shares being a "restricted security" or the Borrower being
an "affiliate" of the Target, as such terms are defined in Rule 144(a)); |
| (e) | any condition to or restriction on the ability of a potential purchaser, assignee, pledgee or transferee
to acquire such Relevant Target Shares from the holder thereof; and |
| (f) | any legend or other notification appearing on any certificate representing such Relevant Target Shares
to the effect that any such condition or restriction exists, |
provided, however, that any such condition
or restriction arising under the Finance Documents shall not constitute a "Transfer Restriction".
Unpaid Sum means any sum due and
payable but unpaid by an Obligor under the Finance Documents.
U.S. means the United States of
America.
U.S. Bankruptcy Law means the
U.S. Bankruptcy Code, as amended, or any other U.S. federal or state bankruptcy, insolvency or similar law.
USD or dollars means the
lawful currency of the United States of America.
Utilisation Date means the date
on which the relevant Loan is to be made.
Utilisation Request means a notice
substantially in the form set out in Part 1 of Schedule 3 (Requests).
VAT means:
| (a) | any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value
added tax (EC Directive 2006/112); and |
| (b) | any other tax of a similar nature, whether imposed in a member state of the European Union in substitution
for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere. |
| (a) | Unless a contrary indication appears, any reference in this Agreement to: |
| (i) | the Agent, the Security Agent, the Arranger, the Coordinator, any Finance
Party, any Hedge Counterparty, any Lender, any Obligor or any Party shall be construed so as to include
its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents; |
| (ii) | assets includes present and future properties, revenues and rights of every description; |
| (iii) | a Finance Document or a Transaction Document or any other agreement or instrument is a reference
to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated; |
| (iv) | indebtedness includes any obligation (whether incurred as principal or as surety) for the payment
or repayment of money, whether present or future, actual or contingent; |
| (v) | a person includes any individual, firm, company, corporation, government, state or agency of a
state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality); |
| (vi) | a regulation includes any regulation, rule, official directive, request or guideline (whether or
not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory
or other authority or organisation; |
| (vii) | a provision of law is a reference to that provision as amended or re-enacted from time to time; and |
| (viii) | a time of day is a reference to Brussels time. |
| (b) | Section, Clause and Schedule headings are for ease of reference only. |
| (c) | Unless a contrary indication appears, a term used in any other Finance Document or in any notice given
under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement. |
| (d) | A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an
Event of Default is continuing if it has not been waived. |
| (e) | A reference in this Agreement to a page or screen of an information service displaying a rate shall include: |
| (i) | any replacement page of that information service which displays that rate; and |
| (ii) | the appropriate page of such other information service which displays that rate from time to time in place
of that information service, |
and, if such page or service ceases to
be available, shall include any other page or service displaying that rate specified by the Agent after consultation with the Borrower.
| (f) | A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement
rate for, that rate. |
| (g) | Any Reference Rate Supplement overrides anything in: |
| (i) | Schedule 11 (Reference Rate Terms); or |
| (ii) | any earlier Reference Rate Supplement. |
| (h) | A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative
Compounded RFR Rate overrides anything relating to that rate in: |
| (i) | Schedule 12 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 13 (Cumulative Compounded RFR Rate),
as the case may be; or |
| (ii) | any earlier Compounding Methodology Supplement. |
| (a) | In this Agreement, where it relates to any Belgian entity or Security, a reference to: |
| (i) | gross negligence means zware ▇▇▇▇/faute grave; |
| (ii) | wilful misconduct means opzet/intention; |
| (iii) | a liquidator, receiver, administrative receiver, administrator, compulsory
manager or other similar officer includes any vereffeningsdeskundige/praticien de la liquidation, herstructureringsdeskundige/praticien
de la réorganisation, curator/curateur, vereffenaar/liquidateur, gedelegeerd rechter/juge délégué,
gerechtsmandataris/mandataire de justice, voorlopig bewindvoerder/administrateur provisoire, gerechtelijke bewindvoerder/administrateur
judiciare, mandataris ad hoc/mandataire ad hoc, ondernemingsbemiddelaar/médiateur d'entreprise, as applicable; |
| (iv) | a person being unable to pay its debts is that person being in a state of cessation of payments
(staking van betaling/cessation de paiements); |
| (v) | a suspension of payments, moratorium of any indebtedness or reorganisation includes
any of those terms in the context of any gerechtelijke reorganisatie/réorganisation judiciaire, overdracht onder gerechtelijk
gezag/transfert sous autorité judiciaire, staking van betaling/cessation de paiements or any other legal proceeding
based on Book XX, Title V/I (Insolventie van Ondernemingen/Insolvabilité des entreprises – Gerechtelijke reorganisatie
/ Réorganisation judiciaire) or Title V/II (Insolventie van Ondernemingen/Insolvabilité des entreprises – Overdracht
onder gerechtelijk gezag/Transfert sous autorité judiciaire) of the Belgian Code of Economic Law (Wetboek van economisch
recht/Code de droit économique); |
| (vi) | commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness
includes any negotiations conducted with a view to reaching a settlement agreement (minnelijk akkoord/accord amiable) with one
or more of its creditors pursuant to Book XX, Title IV (Minnelijk akkoord buiten gerechtelijke reorganisatie/Accord amiable hors réorganisation
judiciaire), Book XX, Title V/1, Chapter 1 (Openbare gerechtelijke reorganisatie door een minnelijk akkoord/ Réorganisation
judiciaire publique par accord amiable), or Book XX, Title V/1, Chapter 4, Section 2 (Besloten gerechtelijke reorganisatie door
een minnellijk akkoord/Réorganisation judiciaire privée par accord amiable) of the Belgian Code of Economic Law (Wetboek
van economisch recht/Code de droit économique); |
| (vii) | a composition, compromise, assignment or arrangement includes a settlement agreement
outside judicial reorganisation (minnelijk akkoord buiten gerechtelijke reorganisatie/accord amiable hors réorganisation judiciaire),
a judicial reorganisation (gerechtelijke reorganisatie/réorganisation judiciaire) (including openbare gerechtelijke reorganisatie
door een minnelijk akkoord/réorganisation judiciaire publique par accord amiable, openbare gerechtelijke reorganisatie door een
collectief akkoord/réorganisation judiciaire publique par un accord collectif, besloten gerechtelijke reorganisatie door een minnelijk
akkoord/réorganisation judiciaire privée par accord amiable, or besloten gerechtelijke reorganisatie door een collectief
akkoord/réorganisation judiciaire privée par un accord collectif), or a transfer under judicial authority (overdracht
onder gerechtelijk gezag/transfert sous autorité judiciaire) pursuant to Book XX, Titles IV, V/I or V/II of the Belgian Code
of Economic Law (Wetboek van economisch recht/Code de droit économique), as applicable; |
| (viii) | winding up, administration or dissolution includes any vereffening/liquidation, ontbinding/dissolution,
faillissement/faillite, besloten voorbereiding van het faillissement/préparation privée d’une faillite and
sluiting van een onderneming/fermeture d'une enterprise; |
| (ix) | insolvency includes any insolventieprocedure/procedure d'insolvabilité, gerechtelijke
reorganisatie/réorganisation judiciaire, overdracht onder gerechtelijk gezag/transfert sous autorité judiciaire,
besloten voorbereiding van het faillissement/préparation privée d’une faillite faillissement/faillite and any
other concurrence between creditors (samenloop van schuldeisers/concours des créanciers); |
| (x) | an expropriation, attachment, sequestration, distress, execution or analogous process includes
any uitvoerend beslag/saisie exécutoire, sekwester/séquestre and bewarend beslag/saisie conservatoire; |
| (xi) | an amalgamation, demerger, merger, consolidation or corporate reconstruction
includes a overdracht van algemeenheid/transfert d'universalité, overdracht van bedrijfstak/transfert de branche d'activité,
splitsing/scission and fusie/fusion and an assimilated transaction (gelijkgestelde verrichting/opération assimilée)
in accordance with the Belgian Code of Companies and Associations; |
| (xii) | a ship mortgage means a scheepshypotheek/hypothèque maritime; |
| (xiii) | the Belgian Civil Code means the Belgian oud Burgerlijk Wetboek/ancien Code Civil of 21
March 1804 and, with effect from its applicable effective date, the Belgian new Burgerlijk Wetboek/Code Civil introduced pursuant
to the Wet van 13 april 2019 tot invoering van een Burgerlijk Wetboek en tot invoeging van boek 8 "Bewijs" in dat Wetboek/Loi
de 13 avril 2019 portant création d'un Code civil et y insérant un livre 8 « La preuve », as amended from
time to time; |
| (xiv) | the Belgian Code of Companies and Associations means the Belgian Wetboek van vennootschappen
en verenigingen/Code des sociétés et des associations dated 23 March 2019, as amended from time to time; |
| (xv) | constitutional documents means the incorporation deed and the most recently (coordinated) version
of its articles of association; |
| (xvi) | the Royal Decree implementing the Belgian Income Tax Code means the Koninklijk Besluit tot uitvoering
van het Wetboek van de inkomstenbelastingen 1992 /Arrêté royal d'exécution du Code des impôts sur les revenus
1992, as amended from time to time; and |
| (xvii) | an entity being incorporated in Belgium or of which its jurisdiction of incorporation is
Belgium, means that such Borrower has its statutory seat in Belgium. |
| (b) | Each Party agrees to waive Article 5.74 of the Belgian Civil Code and agrees that it shall not be entitled
to make any claim or exercise any rights under Article 5.74 of the Belgian Civil Code. Each Party agrees that this waiver and agreement
applies to all Finance Documents governed by Belgian law. |
| (c) | To the extent Belgian law governs the Parties’ non-contractual obligations and to the fullest extent
permitted by law, each Party expressly and irrevocably waives (for itself and on behalf of any of its Affiliates) any non-contractual
claim or right it may have against each other Party pursuant to article 6.3, §1 of the Belgian Civil Code in respect of any breach
by a Party of any of its obligations under the Finance Documents. |
| (d) | To the fullest extent permitted by law, each Party expressly and irrevocably waives (for itself and on
behalf of any of its affiliates) any non-contractual claim and right it may have against any Auxiliaries of each other Party pursuant
to article 6.3, §2 of the Belgian Civil Code in connection with the Finance Documents. For the purposes hereof, Auxiliary
means any person or entity who performs (in whole or in part) any obligation of a Party, is engaged in relation to the performance of
any obligation under the Finance Documents, or represents a Party in connection with the Finance Documents (whether in its own name and/or
for its own account, or in the name and/or for the account of a Party), including auxiliaries (hulppersonen/auxiliaires) of a Party
as referred to in article 6.3, §2 of the Belgian Civil Code. This includes any affiliate, director, officer, board member, manager,
employee, founder, member, partner, shareholder, associate, volunteer, agent, attorney, advisor or contractor of a Party. For the avoidance
of doubt, this definition also includes any subsequent tiers of such auxiliaries, including any secondary, tertiary, or further removed
auxiliaries, irrespective of their level or order in the chain of appointment. |
| (e) | Paragraphs (c) and (d) above shall not apply to non-contractual claims or rights in respect of any breach
by a Party or by any Auxiliaries of each other Party that constitutes either (i) a breach of its general duty of care obligation, provided
that the resulting damage is different from the damage attributable to the wrongful performance of contractual obligations, or (ii) a
criminal offence. |
| (a) | Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right
under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Act) to enforce or to enjoy the benefit of any term of
this Agreement. |
| (b) | Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not
required to rescind or vary this Agreement at any time. |
| (c) | Any person described in paragraph (b) of Clause 25.11 (Exclusion of liability) may, subject to this
Clause 1.4 and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it. |
Subject to the terms of this Agreement,
the Lenders make available to the Borrower:
| (a) | a term loan bridge facility in an aggregate amount equal to the Total SPA Acquisition Bridge Facility
Commitments; and |
| (b) | a term loan bridge facility in an aggregate amount equal to the Total Additional Share Purchase Facility
Commitments. |
| (a) | The Borrower may by giving prior notice to the Agent by no later than the date falling ten (10) Business
Days after the effective date of a cancellation of: |
| (i) | the Available Commitments of a Defaulting Lender in accordance with paragraph (g) of Clause 7.11 (Right
of replacement or repayment and cancellation in relation to a single Lender); or |
| (ii) | the Commitments of a Lender in accordance with: |
| (A) | Clause 7.1 (Illegality); or |
| (B) | Paragraph (a) of Clause 7.11 (Right of replacement or repayment and cancellation in relation to a single
Lender), |
request that the Commitments relating
to any Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount of up to the
amount of the Available Commitments or Commitments relating to that Facility so cancelled as follows:
| (i) | the increased Commitments will be assumed by one or more Eligible Institutions (each an Increase Lender)
selected by the Borrower (each of which shall not be a member of the Group or the Target Group) and each of which confirms in writing
(whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender
corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender; |
| (ii) | each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire
rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an
Original Lender; |
| (iii) | each Increase Lender shall become a Party as a Lender and any Increase Lender and each of the other Finance
Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance
Parties would have assumed and/or acquired had the Increase Lender been an Original Lender; |
| (iv) | the Commitments of the other Lenders shall continue in full force and effect; and |
| (v) | any increase in the Commitments relating to a Facility shall take effect on the date specified by the
Borrower in the notice referred to above or any later date on which the conditions set out in paragraph (b) are satisfied. |
| (b) | An increase in the Commitments relating to a Facility will only be effective on: |
| (i) | the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and |
| (ii) | in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the
Agent being satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable
laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender. The Agent shall promptly notify
the Borrower and the Increase Lender upon being so satisfied. |
| (c) | Each Increase Lender, by executing the Increase Confirmation, confirms (for avoidance of doubt) that the
Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or
Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective. |
| (d) | The Borrower shall, promptly on demand, pay the Agent the amount of all costs and expenses (including
legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2 (Increase). |
| (e) | The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its
own account) a fee in an amount equal to the fee which would be payable under Clause 22.4 (Transfer fee) if the increase was a transfer
pursuant to Clause 22.6 (Procedure for transfer) and if the Increase Lender was a New Lender. |
| (f) | The Borrower may pay to the Increase Lender a fee in the amount and at the times agreed between the Borrower
and the Increase Lender in a letter between the Borrower and the Increase Lender setting out that fee. A reference in this Agreement to
a Fee Letter shall include any letter referred to in this paragraph. |
| (g) | Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event
shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender
pursuant to the Finance Documents. |
| (h) | Clause 22.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause
2.2 in relation to an Increase Lender as if references in that Clause to: |
| (i) | an Existing Lender were references to all the Lenders immediately prior to the relevant increase; |
| (ii) | the New Lender were references to that Increase Lender; and |
| (iii) | a re-transfer were references to a transfer. |
| 2.3 | Finance Parties' rights and obligations |
| (a) | The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party
to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents.
No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. |
| (b) | The rights of each Finance Party under or in connection with the Finance Documents are separate and independent
rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt. |
| (c) | A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights
under the Finance Documents. |
| (a) | The Borrower may request that the Termination Date applicable to each of the SPA Acquisition Bridge Facility
and the Additional Share Purchase Facility be extended, subject to the terms of this Clause 2.4, by delivering to the Agent an Extension
Request not less than 10 Business Days before the Original Termination Date, for a further period of six (6) Months (the First Extension,
the Original Termination Date extended by the First Extension, the Extended Termination Date). |
| (b) | Following the delivery of an Extension Request in accordance with paragraph (a) above, the Termination
Date applicable to each of the SPA Acquisition Bridge Facility and the Additional Share Purchase Facility will be extended by the First
Extension provided that: |
| (i) | no Default has occurred and is then continuing or would occur as a result of the First Extension; |
| (ii) | at the time of delivery of the Extension Request and at the Original Termination Date, the Repeating Representations
to be made by each Obligor are correct in all material respects; and |
| (iii) | the Borrower has paid three (3) Business Days before the Original Termination Date to the Agent (for the
account of the Lenders pro rata) an extension fee equal to 0.50 per cent. of the aggregate amount of the Total Commitments being extended. |
| (c) | The Borrower may request that the Extended Termination Date applicable to each of the SPA Acquisition
Bridge Facility and the Additional Share Purchase Facility be extended, subject to the terms of this Clause 2.4, by delivering to
the Agent an Extension Request not less than 10 Business Days before the Extended Termination Date, for a further period of six (6) Months
(the Second Extension, together with the First Extension, the Extensions). |
| (d) | Following the delivery of an Extension Request in accordance with paragraph (c) above, the Extended Termination
Date applicable to each of the SPA Acquisition Bridge Facility and the Additional Share Purchase Facility will be extended by the Second
Extension provided that: |
| (i) | no Default has occurred and is then continuing or would occur as a result of the Second Extension; |
| (ii) | at the time of delivery of the Extension Request and at the Extended Termination Date, the Repeating Representations
to be made by each Obligor are correct in all material respects; and |
| (iii) | the Borrower has paid three (3) Business Days before the Extended Termination Date to the Agent (for the
account of the Lenders pro rata) an extension fee equal to 0.75 per cent. of the aggregate amount of the Total Commitments being extended. |
| (e) | An Extension always applies to each of the SPA Acquisition Bridge Facility and the Additional Share Purchase
Facility. |
| (f) | An Extension Request shall be irrevocable. |
| (g) | The Agent shall promptly notify each Lender of any such Extension Request. |
| (a) | Each Obligor (other than the Borrower) by its execution of this Agreement or an Accession Deed irrevocably
appoints the Borrower (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance
Documents and irrevocably authorises: |
| (i) | the Borrower on its behalf to supply all information concerning itself contemplated by this Agreement
to the Finance Parties and to give all notices and instructions (including Utilisation Requests), to make such agreements and to effect
the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they
may affect the Obligor, without further reference to or the consent of that Obligor; and |
| (ii) | each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance
Documents to the Borrower, |
and in each case the Obligor shall be
bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or
executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other
communication.
| (b) | Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice
or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Finance Document on behalf of another
Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such
other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly
made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and
any other Obligor, those of the Obligors' Agent shall prevail. |
| (a) | The Borrower shall apply all amounts borrowed by it under the SPA Acquisition Bridge Facility towards: |
| (i) | the financing of the SPA Acquisition; and |
| (ii) | the financing of the SPA Acquisition Costs. |
| (b) | The Borrower shall apply all amounts borrowed by it under the Additional Share Purchase Facility towards
financing of the acquisition of up to 18,337,918 ordinary shares in the Target (including the treasury shares) (i) in open market purchases
on and through the applicable stock exchanges (including, for the avoidance of doubt, any multilateral trading facilities), (ii) through
other large off-market block transactions, (iii) through cash and/or physically settled derivatives instruments having the shares in the
Target as underlying or (iv) through equity swaps into shares in the Target. |
No Finance Party is bound to monitor
or verify the application of any amount borrowed pursuant to this Agreement.
| 4. | Conditions of Utilisation |
| 4.1 | Initial conditions precedent |
| (a) | The Borrower may not deliver a Utilisation Request, and the Lenders will not be obliged to comply with
Clause 5.4 (Lenders' participation) in relation to any Loan, unless on or before the Utilisation Date for that utilisation the Agent has
received the Initial Conditions Precedent and the SPA Acquisition Conditions Precedent in form and substance satisfactory to the Agent.
The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied. |
| (b) | Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before
the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification.
The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. |
| 4.2 | Further conditions precedent |
Subject to Clause 4.1 (Initial conditions
precedent), the Lenders will only be obliged to comply with Clause 5.4 (▇▇▇▇▇▇▇' participation) in relation to a proposed Loan, if on
the date of the Utilisation Request and on the proposed Utilisation Date:
| (a) | no Default is continuing or would result from the proposed Loan; |
| (b) | no Sanctions Event is continuing or would result from the proposed Loan; and |
| (c) | the Repeating Representations to be made by each Obligor are true in all material respects. |
| 4.3 | Maximum number of Loans |
| (a) | The Borrower may not deliver a Utilisation Request if as a result of the proposed Loan: |
| (i) | more than 1 SPA Acquisition Bridge Facility Loan would be outstanding; or |
| (ii) | more than 10 Additional Share Purchase Facility Loans would be outstanding. |
| (b) | The Borrower may not request that a Loan be divided. |
| 5.1 | Delivery of a Utilisation Request |
The Borrower may utilise a Facility by
delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.
| 5.2 | Completion of a Utilisation Request |
| (a) | Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: |
| (i) | it identifies the Facility to be utilised; |
| (ii) | the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility; |
| (iii) | the currency and amount of the Loan comply with Clause 5.3 (Currency); and |
| (iv) | the proposed Interest Period complies with Clause 9 (Interest Periods). |
| (b) | Only one Loan may be requested in each Utilisation Request. |
The currency specified
in a Utilisation Request must be USD.
| 5.4 | Lenders' participation |
| (a) | If the conditions set out in this Agreement have been met, each Lender shall make its participation in
each Loan available by the Utilisation Date through its Facility Office. |
| (b) | The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available
Commitment to the Available Facility immediately prior to making the Loan. |
| (c) | The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that
Loan, in each case by the Specified Time. |
| 5.5 | Cancellation of Commitments |
The Commitments which,
at that time, are unutilised shall be immediately cancelled at the end of the relevant Availability Period.
The Borrower shall repay the Loans in
full on the Termination Date applicable to the relevant Facility.
| 7. | Prepayment and Cancellation |
If, in any applicable jurisdiction, it
becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation
in any Loan:
| (a) | that ▇▇▇▇▇▇ shall promptly notify the Agent upon becoming aware of that event; |
| (b) | upon the Agent notifying the Borrower, each Available Commitment of that Lender will be immediately cancelled;
and |
| (c) | to the extent that the Lender's participation has not been transferred pursuant to paragraph (d)
of Clause 7.11 (Right of replacement or repayment and cancellation in relation to a single Lender), the Borrower shall repay that Lender's
participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or,
if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable
grace period permitted by law) and that ▇▇▇▇▇▇'s corresponding Commitment(s) shall immediately be cancelled in the amount of the participations
repaid. |
Without prejudice to a Lender`s right
under Clause 7.1 (Illegality) if a Sanctions Event occurs:
| (a) | the Borrower or the relevant Lender upon becoming aware of such event shall promptly notify the Agent
thereof, which shall promptly thereafter notify each Lender and the Borrower as relevant thereof; |
| (b) | no Lender shall be obliged to participate in any Loan; and |
| (c) | each Lender may at any time by notice to the Agent and the Borrower; |
| (i) | cancel its Commitment(s) with immediate effect; and |
| (ii) | may also to the extent that the Lender's participation has not been transferred pursuant to paragraph (d)
of Clause 7.11 (Right of replacement or repayment and cancellation in relation to a single Lender) by such notice demand the Borrower
to immediately repay that ▇▇▇▇▇▇’s participation in the Loans together with accrued interest, and all other amounts accrued to it
under the Finance Documents at the date, specified by the Lender in the notice delivered to the Agent and the Borrower, on the date specified
by the Lender in the notice delivered to the Agent (being, no earlier than five (5) Business Days before the last day of any applicable
grace period permitted by law including any general license or other exception to Sanctions). |
Upon the occurrence of a Borrower Change
of Control or, as from the SPA Closing Date, a Target Change of Control:
| (a) | the Borrower shall promptly notify the Agent upon becoming aware of that event; |
| (b) | a Lender shall not be obliged to fund a Loan; and |
| (c) | the Facilities will be cancelled and all outstanding Loans, together with accrued interest, and all other
amounts due under the Finance Documents, shall become immediately due and payable. |
| 7.4 | Mandatory Prepayment – Distributions |
| (a) | If the Borrower receives any Distribution from MergeCo, the Borrower shall prepay the Loans, in accordance
with Clause 7.8 (Application of mandatory prepayments and cancellations) together with accrued interest on the amount prepaid and any
related Break Costs, promptly after the date of receipt of such Distribution, in an amount equal to the amount of the Distribution. |
| (b) | If MergeCo receives any Distribution from the Target, the relevant Obligors shall ensure that such Distribution
is, directly or indirectly, upstreamed to the Borrower in order to prepay the Loans in accordance with paragraph (a) above. |
| 7.5 | Mandatory Prepayment – Free Liquid Assets |
| (a) | The Borrower shall prepay (and shall procure that all Net Cash Disposal Proceeds received by any Obligor
are upstreamed to the Borrower to prepay) the Loans, in accordance with Clause 7.8 (Application of mandatory prepayments and cancellations)
together with accrued interest on the amount prepaid and any related Break Costs, in an amount equal to the following amounts promptly
after the date of receipt any Net Cash Disposal Proceeds: |
| (i) | if the Pro Forma Free Liquid Assets is more than the lower of (a) USD 450,000,000 and (b) the sum of the
threshold amount calculated on the same basis as the calculation under |
paragraph (a)(ii) of Clause 20.14
(Financial covenants) and USD 100,000,000) (the Applicable Liquidity Threshold), up to 100% of the Net Cash Disposal Proceeds provided
that the Free Liquid Assets immediately following such prepayment does not fall below the Applicable Liquidity Threshold; and
| (ii) | for the avoidance of doubt, if the Pro Forma Free Liquid Assets is equal to or less than the Applicable
Liquidity Threshold, 0% of the Net Cash Disposal Proceeds. |
| (b) | For the purposes of this Clause 7.5: |
Net Cash Disposal Proceeds means
all disposal proceeds effectively received by any Obligor after deducting:
| (i) | any reasonably justified and documented expenses which are incurred by any Obligor with respect to that
disposal to persons who are not members of the Group; |
| (ii) | any Tax incurred and required to be paid by the seller in connection with that disposal (as reasonably
determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance; and |
| (iii) | any amounts used for mandatory prepayment under any Financial Indebtedness of such Obligor. |
Pro Forma Free Liquid Assets means
Free Liquid Assets including the aggregate amount of Net Cash Disposal Proceeds to be received by any Obligor, as calculated on a pro
forma basis at the date of receipt of the relevant Net Cash Disposal Proceeds.
| 7.6 | Mandatory Prepayment – Permitted Take-Out Financing |
| (a) | If any Obligor receives any net cash proceeds resulting from any Permitted Take-Out Financing (the Net
Cash Proceeds), the relevant Obligor shall ensure that such Net Cash Proceeds are, directly or indirectly, upstreamed to the Borrower
in order to prepay the Loans in accordance with paragraph (b) below. |
| (b) | If the Borrower receives any Net Cash Proceeds, the Borrower shall prepay the Loans, in accordance with
Clause 7.8 (Application of mandatory prepayments and cancellations) together with accrued interest on the amount prepaid and any related
Break Costs, promptly after the date of receipt of such Net Cash Proceeds, in an amount equal to the amount of the Net Cash Proceeds. |
| 7.7 | Mandatory Prepayment – Acquisition Proceeds |
| (a) | For the purposes of this Clause 7.7: |
Acquisition Proceeds means the
proceeds of a claim (a Recovery Claim) which are effectively received from a vendor under the Acquisition Documents or any of its
Affiliates (or any employee, officer or adviser) in relation to the Acquisition Documents or from the provider of any report in relation
to the SPA Acquisition (in its capacity as a provider of that report) except for Excluded Acquisition Proceeds, and after deducting:
| (i) | any reasonable expenses which are incurred by any member of the Group to persons who are not members of
the Group; and |
| (ii) | any Tax incurred and required to be paid by a member of the Group (as reasonably determined by the relevant
member of the Group on the basis of existing rates and taking into account any available credit, deduction or allowance), |
in each case in relation to that Recovery
Claim.
Excluded Acquisition Proceeds
means any proceeds of a Recovery Claim which the Borrower notifies the Agent are, or are to be, applied:
| (i) | to satisfy (or reimburse a member of the Group which has discharged) any liability, charge or claim upon
a member of the Group by a person which is not a member of the Group; or |
| (ii) | in the replacement, reinstatement and/or repair of assets of members of the Group which have been lost,
destroyed or damaged, |
in each case as a result of the events
or circumstances giving rise to that Recovery Claim, if those proceeds are so applied as soon as possible (but in any event within 180
days, or such longer period as the Majority Lenders may agree) after receipt.
| (b) | The Borrower shall prepay the Loans, in accordance with Clause 7.8 (Application of mandatory prepayments
and cancellations) together with accrued interest on the amount prepaid and any related Break Costs, in an amount equal to the amount
of the Acquisition Proceeds, promptly after the date of receipt of such Acquisition Proceeds. |
| 7.8 | Application of mandatory prepayments and cancellations |
| (a) | A prepayment under Clause 7.4 (Mandatory Prepayment – Distributions), Clause 7.5 (Mandatory Prepayment
– Free Liquid Assets), Clause 7.6 (Mandatory Prepayment – Permitted Take-Out Financing) and Clause 7.7 (Mandatory Prepayment
– Acquisition Proceeds) shall be applied to prepay the SPA Acquisition Bridge Facility Loan and the Additional Share Purchase Facility
Loan pro rata. |
| (b) | Amounts required to be applied in accordance with this Clause shall be applied in the following order: |
| (i) | first, in prepayment of Loans; and |
| (ii) | secondly, in cancellation of Available Commitments (and the Available Commitment of the Lenders
will be cancelled rateably). |
| 7.9 | Voluntary cancellation |
| (a) | The Borrower may, if it gives the Agent not less than 5 Business Days' (or such shorter period as the
Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD 5,000,000) of the SPA Acquisition
Bridge Facility. For the avoidance of doubt, the Additional Share Purchase Facility cannot be voluntary cancelled. |
| (b) | Any cancellation under this Clause 7.9 shall reduce the Commitments of the Lenders rateably. |
| (a) | The Borrower may, if it gives the Agent not less than 5 Business Days' (or such shorter period as the
Majority Lenders may agree) prior notice, prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the
amount of the outstanding Loan by a minimum amount of USD 5,000,000). |
| (b) | A Loan may only be prepaid after the last day of the Availability Period for the applicable Facility (or,
if earlier, the day on which the applicable Available Facility is zero). |
| 7.11 | Right of replacement or repayment and cancellation in relation to a single Lender |
| (i) | any sum payable to any Lender by the Borrower is required to be increased under paragraph (c) of
Clause 12.2 (Tax gross-up); or |
| (ii) | any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1
(Increased costs), |
the Borrower may, whilst the circumstance
giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment(s)
of that Lender and its intention to procure the repayment of that ▇▇▇▇▇▇'s participation in the Loans or give the Agent notice of its
intention to replace that Lender in accordance with paragraph (d) below.
| (b) | On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment(s)
of that Lender shall be immediately reduced to zero. |
| (c) | On the last day of each Interest Period which ends after the Borrower has given notice of cancellation
under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that ▇▇▇▇▇▇'s
participation in that Loan and that ▇▇▇▇▇▇'s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations
repaid. |
| (i) | any of the circumstances set out in paragraph (a) above apply to a Lender; or |
| (ii) | the Borrower becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to any Lender, |
the Borrower may, on 15 days' prior notice
to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall)
transfer pursuant to Clause 22 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to
an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance
with Clause 22 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer equal to the outstanding principal
amount of such ▇▇▇▇▇▇'s participation in the outstanding Loans and all accrued interest to the extent that the Agent has given a notification
under Clause 22.10 (Pro rata interest settlement), Break Costs and other amounts payable in relation thereto under the Finance Documents.
| (e) | The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions: |
| (i) | the Borrower shall have no right to replace the Agent; |
| (ii) | neither the Agent nor any Lender shall have any obligation to find a replacement Lender; |
| (iii) | in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of
the fees received by such Lender pursuant to the Finance Documents; and |
| (iv) | the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d)
above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable
laws and regulations in relation to that transfer. |
| (f) | A Lender shall perform the checks described in paragraph (e)(iv) above as soon as reasonably practicable
following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that
it has complied with those checks. |
| (g) |
(i) |
If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting lender, give the Agent ten (10) Business Days' notice of cancellation of each Available Commitment of that Lender. |
| (ii) | On the notice referred to in paragraph (i) above becoming effective, each Available Commitment of the
Defaulting Lender shall immediately by reduced to zero. |
| (iii) | The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (i) above, notify
all the Lenders. |
| (a) | Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable
and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment
is to be made and the amount of that cancellation or prepayment. |
| (b) | Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid
and, subject to any Break Costs, without premium or penalty, except for a prepayment under paragraph (a) of Clause 7.4 (Mandatory
Prepayment – Distributions), paragraph (a) of Clause 7.5 (Mandatory Prepayment – Free Liquid Assets), paragraph
(b) of Clause 7.6 (Mandatory Prepayment – Permitted Take-Out Financing) or paragraph (b) of Clause 7.7 (Mandatory Prepayment
– Acquisition Proceeds) whereby the amount prepaid shall include principal, accrued interest on the principal prepaid and any relevant
Break Costs. |
| (c) | The Borrower may not re-borrow any part of a Facility which is prepaid. |
| (d) | The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments
except at the times and in the manner expressly provided for in this Agreement. |
| (e) | Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may
be subsequently reinstated. |
| (f) | If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to
either the Borrower or the affected Lender, as appropriate. |
| (g) | If all or part of any Lender's participation in a Loan under a Facility is repaid or prepaid, an amount
of that ▇▇▇▇▇▇'s Commitments (equal to the amount of the participation which is repaid or prepaid) in respect of that Facility will be
deemed to be cancelled on the date of repayment or prepayment. |
| 7.13 | Application of prepayments |
Any prepayment of a Loan pursuant to
Clause 7.3 (Change of control), Clause 7.4 (Mandatory Prepayment – Distributions), Clause 7.5 (Mandatory Prepayment – Free
Liquid Assets), Clause 7.6 (Mandatory Prepayment – Permitted Take-Out Financing), Clause 7.7 (Mandatory Prepayment –
Acquisition Proceeds) or Clause 7.10
(Voluntary prepayment) shall be applied pro rata to each Lender's participation in that Loan.
| 8.1 | Calculation of interest |
| (a) | The rate of interest on each Loan for any day during an Interest Period is the percentage rate per annum
which is the aggregate of the applicable: |
| (ii) | Compounded Reference Rate for that day. |
| (b) | If any day during an Interest Period for a Loan is not an RFR Banking Day, the rate of interest on that
Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day. |
The Borrower shall pay accrued interest
on that Loan on the last day of each Interest Period.
| (a) | If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest
shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which
is two (2) per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting
reasonably). Any interest accruing under this Clause 8.3 shall be immediately payable by the Obligor on demand by the Agent. |
| (b) | To the extent permitted by applicable law, default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately
due and payable. |
| (a) | The Agent shall promptly upon an Interest Payment being determinable notify: |
| (i) | the Borrower of that Interest Payment; |
| (ii) | each relevant Lender of the proportion of that Interest Payment which relates to that ▇▇▇▇▇▇'s participation
in the relevant Loan; and |
| (iii) | the relevant Lenders and the Borrower of: |
| (A) | each applicable rate of interest relating to the determination of that Interest Payment; and |
| (B) | to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Loan. |
This paragraph (a) shall not apply to
any Interest Payment determined pursuant to Clause 10.3 (Cost of funds).
| (b) | The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan. |
| (c) | The Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of
interest relating to a Loan to which Clause 10.3 (Cost of funds) applies. |
| (d) | This Clause 8.4 shall not require the Agent to make any notification to any Party on a day which is not
a Business Day. |
| 9.1 | Selection of Interest Periods |
| (a) | The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if
the Loan has already been borrowed) in a Selection Notice. |
| (b) | Each Selection Notice is irrevocable and must be delivered to the Agent by the Borrower not later than
the Specified Time. |
| (c) | If the Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above,
the relevant Interest Period will be the period specified in the Reference Rate Terms. |
| (d) | Subject to this Clause 9, the Borrower may select an Interest Period of any period specified in the Reference
Rate Terms or any other period agreed between the Borrower, the Agent and all Lenders in relation to the relevant Loan, provided that
an Interest Period of one (1) week may not be selected more than 5 times over the lifetime of the Facilities. |
| (e) | An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility. |
| (f) | Each Interest Period shall start on the Utilisation Date or (if already made) on the last day of its preceding
Interest Period. |
| (g) | No Interest Period shall be longer than six Months. |
Any rules specified as “Business
Day Conventions” in the Reference Rate Terms shall apply to each Interest Period.
| 9.3 | Consolidation of Loans |
If two or more Interest Periods end on
the same date, those Loans will, unless the Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be
consolidated into, and treated as, a single Loan on the last day of the Interest Period.
| 10. | Changes to the Calculation of Interest |
| 10.1 | Interest calculation if no RFR or Central Bank Rate |
If:
| (a) | there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative
Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Loan; and |
| (b) | "Cost of funds will apply as a fallback" is specified in the Reference Rate Terms, |
Clause 10.3 (Cost of funds) shall apply
to that Loan for that Interest Period.
If:
| (a) | a Market Disruption Rate is specified in the Reference Rate Terms; and |
| (b) | before the Reporting Time the Agent receives notifications from a Lender or Lenders (whose participation
in a Loan exceed 35 per cent. of that Loan) that its cost of funds relating to its participation in that Loan would be in excess of that
Market Disruption Rate, |
then Clause 10.3 (Cost of funds) shall
apply to that Loan for the relevant Interest Period.
| (a) | If this Clause 10.3 applies to a Loan for an Interest Period, Clause 8.1 Calculation of interest shall
not apply to that Loan for that Interest Period and the rate of interest on each Lender's share of that Loan for that Interest Period
shall be the percentage rate per annum which is the sum of: |
| (i) | the applicable Margin; and |
| (ii) | the average rate notified to the Agent by the Lenders as soon as practicable and in any event by the Reporting
Time, to be that which expresses as a percentage rate per annum their cost of funds relating to their participation in that Loan. |
| (b) | If this Clause 10.3 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall
enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate
of interest. |
| (c) | Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the
Lenders and the Borrower, be binding on all Parties. |
| (d) | If this Clause 10.3 applies the Agent shall, as soon as is practicable, notify the Borrower. |
| (a) | If an amount is specified as Break Costs in the Reference Rate Terms, the Borrower shall, within three
Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid
Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum. |
| (b) | Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate
confirming the amount of its Break Costs for any Interest Period in which they accrue. |
The Borrower shall pay to the Agent (for
the account of each Original Lender) an arrangement fee in the amount and at the times agreed in a Fee Letter.
The Borrower shall pay to the Agent (for
the account of each Arranger) an underwriting fee in the amount and at the times agreed in a Fee Letter.
| (a) | The Borrower shall pay to the Agent (for the account of each Original Lender): |
| (i) | as from the date of this Agreement until the date falling 2 Months after the date of this Agreement, a
fee computed at the rate of 20 per cent. of the applicable Margin; and |
| (ii) | thereafter, a fee computed at the rate of 35 per cent. of the applicable Margin, |
in each case, on that
▇▇▇▇▇▇’s Available Commitments under the Additional Share Purchase Facility for the Availability Period applicable to the Additional
Share Purchase Facility.
| (b) | The accrued commitment fee is payable on the last day of each successive period of three Months which
ends during the relevant Availability Period, on the last day of the relevant Availability Period and, if cancelled in full, on the cancelled
amount of the relevant ▇▇▇▇▇▇'s Commitment at the time the cancellation is effective. |
The Borrower shall pay to the Coordinator
(for its own account) a coordination fee in the amount and at the times agreed in a Fee Letter.
The Borrower shall pay to the Agent and
the Security Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.
| 12. | Tax Gross Up and Indemnities |
Borrower’s Tax Jurisdiction
means in relation to the Borrower, the jurisdiction in which the Borrower is incorporated.
Protected Party means a Finance
Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received
or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
Qualifying Lender means, in respect
of any payments made under the Finance Documents by the Borrower, a Lender which is beneficially entitled to interest payable to it and
which can receive such interest without a Tax Deduction due to being:
| (i) | a professional investor within the meaning of Article 105, 3° of the Royal Decree implementing the
Belgian Income Tax Code, which is a company resident for tax purposes in Belgium or which is acting through a Facility Office established
in Belgium with which the Loan is effectively connected, other than mentioned in (ii) below; or |
| (ii) | a credit institution within the meaning of article 105, 1°, a) of the Royal Decree implementing the
Belgian Income Tax Code which is a resident for tax purposes in Belgium or which is acting through a permanent establishment in Belgium;
or |
| (iii) | a credit institution within the meaning of article 107, §2, 5°, a), second dash of the Royal
Decree implementing the Belgian Income Tax Code, that is acting through its head office and is resident for tax purposes in a country
with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxation agreement
makes provision for exemption from tax imposed by Belgium) or in a country which is a member state of the European Economic Area; or |
| (iv) | a credit institution within the meaning of article 107, §2, 5°, a), second dash of the Royal
Decree implementing the Belgian Income Tax Code, that is acting through a permanent establishment which (i) itself qualifies as a credit
institution within the meaning of the aforementioned article 107, §2, 5, a) second dash and (ii) is located in a country with which
Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxation agreement makes
provision for exemption from tax imposed by Belgium) or in a country which is a member state of the European Economic Area; or |
Tax Credit means a credit against,
relief or remission for, or repayment of any Tax.
Tax Deduction means a deduction
or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
Tax Payment means either the increase
in a payment made by the Borrower to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).
Treaty Lender means a Lender which:
| (i) | is treated as a resident of a Treaty State for the purposes of the Treaty and is entitled to the benefits
of such Treaty; |
| (ii) | does not carry on a business in Belgium through a permanent establishment with which that ▇▇▇▇▇▇'s participation
in the Loan is effectively connected; and |
| (iii) | fulfils any conditions imposed by Belgium which must be fulfilled to benefit from an exemption from withholding
tax on interest (subject to any necessary procedural formalities). |
Treaty State means a jurisdiction
having a double taxation agreement (a Treaty) with the Borrower’s Tax Jurisdiction which makes provision for full exemption
from taxation imposed by the Borrower’s Tax Jurisdiction on interest.
| (b) | Unless a contrary indication appears, in this Clause 12 a reference to determines or determined
means a determination made in the absolute discretion of the person making the determination. |
| (a) | Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction
is required by law. |
| (b) | The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there
is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. |
Similarly, a Lender
shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from
a Lender it shall notify the Borrower and that Obligor.
| (c) | If a Tax Deduction is required by law to be made by an Obligor or the Agent, the amount of the payment
due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which
would have been due if no Tax Deduction had been required. |
| (d) | A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of
Tax imposed by Belgium, if on the date on which the payment falls due: |
| (i) | the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been
a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change
after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty
or any published practice or published concession of any relevant taxing authority; or |
| (ii) | the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that
the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph
(g) below. |
| (e) | If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any
payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law. |
| (f) | Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction,
the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory
to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. |
| (g) | A Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate
in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction. |
| (h) | Any Lender that has become aware that it has ceased, for whatever reason, to be a Qualifying Lender shall
promptly notify the Borrower of its change of status. |
| (a) | The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount
equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or
on account of Tax by that Protected Party in respect of a Finance Document. |
| (b) | Paragraph (a) above shall not apply: |
| (i) | with respect to any Tax assessed on a Finance Party: |
| (A) | under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or |
| (B) | under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect
of amounts received or receivable in that jurisdiction, |
if that Tax is imposed on or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
| (ii) | to the extent a loss, liability or cost: |
| (A) | is compensated for by an increased payment under Clause 12.2 (Tax gross-up); |
| (B) | would have been compensated for by an increased payment under Clause 12.2 (Tax gross-up) but was not so
compensated solely because one of the exclusions in paragraph (d) of Clause 12.2 (Tax gross-up) applied; or |
| (C) | relates to a FATCA Deduction required to be made by a Party. |
| (c) | A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify
the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower. |
| (d) | A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Agent. |
If an Obligor makes a Tax Payment and
the relevant Finance Party determines in good faith that:
| (a) | a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax
Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and |
| (b) | that Finance Party has obtained and utilised and retained that Tax Credit, |
the Finance Party shall pay an amount
to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have
been in had the Tax Payment not been required to be made by the Obligor.
If any Finance Party makes any payment
to an Obligor pursuant to Clause 12.4 and such Finance Party subsequently certifies in good faith that the credit, relief, remission or
repayment in respect of which such payment was made was not available or has been withdrawn or that it was unable to use such credit,
relief, remission or repayment in full, the Obligor shall reimburse such Finance Party such amount as such Finance Party determines in
good faith is necessary to place it in the same after-tax position as it would have been in if such credit, relief, remission or repayment
had been obtained and fully used and retained by such Finance Party.
| 12.6 | Lender status confirmation |
| (a) | As at the date of this Agreement, each Lender represents that (i) it is not incorporated, resident or
established, or acting through a Facility Office or office with which the relevant Loan under a Finance Document is effectively connected,
as the case may be, situated in a Non-Cooperative Jurisdiction and (ii) the bank account(s) to which payments to which that Lender is
entitled have been or will be made, are not (a) managed or held by a person or persons incorporated, resident or established in a Non- |
Cooperative Jurisdiction
or by the permanent establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction or (b) managed by, or opened
with, (A) a financial institution incorporated, resident or established in a Non-Cooperative Jurisdiction or (B) a branch or office of
a financial institution situated in a Non-Cooperative Jurisdiction.
| (b) | As at the date of this Agreement, each Lender represents that is a Qualifying Lender. |
| (c) | Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in
the Transfer Certificate or Increase Confirmation which it executes on becoming a Party, and for the benefit of the Agent and without
liability to any Obligor, which of the following categories it falls in: |
| (i) | not a Qualifying Lender; |
| (ii) | a Qualifying Lender (other than a Treaty Lender); or |
If a New Lender or an Increase Lender
fails to indicate its status in accordance with this Clause 12.6 then such New Lender or Increase Lender shall be treated for the purposes
of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category
applies (and the Agent, upon receipt of such notification, shall inform the Borrower). For the avoidance of doubt, a Transfer Certificate
or Increase Confirmation shall not be invalidated by any failure of a Lender to comply with this Clause 12.6.
| (d) | Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in
the Transfer Certificate or Increase Confirmation which it executes on becoming a Party, (i) whether it is incorporated, resident, established
or acting through a Facility Office with which the relevant Loan under a Finance Document is effectively connected, situated in a Non-Cooperative
Jurisdiction and whether (ii) the bank account(s) to which payments to which that Lender is entitled have been or will be made, are (a)
managed or held by a person or persons incorporated, resident or established in a Non-Cooperative Jurisdiction or by the permanent establishment
of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction or (b) managed by, or opened with, (A) a financial institution
incorporated, resident or established in a Non-Cooperative Jurisdiction or (B) a branch or office of a financial institution situated
in a Non-Cooperative Jurisdiction. For the avoidance of doubt, the Transfer Certificate or Increase Confirmation shall not be invalidated
by any failure of a Lender to comply with this Clause 12.6. |
| (e) | Each Lender shall notify the Agent: |
| (i) | if the state or territory of which it is incorporated, resident or established or where its Facility Office
with which the relevant Loan under a Finance Document is effectively connected is established becomes a Non-Cooperative Jurisdiction;
or |
| (ii) | if the bank account(s) to which payments to which that Lender is entitled has (have) been or will be made,
are (a) managed by or held by a person or persons incorporated, resident or established in a Non-Cooperative Jurisdiction or by a permanent
establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction or (b) managed by, or opened with, (A) a financial
institution incorporated, resident or established in a Non-Cooperative Jurisdiction or (B) a branch or office of a financial institution
situated in a Non-Cooperative Jurisdiction, |
in each case at such time or during
such period or in connection with such payments, as indicated by the Borrower in a request to make such notification. The Lender shall
make such notification within
ten Business Days of demand of the
Agent and the Agent shall notify the Borrower thereof within fifteen Business Days from request from the Borrower.
| (f) | Each Lender shall provide to the Borrower such information as is reasonably requested by the Borrower
demonstrating that it cannot be considered as an artificial construction within the meaning of article 198, §1, 10° of the Belgian
Income Tax Code if: |
| (i) | the state or territory of which it is incorporated, resident or established or where its Facility Office
is established becomes a Non-Cooperative Jurisdiction; or |
| (ii) | the bank account(s) to which payments to which that Lender is entitled has (have) been or will be made,
are (a) managed by or held by a person or persons incorporated, resident or established in a Non-Cooperative Jurisdiction or by a permanent
establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction or (b) managed by, or opened with, (A) a financial
institution incorporated, resident or established in a Non-Cooperative Jurisdiction or (B) a branch or office of a financial institution
situated in a Non-Cooperative Jurisdiction. |
The Lenders shall provide such information
within ten Business Days following the receipt of a demand by such Borrower (which demand shall refer to this Clause 12.6). Such demand
can be made by the Borrower prior to each date on which an interest is payable under a Finance Document.
The Borrower shall pay and, within three
Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all
stamp duty, registration and other similar Taxes or notarial fees payable in respect of any Finance Document except for (i) any such Tax
payable in connection with any document relating to the transfer by the Finance Party of any of its rights and/or obligations under any
Finance Document, except if made at a time when an Event of Default is continuing or if such transfer is performed at the request of the
Borrower, and (ii) registration duties payable in case of voluntary registration of the Finance Documents by the Finance Party, or registration
in accordance with the Finance Party or other voluntary action by the Finance Party to the extent such registration was not reasonably
necessary to enforce, prove, maintain, establish, preserve, evidence or otherwise assert any rights of the Finance Party under the Finance
Documents.
| (a) | All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in
whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable
on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party
to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party
must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal
to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party). |
| (b) | If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other
Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Relevant Party) is required
by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required
to reimburse or indemnify the Recipient in respect of that consideration): |
| (i) | (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant
Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The
Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient
receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and |
| (ii) | (where the Recipient is the person required to account to the relevant tax authority for the VAT) the
Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that
supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant
tax authority in respect of that VAT. |
| (c) | Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or
expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense,
including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to
credit or repayment in respect of such VAT from the relevant tax authority. |
| (d) | Any reference in this Clause 12.8 to any Party shall, at any time when such Party is treated as a
member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative
member of such group at such time (the term representative member to have the same meaning as in the Council Directive 2006/112/EC or
as implemented by the relevant European member state in its domestic VAT legislation or any other similar provision in any jurisdiction
which is not a member state of the European Union). |
| (e) | In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably
requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and
such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such
supply. |
| (a) | Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by
another Party: |
| (i) | confirm to that other Party whether it is: |
| (A) | a FATCA Exempt Party; or |
| (B) | not a FATCA Exempt Party; |
| (ii) | supply to that other Party such forms, documentation and other information relating to its status under
FATCA as that other Party reasonably requests for the purpose of that other Party's compliance with FATCA; |
| (iii) | supply to that other Party such forms, documentation and other information relating to its status as that
other Party reasonably requests for the purposes of that other Party's compliance with any law, regulation or exchange of information
regime. |
| (b) | If a Party confirms to another Party pursuant to paragraph (a) above that it is a FATCA Exempt Party and
it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably
promptly. |
| (c) | Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall
not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of: |
| (i) | any law or regulation; |
| (ii) | any fiduciary duty; or |
| (iii) | any duty of confidentiality. |
| (d) | If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation
or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph
(c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not
a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information. |
| (a) | Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection
with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction
or otherwise compensate the recipient of the payment for that FATCA Deduction. |
| (b) | Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any
change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify
the Borrower and the Agent and the Agent shall notify the other Finance Parties. |
| (a) | Subject to Clause 13.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the
Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates
as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation
or (ii) compliance with any law or regulation made after the date of this Agreement or (iii) the implementation or application of, or
compliance with, Basel III, CRD IV or any other law or regulation that implements or applies Basel III or CRD IV (for the avoidance of
doubt and without limitation, as amended by CRD V). |
| (i) | Increased Costs means: |
| (A) | a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall
capital; |
| (B) | an additional or increased cost; or |
| (C) | a reduction of any amount due and payable under any Finance Document, |
which is incurred or suffered by a Finance
Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding
or performing its obligations under any Finance Document; and
| (A) | the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel
III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity
risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer"
published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; |
| (B) | the rules for global systemically important banks contained in "Global systemically important banks:
assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking
Supervision in November 2011, as amended, supplemented or restated; and |
| (C) | any further guidance or standards published by the Basel Committee on Banking Supervision relating to
"Basel III". |
| (iii) | CRD IV means EU CRD IV and UK CRD IV. |
| (iv) | CRD V means EU CRD V and UK CRD V. |
| (v) | EU CRD IV means each of (A) Directive 2013/36/EU of the European Parliament and of the Council
of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment
firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and (B) Regulation (EU) No 575/2013 of the European
Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation
(EU) No 648/2012. |
| (A) | Directive (EU) 2019/878 of the European Parliament and of the Council of 20 May 2019 amending Directive
2013/36/EU as regards exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures
and powers and capital conservation measures; and |
| (B) | Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019 amending Regulation
(EU) No 575/2013 as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty
credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting
and disclosure requirements, and Regulation (EU) No 648/2012. |
| (A) | Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 as it forms part of domestic law of
the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (the Withdrawal Act); |
| (B) | the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined
in the European Union (Withdrawal Agreement) Act 2020) implemented Directive 2013/36/EU of the European Parliament and of the Council
of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment
firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and its implementing measures; |
| (C) | direct EU legislation (as defined in the Withdrawal Act), which immediately before IP completion day (as
defined in the European Union (Withdrawal Agreement) Act 2020) implemented EU CRD IV as it forms part of domestic law of the United Kingdom
by virtue of the Withdrawal Act; |
| (D) | CRR rules as amended, restated or re-enacted, as such term is defined in Article 144A of the Financial
Services and Markets Act 2000; and |
| (E) | any replacement of the legislation or rules referred to in paragraphs (A) to (D) above following revocation
of the relevant retained EU law in the UK, to the extent that such replacement legislation or rules replicate substantially the effect
of the law, rules and policy set out in that legislation or those rules. |
| (A) | the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined
in the European Union (Withdrawal Agreement) Act 2020) implemented Directive (EU) 2019/878 of the European Parliament and of the Council
of 20 May 2019 amending Directive 2013/36/EU as regards exempted entities, financial holding companies, mixed financial holding companies,
remuneration, supervisory measures and powers and capital conservation measures; |
| (B) | Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019 amending Regulation
(EU) No 575/2013 as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty
credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting
and disclosure requirements, and Regulation (EU) No 648/20 as each forms part of domestic law of the United Kingdom by virtue of the Withdrawal
Act; and |
| (C) | CRR rules as amended, restated or re-enacted, as such term is defined in Article 144A of the Financial
Services and Markets Act 2000, corresponding to provisions of EU CRD V either as determined by reference to PRA documentation published
pursuant to Section 5(4) of the Financial Services Act 2021 or, where a particular provision of EU CRD V did not form part of domestic
law of the United Kingdom by virtue of the Withdrawal Act, which implement the same Basel III standard as the particular provision of
EU CRD V. |
| 13.2 | Increased cost claims |
| (a) | A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Agent
of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower. |
| (b) | Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming
the amount of its Increased Costs. |
| (a) | Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is: |
| (i) | attributable to a Tax Deduction required by law to be made by an Obligor; |
| (ii) | attributable to a FATCA Deduction required to be made by a Party; |
| (iii) | compensated for by Clause 12.3 (Tax indemnity) or would have been compensated for under Clause 12.3 (Tax
indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied; or |
| (iv) | attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation. |
| (b) | In this Clause 13.3, a reference to a Tax Deduction has the same meaning given to the term in Clause
12.1 (Definitions). |
| (a) | If any sum due from an Obligor under the Finance Documents (a Sum), or any order, judgment or award
given or made in relation to a Sum, has to be converted from the currency (the First Currency) in which that Sum is payable into
another currency (the Second Currency) for the purpose of: |
| (i) | making or filing a claim or proof against that Obligor; |
| (ii) | obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
that Obligor shall as an independent
obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability
arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from
the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt
of that Sum.
| (b) | Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents
in a currency or currency unit other than that in which it is expressed to be payable. |
| (a) | The Borrower shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of: |
| (i) | the occurrence of any Event of Default or Sanctions Event; |
| (ii) | a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without
limitation, any cost, loss or liability arising as a result of Clause 27 (Sharing among the Finance Parties); |
| (iii) | funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation
Request but not made by reason of the operation of any one or more of the |
provisions of this Agreement
(other than by reason of default or negligence by that Finance Party alone); or
| (iv) | a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower. |
| (b) | The Borrower shall promptly indemnify each Finance Party, each Affiliate of a Finance Party and each officer
or employee of a Finance Party or its Affiliate, against any cost, loss or liability incurred by that Finance Party or its Affiliate (or
officer or employee of that Finance Party or Affiliate) in connection with or arising out of the Takeover, the Takeover Acquisition or
the SPA Acquisition or the funding of the Takeover, the Takeover Acquisition or the SPA Acquisition (including but not limited to those
incurred in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the Takeover, the
Takeover Acquisition or the SPA Acquisition), unless such loss or liability is caused by the gross negligence or wilful misconduct of
that Finance Party or its Affiliate (or employee or officer of that Finance Party or Affiliate). |
| 14.3 | Indemnity to the Agent |
The Borrower shall promptly indemnify
the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
| (a) | investigating any event which it reasonably believes is a Default or a Sanctions Event; |
| (b) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct
and appropriately authorised; or |
| (c) | instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as
permitted under this Agreement. |
| 14.4 | Indemnity to the Security Agent |
The Borrower shall promptly indemnify
the Security Agent against any cost, loss or liability incurred by the Security Agent (acting reasonably) as a result of:
| (a) | investigating any event which it reasonably believes is a Default or a Sanctions Event; |
| (b) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct
and appropriately authorised; or |
| (c) | instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as
permitted under this Agreement. |
| 15. | Mitigation by the Lenders |
| (a) | Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any
circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of
Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities), Clause 13 (Increased Costs) or despite the fact that the amounts payable
have been duly reported by the Obligor to the Belgian tax authorities and that the Obligor has reasonably tried to establish that the
amounts payable have been made in the framework of real and genuine business transactions and to entities other than artificial constructions
in the meaning of article 198, §1, 10° of the Belgian Income Tax Code, in any amount payable under a Finance Document by an Obligor
not being deductible from |
that Obligor's taxable
income for Belgian tax purposes by reason of that amount being (i) paid or accrued to a Finance Party incorporated, resident, established
or acting through a Facility Office established in a Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name of or
for the benefit of that Finance Party and a) managed or held by a person or persons incorporated, resident or established in a Non-Cooperative
Jurisdiction or by the permanent establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction or (b) managed
by, or opened with, (A) a financial institution incorporated, resident or established in a Non-Cooperative Jurisdiction or (B) a branch
or office of a financial institution situated in a Non-Cooperative Jurisdiction including (but not limited to) transferring its rights
and obligations under the Finance Documents to another Affiliate or Facility Office.
| (b) | Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents. |
| 15.2 | Limitation of liability |
| (a) | The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred
by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation). |
| (b) | A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion
of that Finance Party (acting reasonably), to do so might be prejudicial to it. |
The Borrower shall promptly on demand
pay the Agent, the Security Agent, the Coordinator and the Arranger the amount of all costs and expenses (including legal fees) reasonably
incurred by any of them in connection with the negotiation, preparation, printing, execution and syndication of:
| (a) | this Agreement and any other documents referred to in this Agreement; and |
| (b) | any other Finance Documents executed after the date of this Agreement, |
in each case whether or not the SPA Acquisition
and/or the Takeover Acquisition are successfully completed.
If (a) an Obligor requests an amendment,
waiver or consent or (b) an amendment is required pursuant to Clause 28.10 (Change of currency), the Borrower shall, within three Business
Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in
responding to, evaluating, negotiating or complying with that request or requirement in each case whether or not the SPA Acquisition and/or
the Takeover Acquisition is successfully completed.
The Borrower shall, within three Business
Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in
connection with the enforcement of, or the preservation of any rights under, any Finance Document.
| 17. | Guarantee and indemnity |
| 17.1 | Guarantee and indemnity |
Each Guarantor irrevocably and unconditionally
jointly and severally:
| (a) | guarantees to each Finance Party punctual performance by each other Obligor of all that Obligor's obligations
under the Finance Documents; |
| (b) | undertakes with each Finance Party that whenever another Obligor does not pay any amount when due under
or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor;
and |
| (c) | agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid
or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss
or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality,
have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this
indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on
the basis of a guarantee. |
This guarantee is a continuing guarantee
and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment
or discharge in whole or in part.
If any discharge, release or arrangement
(whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in
whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation,
administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 17 will continue or be reinstated
as if the discharge, release or arrangement had not occurred.
The obligations of each Guarantor under
this Clause 17 will not be affected by an act, omission, matter or thing which, but for this Clause 17, would reduce, release or prejudice
any of its obligations under this Clause 17 (without limitation and whether or not known to it or any Finance Party) including:
| (a) | any time, waiver or consent granted to, or composition with, any Obligor or other person; |
| (b) | the release of any other Obligor or any other person under the terms of any composition or arrangement
with any creditor of any member of the Group or Target Group; |
| (c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect,
take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance
of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
| (d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members
or status of an Obligor or any other person; |
| (e) | any amendment, novation, supplement, extension restatement (however fundamental and whether or not more
onerous) or replacement of a Finance Document or any other document or security including, without limitation, any change in the purpose
of, any extension of or increase in any facility or the addition of any new facility under any Finance Document or other document or security; |
| (f) | any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document
or any other document or security; or |
| (g) | any insolvency or similar proceedings. |
Without prejudice to the generality of
Clause 17.4 (Waiver of defences), each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time
to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount
made available under any of the Finance Documents for the purposes of or in connection with any of the following: business acquisitions
of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing
facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the
purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated
with any of the foregoing.
Each Guarantor waives any right it may
have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security
or claim payment from any person before claiming from that Guarantor under this Clause 17. This waiver applies irrespective of any law
or any provision of a Finance Document to the contrary.
Until all amounts which may be or become
payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any
trustee or agent on its behalf) may:
| (a) | refrain from applying or enforcing any other moneys, security or rights held or received by that Finance
Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and |
| (b) | hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any
Guarantor's liability under this Clause 17. |
| 17.8 | Deferral of Guarantors' rights |
Until all amounts which may be or become
payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise
directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents
or by reason of any amount being payable, or liability arising, under this Clause 17:
| (a) | to be indemnified by an Obligor; |
| (b) | to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents; |
| (c) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights
of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the
Finance Documents by any Finance Party; |
| (d) | to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform
any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity); |
| (e) | to exercise any right of set-off against any Obligor; and/or |
| (f) | to claim or prove as a creditor of any Obligor in competition with any Finance Party. |
If a Guarantor receives any benefit,
payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable
all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to
be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct
for application in accordance with Clause 28 (Payment Mechanics).
| 17.9 | Release of Guarantors' right of contribution |
If any Guarantor (a Retiring Guarantor)
ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring
Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:
| (a) | that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present
or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any
other Guarantor of its obligations under the Finance Documents; and |
| (b) | each other Guarantor waives any rights it may have by reason of the performance of its obligations under
the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance
Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such
rights or security are granted by or in relation to the assets of the Retiring Guarantor. |
This guarantee is in addition to and
is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
| 17.11 | Guarantee limitations |
| (a) | This guarantee does not apply to any liability to the extent that it would result in this guarantee constituting
unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006, the provisions of the Belgian Code
of Companies and Associations or any equivalent and applicable provisions under laws of the jurisdiction of incorporation of the relevant
Guarantor and, |
with respect to any
Additional Guarantor, is subject to any limitations set out in the Accession Deed applicable to such Additional Guarantor.
| (b) | The obligations being guaranteed by the Guarantors in connection with this Agreement (by express guarantee,
grant of security or otherwise) shall not extend to any Excluded Swap Obligations. |
| 17.12 | Guarantee limitations: Belgian Guarantors |
| (a) | The maximum liability of a Belgian Guarantor (other than the Borrower) under this Clause 17 will be limited
to the highest of: |
| (i) | the highest level of borrowing under this Agreement by, together with On-Lending to, the relevant Belgian
Guarantor and its Subsidiaries, between the date of this Agreement and the date on which a demand is made on that Belgian Guarantor under
this Clause; |
| (ii) | an amount equal to eighty-five per cent. (85%) of the net assets of the relevant Belgian Guarantor calculated
on the basis of the latest available audited annual financial statements of that Belgian Guarantor at the date of this Agreement; |
| (iii) | an amount equal to eighty-five per cent. (85%) of the net assets of the relevant Belgian Guarantor calculated
on the basis of the latest available audited annual financial statements of that Belgian Guarantor , increased with On-Lending to the
relevant Belgian Guarantor and its Subsidiaries, in each case at the date on which a demand is made on it under this Clause. |
| (b) | For the purpose of paragraph (a) above: |
On-Lending means, without double
counting, the aggregate amount of all Loans made to any Obligor and made available by any Obligor, directly or indirectly, to a Belgian
Guarantor or any of its Subsidiaries (in each case, irrespective of whether retained or on-lent by that Belgian Guarantor or its Subsidiary).
net assets means the net assets
of the Belgian Guarantor as calculated in accordance with the rules under the Belgian Code of Companies and Associations to determine
whether a dividend can be distributed without for this purpose deducting from its total assets any Financial Indebtedness owed by such
Belgian Guarantor to another member of the Group, and, in the event of a dispute on the amount of net assets, a certificate of that amount
from the statutory auditor of the Belgian Guarantor (or, if no statutory auditor is appointed or the statutory auditor refuses to issue
such certificate, from an accountant appointed upon the Agent’s request by the “Instituut van de Bedrijfsrevisoren / Institut
des Réviseurs d’Entreprises” shall be conclusive, save in the case of manifest error.
Each Obligor makes the representations
and warranties set out in this Clause 18 to each Finance Party on the date of this Agreement.
| (a) | It is a corporation or company, duly incorporated, registered and validly existing under the law of its
jurisdiction of incorporation. |
| (b) | It has the power to own its assets and carry on its business as it is being conducted. |
Subject to any general principles of
law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation)
and Schedule 2 (Conditions Precedent):
| (a) | the obligations expressed to be assumed by it in each Transaction Document to which it is a party are
legal, valid, binding and enforceable obligations; and |
| (b) | (without limiting the generality of paragraph (a) above), each Transaction Security Document to which
it is a party creates the security interests which that Transaction Security Document purports to create and those security interests
are valid and effective. |
| 18.3 | Validity, effectiveness and ranking of Security |
| (a) | Each Transaction Security Document does now or, as the case may be, will upon execution and delivery create,
subject to the Perfection Requirements, the Security it purports to create over any assets to which such Security, by its terms, relates,
and such Security will, when created or intended to be created, be valid and effective. |
| (b) | No third party has or will have any Security over any assets that are the subject of any Transaction Security
granted by it. |
| (c) | Subject to the Perfection Requirements, the Transaction Security granted by it to the Security Agent or
any other Finance Party has or will when created or intended to be created have first ranking priority or such other priority it is expressed
to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking Security. |
| (d) | Any shares which are subject to the Transaction Security are fully paid and not subject to any option
to purchase or similar rights. The constitutional documents of the companies whose shares are subject to the Transaction Security do not
and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Transaction Security. |
| (e) | No concurrence, consent or authorisation of any person is required for the creation of or otherwise in
connection with any Transaction Security. |
| 18.4 | Non-conflict with other obligations |
The entry into and performance by it
of, and the transactions contemplated by, the Transaction Documents to which it is a party do not and will not conflict with:
| (a) | any law or regulation applicable to it; |
| (b) | its constitutional documents; or |
| (c) | any agreement or instrument binding upon it or any of its assets. |
It has the power to enter into, perform
and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Transaction Documents to
which it is a party and the transactions contemplated by those Transaction Documents.
| 18.6 | Validity and admissibility in evidence |
| (a) | All Authorisations required or desirable: |
| (i) | to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction
Documents to which it is a party and in relation to the SPA Acquisition; and |
| (ii) | to make the Transaction Documents to which it is a party admissible in evidence in its jurisdiction of
incorporation, |
have been obtained or effected and are
in full force and effect.
| (b) | All Authorisations necessary for the conduct of the business, trade and ordinary activities of members
of the Group have been obtained or effected and are in full force and effect. |
| 18.7 | Governing law and enforcement |
| (a) | The choice of governing law of the Finance Documents will be recognised and enforced in its jurisdiction
of incorporation. |
| (b) | Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that
Finance Document will be recognised and enforced in its jurisdiction of incorporation. |
No:
| (a) | corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 21.7
(Insolvency proceedings); or |
| (b) | creditors' process described in Clause 21.9 (Creditors' process), |
has been taken or, to its knowledge,
threatened in relation to a member of the Group or the Target Group (with respect to a member of the Target Group to the best of its knowledge
and, until the SPA Closing Date, based on publicly available information); and none of the circumstances described in Clause 21.6
(Insolvency) applies to a member of the Group and the Target Group (with respect to a member of the Target Group to the best of its knowledge
and, until the SPA Closing Date, based on publicly available information).
It is not required to make any Tax Deduction
(as defined in Clause 12.1 (Definitions)) from any payment it may make under any Finance Document to a Qualifying Lender (as defined in
Clause 12.1 (Definitions)) and subject, in the case of a Treaty Lender, to the completion of procedural formalities.
| 18.10 | No filing or stamp taxes |
Under the law of its jurisdiction of
incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated
by the Finance Documents other than a documentary duty of EUR 0.15 payable in relation to each original copy of a Finance Document if
signed or registered in Belgium or, as the case may be, stamp duty of up to EUR 100 that is payable in relation to any Belgian notarial
deed.
| (a) | No Event of Default and, on the date of this Agreement, the SPA Closing Date and the Takeover Closing
Date, no Default is continuing or might reasonably be expected to result from the making of any Loan. |
| (b) | No other event or circumstance is outstanding which constitutes a default under any other agreement or
instrument which is binding on it or to which its assets are subject and which might have a Material Adverse Effect. |
| 18.12 | No misleading information |
Save as disclosed in writing to the Agent
and the Arranger prior to the date of this Agreement:
| (a) | any written factual information contained in the Information Package was true and accurate in all material
respects as at the date of the relevant report or document containing the information or (as the case may be) as at the date the information
is expressed to be given; |
| (b) | the Financial Information Package has been prepared in accordance with the accounting principles as applied
to the Original Financial Statements, and the financial projections contained in the Financial Information Package have been prepared
on the basis of recent historical information, are fair and based on reasonable assumptions and have been approved by the board of directors
of the Borrower; |
| (c) | any financial projection or forecast contained in the Information Package has been prepared on the basis
of recent historical information and on the basis of reasonable assumptions and was fair (as at the date of the relevant report or document
containing the projection or forecast) and arrived at after careful consideration; |
| (d) | the expressions of opinion or intention provided by or on behalf of an Obligor for the purposes of the
Information Package were made after careful consideration and (as at the date of the relevant report or document containing the expression
of opinion or intention) were fair and based on reasonable grounds; |
| (e) | no event or circumstance has occurred or arisen and no information has been omitted from the Information
Package and no information has been given or withheld that results in the information, opinions, intentions, forecasts or projections
contained in the Information Package being untrue or misleading in any material respect; |
| (f) | all information provided to a Finance Party by or on behalf of the Borrower in connection with the Takeover,
the Takeover Acquisition and the SPA Acquisition on or before the date of this Agreement and not superseded before that date (whether
or not contained in the Information Package) is accurate and not misleading in any material respect and all projections provided to any
Finance Party on or before the date of this Agreement have been prepared in good faith on the basis of assumptions which were reasonable
at the time at which they were prepared and supplied; and |
| (g) | all other written information provided by the Borrower (including its advisers) to a Finance Party was
true, complete and accurate in all material respects as at the date it was provided and is not misleading in any respect. |
| 18.13 | Centre of main interests |
For the purposes of Regulation (EU) 2015/848
of 20 May 2015 on insolvency proceedings (recast) (the Regulation), each Obligor’s (other than MergeCo’s) centre of
main interest (as that term is used in Article 3(1) of the Regulation) is situated in its jurisdiction of incorporation.
| 18.14 | Financial statements |
| (a) | Its Original Financial Statements were prepared in accordance with GAAP consistently applied. |
| (b) | Its Original Financial Statements fairly present its consolidated (if applicable) financial condition
as at the end of the relevant financial year and its results of operations during the relevant financial year. |
| (c) | There has been no material adverse change in the business or financial condition of the Group since the
date of the Original Financial Statements. |
Its payment obligations under the Finance
Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.
| (a) | No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency
which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge
and belief) been started or threatened against it, any of its Subsidiaries or any member of the Target Group (with respect to a member
of the Target Group to the best of its knowledge and, until the SPA Closing Date, based on publicly available information). |
| (b) | No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a
Material Adverse Effect has (to the best of its knowledge and belief) been made against it, any of its Subsidiaries or any member of the
Target Group(with respect to a member of the Target Group to the best of its knowledge and, until the SPA Closing Date, based on publicly
available information). |
| 18.17 | Acquisition Documents, disclosures and other documents |
| (a) | The Acquisition Documents contain all the terms of the SPA Acquisition. |
| (b) | There is no disclosure made to the Acquisition Documents which has or may have a material adverse effect
on any of the information, opinions, intentions, forecasts and projections contained or referred to in the Information Package. |
| (c) | To the best of its knowledge no representation or warranty given by any party to the Acquisition Documents
is untrue or misleading in any material respect. |
It has not breached any law or regulation
which breach has or is reasonably likely to have a Material Adverse Effect.
| 18.19 | Compliance with Environmental Laws |
All Environmental Laws relating to the
business of any Obligor (as now conducted and as reasonably anticipated to be conducted in the future) and the terms of all Environmental
Approvals have been complied with.
| 18.20 | No Environmental Claim |
No Environmental Claim has been made
or threatened against any Obligor or any Ship.
| 18.21 | Anti-bribery, anti-corruption and anti-money laundering |
No member of the Group or, with respect
to a member of the Target Group to the best of its knowledge and, until the SPA Closing Date, based on publicly available information,
nor any of their directors or officers or, to the knowledge of a member of the Group or the Target Group and, until the SPA Closing Date,
based on publicly available information, any of their affiliate, agent or employee, has engaged in any activity or conduct which would
violate any applicable anti-bribery, anti-corruption or anti-money laundering laws or regulations in any applicable jurisdiction and each
member of the Group and the Target Group to the best of its knowledge and, until the SPA Closing Date, based on publicly available information
has instituted and maintains policies and procedures designed to prevent violation of such laws, regulations and rules.
No Sanctions Relevant Person (with respect
to a member of the Target Group to the best of its knowledge and, until the SPA Closing Date, based on publicly available information)
is an individual or entity, that is or is directly or indirectly owned or controlled or acting on behalf of, at the direction of or for
the benefit of (all as defined by the relevant Sanctions) by a Sanctions Relevant Person that is: (i) the subject or target of any Sanctions
or listed on any list of designated persons in application of Sanctions (a Sanctioned Person), (ii) located, organised or resident
in a country or territory that is, or whose government is, the target or subject of Sanctions broadly prohibiting dealings with such government,
country, or territory (a Sanctioned Country) or (iii) in breach of Sanctions.
No transaction contemplated by the Finance
Documents nor any transaction to be carried out in connection with any transaction contemplated by the Finance Documents meets any hallmark
set out in Annex IV of DAC6 or any applicable national implementing legislation thereof.
| 18.24 | No outstanding tax debt |
| (a) | No member of the Group is materially overdue in the filing of any Tax returns and no member of the Group
is overdue in the payment of any amount in respect of Tax unless and only to the extent that such payment is (i) being contested in good
faith by appropriate proceedings and for which adequate reserves have been established in accordance with generally accepted accounting
principles which have been disclosed in its latest financial statements delivered to the Agent under Clause 19.1 (Financial statements)
to the extent required under the applicable accounting principles, (ii) not yet due and payable or not yet subject to penalties for non-payment,
or (iii) incurred in the ordinary course of business and does not materially impair the Borrower’s ability to perform its obligations
under the Finance Documents. |
| (b) | Each Obligor (other than any Obligor incorporated or registered in Bermuda) is resident for Tax purposes
in Belgium and is not acting through any establishment it may have in any other jurisdiction for the purposes of this Agreement. |
| 18.25 | Good title to assets |
It has good, valid and marketable title
to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently
conducted.
| 18.26 | Relevant Target Shares |
| (a) | The Relevant Target Shares: |
| (i) | are admitted to trading on the relevant stock exchange or securities market on which the Target Shares
are publicly traded and constitute either Relevant Target Shares – DTC or Relevant Target Shares – Norway SE; |
| (ii) | are fully paid and no moneys or liabilities are outstanding or payable in respect of any of them; and |
| (iii) | have been duly authorised and validly issued. |
| (b) | The Relevant Target Shares are not subject to any Transfer Restrictions other than the Existing Transfer
Restrictions. |
| (c) | All Relevant Target Shares – DTC are and will remain registered in the name of DTC or its nominee,
maintained in book-entry form on the books of DTC, allowed to be settled through DTC's regular book entry settlement services and identified
by an unrestricted CUSIP. |
| (d) | All Relevant Target Shares – Norway SE are registered in book-entry form under their ISIN BMG396372051
in Euronext Securities Oslo (the VPS) through a Central Securities Depository, or CSD, link pursuant to a registrar agreement between
the Target and Nordea Bank abp, filial I Norge. |
| (e) | An Obligor’s “holding period” under Rule 144(d) with respect to the Relevant Target
Shares acquired after the date of this Agreement under the SPA Acquisition and the Takeover Acquisition will commence, respectively upon
closing of the SPA Acquisition and upon the Takeover Closing Date in connection with the Takeover Acquisition. |
| (i) | notification by any Obligor or any of its Affiliates (other than pursuant to their obligations, as applicable,
under Section 13(d) of the Exchange Act or any reporting requirements of the Target under Section 13(a) of the Exchange Act) to or approval
from any stock exchange, regulatory authority or similar body or any other person is or will be required; |
| (ii) | breach by any Obligor or of its Affiliates of the relevant Listing Rules for the relevant exchange for
the admission and operations of the regulated market and any other rules or regulations required for the admission of securities to such
exchange, including, without limitation, the Securities Act and the rules and regulations thereunder or any other similar law or regulation
has or would occur; |
| (iii) | clearance to deal under the relevant Listing Rules or any other similar law or regulation is or will be
required by any Obligor or any of its Affiliates; or |
| (iv) | mandatory offer or bid will be required to be made by a Lender or any transferee as purchaser of shares, |
as a result of:
| (A) | Relevant Target Shares being or becoming subject to Security created by the Finance Documents; or |
| (B) | the enforcement of a Transaction Security Document relating to the Relevant Target Shares or the Security
created thereby or any appropriation or transfer of all or any part of the Relevant Target Shares, in each case, by or to a Lender, the
Security Agent or any other person, provided that such Lender, the Security Agent or such other person does not hold any other Relevant
Target Shares or otherwise have any connection to Target Shares, as applicable, at that time and the Security Agent or such other person
is not subject to any relevant additional regulatory regime other than in the United States. |
| 18.27 | Certain U.S. securities law matters |
| (a) | Each Loan is entered into by an Obligor in good faith and at arm's length and is a bona fide loan. |
| (b) | No Loan is entered into with an expectation that the Obligors would default in its obligations with respect
thereto. |
| (c) | The Transaction Security is a bona fide Security to secure the obligations of the Obligors under the Finance
Documents, which obligations provide for full recourse to the Obligors, and is not entered into by an Obligor with the intent of facilitating
a disposition of any Relevant Target Shares, whether directly or indirectly. |
| (d) | To the extent applicable, the relevant Obligor agrees that the Relevant Target Shares will be bona fide
pledged not “without recourse” within the meaning of Rule 144(d)(3)(iv). |
| 18.28 | U.S. Investment Company Act status |
No Obligor is required to be registered
as an “investment company” within the meaning of the U.S. Investment Company Act of 1940, as amended.
| 18.29 | U.S. margin regulations |
No Obligor is engaged, directly or indirectly,
in the business of extending credit for the purpose of purchasing or carrying Margin Stock. Neither the borrowing hereunder, nor the use
of the proceeds thereof, will violate the provisions of the Margin Regulations.
| 18.30 | U.S. beneficial ownership reporting |
Each Obligor has complied in all material
respects with any beneficial ownership reporting obligations under Section 13 of the Exchange Act and the rules and regulations promulgated
thereunder (including the delivery relevant certifications, if applicable).
| (a) | The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances
then existing on: |
| (i) | the date of each Utilisation Request and the first day of each Interest Period; |
| (ii) | the date of each Extension Request; |
| (iii) | the Original Termination Date subject to the First Extension being exercised: and |
| (iv) | the Extended Termination Date subject to the Second Extension being exercised, |
in each case except that those contained
in paragraphs (a) and (b) of Clause 18.14 (Financial statements) will, once subsequent financial statements have been delivered under
this Agreement, be deemed to relate to those subsequently delivered financial statements.
| (b) | All the representations and warranties in this Clause 18 except Clause 18.12 (No misleading information)
and Clause 18.17 (Acquisition Documents, disclosures and other documents) are deemed to be made by each Additional Guarantor on the day
on which it becomes (or it is proposed that it becomes) an Additional Guarantor. |
| 19. | Information Undertakings |
The undertakings in this Clause 19 remain
in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in
force.
The Borrower shall supply to the Agent
in sufficient copies for all the Lenders as soon as the same become available, but in any event:
| (a) | within 120 days after the end of each of its financial years: |
| (i) | its audited consolidated annual financial statements for that financial year; |
| (ii) | its audited individual financial statements for that financial year; and |
| (iii) | the audited financial statements (consolidated if appropriate) of each Obligor for that financial year; |
| (b) | within 90 days after the end of the first half of each of its financial year, the unaudited consolidated
balance sheet of the Group certified as to its correctness by the chief financial officer of the Borrower and the audited individual balance
sheet of the Borrower certified as to its correctness by an officer or director of the Borrower; and |
| (c) | within 60 days after the end of each of its financial quarter and provided that these documents have not
been published on the Borrower's website or sent to the Lenders in the form of a press release, unaudited consolidated income statements
of the Group certified as to their correctness by the chief financial officer of the Borrower and unaudited individual income statements
of the Borrower certified as to their correctness by an officer or director of the Borrower. |
| 19.2 | Requirements as to financial statements |
| (a) | Each set of financial statements delivered by the Borrower pursuant to paragraph (b) of Clause 19.1
(Financial statements) shall be certified by the chief financial officer of the Borrower as fairly presenting its financial condition
as at the date as at which those financial statements were drawn up and include a computation (in reasonable detail) as to the compliance
with Clause 20.14 (Financial covenants) certified by the chief financial officer of the Borrower. |
| (b) | The Borrower shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial
statements) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation
of the Original Financial Statements unless, in relation |
to any set of financial
statements, it notifies the Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors
deliver to the Agent:
| (i) | a description of any change necessary for those financial statements to reflect the GAAP, accounting practices
and reference periods upon which the Original Financial Statements were prepared; and |
| (ii) | sufficient information, in form and substance as may be reasonably required by the Agent, to enable the
Lenders to make an accurate comparison between the financial position indicated in those financial statements and the Original Financial
Statements. |
Any reference in this Agreement to those
financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original
Financial Statements were prepared.
| 19.3 | Information: miscellaneous |
The Borrower shall supply to the Agent
(in sufficient copies for all the Lenders, if the Agent so requests):
| (a) | all documents dispatched by the Borrower or any Obligor to its shareholders (or any class of them) or
by the Borrower or any Obligor to its creditors generally at the same time as they are dispatched, unless these documents are publicly
available; |
| (b) | promptly upon becoming aware of them, the details of any material litigation, arbitration or administrative
proceedings which are current, threatened or pending against any member of the Group or the Target Group; |
| (c) | promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or
agency which is made against any member of the Group or the Target Group, and which might have a Material Adverse Effect; |
| (d) | promptly upon becoming aware of the relevant claim, the details of any claim which is current, threatened
or pending against the vendors under the Acquisition Documents or any other person in respect of the Acquisition Documents or the Takeover
Acquisition; |
| (e) | promptly, such further information regarding the financial condition, business and operations of any member
of the Group as any Finance Party (through the Agent) may reasonably request provided that if the information relates to the Target or
a Subsidiary of the Target such information shall only be made available to the Lenders to the extent it is not prohibited by any mandatory
laws and regulations; |
| (f) | on the last Business Day of each Month, (i) an update on the execution of the CMBT Action Plan, including
detail of realised and planned assets disposals and capital expenditure, (ii) a detailed calculation of the Free Liquid Assets of the
Group at the end of each Month and (iii) the steps being taking in relation to the Permitted Take-Out Financing; |
| (g) | on the last Business Day of each financial quarter a cash flow forecast for the following six Months; |
| (h) | promptly upon becoming available, updates on the completion of the different steps as set out in the Structure
Memorandum, including the underlying (corporate) documentation; |
| (i) | promptly upon becoming available, a well-advanced draft of the merger agreement between MergeCo and the
Target for a combined stock-for-stock merger for the Target Outstanding Shares, pursuant to which the Target will become (indirectly)
a wholly-owned Subsidiary of the Borrower and the surviving entity being MergeCo, each in accordance with the Structure Memorandum, and
afterwards an executed copy thereof (the Merger Agreement); and |
| (j) | semi-annually, information on the asset value of the Group (assets by assets). |
| 19.4 | CMBT Action Plan update |
Once in every Month, or more frequently
if requested to do so by the Agent if the Agent reasonably suspects a Default is continuing or may have occurred or may occur, the chief
financial officer must give an update to the Agent about the execution of the CMBT Action Plan, including detail of realised and planned
assets disposals and capital expenditure, (ii) the calculation of the Free Liquid Assets of the Group at the end of each Month and (iii)
the steps being taking in relation to the Permitted Take-Out Financing.
| 19.5 | Notification of default or Sanctions event |
| (a) | Each Obligor shall notify the Agent of any Default and/or Sanctions Event (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been
provided by another Obligor). |
| (b) | Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two
of its directors or senior officers on its behalf certifying that no Default and/or Sanctions Event is continuing (or if a Default and/or
Sanctions Event is continuing, specifying the Default and/or Sanctions Event and the steps, if any, being taken to remedy it). |
| 19.6 | Direct electronic delivery |
Each Obligor may satisfy its obligation
under this Agreement to deliver any information in relation to a Lender by delivering that information directly to that Lender in accordance
with Clause 30.6 (Electronic communication) to the extent that Lender and the Agent agree to this method of delivery.
| 19.7 | "Know your customer" checks |
| (i) | the introduction of or any change in (or in the interpretation, administration or application of) any
law or regulation made after the date of this Agreement; |
| (ii) | any change in the status of an Obligor after the date of this Agreement; or |
| (iii) | a proposed transfer by a Lender of any of its rights and obligations under this Agreement to a party that
is not a Lender prior to such transfer, |
obliges the Agent or any Lender (or,
in the case of paragraph (iii) above, any prospective new Lender) to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request
of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent
(for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on
behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above,
any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your
customer" or other similar checks
under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
| (b) | Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation
and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied
with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents. |
| (c) | The Borrower shall, by not less than ten Business Days' prior written notice to the Agent, notify the
Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Guarantor
pursuant to Clause 23 (Changes to the Obligors). |
| (d) | Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional
Guarantor obliges the Agent or any Lender to comply with "know your customer" or similar identification procedures in circumstances
where the necessary information is not already available to it, the Borrower shall promptly upon the request of the Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf
of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective
new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Guarantor. |
| 19.8 | Provision of Material Non-Public Information |
| (a) | Neither an Obligor nor its Representative shall provide any Finance Party with any Material Non-Public
Information in any document or notice required to be delivered pursuant to this Agreement or any other Finance Document or in any communication
connected with this Agreement or any other Finance Document (each a Communication) without: (i) first notifying such Finance Party
in writing that the Communication that it is about to deliver contains Material Non-Public Information; and (ii) the relevant Finance
Party having confirmed that it wishes to receive such information and instructed the Borrower or their agent of the person to whom such
information shall be delivered. |
| (b) | If a Finance Party has refused to receive such Material Non-Public Information (directly by notice to
the Borrower or their agent or by notice to the Agent) or a Finance Party has not provided such notification, the Obligor or their Representative
shall only deliver the Communication to the extent that it does not contain Material Non-Public Information, in which event that the Obligor
or their Representative shall not be deemed to have breached this Agreement or any other Finance Document. |
The undertakings in this Clause 20 remain
in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in
force.
Each Obligor shall promptly:
| (a) | obtain, comply with and do all that is necessary to maintain in full force and effect; and |
| (b) | supply certified copies to the Agent of, |
any Authorisation required under any
law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Takeover Acquisition, the SPA
Acquisition, the Finance Documents and the Acquisition Documents and to ensure the legality, validity, enforceability or admissibility
in evidence in its jurisdiction of incorporation of any Finance Document or the Acquisition Documents.
Each Obligor shall comply in all material
respects with all laws (including any Environmental Law) to which it may be subject.
| 20.3 | Foreign Private Issuer Status |
To the Borrower’s knowledge based
on the Target’s most recent Annual Report on Form 20-F and without any independent investigation, the Target meets the requirements
to qualify as a foreign private issuer (as defined in 17 C.F.R. §240.3b-4(c)), and the Borrower will use its commercially reasonable
efforts to cause the Target to maintain such foreign private issuer status.
| 20.4 | Environmental compliance |
The Borrower shall (and shall procure
that each Obligor shall):
| (a) | comply with all Environmental Laws; |
| (b) | obtain, maintain and ensure compliance with all requisite Environmental Approvals; and |
| (c) | follow procedures to monitor compliance with and to prevent liability under any Environmental Law. |
Each Obligor shall (through the Borrower)
promptly upon becoming aware of the same, inform the Agent in writing of:
| (a) | any material Environmental Claim against any Obligor which is current, pending or threatened; and |
| (b) | any facts or circumstances which are reasonably likely to result in any material Environmental Claim being
commenced or threatened against any Obligor. |
| (a) | Each Obligor shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed
unless and only to the extent that: |
| (i) | such payment is being contested in good faith; |
| (ii) | adequate reserves are maintained for those Taxes and the costs required to contest them and both have
been disclosed in its latest financial statements delivered to the Agent under Clause 19.1 (Financial statements); and |
| (iii) | such payment can be lawfully withheld. |
| (b) | No Obligor (other than any Obligor incorporated or registered in Bermuda) changes its residence for Tax
purposes. |
| 20.7 | No change to centre of main interests |
| (a) | No Obligor (other than any Obligor incorporated or registered in Bermuda) shall change the location of
its centre of main interest (as that term is used in Article 3(1) of the Regulation) from that stated in relation to it in Clause 18.13
(Centre of main interests) and it will create no establishment (as that term is used in Article 2(10) of the Regulation) in any other
jurisdiction. |
| (b) | No Obligor incorporated or registered in Bermuda shall: |
| (i) | be continued into another jurisdiction outside of Bermuda; or |
| (ii) | take action that, directly or indirectly, causes a change in the courts that are competent to exercise
insolvency jurisdiction over that Obligor, unless such jurisdiction remains within a Member State of the European Union. |
Each Obligor shall ensure that at all
times any unsecured and unsubordinated claims of a Finance Party against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred
by laws of general application to companies.
| (a) | No Obligor shall create or permit to subsist any Security over any of its assets which are the subject
of the Security created or intended to be created by the Finance Documents. |
| (b) | No Security shall be created or permitted to subsist in respect of the shares of any Obligor or the Target
and no Obligor shall (and the Borrower shall procure that no other member of the Group shall) create or permit to subsist any Security
in respect of the shares of an Obligor or the Target, in each case other than pursuant to the Transaction Security. |
| 20.10 | Financial Indebtedness |
| (a) | Except as permitted under paragraph (b) below, no Obligor shall incur or allow to remain outstanding any
Financial Indebtedness. |
| (b) | Paragraph (a) above does not apply to: |
| (i) | any Financial Indebtedness incurred under this Agreement; |
| (ii) | any Financial Indebtedness incurred under the ▇▇▇.▇▇▇▇ Vessel Facilities Agreement; |
| (iii) | any Financial Indebtedness incurred under the Permitted Take-Out Financing; |
| (iv) | any existing Financial Indebtedness incurred by the Target Group, which is not refinanced with proceeds
of the Target Fleet Refinancing Facilities, provided that the commitments under the Target Fleet Refinancing Facilities are cancelled
in an amount equal to such remaining outstanding Financial Indebtedness and that the existing Financial Indebtedness is above 60% of the
fair market value of the asset; |
| (v) | any existing and new Financial Indebtedness for assets and investments included in the Financial Forecast
for the period until the end of 2026; or |
| (vi) | any other Financial Indebtedness (which is not included in the Financial Forecast) for the sole purposes
of refinancing existing assets or new financings for capex commitments in the ordinary course of trading, the aggregate outstanding amount
of which does not exceed USD 300,000,000 at any time, |
provided, in each case,
(A) the Borrower is in compliance with the financial covenants set out in Clause 20.14 (Financial covenants), (B) no breach of the financial
covenants set out in Clause 20.14 (Financial covenants) has occurred as a result of the incurrence of such Financial Indebtedness and
(C) neither the Borrower nor any other member of the Group is obliged to maintain or create any security interest over any Target Shares
as security for its obligations in respect of such Financial Indebtedness.
| (a) | Except as permitted under paragraph (b) below, no Obligor shall enter into any amalgamation, demerger,
merger or corporate reconstruction. |
| (b) | Paragraph (a) above does not apply to any Permitted Transaction or any other merger with the Borrower
provided that: |
| (i) | the Borrower is the surviving entity; |
| (ii) | such merger would not result in a Borrower Change of Control; |
| (iii) | no Default is continuing or would occur as a result of such merger; and |
| (iv) | such merger can reasonably be expected to not be materially adverse to the interests of the Lenders (taken
as a whole). |
| (a) | Each Obligor will maintain insurances on and in relation to its business and assets against those risks
and to the extent as is usual for companies carrying on the same or substantially similar business. |
| (b) | All insurances must be with reputable independent insurance companies or underwriters. |
The Borrower shall procure that no substantial
change is made to the general nature of the business of the Borrower, the Obligors or the Group from that carried on at the date of this
Agreement, unless approved by all Lenders, such approval not to be unreasonably withheld.
| (a) | The Borrower will ensure that the consolidated financial position of the Group shall at all times during
the lifetime of the Facilities be such that: |
| (i) | Consolidated Working Capital shall not be less than USD 0; |
| (ii) | Free Liquid Assets are not less than the higher of: |
| (B) | 5% of Total Indebtedness; and |
| (iii) | the Value Adjusted Equity Ratio is not less than: |
| (A) | 25%, as from the first Utilisation Date to and including 31 December 2025; |
| (B) | 27.5% as from 1 January 2026 to and including 31 December 2026; and |
Consolidated Current Assets means,
at any date of determination under this Agreement, the amount of the current assets of the Group determined on a consolidated basis in
accordance with IFRS and as shown in the Latest Balance Sheet and including any amounts available under committed credit lines having
remaining maturities of more than 12 Months;
Consolidated Current Liabilities
means, at any date of determination under this Agreement, the amount of the current liabilities of the Group determined on a consolidated
basis in accordance with IFRS and as shown in the Latest Balance Sheet;
Consolidated Working Capital means
Consolidated Current Assets less Consolidated Current Liabilities;
Excess Value means the difference
between the market value and the book value of the Group’s Vessels;
Free Liquid Assets means, at any
date of determination under this Agreement, the aggregate amount of cash and cash equivalents of the Group determined on a consolidated
basis in accordance with IFRS and as shown in the Latest Balance Sheet but excluding any of those assets subject to Security (other than
Security in favour of the Security Agent pursuant to this Agreement) at any time and, for the avoidance of doubt, "cash and cash
equivalents" include any amounts available under committed credit lines having remaining maturities of more than six Months;
Latest Balance Sheet means, at
any date, the consolidated balance sheet of the Group most recently delivered to the Agent pursuant to Clause 19.1 (Financial statements)
and/or most recently made publicly available;
Stockholders' Equity means, at
any date of determination under this Agreement, the amount of the capital and reserves of the Group determined on a consolidated basis
in accordance with IFRS and as shown in the Latest Balance Sheet;
Total Assets means, at any date
of determination under this Agreement, the amount of the total assets of the Group determined on a consolidated basis in accordance with
IFRS and as shown in the Latest Balance Sheet;
Total Indebtedness means, at any
date of determination under this Agreement, the amount of long-term loans (including finance leases, banks loans and other long-term loans)
and short-term loans of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet;
Value Adjusted Equity means the
amount of the Stockholders’ Equity adjusted with the Excess Value;
Value Adjusted Total Assets means
the book value of the Total Assets adjusted with the Excess Value;
Value Adjusted Equity Ratio means
the Value Adjusted Equity divided by the Value Adjusted Total Assets; and
Vessels means any vessels fully
owned by a member of the Group within pre agreed segments.
| 20.15 | Distributions to shareholders |
The Borrower may:
| (i) | declare or make any dividend payment or distribution, whether in cash or kind; |
| (ii) | repurchase any of its shares or undertake other similar transaction (including, but not limited to total
return swaps related to shares in the Borrower); or |
| (iii) | grant any loans or make other distributions or transactions constituting a transfer of value to its shareholders, |
provided that:
| (A) | no Event of Default or potential Event of Default has occurred and is continuing or would result upon
payment of the proposed dividend, distribution or buy-back; |
| (B) | the payment of such dividend or distribution or completion of such buy-back would not cause any breach
of any of the financial covenants set out in Clause 20.14 (Financial covenants); and |
| (C) | no shares are repurchased or other similar transactions or undertakings (including, but not limited to
total return swaps related to the shares in the Borrower) prior to completion of the Merger. |
| 20.16 | Restriction on arrangements with Majority Shareholder |
| (a) | The Borrower will not (and will procure that no member of the Group will): |
| (i) | enter into any cash pooling arrangements with any Majority Shareholder; |
| (ii) | subject to paragraph (b) be a creditor of any Majority Shareholder in respect of any Financial Indebtedness
or provide any loan or other credit to any person with the intention that a corresponding loan or corresponding other credit may be provided
to any Majority Shareholder; or |
| (iii) | subject to paragraph (c), charter, lease, sell or otherwise transfer the ownership of any assets to any
Majority Shareholder. |
| (b) | Notwithstanding subparagraph (ii) of paragraph (a), the Borrower may be a creditor of any Majority Shareholder
in respect of any Financial Indebtedness or provide any loan or other credit to any person with the intention that a corresponding loan
or corresponding other credit may be provided to any Majority Shareholder in each case on arms' length terms and provided that the aggregate
value of: |
| (i) | the sum of such loans and other credit; and |
| (ii) | any other distributions to shareholders made in accordance with Clause 20.15 (Distributions to shareholders), |
advanced or paid in any running 12 month
period shall never exceed 80% of the net annual profit of the Borrower in that running 12 month period.
| (c) | Notwithstanding subparagraph (iii) of paragraph (a) above, the Borrower may acquire assets from any Majority
Shareholder and charter, lease, sell or otherwise transfer the ownership of any assets to any Majority Shareholder in each case provided
that such acquisition, charter, lease, sale or transfer of ownership: |
| (i) | is on arms' length terms; and |
| (ii) | does not result in a significant change in the Borrower's ability to perform its obligations under this
Agreement. |
| 20.17 | Unlawfulness, invalidity and ranking; Security imperilled |
No Obligor shall do (or fail to do) or
cause or permit another person to do (or omit to do) anything which is likely to:
| (a) | cause any obligation of an Obligor under the Transaction Documents to cease to be legal, valid, binding
or enforceable; |
| (b) | cause any Transaction Document to cease to be in full force and effect; |
| (c) | cause any Transaction Security to rank after, or lose its priority to, any other Security; and |
| (d) | imperil or jeopardise the Transaction Security. |
| (a) | No Obligor will (and the Borrower shall ensure that no Sanctions Relevant Person will), directly or indirectly,
use the proceeds of the loans hereunder, or lend, contribute or otherwise make available such proceeds to any person, (i) to fund any
activities or business of or with any Person, or in any country, region or territory, that, at the time of such funding, is, a Sanctioned
Person or Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person
participating in the Facility hereunder). |
| (b) | No Obligor shall (and the Borrower shall ensure that no Sanctions Relevant Person shall) use any revenue,
proceeds or benefit derived from any activity or dealing with a Sanctioned Person or a Person located, organised or resident in a Sanctioned
Country in discharging any obligation due or owing to the Finance Parties. |
| (c) | Each Obligor shall (and the Borrower shall ensure that each Sanctions Relevant Person will) comply in
all respects with Sanctions and shall ensure that appropriate controls and safeguards are in place designed to prevent any action being
taken that would be contrary to the paragraphs of this Clause. |
| (d) | To the extent that this Clause 20.18 relates to any member of the Target Group and only until the Takeover
Closing Date, the Borrower shall, notwithstanding any contrary provision, only lever its controlling voting power as shareholder of the
Target to the fullest extent to ensure compliance with this Clause 20.18. |
| (a) | No Obligor shall, and the Borrower shall ensure that none of its Subsidiaries or any member of the Target
Group will, directly or indirectly use the proceeds of a Loan for any purpose which would breach any applicable anti-bribery, anti-corruption
or anti-money laundering laws, rules or regulations. |
| (b) | Each Obligor shall (and the Borrower shall ensure that each of its Subsidiaries and each member of the
Target Group will): |
| (i) | conduct its businesses in compliance with applicable anti-bribery, anti-corruption and anti-money laundering
laws, rules and regulations; and |
| (ii) | maintain policies and procedures designed to promote and achieve compliance with such laws, rules and
regulations. |
| (c) | To the extent that this Clause 20.19 relates to any member of the Target Group and only until the Takeover
Closing Date, the Borrower shall, notwithstanding any contrary provision, only lever its controlling voting power as shareholder of the
Target to the fullest extent to ensure compliance with this Clause 20.19. |
| 20.20 | Financial assistance |
Each Obligor will comply in all respects
with sections 678 or 679 of the Companies Act 2006, the provisions of the Belgian Code of Companies and Associations and any equivalent
legislation in other jurisdictions relating to financial assistance in relation to the payment of amounts due under this Agreement.
| (a) | Except as permitted under paragraph (b) below, no Obligor shall: |
| (i) | acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest
in any of them); or |
| (ii) | incorporate a company. |
| (b) | Paragraph (a) does not apply to: |
| (ii) | the Takeover Acquisition; |
| (iii) | the Permitted Transaction; |
| (iv) | the acquisition of any vessels from the CMB Group; or |
| (v) | any acquisition in the ordinary course of trading, including placing newbuilding vessel orders, in line
with the Financial Forecast or otherwise the aggregate amount of which shall not exceed USD 300,000,000 in related Financial Indebtedness,
USD 600,000,000 in related guarantees and USD 150,000,000 in own funds. |
| (a) | Except as permitted under paragraph (b) below, no Obligor shall be a creditor in respect of any Financial
Indebtedness. |
| (b) | Paragraph (a) above does not apply to: |
| (i) | any loan made to another Obligor; |
| (ii) | any loan made to a member of the Group for assets and investments included in the Financial Forecast for
the period until the end of 2026; or |
| (iii) | any loan made to a member of the Group for assets and investments or operational expenses or losses (which
is not included in the Financial Forecast), so long as the aggregate amount of the Financial Indebtedness incurred under those loans does
not exceed USD 150,000,000 over the lifetime of this Agreement. |
| (a) | Each Obligor shall promptly do all such acts or execute all such documents (including assignments, transfers,
mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may
reasonably require in favour of the Security Agent or its nominee(s)): |
| (i) | to perfect the Security created or intended to be created under or evidenced by the Transaction Security
Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are,
or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security
Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law; |
| (ii) | to confer on the Security Agent or confer on the Finance Parties Security over any property and assets
of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Transaction
Security Documents; and/or |
| (iii) | to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction
Security. |
| (b) | Each Obligor shall take all such action as is available to it (including making all filings and registrations)
as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be
conferred on the Security Agent or the Finance Parties by or pursuant to the Finance Documents. |
| 20.24 | No guarantees or indemnities |
| (a) | Except as permitted under paragraph (b) below, no Obligor shall incur any new guarantee in respect of
any obligation of any person. |
| (b) | Paragraph (a) above does not apply to: |
| (i) | any guarantee made by the Borrower in connection with the payment of the purchase price under the Share
Purchase Agreement; |
| (ii) | any guarantee made for assets and investments included in the Financial Forecast for the period until
the end of 2026; |
| (iii) | any guarantee in respect of any obligation of a member of the Group made for assets and investments (which
is not included in the Financial Forecast), so long as the aggregate amount of the Financial Indebtedness incurred under those guarantees
does not exceed USD 600,000,000 over the lifetime of this Agreement; or |
| (iv) | any guarantee made in the ordinary course of trading so long as the aggregate amount of the Financial
Indebtedness incurred under those guarantees does not exceed USD 20,000,000 at any time. |
The Borrower shall ensure that all interest
rate hedging related to the Facilities shall be entered into with the Lenders under a Hedging Agreement, it being understood that each
Lender has the right to offer interest rate hedging arrangements to the Borrower and has the right to match the best offer made by another
Lender, in which case the interest rate hedging will be entered into by such Lenders pro rata their Commitments.
Promptly upon the Target Shares being
pledged in accordance with paragraph (a) of Clause 20.34 (Conditions subsequent), the Borrower shall use its best efforts to procure
that the Target files a registration statement with the SEC pursuant to the Securities Act covering all Relevant Target Shares (with the
Lenders or their transferees as of such filing date as the resellers) and that such registration is declared effective and thereafter
remains effective until the end of the security period.
| 20.27 | U.S. margin regulations |
Neither the borrowing
hereunder, nor the use of the proceeds thereof, will violate the provisions of the Margin Regulations. The Borrower is not engaged and
will not engage in extending credit for the purpose of carrying Margin Stock.
Following the occurrence of any Event
of Default, none of the Borrower nor its Affiliates or any person acting on its or their behalf will engage in any directed selling efforts,
as defined in Rule 902(c) under the Securities Act, with respect to any of the Relevant Target Shares.
| 20.29 | Transaction Documents and Permitted Take-Out Financing |
To the extent that
any Transaction Document or Permitted Take-Out Financing is entered or a draft thereof is delivered to the Agent on or prior to the date
of this Agreement, the Borrower shall ensure that no party to such Transaction Document or Permitted Take-Out Financing agrees to amend,
vary, supplement, supersede, waive, suspend or terminate such document in a way which could have a material adverse effect on the interests
of the Lenders.
The Borrower shall:
| (a) | from time to time, keep the Agent informed about any material changes in the status and progress of the
Takeover; |
| (b) | except with the prior written consent of all Lenders (not to be unreasonably withheld, delayed or conditioned
and which consent shall be deemed to have been given if no reply to the contrary is received within five Business Days of such request
for consent), not issue any press release or make any statement or announcement which makes reference to: |
| (ii) | any Finance Party in connection with the Finance Documents; |
| (iii) | any Finance Document, |
unless it is contained in an amendment
to the Borrower’s Schedule 14D or in its Schedule TO or is otherwise filed with the SEC in respect of the Takeover, or unless such
issuance is otherwise required by law, regulation or a competent regulatory authority;
| (c) | not amend or waive or not enforce any other material term or condition of the Takeover in a way which
would reasonably be expected to be materially adverse to the interests of the Lenders (taken as a whole) unless required by applicable
law; |
| (d) | ensure that the making and conclusion of the Takeover and the Takeover Acquisition complies in all material
respects with all applicable laws and regulations; |
| (e) | ensure that the Takeover Closing Date is completed on or before the date falling five Months after the
SPA Closing Date; and |
| (f) | lever its controlling voting power as shareholder of the Target to the fullest extent to: |
| (i) | as soon as practically possible following the SPA Closing Date, take all required corporate resolutions
and execution steps so as to execute and close the Target Fleet Refinancing Facilities Multilender, to utilise the First Tranche under
the Target Fleet Refinancing Facilities Multilender and use the proceeds in full prepayment of the debt at Target level; and |
| (ii) | as soon as practically possible following the SPA Closing Date, take all required corporate resolutions
and execution steps so as to reach the Takeover Closing Date; and |
| (iii) | as from the SPA Closing Date, refrain from any major new investment or acquisition (other than a Permitted
Transaction) to be made by the Target and in general use its best efforts to refrain from any action that is reasonably likely to impede,
delay or otherwise preclude the Takeover, the Merger, the Target Fleet Refinancing Facilities, the Permitted Take-out Financing or upstreaming
of cash in the amounts and within the timeframe as set out in the Structure Memorandum or the Financial Forecast; |
| (iv) | as soon as practically possible following the Takeover Closing Date, take all required corporate resolutions
and execution steps so as to utilise the Top-Up Tranche provided under the Target Fleet Refinancing Facilities Multilender and, directly
or indirectly, upstream the proceeds to the Borrower; and |
| (v) | by 31 December 2025 at the latest, take all required corporate resolutions and execution steps so as to
execute, close and utilise the Target Fleet Refinancing Facility HCOB. |
| 20.31 | Acquisition Documents |
| (a) | The Borrower shall ensure that no party to an Acquisition Document agrees to amend, vary, supplement,
supersede, waive, suspend or terminate such document in a way which could have a material adverse effect on the interests of the Lenders. |
| (b) | The Borrower shall promptly pay all amounts payable to the vendor under the Acquisition Documents as and
when they become due (except to the extent that any such amounts are being contested in good |
faith by a member of
the Group and if required where adequate reserves are set aside for any such payment).
| (c) | The Borrower shall, (and the Borrower will procure that each relevant member of the Group will), take
all reasonable and practical steps to preserve and enforce its rights (or the rights of any other member of the Group) and pursue any
claims and remedies arising under the Acquisition Documents. |
| 20.32 | Structure Memorandum |
Each Obligor shall use its best efforts
to timely comply with each step or action as set out in the Structure Memorandum.
Each Obligor shall make all necessary
filings with all relevant competition authorities and promptly take all actions required in the relevant proceedings to obtain the necessary
antitrust clearances to enable completing the Permitted Transaction in accordance with all legal and official requirements. If the competition
authorities make their approval conditional upon the fulfilment of certain conditions or obligations imposed on the Borrower, the Target
or any member of the Group, the Borrower shall accept and comply with any and all such conditions and obligations.
| 20.34 | Conditions subsequent |
| (a) | If the Takeover Closing Date does not occur on or before the date falling five Months after the SPA Closing
Date, MergeCo will grant a Bermuda law governed share charge over all Target Shares owned by MergeCo at that time and all future shares
acquired by MergeCo in the Target thereafter. |
| (b) | If at any time, during the continuance of this Agreement, an Obligor becomes the holder of shares in MergeCo
as a result of any Permitted Transaction or otherwise, such Obligor will immediately upon closing of the relevant transaction (unless
(i) on the same day or on the next consecutive day such Obligor transfers such shares in MergeCo to another Obligor pursuant to a Permitted
Transaction, whereby only such transferee Obligor shall be required to and will immediately upon closing of the relevant transaction (ii)
or the merger between ▇▇▇.▇▇▇▇ Belgium NV (as surviving entity) and MergeCo, in accordance with the Structure Memorandum, is completed
within 5 Business Days as from the first step of the Contribution): |
| (i) | grant a Bermuda law governed share charge over all shares in MergeCo owned by such Obligor at that time
and all future shares acquired by such Obligor in MergeCo thereafter on substantially the same terms as the Bermuda law governed share
charge listed in paragraph (d) of Part 1 of Schedule 2 (Conditions Precedent); and |
| (ii) | ensure delivery to the Agent of: |
| (A) | a legal opinion of the legal advisers to the Borrower as to matters on capacity, in form and substance
satisfactory to the Lenders; and |
| (B) | a legal opinion of the legal advisers to the Borrower as to Bermuda law matters in relation to the share
charge as referred to in paragraph (i) above, substantially in the form distributed to the Lenders prior to the signing of such share
charge. |
| (c) | The Borrower shall procure that any change of control provisions in each Finance Document to which it
is a party is approved at its next annual or extraordinary shareholder’s meeting following the date of this Agreement and that an
extract of such resolution is filed within five (5) Business Days after such shareholders’ meeting with the clerk of the competent
Business Court |
(ondernemingsrechtbank/tribunal
de l’entreprise) in accordance with Articles 7:151 and 7:151/1 of the Belgian Code of Companies and Associations.
Each of the events or circumstances set
out in Clause 21 is an Event of Default (save for Clause 21.16 (Acceleration) and Clause 21.17 (Clean-Up)).
An Obligor does not pay on the due date
any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless its failure
to pay is caused by:
| (a) | administrative or technical error; or |
| (b) | a Disruption Event; and |
payment is made within three (3) Business
Days of its due date.
| 21.2 | Anti-corruption, sanctions and financial covenants |
Non compliance with
the provisions of Clause 18.21 (Anti-bribery, anti-corruption and anti-money laundering), Clause 18.22 (Sanctions), Clause 20.18 (Sanctions),
Clause 20.19 (Anti-corruption law) or Clause 20.14 (Financial covenants).
| (a) | Non compliance with any provision of the Finance Documents (other than those referred to in Clause 21.1
(Non-payment) and Clause 21.2 (Anti-corruption, sanctions and financial covenants)). |
| (b) | No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy
and is remedied within ten (10) Business Days (and with respect to an Event of Default related to paragraph (e) of Clause 20.30 (Takeover
covenants), twenty (20) Business Days) of the earlier of (A) the Agent giving notice to the Borrower or relevant Obligor and (B) the Borrower
or an Obligor becoming aware of the failure to comply. |
Any representation or statement made
or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of an Obligor under or in
connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to
be made, unless, but not in respect of the representations and statements set out in Clause 18.21 (Anti-bribery, anti-corruption and anti-money
laundering) and Clause 18.22 (Sanctions), the circumstances giving rise to the misrepresentation or breach of statement:
| (a) | are capable of remedy; and |
| (b) | are remedied within ten (10) Business Days of the earlier of (A) the Agent giving notice to the Borrower
or relevant Obligor and (B) the Borrower or an Obligor becoming aware of the misrepresentation or breach of statement. |
| (a) | Any Financial Indebtedness of the Borrower, the Target or any member of the Group or Target Group is not
paid when due nor within any originally applicable grace period. |
| (b) | Any Financial Indebtedness of the Borrower, the Target or any member of the Group or Target Group is declared
to be or otherwise becomes due and payable prior to its specified maturity as a result of a default (however described). |
| (c) | Any commitment for any Financial Indebtedness of the Borrower, the Target or any member of the Group or
Target Group is cancelled or suspended by a creditor of the Borrower, the Target or any member of the Group or Target Group (as applicable)
as a result of a default (however described). |
| (d) | Any creditor of the Borrower, the Target or any member of the Group or Target Group becomes entitled to
declare any Financial Indebtedness of the Borrower, the Target or any member of the Group or Target Group (as applicable) due and payable
prior to its specified maturity as a result of a default (however described). |
| (e) | No Event of Default will occur under this Clause 21.5 if the aggregate amount of Financial Indebtedness
or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than USD 10,000,000 (or its equivalent in
any other currency or currencies). |
| (a) | The Borrower, any member of the Group or, as from the SPA Closing Date, the Target or any member of the
Target Group: |
| (i) | is unable or admits inability to pay its debts as they fall due; |
| (ii) | is deemed or is declared for the purposes of any applicable law to be unable to pay its debts as they
fall due, subject to a grace period ending on the last day of the relevant payment period; |
| (iii) | suspends making payments on any of its debts; or |
| (iv) | by reason of actual or anticipated financial difficulties, commences negotiations with one or more of
its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness. |
| (b) | A moratorium is declared in respect of any indebtedness of the Borrower, any member of the Group or, as
from the SPA Closing Date, the Target or any member of the Target Group. |
| 21.7 | Insolvency proceedings |
| (a) | Any corporate action, legal proceedings or other procedure or step is taken in relation to: |
| (i) | the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration
or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower, any member of the Group or, as
from the SPA Closing Date, the Target or any member of the Target Group (with the exception of any company which is dormant and the value
of whose gross assets is USD 10,000,000 or less); |
| (ii) | a composition, compromise, assignment or arrangement with any creditor of the Borrower, any member of
the Group or, as from the SPA Closing Date, the Target or any member of the Target Group; |
| (iii) | the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager
or other similar officer in respect of the Borrower or any of its assets or the Target or any of its assets or any member of the Group
or, as from the SPA Closing Date, any member |
of the Target Group (with
the exception of any company which is dormant and the value of whose gross assets is USD 10,000,000 or less) or any of their assets;
| (iv) | enforcement of any Security over any assets of the Borrower, any member of the Group or, as from the SPA
Closing Date, the Target or any member of the Target Group, if the aggregate amount of such assets exceed USD 10,000,000 over the lifetime
of the Facilities; |
| (v) | the exercise in respect of the Borrower of any of the resolution powers under the United Kingdom Banking
Act 2009; |
| (vi) | or any analogous procedure or step is taken in any jurisdiction. |
| (b) | This Clause 21.7 shall not apply to any winding-up petition which is frivolous or vexatious and is discharged,
stayed or dismissed within 14 days of commencement. |
Any of the following
occurs in respect of the Borrower in each case under U.S. Bankruptcy Law:
| (a) | it makes a general assignment for the benefit of creditors; |
| (b) | it commences a voluntary case or proceeding under any U.S. Bankruptcy Law; or |
| (c) | an involuntary case under any U.S. Bankruptcy Law is commenced against it and is not controverted within
20 days or is not dismissed or stayed within 60 days after commencement of the case; or |
| (d) | an order for relief or other order approving any case or proceeding is entered under any U.S. Bankruptcy
Law. |
Any expropriation, attachment, sequestration,
distress or execution affects any asset or assets of the Borrower, the Target or any member of the Group or Target Group in respect of
a sum of, or sums aggregating, USD 10,000,000 or more or the equivalent in another currency, save where, in relation to a conservatory
attachment or arrest of any vessel only, such attachment or arrest is discharged within 30 days.
| (a) | It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents
or any Transaction Security created or expressed to be created or evidenced by the Transaction Security Documents ceases to be effective
or any subordination created under the Subordination Agreement is or becomes unlawful. |
| (b) | It is or becomes unlawful or impossible for the Agent, the Security Agent or the Lenders to exercise or
enforce any right under, or to enforce any Security created by, a Transaction Security Document. |
Any Security created or intended to be
created by a Finance Document is in any way imperilled or in jeopardy.
| (a) | An Obligor (or any other relevant party) rescinds or purports to rescind or repudiates or purports to
repudiate a Finance Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Finance Document or
any Transaction Security. |
| (b) | Any party to the Acquisition Documents rescinds or purports to rescind or repudiates or purports to repudiate
any of those agreements or instruments in whole or in part where to do so has or is, in the reasonable opinion of the Majority Lenders,
likely to have a material adverse effect on the interests of the Lenders under the Finance Documents. |
| 21.13 | Cessation of business |
The Borrower, any member of the Group
or, as from the SPA Closing Date, the Target or any member of the Target Group suspends or ceases to carry on (or threatens to suspend
or cease to carry on) all or a material part of its business.
Any litigation, arbitration or administrative
proceedings or investigations of, or before, any court, arbitral body or agency are started or threatened, or any judgment or order of
a court, arbitral body or agency is made, in relation to any of the Transaction Documents or the transactions contemplated in any of the
Transaction Documents or against any member of the Group or Target Group, or its assets which has or is reasonably likely to have a Material
Adverse Effect.
| 21.15 | Material adverse change |
Any event or circumstance occurs which
the Majority Lenders reasonably believe has or is reasonably likely to have a Material Adverse Effect.
On and at any time after the occurrence
of an Event of Default which is continuing the Agent may, and shall:
| (i) | prior to completion of the Merger: |
| (A) | in the case of a Specified Event of Default, immediately, or |
| (B) | in the case of any other Event of Default which is continuing, if after providing notice to each Lender
and being so directed by ▇▇▇▇▇▇▇ whose commitments together constitute the Majority Lenders (each acting independently of each other without
coordination); and |
| (ii) | after completion of the Merger, in the case of any Event of Default which is continuing, if after providing
notice to each Lender and being so directed by ▇▇▇▇▇▇▇ whose commitments together constitute the Majority Lenders (each acting independently
of each other without coordination), |
| (a) | cancel each Available Commitment of each Lender whereupon each such Available Commitment shall immediately
be cancelled and the Facility shall immediately cease to be available for further utilisation; |
| (b) | declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or
outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or |
| (c) | declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable
on demand by the Agent on the instructions of the Majority Lenders. |
| (a) | Notwithstanding any other provision of any Finance Document: |
| (i) | any breach of a Clean-Up Representation or a Clean-Up Undertaking; or |
| (ii) | any Event of Default constituting a Clean-Up Default, |
which occurs during the Clean-Up Period
will be deemed not to be a breach of representation or warranty, a breach of covenant or an Event of Default (as the case may be) if:
| (A) | it would have been (if it were not for this Clause 21.17) a breach of representation or warranty, a breach
of covenant or an Event of Default only by reason of circumstances relating exclusively to any member of the Target Group (or any or any
obligation to procure or ensure in relation to a member of the Target Group); |
| (B) | it is capable of remedy and reasonable steps are being taken to remedy it; and |
| (C) | the circumstances giving rise to it have not been procured by or approved by the Borrower or any Obligor. |
| (b) | If the relevant circumstances are continuing on or after the end of that Clean-Up Period, there shall
be a breach of representation or warranty, breach of covenant or Event of Default, as the case may be notwithstanding the above (and without
prejudice to the rights and remedies of the Finance Parties). |
| 22. | Changes to the Lenders |
| 22.1 | Transfers by the Lenders |
Subject to this Clause 22, a Lender (the
Existing Lender) may transfer by way of transfer of contract (overdracht van contract / cession de contrat) any of its rights
and obligations to another bank or financial institution or to an insurer, reinsurer, trust, fund or to other entity which is regularly
engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the New
Lender).
| (a) | The consent of the Borrower is required for a transfer by an Existing Lender, unless the transfer is: |
| (i) | to another Lender or an Affiliate of a Lender; |
| (ii) | made at a time when an Event of Default is continuing; or |
| (iii) | to any refinancing entity, including without limitation any insurer, reinsurer, securitisation special
purpose entity, trust or fund, for the purpose of that Existing Lender refinancing or hedging its loan exposure, provided no such transfer
shall either (a) release the relevant Existing Lender from any of its obligations under the Finance Documents or (b) require any payments
to be made by the Borrower other than or in excess of, or grant to any person any |
more extensive rights
than, those required to be made or those granted to the relevant Existing Lender under the Finance Documents.
| (b) | The consent of the Borrower to a transfer must not be unreasonably withheld or delayed. The Borrower will
be deemed to have given its consent five Business Days after the Existing ▇▇▇▇▇▇ has requested it unless consent is expressly refused
by the Borrower within that time. |
| (c) | Notwithstanding the foregoing, and unless an Event of Default is outstanding, no assignment or transfer
may be entered into with a New Lender without the prior consent of the Borrower if at the time of such transfer: |
| (i) | the state or territory in which that New Lender is incorporated, resident or established, or where its
Facility Office is located, is a Non-Cooperative Jurisdiction; or |
| (ii) | the bank account(s) to which payments to which that New Lender will be entitled will be made, are: |
| (A) | managed or held by a person or persons incorporated, resident or established in a Non-Cooperative Jurisdiction
or by the permanent establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction; or |
| (B) | managed by, or opened with, a financial institution incorporated, resident or established in a Non-Cooperative
Jurisdiction or a branch or office of a financial institution situated in a Non-Cooperative Jurisdiction. |
| (d) | If the Borrower receives a written request pursuant to this paragraph (c), the Borrower will have the
duty to duly consider this request. |
| (e) | The Borrower may either (i) grant its written consent, or (ii) request the Lender for additional information
reasonably demonstrating that the New Lender cannot reasonably be considered as an artificial construction within the meaning of article
198, §1, 10° of the Belgian Income Tax Code. |
| (f) | Only if the Borrower has requested such additional information and does not receive additional information
which is reasonably satisfactory to the Borrower, the Borrower will have the right to refuse its consent. |
| (g) | The Borrower will be deemed to have given its consent ten Business Days after the Lender has requested
it, unless the Borrower has requested for the additional information within that time. The Borrower will be deemed to have given its consent
ten Business Days after it has received such additional information, unless consent is expressly refused, duly motivated and notified
to the Lender within that time |
| 22.3 | Other conditions of transfer |
| (a) | A transfer will only be effective if the procedure set out in Clause 22.6 (Procedure for transfer)
is complied with. |
| (i) | a Lender transfers any of its rights or obligations under the Finance Documents or changes its Facility
Office; and |
| (ii) | as a result of circumstances existing at the date the transfer or change occurs, the Borrower would be
obliged to make a payment to the New Lender or Lender acting through its new |
Facility Office under
Clause 12 (Tax Gross Up and Indemnities) or Clause 13 (Increased Costs),
then the New Lender or Lender acting
through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender
acting through its previous Facility Office would have been if the transfer or change had not occurred.
| (c) | Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt,
that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite
Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer becomes effective in accordance with
this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender. |
The New Lender shall, on the date upon
which a transfer takes effect, pay to the Agent (for its own account) a fee of USD 3,000.
| 22.5 | Limitation of responsibility of Existing Lenders |
| (a) | Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes
no responsibility to a New Lender for: |
| (i) | the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other
documents; |
| (ii) | the financial condition of an Obligor; |
| (iii) | the performance and observance by an Obligor of its obligations under the Finance Documents or any other
documents; or |
| (iv) | the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document
or any other document, |
and any representations or warranties
implied by law are excluded.
| (b) | Each New Lender confirms to the Existing Lender and the other Finance Parties that it: |
| (i) | has made (and shall continue to make) its own independent investigation and assessment of the financial
condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and |
| (ii) | will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force. |
| (c) | Nothing in any Finance Document obliges an Existing Lender to: |
| (i) | accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under
this Clause 22; or |
| (ii) | support any losses directly or indirectly incurred by the New Lender by reason of the non-performance
by any Obligor of its obligations under the Finance Documents or otherwise. |
| 22.6 | Procedure for transfer |
| (a) | Subject to the conditions set out in Clause 22.2 (Borrower Consent) and Clause 22.3 (Other conditions
of transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer
Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably
practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. |
| (b) | The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender
and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations in relation to the transfer to such New Lender. |
| (c) | Subject to Clause 22.10 (Pro rata interest settlement), on the Transfer Date: |
| (i) | to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by transfer of contract
its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and the Existing
Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security
and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled
(being the Discharged Rights and Obligations); |
| (ii) | each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights
against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed
and/or acquired the same in place of that Obligor and the Existing Lender; |
| (iii) | the Agent, the Arranger, the Coordinator, the Security Agent, the New Lender and other Lenders shall acquire
the same rights and assume the same obligations between themselves and in respect of Transaction Security as they would have acquired
and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Security Agent, the Arranger, the Coordinator and the Existing Lender shall each be released
from further obligations to each other under the Finance Documents; and |
| (iv) | the New Lender shall become a Party as a "Lender". |
| 22.7 | Copy of Transfer Certificate or Increase Confirmation to Borrower |
The Agent shall, as soon as reasonably
practicable after it has executed a Transfer Certificate or an Increase Confirmation, send to the Borrower a copy of that Transfer Certificate
or Increase Confirmation.
| 22.8 | Accession of Hedge Counterparties |
| (a) | A Lender or an Affiliate of a Lender may become a Hedge Counterparty, with the prior approval of the Agent
and the Company, by delivering to the Agent a duly executed Hedge Counterparty Accession Deed. |
| (b) | The relevant Lender or Affiliate or a Lender will become a Hedge Counterparty when the Agent enters into
the relevant Hedge Counterparty Accession Deed. |
| 22.9 | Security over Lenders' rights |
| (a) | In addition to the other rights provided to Lenders under this Clause 22, each Lender may without consulting
with or obtaining consent from any Obligor, at any time directly or indirectly transfer, charge, pledge or otherwise create Security in
or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that
Lender including, without limitation: |
| (i) | any transfer, charge, pledge or other Security to secure obligations to a federal reserve or central bank
including without limitation any transfer of rights to a special purpose vehicle where Security over securities issued by such special
purpose vehicle is to be created in favour of a federal reserve or central bank (including, for the avoidance of doubt, the European Central
Bank); and |
| (ii) | any transfer, charge, pledge or other Security granted to any holders (or trustee or representatives of
holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, |
except that no such transfer, charge,
pledge or Security shall:
| (A) | release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary
of the relevant transfer, charge, pledge or Security for the Lender as a party to any of the Finance Documents; or |
| (B) | require any payments to be made by an Obligor other than or in excess of, or grant to any person any more
extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents. |
| (b) | The limitations on transfers by a Lender set out in any Finance Document, in particular in Clause 22.1
(Transfers by the Lenders), Clause 22.2 (Borrower Consent) and Clause 22.4 (Transfer fee), shall not apply to the creation of Security
pursuant to paragraph (a) above. |
| (c) | The limitations and provisions referred to in paragraph (b) above shall further not apply to any direct
or indirect transfer of rights under the Finance Documents or of the securities issued by the special purpose vehicle, made by a federal
reserve or central bank (including, for the avoidance of doubt, the European Central Bank) to a third party in connection with the enforcement
of Security created pursuant to paragraph (a) above. |
| 22.10 | Pro rata interest settlement |
| (a) | If the Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata
basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 22.6 (Procedure for transfer) the
Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period): |
| (i) | any interest or fees in respect of the relevant participation which are expressed to accrue by reference
to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (Accrued Amounts)
and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest
Period; and |
| (ii) | the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts,
so that, for the avoidance of doubt: |
| (A) | when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender;
and |
| (B) | the amount payable to the New Lender on that date will be the amount which would, but for the application
of this Clause 22.10, have been payable to it on that date, but after deduction of the Accrued Amounts. |
| (b) | In this Clause 22.10 references to 'Interest Period' shall be construed to include a reference to any
other period for accrual of fees. |
| (c) | An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 22.10 but which
does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified
group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance
Documents. |
| 23. | Changes to the Obligors |
| 23.1 | Assignment and transfers by Obligors |
No Obligor may assign any of its rights
or transfer any of its rights or obligations under the Finance Documents.
| 23.2 | Additional Guarantors |
| (a) | Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 19.7 ("Know your customer"
checks), the Borrower may request that any of its wholly owned Subsidiaries become a Guarantor. |
| (b) | A member of the Group shall become an Additional Guarantor if: |
| (i) | the Borrower and the proposed Additional Guarantor deliver to the Agent a duly completed and executed
Accession Deed; and |
| (ii) | the Agent has received all of the documents and other evidence listed in Part 3 of Schedule 2 (Conditions
Precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent. |
| (c) | The Agent shall notify the Borrower and the Lenders promptly upon being satisfied that it has received
(in form and substance satisfactory to it) all the documents and other evidence listed in Part 3 of Schedule 2 (Conditions Precedent). |
| (d) | Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before
the Agent gives the notification described in paragraph (c) above, the Lenders authorise (but do not require) the Agent to give that notification.
The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. |
| 23.3 | Resignation of a Guarantor |
| (a) | The Borrower may request that a Guarantor (other than the Borrower) ceases to be a Guarantor by delivering
to the Agent a Resignation Letter if all the Lenders have consented to the resignation of that Guarantor. |
| (b) | The Agent shall accept a Resignation Letter and notify the Borrower and the Lenders of its acceptance
if: |
| (i) | the Borrower has confirmed that no Default is continuing or would result from the acceptance of the Resignation
Letter; |
| (ii) | no payment is due from the Guarantor under Clause 17.1 (Guarantee and indemnity); and |
| (iii) | the Borrower has confirmed that it shall ensure that the net cash disposal proceeds (if any) will be applied
in accordance with Clause 7.5 (Mandatory Prepayment – Free Liquid Assets). |
| (c) | The resignation of that Guarantor shall not be effective until the date of the relevant disposal at which
time that company shall cease to be a Guarantor and shall have no further rights or obligations under the Finance Documents as a Guarantor. |
| 23.4 | Repetition of representations |
Delivery of an Accession Deed constitutes
confirmation by the relevant Subsidiary that the representations and warranties referred to in paragraph of Clause 18.31 (Repetition)
are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.
| 24.1 | Security Agent as holder of Transaction Security |
Finance Party Claim means:
| (i) | all obligations and liabilities (whether present or future, actual or contingent, and whether incurred
jointly or severally, and whether as principal, guarantor or in some other capacity) at any time owing or incurred by an Obligor to a
Finance Party (or any of their successors, transferees or assigns) under or in connection with the Finance Documents, as the same may
be amended, supplemented, extended or restated from time to time (including by way of transfer of contract), however fundamental any amendment,
supplement, extension or restatement may be, including (without affecting the generality of the foregoing) if the amendment, supplement,
extension or restatement would result in: |
| (A) | a change of the purpose, increase, extension or restructuring of any kind (in whole or in part and including
as to its type) of any facility made available under this Agreement; and/or |
| (B) | an additional facility being made available under this Agreement; and |
| (ii) | subject to the restrictions set out in this Agreement, any obligations and liabilities referred to under
paragraph (i) above which are assumed by any successor to an Obligor further to any merger, demerger, partial demerger (partiële
splitsing), contribution of assets or other corporate restructuring affecting the Borrower, any assignment, novation, transfer of
contract, transfer of debt, delegation, subrogation of obligations or liabilities, or otherwise. |
Security Agent Claim means any
amount which an Obligor owes to the Security Agent under this Clause.
| (b) | Each Obligor must pay the Security Agent, as an independent and separate creditor, an amount equal to
each Finance Party Claim on its due date. |
| (c) | The Security Agent may enforce performance of any Security Agent Claim in its own name as an independent
and separate right. This includes any suit, execution, enforcement of security, recovery of guarantees and applications for and voting
in respect of any kind of insolvency proceeding. |
| (d) | Each Finance Party must, at the request of the Security Agent, perform any act required in connection
with the enforcement of any Security Agent Claim. This includes joining in any proceedings as co-claimant with the Security Agent. |
| (e) | Unless the Security Agent fails to enforce a Security Agent Claim or any Transaction Security within a
reasonable time after its due date and except with the consent of the Majority Lenders, a Finance Party may not take any action to enforce
the corresponding Finance Party Claim or any Transaction Security unless it is requested to do so by the Security Agent. |
| (f) | Each Obligor irrevocably and unconditionally waives any right it may have to require a Finance Party to
join in any proceedings as co-claimant with the Security Agent in respect of any Security Agent Claim. |
| (g) |
(i) |
Discharge by an Obligor of a Finance Party Claim will discharge the corresponding Security Agent Claim in the same amount. |
| (ii) | Discharge by an Obligor of a Security Agent Claim will discharge the corresponding Finance Party Claim
in the same amount. |
| (h) | The aggregate amount of the Security Agent Claim will never exceed the aggregate amount of Finance Party
Claims. |
| (i) |
(i) |
A defect affecting a Security Agent Claim against an Obligor will not affect any Finance Party Claim. |
| (ii) | A defect affecting a Finance Party Claim against an Obligor will not affect any Security Agent Claim. |
| (j) | If the Security Agent returns to any Obligor, whether in any kind of insolvency proceedings or otherwise,
any recovery in respect of which it has made a payment to a Finance Party, that Finance Party must repay an amount equal to that recovery
to the Security Agent. |
| (a) | The Security Agent is not liable or responsible to any other Finance Party for: |
| (i) | any failure in perfecting or protecting the security created by any Transaction Security Document; |
| (ii) | any other action taken or not taken by it in connection with any Transaction Security Document, |
unless directly caused by its gross negligence
or wilful misconduct.
| (b) | None of the Agent, the Security Agent or the Arranger is responsible for: |
| (i) | the right or title of any person in or to, or the value of, or sufficiency of any part of Transaction
Security; |
| (ii) | the priority of any Transaction Security; or |
| (iii) | the existence of any other Security affecting any asset secured under a Transaction Security Document. |
The Security Agent may accept, without
enquiry, the title (if any) an Obligor may have to any asset over which security is intended to be created by any Transaction Security
Document.
| 24.4 | Possession of documents |
The Security Agent is not obliged to
hold in its own possession any Transaction Security Document, title deed or other document in connection with any asset over which security
is intended to be created by a Transaction Security Document. Without prejudice to the above, the Security Agent may allow any bank providing
safe custody services or any professional adviser to the Security Agent to retain any of those documents in its possession.
Except as otherwise provided in any Transaction
Security Document, all moneys received by the Security Agent under a Transaction Security Document may be:
| (a) | invested in the name of, or under the control of, the Security Agent in any investments which may be selected
by the Security Agent with the consent of the Majority Lenders; or |
| (b) | placed on deposit in the name of, or under the control of, the Security Agent at any bank or institution
(including any Finance Party) and on such terms as the Security Agent may agree. |
Each Finance Party:
| (a) | confirms its approval of each Transaction Security Document; and |
| (b) | authorises and directs the Security Agent (by itself or by such person(s) as it may nominate), to enter
into and enforce the Transaction Security Documents as agent or as otherwise provided (and whether or not expressly in the names of the
Finance Parties) on its behalf. |
| 24.7 | Conflict with Transaction Security Documents |
If there is any conflict between this
Agreement and any Transaction Security Document with regard to instructions to, or other matters affecting, the Security Agent, this Agreement
will prevail.
| (a) | If a disposal of any asset subject to security created by a Transaction Security Document is made to a
person (which is and will remain) outside the Group in the following circumstances: |
| (i) | all Lenders agree to the disposal; |
| (ii) | the disposal is being made at the request of the Security Agent in circumstances where any Transaction
Security has become enforceable; or |
| (iii) | the disposal is being effected by enforcement of a Transaction Security Document, |
the asset(s) being disposed of will be
released from any Transaction Security. However, the proceeds of any disposal (or an amount corresponding to them) must be applied in
accordance with the requirements of the Finance Documents (if any).
| (b) | Any release under this Clause will not become effective until the date of the relevant disposal or otherwise
in accordance with the consent of the Majority Lenders. |
| (c) | If a disposal is not made, then any release relating to that disposal will have no effect, and the obligations
of the Obligors under the Finance Documents will continue in full force and effect. |
| (d) | If the Security Agent is satisfied that a release is allowed under this Clause, (at the request and expense
of the Borrower) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve
that release. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. |
| (a) | The Security Agent may appoint a separate security agent or a co-security agent in any jurisdiction: |
| (i) | if the Security Agent reasonably considers that without the appointment the interests of the Lenders under
the Finance Documents might be materially and adversely affected; |
| (ii) | for the purpose of complying with any law, regulation or other condition in any jurisdiction; or |
| (iii) | for the purpose of obtaining or enforcing a judgment or enforcing any Finance Document in any jurisdiction. |
| (b) | Any appointment under this Clause will only be effective if the security agent or co-security agent confirms
to the Security Agent and the Borrower in form and substance satisfactory to the Security Agent that it is bound by the terms of this
Agreement as if it were the Security Agent. |
| (c) | The Security Agent may remove any security agent or co-security agent appointed by it and may appoint
a new security agent or co-security agent in its place. |
| (d) | The Borrower must pay to the Security Agent any reasonable remuneration paid by the Security Agent to
any security agent or co-security agent appointed by it, together with any related costs and expenses properly incurred by the security
agent or co-security agent. |
Each Finance Party and each Obligor must
supply the Security Agent with any information that the Security Agent may reasonably specify as being necessary or desirable to enable
it to perform its functions under this Clause.
| 24.11 | Perfection of security |
Each Obligor must (at its own cost) take
any action and enter into and deliver any document which is required by the Security Agent so that a Transaction Security Document provides
for effective and perfected security in favour of any successor Security Agent.
| 25. | Role of the Agent, the Security Agent, the Arranger and others |
| 25.1 | Appointment of the Agent |
| (a) | Each of the Arranger, the Lenders and the Hedge Counterparties appoints the Agent to act as its agent
under and in connection with the Finance Documents. |
| (b) | Each of the Arranger, the Lenders and the Hedge Counterparties authorises the Agent to perform the duties,
obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under
or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
| 25.2 | Appointment of the Security Agent |
| (a) | Each Finance Party irrevocably appoints the Security Agent (individually) in accordance with the following
provisions of this Clause to act as its agent, in accordance with article 5 of the Belgian Financial Collateral Law and article 3 of the
Belgian MAS Law and as beneficiary of a parallel debt (as the case may be) under this Agreement and with respect to the Transaction Security
Documents, and irrevocably authorises the Security Agent (acting jointly or severally) on its behalf to: |
| (i) | execute each Transaction Security Document expressed to be executed by the Security Agent (as the case
may be) on its behalf; and |
| (ii) | perform such duties and exercise such rights and powers under this Agreement and the Transaction Security
Documents as are specifically delegated to the Security Agent by the terms thereof, together with such rights, powers and discretions
as are reasonably incidental thereto, including the release of the Transaction Security in accordance with the terms of the Transaction
Security Documents. |
| (b) | The Security Agent has only those duties which are expressly specified in the Finance Documents. |
| (i) | unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right,
power, authority or discretion vested in it as Agent in accordance with any instructions given to it by: |
| (A) | all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and |
| (B) | in all other cases, the Majority Lenders; and |
| (ii) | not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph
(i) above. |
| (b) | The Security Agent shall: |
| (i) | unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right,
power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by: |
| (A) | all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and |
| (B) | in all other cases, the Majority Lenders; and |
| (ii) | not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph
(i) above. |
| (c) | The Agent and Security Agent shall be entitled to request instructions, or clarification of any instruction,
from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders,
from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power,
authority or discretion. Each of the Agent and Security Agent may refrain from acting unless and until it receives any such instructions
or clarification that it has requested. |
| (d) | Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under
the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent or the
Security Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all
Finance Parties. |
| (e) | Each of the Agent and Security Agent may refrain from acting in accordance with any instructions of any
Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may
be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability
which it may incur in complying with those instructions. |
| (f) | In the absence of instructions, each of the Agent and Security Agent may act (or refrain from acting)
as it considers to be in the best interest of the Lenders. |
| (g) | Neither the Agent nor the Security Agent is authorised to act on behalf of a Lender (without first obtaining
that ▇▇▇▇▇▇'s consent) in any legal or arbitration proceedings relating to any Finance Document. |
| 25.4 | Duties of the Agent and Security Agent |
| (a) | The Agent's and Security Agent's duties under the Finance Documents are solely mechanical and administrative
in nature. |
| (b) | The Security Agent and, subject to paragraph (c) below, the Agent shall promptly forward to a Party the
original or a copy of any document which is delivered to the Agent for that Party by any other Party. |
| (c) | Without prejudice to Clause 22.7 (Copy of Transfer Certificate or Increase Confirmation to Borrower),
paragraph (b) above shall not apply to any Transfer Certificate or Increase Confirmation. |
| (d) | Except where a Finance Document specifically provides otherwise, neither the Security Agent nor the Agent
is obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. |
| (e) | If the Agent or Security Agent receives notice from a Party referring to this Agreement, describing a
Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties. |
| (f) | If the Agent is aware of the non-payment of any principal, interest, Ticking Fee or other fee payable
to a Finance Party (other than the Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties. |
| (g) | Each of the Agent and Security Agent shall have only those duties, obligations and responsibilities expressly
specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied). |
| (h) | The Agent must provide to the Borrower within five (5) Business Days of a request by the Borrower (but
no more frequently than once per calendar month) a list (which may be in electronic form) setting out the names of the Lenders as at the
date of that request, their respective Commitments, the address (and the department or officer, if any, for whose attention any communication
is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents,
the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail
or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made
by that means and the account details of each Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents. |
| 25.5 | Role of the Arranger and the Coordinator |
Except as specifically provided in the
Finance Documents, the Arranger and the Coordinator have no obligations of any kind to any other Party under or in connection with any
Finance Document.
| (a) | Nothing in any Finance Document constitutes the Agent, the Security Agent, the Arranger or the Coordinator
as a trustee or fiduciary of any other person. |
| (b) | None of the Agent, the Security Agent, the Arranger or the Coordinator shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for its own account. |
| 25.7 | Business with the Group |
The Agent, the Security Agent, the Arranger
or the Coordinator may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member
of the Group.
| 25.8 | Rights and discretions of the Agent and the Security Agent |
| (a) | Each of the Agent and the Security Agent may: |
| (i) | rely on any representation, communication, notice or document believed by it to be genuine, correct and
appropriately authorised; |
| (A) | any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly
given in accordance with the terms of the Finance Documents; and |
| (B) | unless it has received notice of revocation, that those instructions have not been revoked; and |
| (iii) | rely on a certificate from any person: |
| (A) | as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge
of that person; or |
| (B) | to the effect that such person approves of any particular dealing, transaction, step, action or thing, |
as sufficient evidence that that is the
case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
| (b) | Each of the Agent and the Security Agent may assume (unless it has received notice to the contrary in
its capacity as agent for the Lenders) that: |
| (i) | no Default has occurred (unless it has actual knowledge of a Default arising under Clause 21.1 (Non-payment));
and |
| (ii) | any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised. |
| (c) | Each of the Agent and the Security Agent may engage and pay for the advice or services of any lawyers,
accountants, tax advisors, surveyors or other professional advisors or experts when reasonably required. |
| (d) | Without prejudice to the generality of paragraph (c) above or paragraph (e) below, each of the Agent and
Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate
from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary. |
| (e) | Each of the Agent and Security Agent may rely on the advice or services of any lawyers, accountants, tax
advisers, surveyors or other professional advisers or experts (whether obtained by the Agent, the Security Agent or by any other Party)
and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as
a result of its so relying. |
| (f) | Each of the Agent and the Security Agent may act in relation to the Finance Documents through its officers,
employees and agents. |
| (g) | Unless a Finance Document expressly provides otherwise, each of the Agent and the Security Agent may disclose
to any other Party any information it reasonably believes it has received as agent under this Agreement. |
| (h) | Without prejudice to the generality of paragraph (g) above, the Agent may disclose the identity of a Defaulting
Lender to the other Finance Parties and the Borrower shall, as soon as reasonably practicable, disclose the same upon the written request
of the Borrower or the Majority Lenders. |
| (i) | Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Security
Agent, the Coordinator or the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute
a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. |
| (j) | Notwithstanding any provision of any Finance Document to the contrary, neither the Agent nor the Security
Agent is obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations
or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such
funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. |
| 25.9 | Responsibility for documentation |
None of the Agent, the Security Agent,
the Arranger or the Coordinator is responsible or liable for:
| (a) | the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent,
the Security Agent, the Arranger, the Coordinator, the Borrower or any other person in or in connection with any Finance Document or the
transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation
of, under or in connection with any Finance Document; or |
| (b) | the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction
Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with
any Finance Document or the Transaction Security; or |
| (c) | any determination as to whether any information provided or to be provided to any Finance Party is non-public
information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise. |
Neither the Agent nor the Security Agent
shall be bound to enquire:
| (a) | whether or not any Default has occurred; |
| (b) | as to the performance, default or any breach by any Party of its obligations under any Finance Document;
or |
| (c) | whether any other event specified in any Finance Document has occurred. |
| 25.11 | Exclusion of liability |
| (a) | Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document
excluding or limiting the liability of the Agent or the Security Agent), neither the Agent nor the Security Agent will be liable for: |
| (i) | any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising
as a result of taking or not taking any action under or in connection with any Finance Document (including any action taken in relation
to the Transaction Security), unless directly caused by its gross negligence or wilful misconduct; |
| (ii) | exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection
with, any Finance Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with, any Finance Document or the Transaction Security, other than by reason of its gross negligence
or wilful misconduct; |
| (iii) | with respect to the Security Agent, any shortfall which arises on the enforcement or realisation of the
Transaction Security; or |
| (iv) | without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to
any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of
liability whatsoever but not including any claim based on the fraud of the Agent or Security Agent respectively) arising as a result of: |
| (A) | any act, event or circumstance not reasonably within its control; or |
| (B) | the general risks of investment in, or the holding of assets in, any jurisdiction, |
including (in each case and without limitation)
such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental
actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of
transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport,
telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes
or industrial action.
| (b) | No Party (other than the Agent or the Security Agent) may take any proceedings against any officer, employee
or agent of the Agent or the Security Agent in respect of any claim it might have against the Agent or the Security Agent or in respect
of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or
agent of the Agent may rely on this paragraph (b). |
| (c) | Neither the Agent nor the Security Agent will be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents to be paid by the Agent or the Security Agent if the Agent or
the Security Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures
of any recognised clearing or settlement system used by the Agent or the Security Agent for that purpose. |
| (d) | Nothing in this Agreement shall oblige the Agent, the Security Agent, the Arranger or the Coordinator
to carry out: |
| (i) | any "know your customer" or other checks in relation to any person |
| (ii) | any check on the extent to which any transaction contemplated by this Agreement might be unlawful for
any Lender, |
on behalf of any Lender and each Lender
confirms to the Agent, the Security Agent, the Arranger or the Coordinator that it is solely responsible for any such checks it is required
to carry out and that it may not rely on any statement in relation to such checks made by the Agent, the Security Agent, the Arranger
or the Coordinator.
| (e) | Without prejudice to any provision of any Finance Document excluding or limiting the Agent's or Security
Agent's liability, any liability of the Agent or Security Agent arising under or in connection with any Finance Document or the Transaction
Security shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the
Agent or the Security Agent respectively or, if later, the date on which the loss arises as a result of such default) but without reference
to any special conditions or circumstances known to the Agent or Security Agent respectively at any time which increase the amount of
that loss. In no event shall the Agent or Security Agent be liable for any loss of profits, goodwill, reputation, business opportunity
or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent or Security Agent has been
advised of the possibility of such loss or damages. |
| 25.12 | Lenders' indemnity to the Agent |
| (a) | Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are
then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business
Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent's gross negligence or
wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 28.11 (Disruption to payment systems etc) notwithstanding
the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud
of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance
Document). |
| (b) | The Borrower shall immediately on demand reimburse any Lender for any payment that ▇▇▇▇▇▇ makes to the
Agent pursuant to paragraph (a) above. |
| 25.13 | ▇▇▇▇▇▇▇' indemnity to the Security Agent |
| (a) | Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are
then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent, within three
Business Days of demand, against any cost, loss or liability incurred by the Security Agent (otherwise than by reason of the Security
Agent's gross negligence or wilful misconduct) in acting as Security Agent under the Finance Documents (unless the Security Agent has
been reimbursed by the Borrower pursuant to a Finance Document). |
| (b) | The Borrower shall immediately on demand reimburse any Lender for any payment that ▇▇▇▇▇▇ makes to the
Security Agent pursuant to paragraph (a) above. |
| 25.14 | Resignation and replacement of the Agent or the Security Agent |
| (a) | The Agent and the Security Agent may resign and appoint one of its Affiliates acting through an office
in Belgium as successor by giving notice to the Lenders and the Borrower. |
| (b) | Alternatively the Agent and the Security Agent may resign by giving 30 days' notice to the other Lenders
and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Agent or Security
Agent (as the case may be). |
| (c) | If the Majority Lenders have not appointed a successor Agent or Security Agent in accordance with paragraph
(b) above within 20 days after notice of resignation was given, the retiring Agent or Security Agent (after consultation with the Borrower)
may appoint a successor Agent or Security Agent (acting through an office in Belgium). |
| (d) | The retiring Agent or Security Agent must, at its own cost: |
| (i) | make available to the successor Agent or Security Agent those documents and records and provide any assistance
as the successor Agent or Security Agent may reasonably request for the purposes of performing its functions as the Agent or Security
Agent under the Finance Documents; and |
| (ii) | enter into and deliver to the successor Agent or Security Agent those documents and effect any registrations
as may be required for the transfer or assignment of all of its rights and benefits under the Finance Documents to the successor Agent
or Security Agent. |
| (e) | The Borrower must, at its own cost take any action and enter into and deliver any document which is required
by the Security Agent to ensure that a Transaction Security Document provides for effective and perfected Security in favour of any successor
Security Agent. |
| (f) | The Agent's or the Security Agent's resignation notice shall only take effect upon the appointment of
a successor. |
| (g) | Upon the appointment of a successor, the retiring Agent or Security Agent shall be discharged from any
further obligation in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled
to the benefit of Clause 14.3 (Indemnity to the Agent) (in case of the Agent), Clause 14.4 (Indemnity to the Security Agent) (in case
of the Security Agent) and this Clause 25. Any successor and each of the other Parties shall have the same rights and obligations
amongst themselves as they would have had if such successor had been an original Party. |
| (h) | After consultation with the Borrower, the Majority Lenders may, by notice to the Agent or the Security
Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent or the Security Agent shall resign in accordance
with paragraph (b) above. |
| (i) | If the Agent or the Security Agent is an Impaired Agent, after consultation with the Borrower, the Majority
Lenders may, by giving 30 days' notice (or any shorter notice the Majority Lenders may agree) replace the Agent or the Security Agent.
The replacement of the Agent or the Security Agent and appointment of a successor Agent or Security Agent under this paragraph will take
effect on the date specified in that notice and is further subject to paragraphs (d), (e) and (g) above. |
| (j) | The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use
reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before
the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either: |
| (i) | the Agent fails to respond to a request under Clause 12.9 (FATCA Information) and a Lender reasonably
believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
| (ii) | the information supplied by the Agent pursuant to Clause 12.9 (FATCA Information) indicates that the Agent
will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or |
| (iii) | the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be)
a FATCA Exempt Party on or after that FATCA Application Date; |
and (in each case) a Lender reasonably
believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and
that ▇▇▇▇▇▇, by notice to the Agent, requires it to resign.
| (a) | In acting as agent for the Finance Parties, the Agent and the Security Agent shall be regarded as acting
through its agency division which shall be treated as a separate entity from any other of its divisions or departments. |
| (b) | If information is received by another division or department of the Agent or the Security Agent, it may
be treated as confidential to that division or department and the Agent or the Security Agent shall not be deemed to have notice of it. |
| 25.16 | Relationship with the other Finance Parties |
| (a) | Subject to Clause 22.10 (Pro rata interest settlement), the Agent and the Security Agent may treat the
person shown in its records as Lender or Hedge Counterparty at the opening of business (in the place of the Agent's or the Security Agent's
principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office or, as the case
may be, Hedge Counterparty: |
| (i) | entitled to or liable for any payment due under any Finance Document on that day; and |
| (ii) | entitled to receive and act upon any notice, request, document or communication or make any decision or
determination under any Finance Document made or delivered on that day, |
unless it has received not less than
five Business Days' prior notice from that Lender or Hedge Counterparty to the contrary in accordance with the terms of this Agreement.
| (b) | Any Lender or Hedge Counterparty may by notice to the Agent appoint a person to receive on its behalf
all notices, communications, information and documents to be made or despatched to that Lender or Hedge Counterparty under the Finance
Documents. Such notice shall contain the address and (where communication by electronic mail or other electronic means is permitted under
Clause 30.6 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission of information
by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as
a notification of a substitute address, electronic mail address (or such other information), department and officer by that ▇▇▇▇▇▇ for
the purposes of Clause 30.2 (Addresses) and paragraph (a)(ii) of Clause 30.6 (Electronic communication) and the Agent shall be entitled
to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person
were that Lender or Hedge Counterparty. |
| 25.17 | Credit appraisal by the Lenders and or Hedge Counterparties |
Without affecting the responsibility
of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender and Hedge Counterparty
confirms to the Agent, the Security Agent, the Arranger and the Coordinator that it has been, and will continue to be, solely responsible
for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including
but not limited to:
| (a) | the financial condition, status and nature of each member of the Group or the Target Group; |
| (b) | the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other
agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; |
| (c) | whether that ▇▇▇▇▇▇ has recourse, and the nature and extent of that recourse, against any Party or any
of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
and |
| (d) | the adequacy, accuracy or completeness of any information provided by the Agent, the Security Agent, any
Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents
or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document. |
| 25.18 | Agent's management time |
Any amount payable to the Agent under
Clause 14.3 (Indemnity to the Agent), Clause 16 (Costs and Expenses) and Clause 25.12 (Lenders' indemnity to the Agent) shall include
the cost of utilising the Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly
rates as the Agent may notify to the Borrower and the Lenders, and is in addition to any fee paid or payable to the Agent under Clause
11 (Fees).
| 25.19 | Security Agent's management time |
Any amount payable to the Security Agent
under Clause 14.4 (Indemnity to the Security Agent), Clause 16 (Costs and Expenses) and Clause 25.13 (Lenders' indemnity to the Security
Agent) shall include the cost of utilising the Security Agent's management time or other resources and will be calculated on the basis
of such reasonable daily or hourly rates as the Security Agent may notify to the
Borrower and the Lenders, and is in addition
to any fee paid or payable to the Security Agent under Clause 11 (Fees).
| 25.20 | Deduction from amounts payable by the Agent and the Security Agent |
If any Party owes an amount to the Agent
or the Security Agent under the Finance Documents the Agent or the Security Agent may, after giving notice to that Party, deduct an amount
not exceeding that amount from any payment to that Party which the Agent or the Security Agent would otherwise be obliged to make under
the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents
that Party shall be regarded as having received any amount so deducted.
| 26. | Conduct of Business by the Finance Parties |
No provision of this Agreement will:
| (a) | interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner
it thinks fit; |
| (b) | oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available
to it or the extent, order and manner of any claim; or |
| (c) | oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any
computations in respect of Tax. |
| 27. | Sharing among the Finance Parties |
| 27.1 | Payments to Finance Parties |
If a Finance Party (a Recovering Finance
Party) receives or recovers any amount from an Obligor other than in accordance with Clause 28 (Payment Mechanics) (a Recovered
Amount) and applies that amount to a payment due under the Finance Documents then:
| (a) | the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery
to the Agent; |
| (b) | the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance
Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 28
(Payment Mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution;
and |
| (c) | the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent
an amount (the Sharing Payment) equal to such receipt or recovery less any amount which the Agent determines may be retained by
the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 28.6 (Partial payments). |
| 27.2 | Redistribution of payments |
The Agent shall treat the Sharing Payment
as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party)
(the Sharing Finance Parties) in accordance with Clause 28.6 (Partial payments) towards the obligations of that Obligor to the
Sharing Finance Parties.
| 27.3 | Recovering Finance Party's rights |
On a distribution by the Agent under
Clause 27.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant
Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having
been paid by that Obligor.
| 27.4 | Reversal of redistribution |
If any part of the Sharing Payment received
or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
| (a) | each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that
Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary
to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party
is required to pay) (the Redistributed Amount); and |
| (b) | as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant
Redistributed Amount will be treated as not having been paid by the Borrower. |
| (a) | This Clause 27 shall not apply to the extent that the Recovering Finance Party would not, after making
any payment pursuant to this Clause, have a valid and enforceable claim against the Borrower. |
| (b) | A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering
Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: |
| (i) | it notified that other Finance Party of the legal or arbitration proceedings; and |
| (ii) | that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but
did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings. |
| 28.1 | Payments to the Agent |
| (a) | On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, an
Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on
the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the
relevant currency in the place of payment. |
| (b) | Payment shall be made to such account in the principal financial centre of the country of that currency
(or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Agent) with
such bank as the Agent, in each case, specifies. |
| 28.2 | Distributions by the Agent |
Each payment received by the Agent under
the Finance Documents for another Party shall, subject to Clause 28.3 (Distributions to an Obligor) and Clause 28.4 (Clawback) be made
available by the Agent
as soon as practicable after receipt
to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office),
to such account as that Party may notify to the Agent by not less than five Business Days' notice with a bank specified by that Party
in the principal financial centre of the country of that currency(or, in relation to euro, in a principal financial centre in such Participating
Member State or London, as specified by that Party).
| 28.3 | Distributions to an Obligor |
The Agent may (with the consent of the
Obligor or in accordance with Clause 29 (Set-Off)) apply any amount received by it for that Obligor in or towards payment (on the date
and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of
any amount of any currency to be so applied.
| 28.4 | Clawback and pre-funding |
| (a) | Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not
obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum. |
| (b) | Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment
to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds. |
| (c) | If the Agent is willing to make available amounts for the account of a Borrower before receiving funds
from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from
a Lender in respect of a sum which it paid to a Borrower: |
| (i) | the Agent shall notify the Borrower of that ▇▇▇▇▇▇'s identity and the Borrower shall on demand refund
it to the Agent; and |
| (ii) | the Lender by whom those funds should have been made available or, if that ▇▇▇▇▇▇ fails to do so, the
Borrower shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost
incurred by it as a result of paying out that sum before receiving those funds from that ▇▇▇▇▇▇. |
| (a) | If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make
a payment under the Finance Documents to the Agent may instead either: |
| (i) | pay that amount direct to the required recipient(s); or |
| (ii) | if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct
to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with a bank or financial
institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB+ or higher by Standard &
Poor's Rating Services or Fitch Ratings Ltd or Baa1 or higher by ▇▇▇▇▇'▇ Investor Services Limited or a comparable rating from an internationally
recognised credit rating agency and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor
or the Lender making the payment (the Paying Party) and designated as a pledged account for the benefit of the Party beneficially
entitled to that payment under the Finance Documents (the Recipient Party). |
In each case the payments must be made
on the due date for payment under the Finance Documents.
| (b) | All interest accrued on the amount standing to the credit of the pledged account will be for the benefit
of the Recipient Party or Recipient Parties pro rata to their respective entitlements. |
| (c) | A Party which has made a payment in accordance with this Clause will be discharged of the relevant payment
obligation under the Finance Documents and will not take any credit risk with respect to the amounts standing to the credit of the pledged
account. |
| (d) | Promptly on the appointment of a successor Agent under this Agreement, each Paying Party must (other than
to the extent that the relevant Party has given an instruction under paragraph (e) below) give all requisite instructions to the bank
with whom the pledged account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution
to the relevant Recipient Party or Recipient Parties in accordance with the Finance Documents. |
| (e) | A Paying Party must, promptly on request by a Recipient Party and to the extent: |
| (i) | that it has not given an instruction under paragraph (d) above; and |
| (ii) | that it has been provided with the necessary information by that Recipient Party, |
give instructions to the bank with which
the pledged account is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party.
| (a) | If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable
by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance
Documents in the following order: |
| (i) | first, in or towards payment pro rata of any unpaid amounts owing to the Agent and the Security
Agent under the Finance Documents; |
| (ii) | secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid
under those Finance Documents; |
| (iii) | thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement and
any payment as a result of termination or closing out due but unpaid under the Hedging Agreements; and |
| (iv) | fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. |
| (b) | The Agent shall, if so directed by the Majority Lenders and the Hedge Counterparties, vary the order set
out in paragraphs (a)(ii) to (a)(iv) above. |
| (c) | Paragraphs (a) and (b) above will override any appropriation made by an Obligor. |
| 28.7 | No set-off by Obligors |
| (a) | All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without
(and free and clear of any deduction for) set-off or counterclaim. |
| (b) | Paragraph (a) above shall not affect the operation of any payment or close-out netting in respect of any
amounts owing under any Hedging Agreement. |
| (a) | Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall
be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). |
| (b) | During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest
is payable on the principal or Unpaid Sum at the rate payable on the original due date. |
| (a) | Subject to paragraphs (b) to (e) below, USD is the currency of account and payment for any sum due from
an Obligor under any Finance Document. |
| (b) | A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in
which that Loan or Unpaid Sum is denominated, pursuant to this Agreement, on its due date. |
| (c) | Each payment of interest shall be made in the currency in which the sum in respect of which the interest
is payable was denominated, pursuant to this Agreement, when that interest accrued. |
| (d) | Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs,
expenses or Taxes are incurred. |
| (e) | Any amount expressed to be payable in a currency other than USD shall be paid in that other currency. |
| (a) | Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised
by the central bank of any country as the lawful currency of that country, then: |
| (i) | any reference in the Finance Documents to, and any obligations arising under the Finance Documents in,
the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent
(after consultation with the Borrower); and |
| (ii) | any translation from one currency or currency unit to another shall be at the official rate of exchange
recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting
reasonably). |
| (b) | If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting
reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions
and market practice in the Relevant Market and otherwise to reflect the change in currency. |
| 28.11 | Disruption to payment systems etc. |
If either the Agent determines (in its
discretion) that a Disruption Event has occurred or the Agent is notified by the Borrower that a Disruption Event has occurred:
| (a) | the Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view
to agreeing with the Borrower such changes to the operation or administration of the Facilities as the Agent may deem necessary in the
circumstances; |
| (b) | the Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph
(a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree
to such changes; |
| (c) | the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above
but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances; |
| (d) | any such changes agreed upon by the Agent and the Borrower shall (whether or not it is finally determined
that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of
the Finance Documents notwithstanding the provisions of Clause 34 (Amendments and Waivers); |
| (e) | the Agent shall not be liable for any damages, costs or losses to any person, any diminuation in value
or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever
but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant
to or in connection with this Clause 28.11; and |
| (f) | the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above. |
A Finance Party may set off any matured
obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured
obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation.
If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off.
| 30.1 | Communications in writing |
Any communication to be made under or
in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by letter.
The address (and the department or officer,
if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under
or in connection with the Finance Documents is:
| (a) | in the case of the Borrower, that identified with its name below; |
| (b) | in the case of each Arranger, each Lender, each Hedge Counterparty, the Coordinator or any other Obligor
that notified in writing to the Agent on or prior to the date on which it becomes a Party; and |
| (c) | in the case of the Agent and Security Agent, that identified with its name below, |
or any substitute address or department
or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not
less than five Business Days' notice.
| (a) | Any communication or document made or delivered by one person to another under or in connection with the
Finance Documents will only be effective by way of letter, when it has been left at the relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope addressed to it at that address and, if a particular department or officer is specified
as part of its address details provided under Clause 30.2 (Addresses), if addressed to that department or officer. |
| (b) | Any communication or document to be made or delivered to the Agent will be effective only when actually
received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's
signature below (or any substitute department or officer as the Agent shall specify for this purpose). |
| (c) | All notices from or to an Obligor shall be sent through the Agent. |
| (d) | Any Communication or document made or delivered to the Borrower in accordance with this clause 30.3 will
be deemed to have been made or delivered to each of the Obligors. |
| (e) | Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above,
after 5:00 p.m. in the place of receipt shall be deemed only to become effective on the following day. |
| 30.4 | Notification of address |
Promptly upon changing its address, the
Agent shall notify the other Parties.
| 30.5 | Communication when Agent is Impaired Agent |
If the Agent is an Impaired Agent the
Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is
an Impaired Agent) all the provisions of the Finance Document which require communications to be made or notices to be given to or by
the Agent will be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision will
not operate after a replacement Agent has been appointed.
| 30.6 | Electronic communication |
| (a) | Any communication or document to be made or delivered by one Party to another under or in connection with
the Finance Documents may be made or delivered by electronic mail or other electronic means (including, without limitation, by way of
posting to a secure website) if those two Parties: |
| (i) | notify each other in writing of their electronic mail address and/or any other information required to
enable the transmission of information by that means; and |
| (ii) | notify each other of any change to their address or any other such information supplied by them by not
less than five Business Days' notice. |
| (b) | Any such electronic communication or delivery as specified in paragraph (a) above to be made between an
Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to
the contrary, this is to be an accepted form of communication or delivery. The electronic mail addresses referred to in Clause 30.2 (Addresses)
are accepted for electronic communication as referred to in this Clause 30.6. |
| (c) | Any such electronic communication or delivery as specified in paragraph (a) above made or delivered by
one Party to another will be effective only when actually received (or made available) in readable form and in the case of any electronic
communication or document made or delivered by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify
for this purpose. |
| (d) | Any electronic communication or document which becomes effective, in accordance with paragraph (b) above,
after 5:00 p.m. in the place in which the Party to whom the relevant communication or document is sent or made available has its address
for the purpose of this Agreement shall be deemed only to become effective on the following day. |
| (e) | Any reference in a Finance Document to a communication being sent or received or a document being delivered
shall be construed to include that communication or a document being made available in accordance with this Clause 30.6. |
| (a) | Any notice given under or in connection with any Finance Document must be in English. |
| (b) | All other documents provided under or in connection with any Finance Document apart from any corporate
documents (vennootschapsrechtelijke documenten) must be: |
| (ii) | if not in English, and if so required by the Agent, accompanied by a certified English translation and,
in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
| 31. | Calculations and Certificates |
In any litigation or arbitration proceedings
arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie
evidence of the matters to which they relate.
| 31.2 | Certificates and determinations |
Any certification or determination by
a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters
to which it relates.
| 31.3 | Day count convention and interest calculation |
| (a) | Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the
amount of any such interest, commission or fee is calculated: |
| (i) | on the basis of the actual number of days elapsed and a year of 360 days (or, in any case where the practice
in the Relevant Market differs, in accordance with that market practice); and |
| (ii) | subject to paragraph (b) below, without rounding. |
| (b) | The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by the Borrower
under a Finance Document shall be rounded to 2 decimal places. |
If, at any time, any provision of a Finance
Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other
jurisdiction will in any way be affected or impaired.
No failure to exercise, nor any delay
in exercising, on the part of any Finance Party, any right or remedy under a Finance Document shall operate as a waiver of any such right
or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any Finance Document on the part of
any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further
or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative
and not exclusive of any rights or remedies provided by law.
| 34. | Amendments and Waivers |
| (a) | Subject to Clause 34.2 (All Lender matters) and Clause 34.3 (Other exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the Majority Lenders and the Borrower and any such amendment or waiver will
be binding on all Parties. |
| (b) | The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause
34. |
| (c) | Paragraph (c) of Clause 22.10 (Pro rata interest settlement) shall apply to this Clause 34. |
| (a) | An amendment or waiver that has the effect of changing or which relates to: |
| (i) | the definition of "Borrower Change of Control", "Target Change of Control" and "Majority
Lenders", in Clause 1.1 (Definitions); |
| (ii) | the definition of "Sanctioned Country", "Sanctioned Person" and "Sanctions"
in Clause 1.1 (Definitions); |
| (iii) | an extension to the date of payment of any amount under the Finance Documents (other than pursuant to
the exercise of 2.4 (Extension option)); |
| (iv) | a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or
commission payable; |
| (v) | a change in currency of payment of any amount under the Finance Documents; |
| (vi) | an increase in any Commitment, an extension of any Availability Period or any requirement that a cancellation
of Commitments reduces the Commitments of the Lenders rateably; |
| (vii) | a change to the Borrower or Guarantors other than in accordance with Clause 23 (Changes to the Obligors); |
| (viii) | the definition of “Specified Event of Default”; |
| (ix) | any amendment to the order of priority or subordination under the Subordination Agreement; |
| (x) | any provision which expressly requires the consent of all the Lenders; |
| (xi) | Clause 2.3 (Finance Parties' rights and obligations), Clause 5.1 (Delivery of a Utilisation Request),
Clause 7.1 (Illegality), Clause 7.2 (Sanctions), Clause 7.3 (Change of control), Clause 7.4 (Mandatory Prepayment – Distributions),
Clause 7.5 (Mandatory Prepayment – Free Liquid Assets), Clause 7.6 (Mandatory Prepayment – Permitted Take-Out Financing),
Clause 7.7 (Mandatory Prepayment – Acquisition Proceeds), Clause 7.13 (Application of prepayments), Clause 18.22 (Sanctions), Clause
20.18 (Sanctions), Clause 20.19 (Anti-corruption law), Clause 20.12 (Disposals), Clause 20.30 (Takeover covenants), Clause 22 (Changes
to the Lenders), Clause 23 (Changes to the Obligors), Clause 27 (Sharing among the Finance Parties), this Clause 34, Clause 39 (Governing
law) or Clause 40 (Enforcement); |
| (xii) | the SPA Acquisition Conditions Precedent; or |
| (xiii) | the nature or scope of the Charged Property and the guarantee and indemnity granted under Clause 17 (Guarantee
and indemnity) and the release of any guarantee and indemnity granted under Clause 17 (Guarantee and indemnity) or of any Transaction
Security unless permitted under this Agreement or any other Finance Document or relating to a sale or disposal of an asset which is the
subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document, |
shall not be made without the prior consent
of all the Lenders.
| (a) | An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent, the
Arranger or the Coordinator (in their capacity as such) may not be effected without the consent of the Agent, the Security Agent, the
Arranger or the Coordinator, as the case may be. |
| (b) | An amendment or waiver which relates to the rights or obligations of a Hedge Counterparty (in its capacity
as such) may not be effected without the consent of that Hedge Counterparty. |
| 34.4 | Changes to reference rates |
| (a) | Subject to Clause 34.3 (Other exceptions), if an RFR Replacement Event has occurred, any amendment or
waiver which relates to: |
| (i) | providing for the use of a Replacement Reference Rate in place of the RFR; and |
| (A) | aligning any provision of any Finance Document to the use of that Replacement Reference Rate; |
| (B) | enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement
(including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes
of this Agreement); |
| (C) | implementing market conventions applicable to that Replacement Reference Rate; |
| (D) | providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate;
or |
| (E) | adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic
value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for
calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall
be determined on the basis of that designation, nomination or recommendation), |
may be made with the consent of the Agent
(acting on the instructions of the Majority ▇▇▇▇▇▇▇) and the Borrower.
| (b) | If any Lender fails to respond to a request for an amendment or waiver described in paragraph(a) above
within 10 Business Days (or such longer time period in relation to any request which the Borrower and the Agent may agree) of that request
being made: |
| (i) | its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the
Facility when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and |
| (ii) | its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any
specified group of Lenders has been obtained to approve that request. |
Relevant Nominating Body means
any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored
or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
RFR Replacement Event means, in
relation to the RFR:
| (i) | the methodology, formula or other means of determining the RFR has, in the opinion of all the Majority
Lenders and the Borrower, materially changed; |
| (1) | the administrator of the RFR or its supervisor publicly announces that such administrator is insolvent;
or |
| (2) | information is published in any order, decree, notice, petition or filing, however described, of or filed
with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms
that the administrator of the RFR is insolvent, |
provided that, in each case, at that
time, there is no successor administrator to continue to provide the RFR;
| (B) | the administrator of the RFR publicly announces that it has ceased or will cease to provide the RFR permanently
or indefinitely and, at that time, there is no successor administrator to continue to provide the RFR; |
| (C) | the supervisor of the administrator of the RFR publicly announces the RFR has been or will be permanently
or indefinitely discontinued; or |
| (D) | the administrator of the RFR or its supervisor announces that the RFR may no longer be used; or |
| (iii) | the administrator of the RFR determines that the RFR should be calculated in accordance with its reduced
submissions or other contingency or fallback policies or arrangements and either: |
| (A) | the circumstance(s) or event(s) leading to such determination are not (in the opinion of all the Lenders
and the Borrower) temporary; or |
| (B) | the RFR is calculated in accordance with any such policy or arrangement for a period no less than the
period specified as the “RFR Contingency Period” in the Reference Rate Terms; or |
| (iv) | in the opinion of all the Majority Lenders and the Borrower, the RFR is otherwise no longer appropriate
for the purposes of calculating interest under this Agreement. |
Replacement Reference Rate means
a reference rate which is:
| (i) | formally designated, nominated or recommended as the replacement for the RFR by: |
| (A) | the administrator of the RFR (provided that the market or economic reality that such reference rate measures
is the same as that measured by the RFR); or |
| (B) | any Relevant Nominating Body, |
and if replacements have, at the relevant
time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Reference Rate" will be the
replacement under paragraph (B) above;
| (ii) | in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any
relevant domestic syndicated loan markets as the appropriate successor to the RFR; or |
| (iii) | in the opinion of the Majority ▇▇▇▇▇▇▇ and the Borrower, an appropriate successor to the RFR. |
| 34.5 | Disenfranchisement of Defaulting Lenders |
| (a) | For so long as a Defaulting Lender has any Available Commitment, in ascertaining: |
| (i) | the Majority Lenders; or |
| (A) | any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or |
| (B) | the agreement of any specified group of Lenders, |
has been obtained to approve any request
for a consent, waiver, amendment or other vote under the Finance Documents,
that Defaulting Lender's Commitments
will be reduced by the amount of its Available Commitments and, to the extent that that reduction results in that Defaulting Lender's
Total Commitments being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii) above.
| (b) | For the purposes of this Clause 34.5, the Agent may assume that the following Lenders are Defaulting Lenders: |
| (i) | any Lender which has notified the Agent that it has become a Defaulting Lender; |
| (ii) | any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs
(a), (b) or (c) of the definition of Defaulting Lender has occurred, |
unless it has received notice to the
contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise
aware that the Lender has ceased to be a Defaulting Lender.
If any Defaulting Lender fails to respond
to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders under
the terms of this Agreement within fifteen (15) Business Days (unless the Borrower and the Agent agree to a longer time period in relation
to any request) of that request being made:
| (a) | its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the
relevant Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments
has been obtained to approve that request; and |
| (b) | its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any
specified group of Lenders has been obtained to approve that request. |
| 34.7 | Replacement of a Defaulting Lender |
| (a) | The Borrower may, at any time a Lender has become and continues to be a Defaulting Lender, by giving fifteen
(15) Business Days' prior written notice to the Agent and such ▇▇▇▇▇▇: |
| (i) | replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall)
transfer pursuant to Clause 22 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement; or |
| (ii) | require such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause
22 (Changes to the Lenders) all (and not part only) of the undrawn Commitment(s) of the Lender; or |
to a Lender or other bank, financial
institution, trust, fund or other entity (a Replacement Lender) selected by the Borrower, and which confirms its willingness to
assume and does assume all the obligations or all the relevant obligations of the transferring Lender in accordance with Clause 22 (Changes
to the Lenders) for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of
such ▇▇▇▇▇▇'s participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification
under Clause 22.10 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.
| (b) | Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause shall be subject
to the following conditions: |
| (i) | the Borrower shall have no right to replace the Agent; |
| (ii) | neither the Agent nor the Defaulting Lender shall have any obligation to the Borrower to find a Replacement
Lender; |
| (iii) | the transfer must take place no later than ten (10) Business Days after the notice referred to in paragraph
(a) above; |
| (iv) | in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any
of the fees received by the Defaulting Lender pursuant to the Finance Documents; and |
| (v) | the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph
(a) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all
applicable laws and regulations in relation to that transfer to the Replacement Lender. |
| (c) | The Defaulting Lender shall perform the checks described in paragraph (b)(v) above as soon as reasonably
practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Borrower when it is satisfied
that it has complied with those checks. |
| 35. | Confidential information |
Each Finance Party agrees to keep all
Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 19.8 (Provision of Material
Non-Public Information) and Clause 35.2 (Disclosure of Confidential Information), and to ensure that all Confidential Information is protected
with security measures and a degree of care that would apply to its own confidential information.
| 35.2 | Disclosure of Confidential Information |
Any Finance Party may disclose:
| (a) | to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional
advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any
person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature
and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise
bound by requirements of confidentiality in relation to the Confidential Information; |
| (i) | to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its
rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in
each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers; |
| (ii) | with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly,
any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one
or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional
advisers; |
| (iii) | appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive
communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation,
any person appointed under paragraph (b) of Clause 25.16 (Relationship with the other Finance Parties)); |
| (iv) | who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or
indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above; |
| (v) | to whom information is required or requested to be disclosed by any court of competent jurisdiction or
any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant
to any applicable law or regulation; |
| (vi) | to whom information is required to be disclosed in connection with, and for the purposes of, any litigation,
arbitration, administrative or other investigations, proceedings or disputes; |
| (vii) | to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may
do so) pursuant to Clause 22.9 (Security over Lenders' rights); |
| (ix) | with the consent of the Borrower; |
in each case, such Confidential Information
as that Finance Party shall consider appropriate if:
| (A) | in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information
is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking
if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential
Information; |
| (B) | in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given
has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential
Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; |
| (C) | in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information
is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information
except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the
circumstances; |
| (c) | to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above
applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation,
in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to
be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider
to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA
Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking
agreed between the Borrower and the relevant Finance Party. |
| (d) | to any rating agency (including its professional advisers) such Confidential Information as may be required
to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the
Obligors. |
| (e) | Nothing in any Finance Document shall prevent disclosure of any Confidential Information or other matter
to the extent that preventing that disclosure would otherwise cause any transaction contemplated by the Finance Documents or any transaction
carried out in connection with any transaction contemplated by the Finance Documents to become an arrangement described in Part II A 1
of Annex IV of Directive 2011/16/EU. |
| (f) | Notwithstanding anything to the contrary in this Agreement, the Borrower acknowledges and agrees that
if any Lender or any of their Affiliates receives from the Borrower or their Representative any Material Non-Public Information at any
time in connection with this Agreement or any Finance Documents, such Lender or such Affiliate thereof may, following the occurrence of
an Event of Default, disclose such Material Non-Public Information publicly, to any potential purchaser of the Relevant Target Shares
or to any other person in connection with such potential purchase (including, without limitation, in connection with the enforcement of
Transaction Security). |
This Clause 35 (Confidential Information)
constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents
regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
Each of the Finance Parties acknowledges
that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the
Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
| 35.5 | Notification of disclosure |
Each of the Finance Parties agrees (to
the extent permitted by law and regulation) to inform the Borrower promptly:
| (a) | of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of
Clause 35.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function; and |
| (b) | upon becoming aware that Confidential Information has been disclosed in breach of this Clause 35 (Confidential
Information). |
| 35.6 | Continuing obligations |
The obligations in this Clause 35 (Confidential
Information) are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from
the earlier of:
| (a) | the date on which all amounts payable by the Obligors under or in connection with this Agreement have
been paid in full and all Commitments have been cancelled or otherwise cease to be available; and |
| (b) | the date on which such Finance Party otherwise ceases to be a Finance Party. |
| 36. | Confidentiality of Funding Rates |
| 36.1 | Confidentiality and disclosure |
| (a) | The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone,
save to the extent permitted by paragraphs (b) and (c) below. |
| (b) | The Agent may disclose: |
| (i) | any Funding Rate to the Borrower pursuant to Clause 8.4 (Notification of rates of interest); and |
| (ii) | any Funding Rate to any person appointed by it to provide administration services in respect of one or
more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider
to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality
Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between
the Agent and the relevant Lender. |
| (c) | The Agent and the Borrower may disclose any Funding Rate to: |
| (i) | any of their Affiliates and any of their or their officers, directors, employees, professional advisers,
auditors, partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this paragraph (i) is informed
in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to
so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise
bound by requirements of confidentiality in relation to it; |
| (ii) | any person to whom information is required or requested to be disclosed by any court of competent jurisdiction
or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant
to any applicable law or regulation if the person to whom that Funding Rate is to be given, is informed in writing of its confidential
nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the
Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; |
| (iii) | any person to whom information is required to be disclosed in connection with, and for the purposes of,
any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is
to be given is informed in writing of its |
confidential nature and
that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the
relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
| (iv) | any person with the consent of the relevant Lender. |
| (a) | The Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information
and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market
abuse and the Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose. |
| (b) | The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant
Lender: |
| (i) | of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 36.1 (Confidentiality
and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary
course of its supervisory or regulatory function; and |
| (ii) | upon becoming aware that any information has been disclosed in breach of this Clause 36. |
No Event of Default will occur under
Clause 21.2 (Other obligations) by reason only of an Obligor’s failure to comply with this Clause 36.
Each Finance Document may be executed
in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance
Document.
| 38.1 | Contractual recognition of bail-in |
Notwithstanding any other term of any
Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any
liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant
Resolution Authority and acknowledges and accepts to be bound by the effect of:
| (a) | any Bail-In Action in relation to any such liability, including (without limitation): |
| (i) | a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued
but unpaid interest) in respect of any such liability; |
| (ii) | a conversion of all, or part of, any such liability into shares or other instruments of ownership that
may be issued to, or conferred on, it; and |
| (iii) | a cancellation of any such liability; and |
| (b) | a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In
Action in relation to any such liability. |
In this Clause 38:
Article 55 BRRD means Article
55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
Bail-In Action means the exercise
of any Write-down and Conversion Powers.
Bail-In Legislation means:
| (a) | in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55
BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; |
| (b) | in relation to the United Kingdom, the UK Bail-In Legislation; and |
| (c) | in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law
or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or
regulation. |
EEA Member Country means any member
state of the European Union, Iceland, Liechtenstein and Norway.
EU Bail-In Legislation Schedule
means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
Resolution Authority means any
body which has authority to exercise any Write-down and Conversion Powers.
UK Bail-In Legislation means Part
I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of
unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration
or other insolvency proceedings).
Write-down and Conversion Powers
means:
| (a) | in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time,
the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
| (b) | in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer
or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment
firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument
under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any
other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend
any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to
any of those powers; and |
| (c) | in relation to any other applicable Bail-In Legislation: |
| (i) | any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that
is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to
cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises,
to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any
such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that
liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and |
| (ii) | any similar or analogous powers under that Bail-In Legislation. |
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
| (a) | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation
arising out of or in connection with this Agreement) (a Dispute). |
| (b) | The Parties agree that the courts of England are the most appropriate and convenient courts to settle
Disputes and accordingly no Party will argue to the contrary. |
| (a) | Without prejudice to any other mode of service of process allowed under any relevant law, each Obligor
(other than an Obligor incorporated in England and Wales): |
| (i) | irrevocably appoints ▇▇▇.▇▇▇▇ Technology and Development Centre Ltd. as its agent for service of process
in relation to any proceedings before the English courts in connection with any Finance Document; and |
| (ii) | agrees that failure by an agent for service of process to notify the relevant Obligor of the process will
not invalidate the proceedings concerned. |
| (b) | If any person appointed as an agent for service of process is unable for any reason to act as agent for
service of process, the Borrower must promptly (and in any event within 14 Business Days of such event taking place) appoint another agent
on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose. |
| 42. | ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS |
Notwithstanding any other term of any
Finance Document or any other agreement, arrangement or understanding between the Parties, to the extent that any Finance Document provides
support, through a guarantee, Security or otherwise, for any Hedging Agreement that is a QFC or any other agreement or instrument that
is a QFC (any such support, QFC Credit Support, and any such QFC, a Supported QFC), each Party acknowledges and agrees as
follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and
Title II of the
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer
Protection Act (together with the regulations promulgated thereunder, the U.S. Special Resolution Regimes) in respect of such Supported
QFC and such QFC Credit Support (with the provisions below applicable notwithstanding that any Finance Document or any Supported QFC may
in fact be stated to be governed by the laws of the U.S. or a state of the U.S.):
| (a) | in the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes
subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit
Support (and any interest and any obligation in or under such Supported QFC or such QFC Credit Support, and any right in property securing
such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if such Supported QFC and such QFC Credit Support (and any such interest, obligation and right
in property) were governed by the laws of the U.S. or a state of the U.S.; and |
| (b) | in the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under any Finance Document that may otherwise apply to such Supported QFC or such
QFC Credit Support and that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if such Supported QFC and each Finance Document were governed by the
laws of the U.S. or a state of the U.S. Without limiting the foregoing, each Party understands and agrees that its rights and remedies
with respect to a Defaulting Lender or an Impaired Agent shall not affect any right of any Covered Party with respect to any Supported
QFC or any QFC Credit Support. |
In this Clause 42:
BHC Act Affiliate means, in respect
of a person, its "affiliate" (as that term is defined in, and interpreted in accordance with, 12 United States Code 1841(k));
Covered Entity means:
| (a) | a "covered entity" as that term is defined in, and interpreted in accordance with, 12 Code of
Federal Regulations § 252.82(b); |
| (b) | a "covered bank" as that term is defined in, and interpreted in accordance with, 12 Code of
Federal Regulations § 47.3(b); or |
| (c) | a "covered FSI" as that term is defined in, and interpreted in accordance with, 12 Code of Federal
Regulations § 382.2(b); |
Default Right has the meaning
given to that term in, and shall be interpreted in accordance with, 12 Code of Federal Regulations §§ 252.81, 47.2 or 382.1,
as applicable; and
QFC has the meaning given to the
term "qualified financial contract" in, and shall be interpreted in accordance with, 12 United States Code 5390(c)(8)(D).
Schedule
1
The Original
Parties
Part 1
The Original
Guarantors
| Name of Original Guarantor |
Jurisdiction of incorporation |
Registration number
(or equivalent, if any) |
| ▇▇▇.▇▇▇▇ Enterprises NV |
Belgium |
0766.552.396 (Business Court Antwerp (division Antwerp)) |
| ▇▇▇.▇▇▇▇ Belgium NV |
Belgium |
0788.642.365 (Business Court Antwerp (division Antwerp)) |
| ▇▇▇.▇▇▇▇ Bermuda Ltd. |
Bermuda |
202504541 |
Part 2
The Original
Lenders
| Name of Original Lender |
SPA Acquisition Bridge Facility Commitments |
Additional Share Purchase Facility Commitments |
Total Commitment |
| KBC Bank NV |
USD 383,333,334 |
USD 83,333,334 |
USD 466,666,668 |
| Crédit Agricole Corporate and Investment Bank |
USD 383,333,333 |
USD 83,333,333 |
USD 466,666,666 |
| Société Générale |
USD 383,333,333 |
USD 83,333,333 |
USD 466,666,666 |
| Total |
USD 1,150,000,000 |
USD 250,000,000 |
USD 1,400,000,000 |
Schedule
2
Conditions Precedent
Part
1
Conditions Precedent
to signing
| (a) | A copy of the constitutional documents of each Original Obligor and in respect of each Original Obligor
which is incorporated under the laws of Bermuda, a copy (certified by its company secretary) of the following documents: |
| (i) | Register of directors and officers; |
| (iii) | Tax assurance letter issued by the Registrar of Companies for the Minister of Finance; and |
| (iv) | the Bermuda Monetary Authority’s “No Objection” to incorporation or foreign exchange
letter, as applicable, issued by the Bermuda Monetary Authority. |
| (b) | In respect of each Original Obligor which is incorporated under the laws of Bermuda, a certificate of
compliance issued by the Bermuda Registrar of Companies. |
| (c) | A (certified) copy of a resolution of the board of directors of each Original Obligor: |
| (i) | approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party
and resolving that it execute the Finance Documents to which it is a party; |
| (ii) | authorising a specified person or persons to execute the Finance Documents to which it is a party on its
behalf; |
| (iii) | in case of an Obligor other than the Borrower, authorising the Borrower to act as its agent in connection
with the Finance Documents; and |
| (iv) | authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request and Selection Notice) to be signed and/or despatched by it under or in connection with
the Transaction Documents to which it is a party. |
| (d) | If applicable, a (certified) copy of a resolution of the holders of the issued shares in each other Original
Obligor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Original Obligor is a party. |
| (e) | A specimen of the signature of each person authorised by the resolution referred to in paragraph (c) above. |
| (f) | A certificate of the Borrower (signed by an authorised signatory) confirming and certifying that: |
| (i) | Borrowing, guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing,
guaranteeing, security or similar limit binding on any Original Obligor to be exceeded; |
| (ii) | each copy document relating to it specified in this Part 1 of Schedule 2 is correct, complete and in full
force and effect as at a date no earlier than the date of this Agreement. |
| (a) | A duly executed copy of this Agreement. |
| (b) | A duly executed copy of the Fee Letters. |
| (c) | A Belgian law governed first ranking share pledge agreement executed by all parties thereto in relation
to all shares in ▇▇▇.▇▇▇▇ Enterprises NV owned by the Borrower on the date of this Agreement and all future shares acquired by the Borrower
in ▇▇▇.▇▇▇▇ Enterprises NV after the date of this Agreement. |
| (d) | A Bermuda law governed share charge executed by all parties thereto in relation to all shares in MergeCo
owned by the Borrower on the date of this Agreement and all future shares acquired by the Borrower in MergeCo after the date of this Agreement. |
| (e) | A Belgian law governed first ranking receivables pledge agreement executed by all parties thereto in relation
to any receivable of the Borrower on MergeCo. |
The following legal opinions, each
addressed to the Agent, the Security Agent and the Lenders:
| (a) | a legal opinion of Argo Law, legal advisers to the Borrower as to Belgian law matters on capacity substantially
in the form distributed to the Original Lenders prior to the signing of this Agreement; |
| (b) | a legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, legal advisers to the Borrower as to Bermuda law
matters on capacity and matters on enforceability substantially in the form distributed to the Original Lenders prior to the signing of
this Agreement; |
| (c) | a legal opinion of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Belgium) LLP, legal advisers to the Agent and the Lenders
as to Belgian law matters on enforceability in the form distributed to the Original Lenders prior to the signing of this Agreement; and |
| (d) | a legal opinion of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, legal advisers to the Agent and the Lenders as to
English law matters on enforceability in the form distributed to the Original Lenders prior to the signing of this Agreement. |
| 4. | Other documents and evidence |
| (a) | A copy of the debt commitment letter in respect of the Target Fleet Refinancing Facilities Multilender,
executed by all parties thereto, in form and substance satisfactory to the Lenders. |
| (b) | A copy of the Subordination Agreement, executed by all parties thereto. |
| (c) | A copy of the Syndication Letter, executed by all parties thereto. |
| (d) | A copy of the Group Structure Chart. |
| (e) | Closing mechanics in form and substance satisfactory to the Lenders. |
| (f) | A final draft of the Share Purchase Agreement. |
| (g) | The Structure Memorandum, together with a reliance letter (provided that the Original Lenders have agreed
the terms of reliance with the Structure Memorandum provider). |
| (h) | If not publicly available, the Original Financial Statements of each Obligor (other than MergeCo) and
the audited consolidated financial statements of the Target for the financial year ended 31 December 2023. |
| (i) | The Financial Information Package. |
| (k) | Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and
Clause 16 (Costs and Expenses) have been paid or will be paid by the SPA Closing Date. |
| (l) | Evidence required by the Finance Parties for the purpose of any "know your customer" requirements. |
| (m) | A copy of any other Authorisation or other document, opinion or assurance which the Borrower is notified
of prior to the date of this Agreement and which the Agent considers to be necessary or desirable in connection with the entry into and
performance of, and the transactions contemplated by, any Finance Document or for the validity and enforceability of any Finance Document. |
Part
2
SPA Acquisition
Conditions Precedent
| (a) | A copy of the Share Purchase Agreement, executed by all parties thereto. |
| (b) | A certificate of the Borrower (signed by an authorised signatory) confirming and certifying that: |
| (i) | the conditions precedent as set out in the Share Purchase Agreement will be satisfied on the SPA Closing
Date or waived with the written consent of the Majority Lenders and the SPA Closing Date has occurred or will occur upon Utilisation of
the SPA Acquisition Bridge Facility; |
| (ii) | the Acquisition Documents have not been amended, varied or waived since the latest version the Lenders
received on the date of this Agreement except with the written consent of the Majority Lenders; |
| (iii) | the Borrower is not aware of any breach of any warranty or any claim under the Share Purchase Agreement; |
| (iv) | all Target Shares subject to the SPA Acquisition are or will be listed on Nasdaq on the SPA Closing Date;
and |
| (v) | all perfection requirements set out in the Transaction Security Documents are or will be completed on
the SPA Closing Date. |
Part
3
Conditions precedent
required to be delivered by an Additional Guarantor
| (a) | A copy of the constitutional documents of the Additional Guarantor and in respect of each Additional Guarantor
which is incorporated under the laws of Bermuda, a copy (certified by its company secretary) of the following documents: |
| (i) | Register of directors and officers; |
| (iii) | Tax assurance letter issued by the Registrar of Companies for the Minister of Finance; and |
| (iv) | the Bermuda Monetary Authority’s “No Objection” to incorporation or foreign exchange
letter, as applicable, issued by the Bermuda Monetary Authority. |
| (b) | In respect of each Original Guarantor which is incorporated under the laws of Bermuda, a certificate of
compliance issued by the Bermuda Registrar of Companies. |
| (c) | A copy of a resolution of the board of directors of the Additional Guarantor: |
| (i) | approving the terms of, and the transactions contemplated by, the Accession Deed and the Finance Documents
and resolving that it execute, deliver and perform the Accession Deed and any other Finance Document to which it is party; |
| (ii) | authorising a specified person or persons to execute the Accession Deed and other Finance Documents on
its behalf; |
| (iii) | authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents
and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; and |
| (iv) | authorising the Borrower to act as its agent in connection with the Finance Documents. |
| (d) | A specimen of the signature of each person authorised by the resolution referred to in paragraph (c) above. |
| (e) | If applicable, a copy of a resolution signed by all the holders of the issued shares of the Additional
Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Guarantor is a
party. |
| (f) | A certificate of the Additional Guarantor (signed by a director) confirming that borrowing or guaranteeing
or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, security or similar limit binding on it to
be exceeded. |
| (g) | A certificate of an authorised signatory of the Additional Guarantor certifying that each copy document
listed in this Part 3 of Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date
no earlier than the date of the Accession Deed. |
| (a) | An Accession Deed executed by the Additional Guarantor and the Borrower. |
| (b) | Any security documents which are required by the Agent to be executed by the proposed Additional Guarantor. |
The following legal opinions, each
addressed to the Agent, the Security Agent and the Lenders.
| (a) | A legal opinion of the legal advisers to the Agent and the Lenders in England, as to English law in the
form distributed to the Lenders prior to signing the Accession Deed. |
| (b) | If the Additional Guarantor is incorporated in or has its "centre of main interest" or "establishment"
(as applicable) in a jurisdiction other than England and Wales or is executing a Finance Document which is governed by a law other than
English law, a legal opinion of the legal advisers to the Agent in the jurisdiction of its incorporation, "centre of main interest"
or "establishment" (as applicable) or, as the case may be, the jurisdiction of the governing law of that Finance Document (the
Applicable Jurisdiction) as to the law of the Applicable Jurisdiction and in the form distributed to the Lenders prior to signing
the Accession Deed. |
| 4. | Other documents and evidence |
| (a) | If the proposed Additional Guarantor is incorporated in a jurisdiction other than England and Wales, evidence
that the process agent specified in Clause 41 (Service of process), if not an Obligor, has accepted its appointment in relation to the
proposed Additional Guarantor. |
| (b) | If available, the latest audited financial statements of the Additional Guarantor. |
| (c) | Evidence required by the Finance Parties for the purpose of any "know your customer" requirements. |
| (d) | A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to
be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Deed or
for the validity and enforceability of any Finance Document. |
Schedule
3
Requests
Part
1
Utilisation
Request
| From: |
▇▇▇.▇▇▇▇ NV |
| To: |
KBC Bank NV as Agent |
| Dated: |
|
Dear Sirs
▇▇▇.▇▇▇▇ NV – Facilities Agreement
dated [l] 2025 (the Agreement)
| 1. | We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same
meaning in this Utilisation Request unless given a different meaning in this Utilisation Request. |
| 2. | We wish to borrow a Loan on the following terms: |
| |
Proposed Utilisation Date: |
[ ] (or, if that is not a Business Day, the next Business Day) |
| |
Facility to be utilised: |
[SPA Acquisition Bridge Facility][Additional Share Purchase Facility] |
| |
Currency of Loan: |
USD |
| |
Amount: |
[ ] or, if less, the Available Facility |
| |
Interest Period: |
[ ] |
| 3. | The proceeds of this Loan should be credited to [account]. |
| 4. | This Utilisation Request is irrevocable. |
Yours faithfully
...............................................
authorised signatory for ▇▇▇.▇▇▇▇ NV
Part
2
Selection Notice
| From: |
▇▇▇.▇▇▇▇ NV |
| To: |
KBC Bank NV as Agent |
Dated:
Dear Sirs
▇▇▇.▇▇▇▇ NV – Facilities Agreement
dated [l] 2025 (the Agreement)
| 1. | We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning
in this Selection Notice unless given a different meaning in this Selection Notice. |
| 2. | We refer to the following [SPA Acquisition Bridge Facility] [Additional Share Purchase Facility] Loan[s]
with an Interest Period ending on [ ]. |
| 3. | [We request that the next Interest Period for the above [SPA Acquisition Bridge Facility] [Additional
Share Purchase Facility] Loan[s] is [ ]]. |
| 4. | This Selection Notice is irrevocable. |
Yours faithfully
..............................................
authorised signatory for ▇▇▇.▇▇▇▇ NV
Schedule
4
Form of Transfer
Certificate
| From: | [The Existing Lender] (the Existing Lender) and [The New Lender] (the New Lender) |
▇▇▇.▇▇▇▇ NV – Facilities Agreement
dated [l] 2025 (the Agreement)
| 1. | We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same
meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate. |
| 2. | We refer to Clause 22.6 (Procedure for transfer) of the Agreement: |
| (a) | The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by
way of transfer of contract, and in accordance with Clause 22.6 (Procedure for transfer) of the Agreement, all of the Existing Lender's
rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing ▇▇▇▇▇▇'s Commitment(s)
and participations in Loans under the Agreement as specified in the Schedule. |
| (b) | The proposed Transfer Date is [ ]. |
| (c) | The Facility Office and address and attention details for notices of the New Lender for the purposes of
Clause 30.2 (Addresses) of the Agreement are set out in the Schedule. |
| 3. | The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in
paragraph (c) of Clause 22.5 (Limitation of responsibility of Existing Lenders) of the Agreement. |
| 4. | The New Lender confirms, for the benefit of the Agent and without liability to the Borrower, that it is: |
| (a) | [a Qualifying Lender (other than a Treaty Lender);] |
| (c) | [not a Qualifying Lender;] |
| (d) | it [is]/[is not] incorporated, resident, established or acting through a Facility Office, as the case
may be, established in a Non-Cooperative Jurisdiction, and the bank account(s) to which payments will be made to which that New Lender
will be entitled, [are]/[are not] or [will]/[will not] be (a) managed or held by a person or persons incorporated, resident or established
in a Non-Cooperative Jurisdiction or by the permanent establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction
or (b) managed by, or opened with, (A) a financial institution incorporated, resident or established in a Non-Cooperative Jurisdiction
or (B) a branch or office of a financial institution situated in a Non-Cooperative Jurisdiction.1 |
| 5. | This Transfer Certificate may be executed in any number of counterparts and this has the same effect as
if the signatures on the counterparts were on a single copy of this Transfer Certificate. |
| _________________________ | |
| 1 | Delete as applicable – each New Lender is required to confirm which of these three categories it
falls within. |
| 6. | This Transfer Certificate and any non-contractual obligations arising out of or in connection with it
are governed by English law. |
| 7. | This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate. |
THE SCHEDULE
Commitment/rights and obligations to be
transferred
[insert relevant details]
[Facility Office address and attention details for notices and account details for payments,]
| [Existing Lender] |
|
[New Lender] |
|
| |
|
|
|
| |
|
|
|
|
Name:
Title: |
|
Name:
Title: |
|
This Transfer Certificate is accepted by
the Agent and the Transfer Date is confirmed as [ ].
KBC Bank NV, as Agent
| |
|
|
|
|
Name:
Title: |
|
Name:
Title: |
|
Schedule
5
Form of Accession
Deed
| To: | [ ] as Agent and [ ]
as Security Agent |
| From: | [Subsidiary] and ▇▇▇.▇▇▇▇ NV |
Dated:
▇▇▇.▇▇▇▇ NV – Facilities Agreement
dated [l] 2025 (the Agreement)
| 1. | We refer to the Agreement. This deed (the Accession Deed) shall take effect as an Accession Deed
for the purposes of the Agreement. Terms defined in the Agreement have the same meaning in paragraphs 2 and 3 of this Accession Deed unless
given a different meaning in this Accession Deed. |
| 2. | [Subsidiary] agrees to become an Additional Guarantor and to be bound by the terms of the Agreement
and the other Finance Documents as an Additional Guarantor pursuant to Clause 23.2 (Additional Guarantors) of the Agreement. [Subsidiary]
is a company duly incorporated under the laws of [name of relevant jurisdiction] and is a [limited liability] company with registered
number [ ]. |
| 3. | [Subsidiary's] administrative details for the purposes of the Agreement are as follows: |
Address:
Email:
Attention:
| 4. | [Subsidiary] (for the purposes of this paragraph 4, the Acceding Debtor) intends to incur
liabilities and to give a guarantee, indemnity or other assurance against loss in respect of liabilities under any Finance Document to
which it is or will become a party (the Relevant Documents). |
IT IS AGREED as follows:
| (a) | The Acceding Debtor and the Security Agent agree that the Security Agent shall hold: |
| (i) | any Security in respect of liabilities or any Security Agent Claim created or expressed to be created
pursuant to the Relevant Documents; |
| (ii) | all proceeds of that Security; and |
| (iii) | all obligations expressed to be undertaken by the Acceding Debtor to pay amounts in respect of the liabilities
to the Security Agent as trustee or security agent for the Finance Parties (in the Relevant Documents or otherwise and including any Security
Agent Claim) and secured by the Transaction Security together with all representations and warranties expressed to be given by the Acceding
Debtor (in the Relevant Documents or otherwise) in favour of the Security Agent as trustee or security agent for the Finance Parties, |
on trust or as security agent for the
Finance Parties on the terms and conditions contained in the Agreement.
| 5. | This Accession Deed and any non-contractual obligations arising out of or in connection with it are governed
by English law. |
THIS ACCESSION DEED has been signed
on behalf of the Security Agent (for the purposes of paragraph 4 above only), signed on behalf of the Borrower and executed as a deed
by [▇▇▇▇▇▇▇▇▇▇] and is delivered on the date stated above.
Subsidiary
EXECUTED as a deed by )
acting by )
Director
Director/Secretary
Borrower
▇▇▇.▇▇▇▇ NV
By:
Security Agent
[Full name of current Security Agent]
By:
Date:
Schedule
6
Form of Resignation
Letter
| From: | [resigning Obligor] and ▇▇▇.▇▇▇▇ NV |
Dated:
▇▇▇.▇▇▇▇ NV – Facilities Agreement
dated [l] 2025 (the Agreement)
| 1. | We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same
meaning in this Resignation Letter unless given a different meaning in this Resignation Letter. |
| 2. | Pursuant to ▇▇▇▇▇▇ 23.3 (Resignation of a Guarantor) of the Agreement, we request that [resigning Obligor]
be released from its obligations as a Guarantor under the Agreement and the Finance Documents. |
| (a) | no Default is continuing or would result from the acceptance of this request; |
| (b) | [the net cash disposal proceeds (if any) have been or will be applied in accordance with Clause 7.5
(Mandatory Prepayment – Free Liquid Assets) of the Agreement;]1 and |
| 4. | This Resignation Letter and any non-contractual obligations arising out of or in connection with it are
governed by English law. |
| ▇▇▇.▇▇▇▇ NV |
[resigning Obligor] |
| By: |
By: |
NOTES:
| 1. | Amend as appropriate, e.g. to reflect agreed procedure for payment of proceeds into a specified account. |
| 2. | Insert any other conditions required by the Agreement. |
Schedule
7
Form of Hedge
Counterparty Accession Deed
| From: | [Hedge Counterparty] (the Hedge Counterparty) |
▇▇▇.▇▇▇▇ NV – Facilities Agreement
dated [l] 2025 (the Agreement)
We refer to the Agreement. This is a Hedge
Counterparty Accession Deed. Terms defined in the Agreement have the same meaning in this Hedge Counterparty Accession Deed.
We refer to Clause 22.8 (Accession of Hedge
Counterparties). The Hedge Counterparty agrees to become a Hedge Counterparty and to be bound by the terms of the Agreement as a Hedge
Counterparty.
This Hedge Counterparty Accession Deed and
any non-contractual obligations arising out of or in connection with it are governed by English law.
[Hedge Counterparty]
By:
[Agent]
By:
Schedule
8
Timetables
| |
|
|
| Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request) or a Selection Notice (Clause 9.1 (Selection of Interest Periods)) |
|
U-3
11.00 a.m. (Central European Time) |
| Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders' participation) |
|
U-3
03.00 p.m. (Central European Time) |
"U" = Utilisation
Date or, if applicable, in the case of a Loan that has already been made, the first day of the next Interest Period for that Loan.
"U – X"
= X Business Days prior to U.
Schedule
9
Form of Increase
Confirmation
| To: | KBC Bank NV as Agent and ▇▇▇.▇▇▇▇ NV as the Borrower |
| From: | [the Increase Lender] (the Increase Lender) |
▇▇▇.▇▇▇▇ NV - Facilities Agreement dated
[l] 2025 (the Agreement)
| 1. | We refer to the Agreement. This is an Increase Confirmation. |
| 2. | We refer to Clause 2.2 (Increase) of the Agreement. |
| 3. | In accordance with the terms of the Agreement, the Increase Lender assumes obligations equivalent to those
obligations corresponding to the Commitment specified in the Schedule (the Relevant Commitment) as if it was an Original Lender
under the Agreement. |
| 4. | The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment
is to take effect (the Increase Date) is [ ]. |
| 5. | On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender. |
| 6. | The administrative details of the Increase Lender for the purposes of the Agreement are set out in the
Schedule. |
| 7. | The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in
paragraph (h) of Clause 2.2 (Increase). |
| 8. | The Increase Lender confirms, for the benefit of the Agent and without liability to the Borrower, that
it is: |
| (a) | [a Qualifying Lender (other than a Treaty Lender);] |
| (c) | [not a Qualifying Lender;] and |
| (d) | it [is]/[is not] incorporated, resident, established or acting through a Facility Office, as the case
may be, established in a Non-Cooperative Jurisdiction, and the bank account(s) to which payments will be made to which that New Lender
will be entitled, [are]/[are not] or [will]/[will not] be (a) managed or held by a person or persons incorporated, resident or established
in a Non-Cooperative Jurisdiction or by the permanent establishment of a non-resident of Belgium situated in a Non-Cooperative Jurisdiction
or (b) managed by, or opened with, (A) a financial institution incorporated, resident or established in a Non-Cooperative Jurisdiction
or (B) a branch or office of a financial institution situated in a Non-Cooperative Jurisdiction. |
| 9. | This Increase Confirmation may be executed in any number of counterparts and this has the same effect
as if the signatures on the counterparts were on a single copy of this Increase Confirmation. |
| 10. | This Increase Confirmation and any non-contractual obligations arising out of or in connection with it
are governed by English law. |
| 11. | This Increase Confirmation has been entered into on the date stated at the beginning of this Increase
Confirmation. |
THE SCHEDULE
Commitment/rights and obligations to be
assumed
[insert relevant details]
[Facility Office address and attention details for notices and account details for payments,]
| [Increase Lender] |
|
|
|
| |
|
|
|
| |
|
|
|
|
Name:
Title: |
|
Name:
Title: |
|
This Increase Confirmation is accepted by the
Agent and the Increase Date is confirmed as [ ].
KBC Bank NV as Agent
| |
|
|
|
| |
|
|
|
|
Name:
Title: |
|
Name:
Title: |
|
Schedule
10
Form of Extension
Request
| From: | ▇▇▇.▇▇▇▇ NV as Borrower |
▇▇▇.▇▇▇▇ NV - Facilities Agreement dated
[l] 2025 (the Agreement)
| 1. | We refer to the Agreement. This is an Extension Request. Terms defined in the Agreement have the same
meaning in this Extension Request unless given a different meaning in this Extension Request. |
| 2. | In accordance with Clause 2.4 (Extension option) of the Agreement, we hereby request that the [Original]/[Extended]
Termination Date applicable to the SPA Acquisition Bridge Facility and the Additional Share Purchase Facility be extended with six Months. |
| 3. | We confirm that as of the date hereof no Default is continuing or would occur as a consequence of the
extension. |
| 4. | We agree that, in satisfaction of our obligations under Clause 2.4 (Extension option) of the Agreement,
and as a condition to the extension becoming effective, the Borrower will, on or prior to the date of this Extension Request, pay to the
Agent (for the account of each Lender) the extension fee required pursuant to paragraph [(b)]/[(d)] of Clause 2.4 (Extension option) of
the Agreement, which we calculate to be USD [_____]. |
| 5. | This Extension Request is irrevocable. |
| 6. | This request may be executed in any number of counterparts and this has the same effect as if the signatures
on the counterparts were on a single copy of this request. |
| 7. | This Extension Request and any non-contractual obligations arising out of or in connection with it are
governed by English law. |
Yours faithfully
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NV
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Schedule
11
Reference Rate
Terms
| CURRENCY: |
Dollars. |
| Cost of funds as a fallback |
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| Cost of funds will apply as a fallback. |
| Definitions |
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| Additional Business Days: |
An RFR Banking Day. |
| Baseline CAS: |
Length of Interest Period |
Applicable Baseline CAS |
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One week |
0.03839 per cent. per annum |
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One Month |
0.11448 per cent. per annum |
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Three Months |
0.26161 per cent. per annum |
| Business Day Conventions (definition of "Month" and Clause 9.2 (Non-Business Days)): |
(a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: |
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(i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; |
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(ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
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(iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. |
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(b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that |
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calendar month (if there is one) or the preceding Business Day (if there is not). |
| Central Bank Rate: |
(a) The short-term interest
rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or
(b) if that target is
not a single figure, the arithmetic mean of: |
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(i) the upper bound of
the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New
York; and
(ii) the lower bound of
that target range. |
| Central Bank Rate Adjustment: |
In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent. trimmed arithmetic mean (calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) of the Central Bank Rate Spread for the five most immediately preceding RFR Banking Days for which the RFR is available. |
| Central Bank Rate Spread: |
In relation to any RFR Banking Day, the difference
(expressed as a percentage rate per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the
Agent) between:
(a) the RFR for that RFR
Banking Day; and
(b) the Central Bank Rate
prevailing at close of business on that RFR Banking Day. |
| Daily Rate: |
The Daily Rate for any RFR Banking Day is: |
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(a) the RFR for that RFR Banking Day; or |
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(b) if the RFR is not
available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:
(i) the Central Bank Rate
for that RFR Banking Day; and
(ii) the applicable Central
Bank Rate Adjustment; or |
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(c) if paragraph (b)
above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate
of:
(i) the most recent Central
Bank rate for a day which is no more than 5 RFR Banking Days before that RFR Banking Day; and
(ii) the applicable Central
Bank Rate Adjustment, rounded, in either case, to four decimal places and if, in either case, that rate is less than zero, the Daily Rate
shall be deemed to be zero. |
| Lookback Period: |
Five RFR Banking Days. |
| Market Disruption Rate: |
The percentage rate per annum which is the
aggregate of:
(a) the Cumulative Compounded
RFR Rate for the Interest Period of the relevant Loan; and
(b) the applicable Baseline
CAS. |
| Relevant Market: |
The market for overnight cash borrowing collateralised by US Government securities. |
| Reporting Day: |
The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period. |
| RFR: |
The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate). |
| RFR Banking Day: |
Any day other than:
(a) a Saturday or Sunday;
and
(b) a day on which the
Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of
its members be closed for the entire day for purposes of trading in US Government securities |
| RFR Contingency Period |
5 RFR Banking Days |
| Interest Periods |
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| Length of Interest Period in absence of selection (paragraph (c) of Clause 9.1 (Selection of Interest Periods)): |
1 Month |
| Periods capable of selection as Interest Periods (paragraph (d) of Clause 9.1 (Selection of Interest Periods)): |
1 week, 1 Month or 3 Months |
| Reporting Times |
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| Deadline for Lenders to report market disruption in accordance with Clause 10.2 (Market disruption) |
Close of business in London on the Reporting Day for the relevant Loan. |
| Deadline for Lenders to report their cost of funds in accordance with Clause 10.3 (Cost of funds) |
Close of business on the date falling 2 Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling 2 Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan). |
Schedule
12
Daily Non-Cumulative
Compounded RFR Rate
The Daily Non-Cumulative Compounded RFR Rate
for any RFR Banking Day "i" during an Interest Period for a Loan is the percentage rate per annum (without rounding, to the
extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used
for that purpose) calculated as set out below:
where:
UCCDRi means the Unannualised
Cumulative Compounded Daily Rate for that RFR Banking Day "i";
UCCDRi-1 means, in relation
to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking
Day (if any) during that Interest Period;
dcc means 360 or, in any case where market
practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number;
ni means the number of calendar
days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and
the Unannualised Cumulative Compounded Daily
Rate for any RFR Banking Day (the Cumulated RFR Banking Day) during that Interest Period is the result of the below calculation
(without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities
of any software used for that purpose):
where:
ACCDR means the Annualised Cumulative
Compounded Daily Rate for that Cumulated RFR Banking Day;
tni means the number
of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately
follows the last day of the Cumulation Period;
Cumulation Period means the period
from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking Day;
dcc has the meaning given to that
term above; and
the Annualised Cumulative Compounded
Daily Rate for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to 2 decimal places) calculated as set out
below:
where:
d0 means the number
of RFR Banking Days in the Cumulation Period;
Cumulation Period has the meaning
given to that term above;
i means a series of whole numbers
from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period;
DailyRatei-LP means,
for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the Lookback Period
prior to that RFR Banking Day "i";
ni means, for any RFR
Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i"
up to, but excluding, the following RFR Banking Day;
dcc has the meaning given to that
term above; and
tni has the meaning
given to that term above.
Schedule
13
Cumulative Compounded
RFR Rate
The Cumulative Compounded RFR Rate for
any Interest Period for a Loan is the percentage rate per annum (rounded to the same number of decimal places as is specified in the definition
of Annualised Cumulative Compounded Daily Rate in Schedule 12 (Daily Non-Cumulative Compounded RFR Rate)) calculated as set out
below:
where:
d0 means the number of RFR
Banking Days during the Interest Period;
i means a series of whole numbers from
one to d0, each representing the relevant RFR Banking Day in chronological order during the Interest Period;
DailyRatei-LP means for any
RFR Banking Day "i" during the Interest Period, the Daily Rate for the RFR Banking Day which is the Lookback Period prior
to that RFR Banking Day "i";
ni means, for any RFR Banking
Day "i", the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding,
the following RFR Banking Day;
dcc means 360 or, in any case where market
practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; and
d means the number of calendar days during
that Interest Period.
Signatories
The Borrower and Original Guarantor
▇▇▇.▇▇▇▇ NV
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorised signatory
Address: ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
Contact person: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇
The other Original Guarantors
▇▇▇.▇▇▇▇ ENTERPRISES NV
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorised signatory
▇▇▇.▇▇▇▇ BELGIUM NV
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorised signatory
▇▇▇.▇▇▇▇ BERMUDA LTD.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorised signatory
The Bookrunning Mandated Lead Arrangers
KBC BANK NV
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Title: Authorised signatory |
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Title: Authorised signatory |
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CRÉDIT AGRICOLE CORPORATE AND
INVESTMENT BANK
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/s/ ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Title: Authorised signatory |
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Title: Authorised signatory |
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SOCIÉTÉ GÉNÉRALE
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The Original Lenders
KBC BANK NV
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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| Title: Authorised signatory |
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Title: Authorised signatory |
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CRÉDIT AGRICOLE CORPORATE AND
INVESTMENT BANK
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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/s/ ▇▇▇▇- ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Title: Authorised signatory |
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Title: Authorised signatory |
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SOCIÉTÉ GÉNÉRALE
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The Coordinator
KBC BANK NV
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Title: Authorised signatory |
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Title: Authorised signatory |
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The Agent
KBC BANK NV
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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| Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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| Title: Authorised signatory |
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Title: Authorised signatory |
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Address: ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Contact person: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
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Email: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇
and ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇
The Security Agent
KBC BANK NV
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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| Title: Authorised signatory |
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Title: Authorised signatory |
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Address: ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Contact person: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
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Email: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇
and ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇