1
|
NAMES OF REPORTING PERSONS
|
|
|
||
Good Falkirk (MI) Limited
|
|
|
|||
|
|
||||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
☐
|
||
(b)
|
☐
|
||||
|
|
||||
3
|
SEC USE ONLY
|
|
|
||
|
|
|
|||
|
|
||||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
|
|
||
BK, AF, WC, OO (See Item 3)
|
|
|
|||
|
|
||||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
|
|
☐
|
||
|
|
||||
|
|
||||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
|
||
Republic of the Marshall Islands
|
|
|
|||
|
|
||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
4,925,023
|
|
|
|||
|
|
||||
8
|
SHARED VOTING POWER
|
|
|
||
None
|
|
|
|||
|
|
||||
9
|
SOLE DISPOSITIVE POWER
|
|
|
||
4,925,023
|
|
|
|||
|
|
||||
10
|
SHARED DISPOSITIVE POWER
|
|
|
||
None
|
|
|
|||
|
|
||||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
|
|
||
4,925,023
|
|
|
|||
|
|
||||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
|
|
☐
|
||
|
|
||||
|
|
||||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
|
||
25.9% (1)
|
|
|
|||
|
|
||||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
|
|
||
IV, CO
|
|
|
|||
|
|
1
|
NAMES OF REPORTING PERSONS
|
|
|
||
Taylor Maritime Investments Limited
|
|
|
|||
|
|
||||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
☐
|
||
(b)
|
☐
|
||||
|
|
||||
3
|
SEC USE ONLY
|
|
|
||
|
|
|
|||
|
|
||||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
|
|
||
BK, AF, WC, OO (See Item 3)
|
|
|
|||
|
|
||||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
|
|
☐
|
||
|
|
||||
|
|
||||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
|
||
Guernsey
|
|
|
|||
|
|
||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
4,925,023
|
|
|
|||
|
|
||||
8
|
SHARED VOTING POWER
|
|
|
||
None
|
|
|
|||
|
|
||||
9
|
SOLE DISPOSITIVE POWER
|
|
|
||
4,925,023
|
|
|
|||
|
|
||||
10
|
SHARED DISPOSITIVE POWER
|
|
|
||
None
|
|
|
|||
|
|
||||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
|
|
||
4,925,023
|
|
|
|||
|
|
||||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
|
|
☐
|
||
|
|
||||
|
|
||||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
|
||
25.9% (1)
|
|
|
|||
|
|
||||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
|
|
||
IV, CO
|
|
|
|||
|
|
ITEM 3. |
SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
|
ITEM 4. |
PURPOSE OF TRANSACTION
|
• |
if the consent of the relevant holder to the cancellation of all his or her Outstanding FSA so vested has been obtained, such holder shall be entitled, in consideration of such cancellation, to receive an amount in cash, without
interest, equal to the Offer Price in respect of each Share which would have accrued on the Outstanding FSA held by such holder, using cash provided by the Offeror (each such payment, an “FSA Payment” and the aggregate of all such
FSA Payments, the “Aggregate FSA Payment”);
|
• |
if the consent of the relevant holder to the cancellation of all his or her Outstanding FSA so vested has not been obtained, such holder shall be entitled to be issued such number of Shares accruing to such Outstanding FSA, with such
Shares to be delivered by the Company to such holder as promptly as practicable after the Acceptance Time (the “FSA Payment Issuance”); and
|
• |
subject to the occurrence of the Acceptance Time, each holder of outstanding FSA shall receive payment of $5.00 (in lieu of the Special Dividend) (the “Special Dividend Equivalent Payment”) in respect of each Share which would
have accrued on the Outstanding FSA held by such holder as at the Dividend Record Date (as defined below), using cash provided by the Company.
|
• |
organization and power to do business;
|
• |
capitalization;
|
• |
corporate power and authority, including relating to the execution, delivery and performance of the Implementation Agreement;
|
• |
consents and approvals relating to the execution, delivery and performance of the Implementation Agreement and the absence of certain violations;
|
• |
the forms, documents and reports required to be filed or furnished with the SEC,
|
• |
the accuracy of the information supplied for the purposes of the offer documents;
|
• |
the absence of certain liabilities;
|
• |
the absence of certain changes or events;
|
• |
the absence of certain actions, proceedings or orders;
|
• |
compliance with applicable laws, the provisions of anti-bribery and anti-corruption laws, and export and sanctions regulations;
|
• |
material contracts;
|
• |
tax returns and other tax matters;
|
• |
real and personal property matters, including vessel owned by the Company or its subsidiaries;
|
• |
employee benefit plans and other matters concerning employees;
|
• |
intellectual property;
|
• |
insurance policies;
|
• |
related-party arrangements;
|
• |
certain representations relating to Regulation S under the Securities Act; and
|
• |
brokers’ fees.
|
• |
organization and power to do business;
|
• |
corporate power and authority relating to the execution, delivery and performance of the Implementation Agreement;
|
• |
confirmation of sufficient financial resources or committed financing facilities to undertake and complete the Offer, to satisfy full acceptance of the Offer, the Aggregate FSA Payment and related fees and expenses in connection with the
Offer; and
|
• |
certain representations relating to Regulation S under the Securities Act.
|
(1) |
take such actions (if any) as may be required to cause the expiration of the notice or suspension periods or to obtain approvals under the applicable competition laws and other applicable laws with respect to such transactions as
promptly as practicable after the execution of the Implementation Agreement,
|
(2) |
cause the satisfaction of the conditions to the Offer,
|
(3) |
defend and seek to prevent lawsuits or other legal proceedings, whether judicial or administrative, challenging or affecting the Implementation Agreement or the transactions contemplated thereby;
|
(4) |
make registrations, filings, notifications or submissions which are necessary or required with respect to the Implementation Agreement and transactions contemplated thereby,
|
(5) |
refrain from taking certain actions that would reasonably be expected to result in any delay in obtaining, or the failure to obtain, any regulatory or other approvals required in connection with the transactions contemplated the
Implementation Agreement, or which would otherwise reasonably be expected to prevent or delay the consummation of the Offer,
|
(6) |
obtain from governmental entities and third parties any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by the Company, the Parent, or the Offeror or any of their respective subsidiaries
in connection with the authorization, execution, delivery and performance of the Implementation Agreement and the completion of the transactions contemplated thereby, and
|
(7) |
take all reasonable steps as may be necessary to obtain such consents and approvals.
|
• |
soliciting any inquiries, proposals or offers with respect to or that would reasonably be expected to lead to a Company Acquisition Proposal or engage in any discussions or negotiations with respect thereto;
|
• |
approve, or recommend, or publicly propose to approve, or recommend, any Company Acquisition Proposal;
|
• |
effectuate a Company Change of Board Recommendation;
|
• |
enter into any implementation agreement, merger agreement, acquisition agreement, letter of intent or other similar agreement providing for any Company Acquisition Proposal (other than certain confidentiality agreements), or
|
• |
resolve or agree to do any of the foregoing.
|
(a) |
a scheme of arrangement, business combination, amalgamation or other similar transaction involving acquisition of more than 50% of the issued Shares (other than Shares held in treasury),
|
(b) |
a sale, lease, license, mortgage, pledge or other disposition, directly or indirectly, by merger, consolidation, business combination, share exchange, partnership, joint venture or otherwise, of assets of the Company or its subsidiaries
representing more than 50% of the consolidated assets of the Company and its subsidiaries,
|
(c) |
an issuance or sale (including by way of scheme of arrangement, business combination, amalgamation or otherwise) of equity interests representing more than 50% of the issued Shares (other than Shares held in treasury),
|
(d) |
a tender offer or exchange offer involving acquisition of 50% of the issued Shares (other than Shares held in treasury), or
|
(e) |
any combination of the foregoing (in each case, other than the Offer).
|
(1) |
receives a written Company Acquisition Proposal which was made or renewed on or after the date of the Implementation Agreement and did not result from its breach in any material respect of the non-solicitation provisions therein, and
|
(2) |
the Company Board determines in good faith, after consultation with outside counsel and/or its financial advisor in accordance with the Implementation Agreement,
|
(A) |
that such Company Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Company Proposal and
|
(B) |
the failure to take the following actions would be inconsistent with the directors’ duties under applicable law,
|
• |
withdraw or modify (or publicly propose to withdraw or modify), in each case in a manner adverse to the Parent, the approval by the Company Board of the Implementation Agreement and the transactions contemplated thereunder, and the
recommendation of the Company Board that the Company’s stockholders tender their Shares to the Offeror pursuant to the Offer (the “Company Recommendation”);
|
• |
publicly recommend the approval or adoption of, or publicly proposes to recommend, approve or adopt any Company Acquisition Proposal;
|
• |
fail to include the Company Recommendation in the Schedule 14D-9, or to permit the inclusion of the Company Recommendation in the Offer Announcement or the Offer; or
|
• |
fail to publicly reaffirm the Company Recommendation within 10 business days after Parent so requests in writing following any public disclosure of a Company Acquisition Proposal.
|
• |
The Company must have given Parent at least five business days’ prior written notice that it intends to make a Company Change of Recommendation and/or terminate the Implementation Agreement, which notice must specify material terms and
conditions of such Superior Company Proposal;
|
• |
after providing such notice and prior to making a Change of Recommendation and/or terminating the Implementation Agreement, the Company must have negotiated in good faith with the Parent and the Offeror (to the extent the Parent
requests) during the five-business day notice period to make adjustments or amendments to the Implementation Agreement as would obviate the need for the Company to effect a Company Change of Recommendation and/or terminate the
Implementation Agreement; and
|
• |
at the end of the five-business day notice period, the Company Board must have determined in good faith, after consultation with their outside legal counsel, taking into account any changes to the Implementation Agreement proposed in
writing by Parent, that the failure of the Company Board to make a Company Change of Recommendation would continue to be reasonably likely to be inconsistent with its fiduciary obligations under applicable law.
|
• |
taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to stockholders),
|
• |
upon advice of legal counsel, complying with its fiduciary obligations under applicable law,
|
• |
making any “stop-look-and-listen” communication to shareholders of the Company pursuant to Rule 14d-9(f) and 14e-2(a) under the Exchange Act; provided that such statement shall not constitute a
Company Change of Board Recommendation; or
|
• |
taking certain action that is required on the part of the Company or the Company Board under the provisions of Rule 9.2 of the Singapore Code by the SIC, provide that such proposed action did not
result from a solicitation by the Company in violation of the provisions of the Implementation Agreement.
|
(1) |
a base salary or wage rate and cash incentive compensation opportunities (subject to certain exceptions), that, in each case, is not less than the base salary or wage rate and cash incentive compensation opportunities available to the
applicable continuing employee as of immediately prior to the Acceptance Time;
|
(2) |
retirement and health and welfare benefits (excluding severance, post-employment welfare and defined benefit pension benefits or transaction-based or other one-time payments), that are substantially comparable in the aggregate to those
provided to the applicable continuing employee immediately before the Acceptance Time; and
|
(3) |
severance and related benefits under the severance plan of the Company or its subsidiaries in existence as at the date of the Implementation Agreement, or a substantially similar plan.
|
• |
waive all eligibility waiting periods, pre-existing condition exclusions and actively-at-work requirements to the extent waived under the comparable Old Plans, and
|
• |
for purposes of applying deductible, coinsurance and out-of-pocket maximums under such New Plan, to recognize for any continuing employee and his or her covered dependents any eligible expenses incurred during the portion of the plan
year of the Old Plans ending on the date such employee’s participation in the corresponding New Plan begins.
|
(A) |
if the Offeror has not received, by the close of the Offer, Shares validly tendered and not validly withdrawn of such number which, together with Shares acquired before (or, with the approval of the Company, during) the Offer (and
including any Shares issued to the Offeror pursuant to the FSA Payment Issuance) will result in the Offeror and persons acting in concert with it holding more than 50% of the voting rights attributable to the aggregate of (x) all the Shares
in issue (other than Shares held in treasury) and (y) the number of Shares that would result from the valid vesting and settlement in full of the Company Forfeitable Shares (the “Minimum Condition”); or
|
(B) |
any of the following shall have occurred since the date of the Implementation Agreement and continue to exist:
|
(1) |
the Parent shall not have satisfied the Investment Policy Amendment Condition;
|
(2) |
the Irrevocable Instruction Condition relating to the Special Dividend shall not have been satisfied;
|
(3) |
(a) all applicable suspension periods (including any extensions thereof) relating to the Offer under the Competition Act, No. 89 of 1998 (as amended) shall not have expired or lapsed and (b) the South African Competition Commission’s
approval relating to the Offer shall not have been obtained (the “Regulatory Condition”);
|
(4) |
the Implementation Agreement shall have been terminated in accordance with its terms (the “Termination Condition”);
|
(5) |
since the date of the Implementation Agreement, any of the following shall have occurred:
|
(a) |
a material adverse change in the assets, financial condition, profits or results of operation of the Company and its subsidiaries, taken as a whole (excluding, for avoidance of doubt, the impact of the Special Dividend and certain other
dividends permitted under the Implementation Agreement);
|
(b) |
any litigation, arbitration, prosecution or other legal proceedings having been instituted, announced or threatened by or against or remaining outstanding against the Company or any of its subsidiaries which would or would reasonably be
expected to have a material adverse effect on the assets, financial condition or results of operation of the Company and its subsidiaries, taken as a whole; and/or
|
(c) |
the discovery by Parent that any financial, business, or other information concerning the Company and its subsidiaries, publicly disclosed by the Company or any of its Subsidiaries in a filing with the SEC or the JSE within the 3 years
preceding the date of this Implementation Agreement was materially misleading, contained a material misrepresentation of fact, or omitted to state a fact necessary to make the information not misleading, in each case, as at the time of such
public disclosure and which in any case is materially adverse to the assets, financial condition or results of operations of Company and its subsidiaries taken as a whole;
|
(6) |
any representation and warranty of the Company in the Implementation Agreement not being true and correct as of the date of the Implementation Agreement and immediately prior to the Expiration Time, as though made on and as of such time
(except to the extent such representation or warranty is expressly made as of a specific date or time, in which case as of such date or time), except where the failure to be so true and correct would not have or reasonably be expected to
have a material adverse effect on the assets, financial condition or results of operation of the Company and its subsidiaries, taken as a whole, and having the effect of causing a diminution of the consolidated net asset value (excluding
intangible assets and interests in joint ventures) of the Company and its subsidiaries by more than 20% as compared to the same value in the publicly disclosed consolidated balance sheet as of 30 June 2022 of the Company and its
subsidiaries; or
|
(C) |
as further provided in Annex B to the Implementation Agreement, certain other occurrences shall have arisen and continue to exist, including:
|
(1) |
certain prohibited actions by the Company concerning its equity or debt securities, including, other than otherwise permitted under the Implementation Agreement, declaration or payment of dividends or other forms of distribution to its
shareholders,
|
(2) |
any governmental order issued by any court of competent jurisdiction restraining, enjoining, preventing or otherwise prohibiting the consummation of the Offer,
|
(3) |
any criminal investigation and/or proceeding that would, or is reasonably likely to, have a material adverse effect on the assets, financial condition or results of operation of the Company and its subsidiaries taken as a whole,
|
(4) |
the winding up of, appointment of a liquidator or similar officer of, the Company or certain major subsidiaries of the Company, entering into any arrangement or general assignment or composition for the benefit of its creditors by the
Company or such subsidiaries, and
|
(5) |
all or substantially all of the Company group ceasing to carry on business in the ordinary and usual course.
|
• |
amend or waive the Minimum Condition, the Termination Condition, the Regulatory Condition and Termination Condition;
|
• |
reduce the number of Shares sought to be purchased in the Offer;
|
• |
unless otherwise permitted in the Implementation Agreement, decrease the Offer Price;
|
• |
change the form of consideration payable in the Offer;
|
• |
add to conditions to the Offer;
|
• |
extend the Offer in any manner other than in accordance with the terms of the Implementation Agreement; or
|
• |
amend or modify any of the conditions to the Offer in a manner that is adverse to the Company or the holders of Shares or in a manner not permitted by the Singapore Code.
|
• |
by the mutual written consent of the Company and Parent;
|
• |
by either the Company or Parent, if the Acceptance Time has not occurred on or before 11:59 p.m. New York City time on January 13, 2023 (the “Outside Date”); provided that the right to
terminate the Implementation Agreement pursuant to the termination provision referred to in this bullet point will not be available to a party if the failure of the Offer to have been completed on or before the Outside Date was primarily
caused by the failure of such party to perform any of its obligations under the Implementation Agreement;
|
• |
by either the Company or Parent, if an order issued prior to the Acceptance Time by a court of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting the consummation of the Offer and, in each case has become
final and non-appealable, subject to the condition that the party seeking to terminate the Implementation Agreement pursuant to this provision shall have satisfied its obligations to obtain consents and approval for, and defend and seek to
prevent any proceeding prohibiting, the consummation of the Offer or the other transactions contemplated by the Implementation Agreement;
|
• |
by Parent or the Offeror, at any time prior to the Acceptance Time, if (x) the Company Board or any committee thereof shall have effected a Company Change of Board Recommendation, or (y) the Company shall have entered into a definitive
acquisition agreement with respect to a Company Acquisition Proposal;
|
• |
by the Company, at any time prior to the Acceptance Time, in order to, immediately following or concurrently with such termination, enter into a definitive agreement with respect to a Superior Company Proposal, in accordance with and in
compliance with the non-solicitation provisions of the Implementation Agreement;
|
• |
by either Parent or the Company, if there has been a material breach by the other party of its representations, warranties or covenants contained in the Implementation Agreement such that any condition to the Offer is not reasonably
capable of being satisfied while such breach is continuing, and such breach is not capable of cure or shall not have been cured within the earlier of the Outside Date or 30 days from the date of delivery of a written notice of the breach by
the non-breaching party to the breaching party; provided, that any party shall not be permitted to terminate the Implementation Agreement pursuant to this provision if there has been any material
breach by such party of its obligations under the Implementation Agreement;
|
• |
by Parent or the Company, if the Offer shall have expired or been terminated in a circumstance in which all conditions to the Offer are satisfied or have been waived (other than the Minimum Condition and conditions which by their nature
are to be satisfied at the expiration of the Offer) following the end of the maximum 35 business day extension period permitted under the Implementation Agreement, or the Expiration Time shall not have occurred 60 calendar days after the
Commencement Time, unless otherwise agreed by the Parent and the Company with the prior written consent of the SIC; or
|
• |
by Parent or the Company, if the Investment Policy Amendment has been submitted to the Parent shareholders for approval at a duly convened Parent Shareholder Meeting and the required vote or consent from the Parent’s shareholders shall
not have been obtained at such meeting (unless such Parent Shareholder Meeting has been adjourned or postponed, in which case at the final adjournment or postponement thereof).
|
ITEM 5. |
INTEREST IN SECURITIES OF THE ISSUER
|
ITEM 6. |
CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
|
ITEM 7. |
MATERIAL TO BE FILED AS EXHIBITS
|
Implementation Agreement, dated October 11, 2022, by and among Taylor Maritime Investments Limited, Good Falkirk (MI) Limited, and Grindrod Shipping Holdings Ltd. (incorporated by reference to Exhibit 99.3 to the Form 6-K furnished by
Grindrod Shipping Holdings Ltd. on October 12, 2022).
|
|
Tender and Support Agreement, dated October 11, 2022, by and among Taylor Maritime Investments Limited, Good Falkirk (MI) Limited and Grindrod Investments Proprietary Limited.
|
|
Tender and Support Agreement, dated October 11, 2022, by and among Taylor Maritime Investments Limited, Good Falkirk (MI) Limited and Michael Hankinson.
|
|
Facility Agreement, dated October 11, 2022, among, inter alia, Good Falkirk (MI) Limited, Taylor Maritime Investments Limited, Nordea Bank ABP, Filial I Norge and Skandinaviska Enskilda Banken AB (publ),
Singapore Branch.
|
TAYLOR MARITIME INVESTMENTS LIMITED
|
|
By: /s/ Ed Buttery
|
|
Name: Ed Buttery
|
|
Title: Director
|
|
GOOD FALKIRK (MI) LIMITED
|
|
By: /s/ Alexander William Wolf Slee
|
|
Name: Alexander William Wolf Slee
|
|
Title: Duly authorized signatory for TMI Director 1 Limited, the sole director of Good Falkirk (MI) Limited
|
Taylor Maritime Investments Limited
|
|
Sarnia House, Le Truchot, St. Peter Port, Guernsey, GY1 1GR
|
|
Attention:
|
Edward Buttery, Chief Executive Officer
|
Camilla Pierrepont, Chief Strategy Officer
|
|
Email:
|
ed@tminvestments.com; cp@tminvestments.com
|
Norton Rose Fulbright US LLP
|
|
1301 Avenue of the Americas
|
|
New York, NY 10019
|
|
Attention:
|
Richard Sheen; Ted Kamman
|
Telephone:
|
+44 20 7444 3522
|
+1-212-318-3140
|
|
Email:
|
richard.sheen@nortonrosefulbright.com;
|
ted.kamman@nortonrosefulbright.com
|
Grindrod Investments Proprietary limited
|
|
c/o Baker Tilly Morrison Murray
|
|
20 Westville Road, Westville 3629
|
|
KwaZulu-Natal
|
|
South Africa
|
|
Attention:
|
Walter Grindrod
|
Telephone:
|
+27-83-253-9912
|
Email:
|
walter@grindrodandco.com
|
Fried, Frank, Harris, Shriver & Jacobson LLP
|
|
One New York Plaza
|
|
New York, NY 10004
|
|
Attention:
|
Philip Richter; Roy Tannenbaum; Joshua Wechsler
|
Telephone:
|
+1-212-859-8763
|
Email:
|
philip.richter@friedfrank.com;
|
roy.tannenbaum@friedfrank.com;
|
|
joshua.wechsler@friedfrank.com
|
PARENT:
|
|||
TAYLOR MARITIME INVESTMENTS LIMITED
|
|||
By:
|
/s/ Edward Buttery
|
||
Name:
|
Edward Buttery
|
||
Title:
|
Director
|
||
PURCHASER:
|
|||
GOOD FALKIRK (MI) LIMITED
|
|||
By:
|
/s/ Alexander William Wolf Slee
|
||
Name:
|
Alexander William Wolf Slee
|
||
Title:
|
Director, for TMI Director 1 Limited
|
||
STOCKHOLDER
|
|||
GRINDROD INVESTMENTS PROPRIETARY LIMITED
|
|||
By:
|
/s/ Walter James Grindrod
|
||
Name:
|
Walter James Grindrod
|
||
Title:
|
Chairman & CEO
|
Taylor Maritime Investments Limited
|
|
Sarnia House, Le Truchot
|
|
St Peter Port
|
|
Guernsey GY1 1 GR
|
|
Channel Islands
|
|
Attn:
|
Edward Buttery, Chief Executive Officer
|
Camilla Pierrepont, Chief Strategy Officer
|
|
Email:
|
ed@tminvestments.com; cp@tminvestments.com
|
Norton Rose Fulbright US LLP
|
|
1301 Avenue of the Americas
|
|
New York, NY 10019
|
|
Attn:
|
Richard Sheen; Ted Kamman
|
Tel:
|
+44 20 7444 3522
|
(212) 318-3140
|
|
Email:
|
richard.sheen@nortonrosefulbright.com;
|
ted.kamman@nortonrosefulbright.com
|
60 Lakewood
|
|
Theron Street
|
|
Hermanus
|
|
South Africa
|
|
Attn:
|
Michael Hankinson
|
Tel:
|
+27833905555
|
Email:
|
mhankinson@iafrica.com
|
Fried, Frank, Harris, Shriver & Jacobson LLP
|
|
One New York Plaza
|
|
New York, NY 10004
|
|
Attn:
|
Philip Richter; Roy Tannenbaum; Joshua Wechsler
|
Tel:
|
(212) 859-8763
|
Email:
|
philip.richter@friedfrank.com;
|
roy.tannenbaum@friedfrank.com;
|
|
joshua.wechsler@friedfrank.com
|
TAYLOR MARITIME INVESTMENTS
LIMITED
|
|||
By:
|
/s/ Edward Buttery
|
||
Name: Edward Buttery
|
|||
Title: Director
|
|||
GOOD FALKIRK (MI) LIMITED
|
|||
By:
|
/s/ Alexander William Wolf Slee
|
||
Name: Alexander William Wolf Slee
|
|||
Title: Director, for TMI Director 1 Limited
|
SHAREHOLDER
|
|||
By:
|
/s/ Michael Hankinson
|
||
Name:
|
Michael Hankinson
|
Clause | Page | |
Section 1 Interpretation
|
3
|
|
1
|
Definitions and Interpretation
|
3
|
Section 2 The Facilities
|
38
|
|
2
|
The Facilities
|
38
|
3
|
Purpose
|
39
|
4
|
Conditions of Utilisation
|
39
|
Section 3 Utilisation
|
43
|
|
5
|
Utilisation
|
43
|
Section 4 Repayment, Prepayment and Cancellation
|
46
|
|
6
|
Repayment
|
46
|
7
|
Prepayment and Cancellation
|
46
|
Section 5 Costs of Utilisation
|
52
|
|
8
|
Interest
|
52
|
9
|
Interest Periods
|
53
|
10
|
Changes to the Calculation of Interest
|
53
|
11
|
Fees
|
55
|
Section 6 Additional Payment Obligations
|
56
|
|
12
|
Tax Gross Up and Indemnities
|
56
|
13
|
Increased Costs
|
60
|
14
|
Other Indemnities
|
62
|
15
|
Mitigation by the Finance Parties
|
64
|
16
|
Costs and Expenses
|
65
|
Section 7 Guarantee
|
66
|
|
17
|
Guarantee and Indemnity
|
66
|
Section 8 Representations, Undertakings and Events of Default
|
69 | |
18
|
Representations
|
69 |
19
|
Information Undertakings
|
77 |
20
|
Financial Covenants
|
82 |
21
|
General Undertakings
|
83 |
22
|
Insurance Undertakings
|
91 |
23
|
General Ship Undertakings
|
97 |
24
|
Security Cover
|
102 |
25
|
Accounts and application of Earnings
|
104 |
26
|
Events of Default
|
106
|
Section 9 Changes to Parties
|
112
|
|
27
|
Changes to the Lenders
|
112
|
28
|
Changes to the Transaction Obligors and Ships
|
117
|
Section 10 The Finance Parties
|
120
|
|
29
|
The Facility Agent and the Arrangers
|
120
|
30
|
The Security Agent
|
131
|
31
|
Conduct of Business by the Finance Parties
|
146
|
32
|
Sharing among the Finance Parties
|
146
|
Section 11 Administration
|
148
|
|
33
|
Payment Mechanics
|
148
|
34
|
Set-Off
|
151
|
35
|
Bail-In
|
151
|
36
|
Notices
|
152
|
37
|
Calculations and Certificates
|
154
|
38
|
Partial Invalidity
|
154
|
39
|
Remedies and Waivers
|
154
|
40
|
Entire Agreement
|
155
|
41
|
Settlement or Discharge Conditional
|
155
|
42
|
Irrevocable Payment
|
155
|
43
|
Amendments and Waivers
|
155
|
44
|
Confidential Information
|
160
|
45
|
Confidentiality of Funding Rates
|
164
|
46
|
Counterparts
|
166
|
47
|
The Subordinated Creditor and Subordinated Liabilities
|
166
|
Section 12 Governing Law and Enforcement
|
169
|
|
48
|
Governing Law
|
169
|
49
|
Enforcement
|
169
|
50
|
Limitation on Exercise
|
170
|
Schedules
|
||
Schedule 1 The Parties
|
172
|
|
Part A The Obligors
|
172
|
|
Part B The Original Lenders
|
175
|
|
Part C The Servicing Parties
|
176
|
|
Schedule 2 Conditions Precedent
|
177
|
|
Part A Conditions Precedent
|
177
|
|
Part B Conditions Precedent to Term Loan Initial Borrowing Date and Acquisition
|
179
|
|
Part C Conditions Precedent to Top Up Initial Borrowing Date and Acquisition
|
182
|
|
Schedule 3 Utilisation Request
|
183
|
|
Schedule 4 Form of Accession Deed
|
185
|
|
Schedule 5 Form of Transfer Certificate
|
188
|
|
Schedule 6 Form of Assignment Agreement
|
191
|
|
Schedule 7 Form of Compliance Certificate
|
194
|
|
Schedule 8 Timetables
|
195
|
|
Schedule 9 Existing Ships
|
196
|
|
Execution
|
||
Execution Pages
|
197 |
THIS AGREEMENT is made on 11 October 2022 |
(1) |
GOOD FALKIRK (MI) LIMITED, a corporation incorporated in the Republic of the Marshall Islands with registered number 96379 whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as borrower (the "Borrower")
|
(2) |
TAYLOR MARITIME INVESTMENTS LIMITED, a company incorporated in Guernsey with registered number 69031 whose registered office is at Sarnia House, Le Truchot, St Peter
Port, Guernsey GY1 1GR as a guarantor (the "Corporate Guarantor")
|
(3) |
TMI HOLDCO LIMITED, a corporation incorporated in the Republic of the Marshall Islands with registered number 108363 whose registered address is at Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as a guarantor ("TMI Holdco")
|
(4) |
THE ENTITIES listed in Part A of Schedule 1 (The Parties),
each a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as
existing collateral guarantors (the "Existing Collateral Guarantors")
|
(5) |
NORDEA BANK ABP, FILIAL I NORGE and SKANDINAVISKA ENSKILDA BANKEN AB (PUBL), SINGAPORE BRANCH as mandated lead arrangers and
bookrunners (the "Arrangers")
|
(6) |
THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as lenders (the "Original
Lenders")
|
(7) |
NORDEA BANK ABP, FILIAL I NORGE, acting in such capacity through its office at Essendrops gate 7, 0368 Oslo, Norway as coordinator for the other Finance Parties (the "Coordinator ")
|
(8) |
NORDEA BANK ABP, FILIAL I NORGE, acting in such capacity through its office at Essendrops gate 7, 0368 Oslo, Norway as agent for the other Finance Parties (the "Facility Agent")
|
(9) |
NORDEA BANK ABP, FILIAL I NORGE, acting in such capacity through its office at Essendrops gate 7, 0368 Oslo, Norway as agent for the other Finance Parties (the "Security Agent")
|
(A) |
a senior secured term loan facility in a principal amount not exceeding $163,330,000; and
|
(B) |
a non-amortizing senior secured top up term loan facility in a principal amount not exceeding $45,000,000 (and which, when aggregated with the senior secured term loan facility referred to in paragraph (A)
above, shall not exceed $208,330,000),
|
(i) |
part-finance consideration payable for the Acquisition, and the payment of fees, costs, expenses and other Taxes incurred on or behalf of any Obligor in connection with the Acquisition, the Finance Documents,
and the Acquisition Documents; or
|
(ii) |
refinance any funds paid out by the Borrower out of its own funds to acquire any Target Shares in excess of $100,000,000.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
Berenberg Bank;
|
(b) |
The Hongkong and Shanghai Banking Corporation Limited, acting through its office at 1 Queen’s Road Central, Hong Kong; or
|
(c) |
any replacement bank or other financial institution as may be approved by the Facility Agent acting with the authorisation of the Majority Lenders.
|
(a) |
the Acquisition Agreement(s) (if applicable);
|
(b) |
the Offer Documents; and
|
(c) |
any other document designated as an "Acquisition Document" by the Facility Agent and the Borrower (including, if and when applicable, any documents required to effect the
Squeeze-Out Procedure).
|
(a) |
the amount of its participation in the outstanding Advances under that Facility; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any other Advance that is due to be made under that Facility on or before the proposed Utilisation Date.
|
(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 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; and
|
(c) |
in relation to the United Kingdom, the UK Bail-In Legislation.
|
(a) |
the interest (other than 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 the Loan or an Unpaid Sum to the last day of the
current Interest Period in relation to the Loan, the relevant part of the Loan or that Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period
|
(b) |
the amount which that Lender 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.
|
(a) |
the date on which the Offer lapses or is withdrawn in accordance with the Singapore Takeover Code;
|
(b) |
the date which is 30 days after the later of (A) the Unconditional Date and (B) the date on which the Offer has closed for further acceptances or, in each case, if the Borrower has issued the requisite
notices to the shareholders of the Target within 30 days of such date, such longer period as is necessary to complete the Squeeze-Out Procedure; and
|
(c) |
the end of the Availability Period.
|
(b) |
any material change in the executive management of the Corporate Guarantor as a whole from that notified to the Facility Agent at the date of this Agreement and which impacts the ability of the Group to carry on
its normal business operations;
|
(c) |
an Approved Commercial Manager ceases to be the commercial manager of the Collateral Guarantors; and/or
|
(d) |
Taylor Maritime Group Limited ceases to be owned, directly or indirectly, at least 50 per cent. by the Buttery Family,
|
(a) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
(i) |
cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of the Corporate Guarantor; or
|
(ii) |
appoint or remove all, or the majority, of the directors or other equivalent officers of the Corporate Guarantor; or
|
(iii) |
give directions with respect to the operating and financial policies of the Corporate Guarantor with which the directors or other equivalent officers of the Corporate Guarantor are obliged to comply; and/or
|
(b) |
the holding beneficially of more than 50 per cent. of the issued shares of the Corporate Guarantor (excluding any issued shares that carry no right to participate beyond a specified amount in a distribution of
either profits or capital).
|
(a) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
(i) |
cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of Target; or
|
(ii) |
appoint or remove all, or the majority, of the directors or other equivalent officers of Target; or
|
(iii) |
give directions with respect to the operating and financial policies of Target with which the directors or other equivalent officers of Target are obliged to comply; and/or
|
(b) |
the holding beneficially of more than 50 per cent. of the issued shares of Target (excluding any issued shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital).
|
(a) |
the Existing Collateral Guarantors, each a wholly owned (directly or indirectly) Subsidiary of the Corporate Guarantor owning the Existing Collateral Vessel set out against its name in Schedule 9 (Existing Ships); and
|
(b) |
any wholly owned (directly or indirectly) Subsidiary of the Corporate Guarantor which owns a Ship and which may become a Collateral Guarantor in accordance with Clause 28 (Changes
to the Transaction Obligors),
|
(a) |
any member of the Group, the Target Group or any of its advisers; or
|
(i) |
information that:
|
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 44 (Confidential Information); or
|
(B) |
is identified in writing at the time of delivery as non-confidential by any member of the Group, 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; and
|
(ii) |
any Funding Rate.
|
(a) |
in relation to an Interest Period of 1 Month or less, 0.11448 per cent.; and
|
(b) |
in relation to an Interest Period of greater than 1 Month, 0.26161 per cent..
|
(b) |
which has otherwise rescinded or repudiated a Finance Document; or
|
(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
|
(ii) |
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(a) |
a custody account in the name of the Borrower with account no. 40-25434-004 held with Berenberg Bank where, as at the date of this Agreement, 595,443 of the Existing
Shares are held in the name of the Borrower;
|
(b) |
a securities account in the name of the Borrower with account no. D 0715060112 held with Computershare, where, as at the date of
this Agreement, 4,329,580 of the Existing Shares are held in the name of the Borrower; or
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(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, if applicable, any Transaction Obligor; 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 or, if applicable, any Transaction Obligor preventing
that, or any other, Party or, if applicable, any Transaction Obligor:
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
(ii) |
from communicating with other Parties or, if applicable, any Transaction Obligor in accordance with the terms of the Finance Documents,
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Facility Agent, pooled or shared with any other person:
|
(i) |
all freight, hire and passage moneys;
|
(ii) |
the proceeds of the exercise of any lien on sub-freights;
|
(iii) |
compensation payable to a Collateral Guarantor or the Security Agent in the event of requisition of that Ship for hire or use;
|
(iv) |
remuneration for salvage and towage services;
|
(v) |
demurrage and detention moneys;
|
(vi) |
without prejudice to the generality of sub-paragraph (i) above, damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship;
|
(vii) |
all moneys which are at any time payable under any Insurances in relation to loss of hire;
|
(viii) |
all monies which are at any time payable to a Collateral Guarantor in relation to general average contribution; and
|
(b) |
if and whenever that Ship is employed on terms whereby any moneys falling within sub-paragraphs (i) to (viii) of paragraph (a) above are pooled or shared with any other person, that proportion of the net
receipts of the relevant pooling or sharing arrangement which is attributable to that Ship.
|
(a) |
an account in the name of that Collateral Guarantor with the relevant Account Bank designated "Earnings Account";
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(a) |
any release, emission, spill or discharge of Environmentally Sensitive Material whether within a Ship or 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, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water 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 potentially liable to be arrested, attached,
detained or injuncted and/or a Ship and/or any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water otherwise than from a
Ship and in connection with which a Ship is actually or potentially liable to be arrested and/or where any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or
administrative action.
|
(a) |
as at the date of this Agreement, 4,925,023 ordinary shares in Target held by the Borrower in the relevant Deposit Account; and
|
(b) |
any additional ordinary shares acquired by the Borrower in Target and held in a Deposit Account in the period after the date of this Agreement and immediately prior to the Closing Date.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(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.
|
(b) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding
required by FATCA.
|
(a) |
this Agreement;
|
(b) |
any Fee Letter;
|
(c) |
the Cash Proceeds Letter;
|
(d) |
the Yield Side Letter;
|
(e) |
each Utilisation Request;
|
(f) |
any Security Document;
|
(g) |
any Manager's Undertaking;
|
(h) |
any Subordination Agreement;
|
(i) |
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or
|
(j) |
any other document designated as such by the Facility Agent and the Borrower.
|
(a) |
moneys borrowed;
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d) |
the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to
market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
|
(h) |
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
(i) |
the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
prior to the date falling 90 days after the Borrower has acquired at least 90% of the Target Shares, the Corporate Guarantor and its Subsidiaries for the time being, but excluding Target and its Subsidiaries;
and
|
(b) |
on and after the date falling 90 days after the Borrower has acquired at least 90% of the Target Shares, the Corporate Guarantor and its Subsidiaries for the time being, including Target and its Subsidiaries.
|
(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;
|
(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 exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking
Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
|
(g) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
(h) |
seeks or becomes subject to the appointment of an administrator, provisional 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);
|
(j) |
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 (i) above; or
|
(k) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
(a) |
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in relation to that Ship, that Ship's Earnings or otherwise in relation
to that Ship; and
|
(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium.
|
(a) |
either
|
(i) |
the applicable Term SOFR (as of the Specified Time) for the longest period (for which Term SOFR is available) which is less than the Interest Period of the Loan or that part of the Loan; or
|
(ii) |
if no such Term SOFR is available for a period which is less than the Interest Period of the Loan or that part of the Loan, SOFR for the day which is two US Government Securities Business Days) before the
Quotation Day; and
|
(b) |
the applicable Term SOFR (as of the Specified Time) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of the Loan or that part of the Loan.
|
(a) |
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting
the rights of creditors;
|
(b) |
the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or
counterclaim;
|
(c) |
similar principles, rights and defences under the laws of any Relevant Jurisdiction; and
|
(d) |
any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinion delivered pursuant to Clause 4 (Conditions
of Utilisation).
|
(a) |
any Original Lender;
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a "Lender" in accordance with Clause 27 (Changes to the Lenders),
|
(a) |
Clause 26.2 (Non-payment);
|
(b) |
Clause 26.3 (Specific obligations) insofar as it relates to a breach of Clause 23.12 (Use of Proceeds);
|
(c) |
Clause 26.5 (Misrepresentation) insofar as it relates to a breach of any Major Representation;
|
(d) |
Clause 26.7 (Insolvency);
|
(e) |
Clause 26.8 (Insolvency proceedings);
|
(f) |
Clause 26.9 (Creditors' process);
|
(g) |
Clause 26.11 (Unlawfulness, invalidity and ranking); or
|
(h) |
Clause 26.16 (Repudiation and rescission of agreements) unless the rescission or repudiation of the Transaction Document(s) does not prevent the Acquisition from
proceeding.
|
(a) |
Clause 18.2 (Status) to Clause 18.8 (Validity and admissibility in evidence) inclusive provided that all representations or
warranties made under Clause 18.4 (Binding obligations), 18.6 (Non-conflict with other obligations) and 18.8 (Validity and
admissibility in evidence) shall be limited to “Finance Documents”;
|
(b) |
Clause 18.34 (Sanctions); or
|
(c) |
Clause 18.36 (Anti-corruption).
|
(a) |
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66⅔ per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender
or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66⅔ per cent. of the Loan immediately before such repayment.
|
(a) |
3.10 per cent. per annum in respect of the Term Loan Facility; or
|
(b) |
3.85 per cent. per annum in respect of the Top Up Facility or any other amounts.
|
(a) |
the business, operations, property or financial condition of any member of the Group or the Group as a whole; or
|
(b) |
the ability of any Obligor to perform its payment obligations under any Finance Document; or
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended 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.
|
(a) |
(subject to paragraph (c) 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;
|
(b) |
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
|
(c) |
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.
|
(a) |
a first priority mortgage on that Ship together with a collateral Deed of Covenants; or
|
(b) |
a first preferred ship mortgage on that Ship,
|
(a) |
an account in the name of the Borrower with account no. 05-25434-007 held with Berenberg Bank, designated as “Non-Settlement Account”;
|
(b) |
any other account in the name of the Borrower with Berenberg Bank or any other Account Bank which may, with the prior written consent of the Facility Agent, be opened
in the place of the account referred to in paragraph (a) above, irrespective of the number or designation of such replacement account; or
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(a) |
the Offer Announcement;
|
(b) |
the GO Offer Document and any other document(s) which may be issued by or on behalf of the Borrower to holders of Target Shares in relation to the Offer (and if applicable, the Squeeze-Out Procedure), and any
amendments, revisions, supplements or updates thereto from time to time;
|
(c) |
the Irrevocable Undertakings; or
|
(d) |
any other documents designated as such by the Facility Agent and the Borrower.
|
(a) |
which is a time, voyage or consecutive voyage charter;
|
(b) |
in connection with, or which is to be used for the purpose of entering that Ship into, a pool or any other pooling arrangement;
|
(c) |
the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 36 months plus a redelivery allowance of not more than 30 days;
|
(d) |
which is entered into on bona fide arm's length terms at the time at which that Ship is fixed; and
|
(e) |
in relation to which not more than two months' hire is payable in advance,
|
(a) |
any Financial Indebtedness incurred under the Finance Documents;
|
(b) |
any Financial Indebtedness incurred pursuant to the up to $160,000,000 (increased from originally $120,000,000) revolving credit facilities agreement dated 5 May 2021 (as amended, restated, supplemented or
varied from time to time) and made between, amongst others, TMI Holdco as borrower and Nordea Bank Abp, Filial i Norge as facility agent and security agent (the “$160m Facilities Agreement”); and
|
(c) |
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents pursuant to this Agreement, a Subordination Agreement or otherwise.
|
(a) |
Security created by the Finance Documents;
|
(b) |
liens for unpaid master's and crew's wages in accordance with first class ship ownership and management practice and not being enforced through arrest;
|
(c) |
liens for salvage;
|
(d) |
liens for master's disbursements incurred in the ordinary course of trading in accordance with first class ship ownership and management practice and not being enforced through arrest; and
|
(e) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Ship:
|
(i) |
not as a result of any default or omission by any Obligor;
|
(ii) |
not being enforced through arrest; and
|
(iii) |
subject, in the case of liens for repair or maintenance, to Clause 23.16 (Restrictions on chartering, appointment of managers etc.),
|
(a) |
a representation and warranty that such New Lender, sub-participant or successor is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act, a "qualified purchaser" within the meaning
of Section 2(a)(51) of the U.S. Investment Company Act of 1940, and an "accredited investor" as defined in Section 2(a)(15)(ii) of the Securities Act and is entering into the relevant transfer, sub-participation or assignment as principal
and not for the benefit of any third party;
|
(b) |
a representation that such New Lender, sub-participant or successor is not the Borrower or Target or an "affiliate" (within the meaning of Rule 144) of the Borrower or Target;
|
(c) |
an acknowledgment that such New Lender, sub-participant or successor fully understands any restrictions on transfers, sales and other dispositions in the Finance Documents or relating to any Collateral
consisting of the Existing Shares and other securities;
|
(d) |
an acknowledgment that such New Lender, sub-participant or successor is able to bear the economic risk of its investment in its participation in, or relating to, this Agreement and is currently able to afford a
complete loss of such investment;
|
(e) |
a covenant that such New Lender, sub-participant or successor will only assign or transfer any of its rights and interests under this Agreement or, as applicable, sell its participation or participations therein
pursuant to documentation including such Purchaser Representations;
|
(f) |
an acknowledgement by such New Lender, sub-participant or successor that the Existing Shares and other securities forming part of the Collateral cannot be sold without registration under the Securities Act or
under an available exemption from the registration requirements under the Securities Act, including, if available, the exemption provided by Rule 144;
|
(g) |
an acknowledgment that such New Lender, sub-participant or successor is not entering into such transfer, assignment or sub participation on the basis of any material non-public information with respect to any of
the Borrower, Target, their respective subsidiaries and their securities, and, if applicable, it has implemented reasonable policies and procedures, taking into consideration the nature of its business, to ensure that individuals making
investment decisions would not violate the laws prohibiting trading on the basis of material non-public information (it being understood that such New Lender, sub-participant or successor may have material non-public information on the
private side of its information wall, sometimes referred to as a "Chinese Wall," at the time of such transfer, assignment or sub participation); provided that, for the avoidance of doubt, "material non-public information” with respect to
any of the Borrower, Target, their respective subsidiaries and their securities shall not include any information made available to both the assignee and the assignor, both the transferee and the transferor or both the sub participant and
the seller of a participation interest, as the case may be; and
|
(h) |
an acknowledgment that it has made an independent decision to enter into the relevant transfer, assignment or sub participation based on information available to it, which it has determined adequate for the
purpose.
|
(a) |
the applicable Term SOFR as of the Specified Time and for a period equal in length to the Interest Period of the Loan or that part of the Loan; or
|
(b) |
as otherwise determined pursuant to Clause 10.1 (Unavailability of Term SOFR),
|
(a) |
its Original Jurisdiction;
|
(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is situated;
|
(c) |
any jurisdiction where it conducts its business; and
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a) |
any expropriation, confiscation, requisition (excluding a requisition for hire or use which does not involve a requisition for title) or acquisition of that Ship, whether for full consideration, a consideration
less than its proper value, a nominal consideration or without any consideration, which is effected (whether de jure or de facto) by any government or
official authority or by any person or persons claiming to be or to represent a government or official authority; and
|
(b) |
any capture or seizure of that Ship (including any hijacking or theft) by any person whatsoever.
|
(a) |
the target of any Sanctions;
|
(b) |
located, organised or resident in a country or territory that is the target of Sanctions that broadly prohibit dealings with that country or territory (currently, Crimea, Cuba, Iran, North Korea and Syria); or
|
(c) |
directly or indirectly owned or controlled by, or acting on behalf of, a person referred to in (a) or (b).
|
(a) |
a breach by an Obligor of any obligations under Clause 23.12 (Use of Proceeds);
|
(b) |
the representation made or deemed to be made by an Obligor in Clause 18.34 (Sanctions) is or proves to have been incorrect or misleading when made or deemed to be made;
or
|
(c) |
a Transaction Obligor or, following the Closing Date, Target is or becomes a Restricted Party.
|
(a) |
any Shares Security;
|
(b) |
any Mortgage;
|
(c) |
any General Assignment;
|
(d) |
any Account Security;
|
(e) |
any Deposit Account Security;
|
(f) |
any other document (whether or not it creates Security) which is executed as security for the Secured Liabilities; or
|
(g) |
any other document designated as such by the Facility Agent and the Borrower.
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b) |
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction
Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;
|
(c) |
the Security Agent's interest in any turnover trust created under the Finance Documents;
|
(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on
trust for the Secured Parties,
|
(i) |
rights intended for the sole benefit of the Security Agent; and
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
(a) |
as long as the Grindrod Shares are listed on NASDAQ, the NASDAQ share price of the Grindrod Shares capped at 75% (other than in relation to the determination of “Adjusted Equity” as set out in Clause 20 (Financial covenants)) of the value weighted average price of the Grindrod Shares over the preceding 10 trading days multiplied by the number of Grindrod Shares owned by the Borrower;
|
(b) |
following a de-listing of the Grindrod Shares from NASDAQ but not JSE, the JSE share price of the Grindrod Shares capped at 75% (other than in relation to the determination of “Adjusted Equity” as set out in
Clause 20 (Financial covenants)) of the value weighted average price of the Grindrod Shares over the preceding 10 trading days multiplied by the number of Grindrod Shares owned by the Borrower; or
|
(c) |
following a de-listing of the Grindrod Shares from NASDAQ and the JSE, the net asset value of the Grindrod Shares.
|
(a) |
Once the Borrower owns or controls 100% of the Grindrod Shares, a document creating Security over the Grindrod Shares executed or to be executed (as the case may be) by the Borrower in favour of the Security
Agent;
|
(b) |
In relation to the Borrower, a document creating Security over the shares in the Borrower executed or to be executed (as the case may be) by TMI Holdco in favour of the Security Agent; and
|
(c) |
in relation to a Collateral Guarantor, a document creating Security over the shares in that Collateral Guarantor executed or to be executed (as the case may be) by TMI Holdco in favour of the Security Agent,
|
(a) |
the Existing Ships; and
|
(b) |
any Additional Ship which may become subject to Security for any Advance pursuant to this Agreement in accordance with Clause 28.3 (Ships),
|
(a) |
by an Approved Valuer appointed by the Borrower;
|
(b) |
(c) |
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any Charter.
|
(a) |
a Subordinated Loan Agreement; and
|
(b) |
any other document relating to or evidencing Subordinated Liabilities.
|
(a) |
any and all rate swap transactions, basis swaps, credit derivative transactions, total return swaps, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity
index swaps or options, bond or bond price or bond index swaps or options, or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to
enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement; and
|
(b) |
any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement.
|
(a) |
as at the date of this Agreement, 14,071,470 ordinary shares in Target (excluding the Existing Shares);
|
(b) |
any additional shares in Target immediately prior to the Closing Date, including shares vested under management incentive schemes; and
|
(c) |
all warrants and options in respect of the share capital of Target immediately prior to the Closing Date.
|
(a) |
in respect of m.v. "Graceful Gertrude", m.v. "Majestic Marina", m.v. "Lady Laura", m.v. "Mighty Maud" and m.v. "Assay", the form of agreement attached to the Framework Agreement regarding the technical
management of the relevant Ship by an Approved Technical Manager; and
|
(b) |
in respect of m.v. "Dally", m.v. "Bald Eagle", m.v. "Lovely Leah" and m.v. "Merry Marie" (previously known as "Golden Bonnie"), each of the agreements entered into between the relevant Collateral Guarantor and
the relevant Approved Technical Manager regarding the technical management of the relevant Ship by that Approved Technical Manager.
|
(a) |
in respect of the Term Loan Facility, the date falling 18 months after the Term Loan Initial Borrowing Date; and
|
(b) |
in respect of the Top Up Facility, the date falling 364 days after the Term Loan Initial Borrowing Date,
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading "Term Loan Commitment" in Part B of Schedule 1 (The Parties) and the amount of any
other Term Loan Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Term Loan Commitment transferred to it under this Agreement,
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading "Top Up Commitment" in Part B of Schedule 1 (The Parties) and the amount of any
other Top Up Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Top Up Commitment transferred to it under this Agreement,
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of that Ship; or
|
(b) |
any Requisition of that Ship unless that Ship is returned to the full control of the relevant Collateral Guarantor within 30 days of such Requisition.
|
(a) |
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:
|
(i) |
the date on which a notice of abandonment is given (or deemed or agreed to be given) to the insurers; and
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the relevant Collateral Guarantor with that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and
|
(c) |
in the case of any other type of Total Loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
|
(a) |
a Finance Document;
|
(b) |
a Subordinated Finance Document;
|
(c) |
an Acquisition Document;
|
(d) |
any other document designated as such by the Facility Agent and the Borrower.
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a) |
an account in the name of the Borrower held with Berenberg Bank with
account no. 05-25434-031 and designated "USD Settlement Account";
|
(b) |
any other account in the name of the Borrower with Berenberg Bank which may, with the prior written consent of the Facility Agent, be opened in the place of the account
referred to in paragraph (a) above, irrespective of the number or designation of such replacement account; or
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(a) |
a Saturday or a 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.
|
(a) |
a person which is resident for tax purposes in the US; or
|
(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a) |
any value added tax imposed by the Value Added Tax Act 1994;
|
(b) |
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
|
(c) |
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) |
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 any other applicable Bail-In Legislation other than the UK 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; and
|
(c) |
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.
|
(a) |
(b) |
any other account in the name of Borrower with FRB which may, with the prior written consent of the Facility Agent, be opened in the place of the account referred to
in paragraph (a) above, irrespective of the number or designation of such replacement account; or
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the "Account Bank", the "Arrangers", the "Facility Agent", any "Finance Party", any "Lender", the "Coordinator"
any "Obligor", any "Party", any "Secured Party", the "Security Agent", any "Transaction Obligor" or any other person 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 liability which is "contingent" means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
(iv) |
"document" includes a deed and also a letter, fax, email or telex;
|
(v) |
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
(vi) |
a Lender's "cost of funds" in relation to its participation in the Loan or any part of the Loan is a reference to the average cost (determined either on an actual or a
notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in the Loan or that part of the Loan for a period equal in length to
the Interest Period of the Loan or that part of the Loan;
|
(viii) |
a "group of Lenders" includes all the Lenders;
|
(ix) |
"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;
|
(x) |
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the
European Union, the European Commission, the United Nations or its Security Council;
|
(xi) |
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective
measure;
|
(xii) |
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);
|
(xiii) |
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 regulatory, self-regulatory or other authority or organisation;
|
(xiv) |
a provision of law is a reference to that provision as amended or re-enacted from time to time;
|
(xv) |
a time of day is a reference to London time;
|
(xvi) |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England,
be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
(xvii) |
words denoting the singular number shall include the plural and vice versa; and
|
(xviii) |
"including" and "in particular" (and other similar expressions) shall be construed as not
limiting any general words or expressions in connection with which they are used.
|
(b) |
The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that
Interest Period being determined pursuant to the terms of this Agreement.
|
(c) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(d) |
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.
|
(e) |
A Potential 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.
|
1.3 |
Construction of insurance terms
|
1.4 |
Agreed forms of Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where Clause 43.2 (All Lender matters)
applies, all the Lenders.
|
1.5 |
Third party rights
|
(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 Receiver, Delegate, Affiliate or any other person described in paragraph (d) of Clause 14.2 (Other indemnities), paragraph (b) of Clause 29.11 (Exclusion of liability) or paragraph (b) of Clause 30.11 (Exclusion of liability) may,
subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.
|
2 |
THE FACILITIES
|
2.1 |
The Facilities
|
(a) |
a dollar term loan facility in an aggregate amount not exceeding the Term Loan Commitment; and
|
(b) |
a dollar top up term loan facility in an aggregate amount not exceeding the Top Up Commitment.
|
2.2 |
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 a Transaction
Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party
under the Finance Documents and, for the avoidance of doubt, any part of the Loan or any other amount owed by a Transaction Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document
(including any such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Transaction Obligor.
|
(c) |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
2.3 |
Guarantors' Agent
|
(a) |
The Corporate Guarantor, TMI Holdco and each of the Existing Collateral Guarantors by their execution of this Agreement and each additional Collateral Guarantor by its execution of an Accession Deed irrevocably
appoints the Borrower 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, to make such agreements and to effect the
relevant amendments, supplements and variations capable of being given, made or effected by any Guarantor notwithstanding that they may affect that Guarantor, without further reference to or the consent of that Collateral Guarantor; and
|
(ii) |
each Finance Party to give any notice, demand or other communication to that Guarantor pursuant to the Finance Documents to the Borrower, and in each case each Guarantor shall be bound as though that Guarantor
itself had given the notices and instructions 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 Borrower or given to the Borrower under any Finance Document
on behalf of a Guarantor or in connection with any Finance Document (whether or not known to any Guarantor) shall be binding for all purposes on that Guarantor as if that Guarantor had expressly made, given or concurred with it. In the
event of any conflict between any notices or other communications of the Borrower and any Guarantor, those of the Borrower shall prevail.
|
3 |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
on the date of each Utilisation Request and on the proposed Utilisation Date and before the relevant Advance is made available:
|
(i) |
no Default is continuing or would result from the proposed Advance;
|
(ii) |
the Repeating Representations to be made by each Obligor are true in all material respects;
|
(iii) |
the Group is in compliance with Clause 20 (Financial Covenants) determined by reference to the most recent financial statements delivered to the Facility Agent pursuant
to Clause 19.2 (Financial statements);
|
(iv) |
no Change of Control Event has occurred; and
|
(v) |
no circumstance shall have occurred (and neither the Facility Agent nor any of the Lenders shall have become aware of any condition or circumstance not previously known to them) in respect of the Corporate
Guarantor which either Facility Agent or the Lenders determine has, or is reasonably likely to have, a Material Adverse Effect;
|
(b) |
in the case of the first Advance under the Term Loan Facility on the Term Loan Initial Borrowing Date:
|
(i) |
the Advance does not exceed the lower of (A) $163,330,000 and (B) 55% of the aggregate of the Shares Market Value of the Grindrod Shares owned by the Borrower and the Ship Market Value of each Ship then subject
(or to be subject) to a Mortgage;
|
(ii) |
the Facility Agent has received evidence in form and substance satisfactory to the Facility Agent that the Unconditional Date has occurred or will occur by the proposed Utilisation Date; and
|
(iii) |
the Facility Agent has received, or is satisfied that it will receive, on or before the Term Loan Initial Borrowing Date, all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent to Term Loan Initial Borrowing Date and Acquisition) in form and substance satisfactory to the Facility Agent;
|
(c) |
in the case of any subsequent Advance under the Term Loan Facility the relevant Advance, when aggregated with any other Advance already made under this Agreement under the Term Loan Facility, does not exceed the
lower of (A) $163,330,000 and (B) 55% of the aggregate of the Shares Market Value of the Grindrod Shares owned by the Borrower and the Ship Market Value of each Ship then subject (or to be subject) to a Mortgage;
|
(d) |
in the case of the first Advance under the Top Up Facility on the Top Up Initial Borrowing Date:
|
(i) |
the Term Loan Initial Borrowing Date has occurred;
|
(ii) |
the Facility Agent has received evidence in form and substance satisfactory to the Facility Agent that the Borrower will own or control at least 90% of the Grindrod Shares within six (6) Business Days after the
Top Up Initial Borrowing Date;
|
(iii) |
the Advance, when aggregated with all Advances made under the Term Loan Facility, does not exceed the lower of (A) $208,330,000 and (B) 55% of the aggregate of the Shares Market Value of the Grindrod Shares
owned by the Borrower and the Ship Market Value of each Ship then subject (or to be subject) to a Mortgage; and
|
(iv) |
the Facility Agent has received, or is satisfied that it will receive, on or before the Top Up Initial Borrowing Date, all of the documents and other evidence listed in Part C of Schedule 2 (Conditions Precedent to Top Up Initial Borrowing Date and Acquisition) in form and substance satisfactory to the
Facility Agent; and
|
(e) |
in the case of any subsequent Advance under the Top Up Facility the relevant Advance, when aggregated with any other Advance already made under this Agreement, does not exceed the lower of (A) $208,330,000 and
(B) 55% of the aggregate of the Shares Market Value of the Grindrod Shares owned by the Borrower and the Ship Market Value of each Ship then subject (or to be subject) to a Mortgage.
|
4.3 |
Ship conditions precedents
|
4.4 |
Notification of satisfaction of conditions precedent
|
(b) |
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, the Lenders authorise
(but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
4.5 |
Utilisations during the Certain Funds Period
|
(i) |
no Major Default is continuing or would result from the proposed Utilisation;
|
(ii) |
all the Major Representations are true;
|
(iii) |
neither the Borrower nor the Corporate Guarantor (A) is a Restricted Party or would become a Restricted Party as a result of the proposed Utilisation or (B) is in breach of any Sanctions applicable to it which
breach has not been remedied; and
|
(iv) |
the proposed Utilisation would not result in any of the Finance Parties being in breach of, or made subject to, Sanctions.
|
(b) |
During the Certain Funds Period (save in circumstances where, pursuant to paragraph (a) above, a Lender is not obliged to comply with Clause 5.4 (Lenders' participation)
and subject as provided in Clause 7.1 (Illegality), none of the Finance Parties shall be entitled to:
|
(i) |
cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
|
(ii) |
rescind, terminate or cancel this Agreement or any part of any Facility or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have to the extent to do so would
prevent or limit the making of a Certain Funds Utilisation;
|
(iii) |
refuse to participate in the making of a Certain Funds Utilisation;
|
(iv) |
exercise any right of set-off or counterclaim in respect of a Utilisation to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
|
(v) |
cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document to the extent to do so would prevent or limit the making of a Certain Funds
Utilisation,
|
4.6 |
Waiver of conditions precedent
|
5 |
UTILISATION
|
5.1 |
Delivery of a Utilisation Request
|
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 relevant Facility to be utilised;
|
(ii) |
the proposed Utilisation Date is a day (other than a Saturday or Sunday) on which banks are open for general business in Oslo, Singapore, Stockholm and New York within the Availability Period;
|
(iii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
|
(iv) |
all applicable deductible items (if any) have been specified by the Borrower;
|
(v) |
the proposed Interest Period complies with Clause 9 (Interest Periods); and
|
(vi) |
it specifies the relevant Settlement Accounts (it being acknowledged that in case of the ZAR Settlement Account, the relevant part of the Utilisation will flow via the Nostro Account) and/or the Nostro Account
and/or, if applicable, the Non-Settlement Account, as the account or accounts into which the amount, or any part, of the Utilisation should be paid.
|
(b) |
Only one Advance may be requested in each Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in a Utilisation Request must be dollars.
|
(b) |
Subject to paragraph (c) below, the amount of the proposed Advance:
|
(i) |
under each Facility must be a minimum of $10,000,000 or such lower amount as approved by the Facility Agent;
|
(ii) |
must, in case of the first Advance under a Facility if the Borrower requires a Utilisation under that Facility to settle any acceptances (or expected acceptances) to the Offer in respect of Target Shares listed
on the JSE, be in an amount of no more than $25,000,000 but no less than the amount referred to in Clause 5.3(b)(i) (Currency and amount)) and, in case of all other Advances under either Facility,
not exceed an amount equal to the aggregate of:
|
(A) |
the amount to satisfy all acceptances to the Offer received by the Borrower on or prior to the date of the relevant Utilisation Request which remain unsettled by the proposed Utilisation Date; and
|
(B) |
an amount to satisfy any acceptance or acceptances of the Offer which the Borrower in good faith believes to receive within three (3) Business Days of the date of the relevant Utilisation Request; and
|
(C) |
an amount of not more than $10,000,000 (or such higher amount as approved by the Facility Agent) (the “Overdrawn Amount”).
|
(c) |
The amount of the proposed Advance must be an amount which is not more than the Available Facility.
|
(d) |
The amount of the proposed Advance must be an amount which would not oblige the Borrower to provide additional security or prepay part of the Advance if the Collateral Maintenance Ratio set out Clause 24.1 (Minimum required security cover) were applied and notice was given by the Facility Agent under Clause 24.1 (Minimum required security cover) immediately after
the Advance was made provided that in case of any Certain Funds Utilisation, if the Collateral Maintenance Ratio set out in Clause 24.1 (Minimum required security
cover) were applied and notice was given by the Facility Agent under Clause 24.1 (Minimum required security cover) immediately after the Advance was made, the Borrower shall within 30 days
of such notice either prepay part of the Advance or, at the Borrower’s election, provide additional security which satisfies the criteria set out in paragraph (b) of Clause 24.2 (Provision of additional
security; prepayment) to eliminate any shortfall.
|
5.4 |
Confirmation of acceptances to Offer on Utilisation Date
|
5.5 |
Lenders' participation
|
(a) |
If the conditions set out in this Agreement have been met, and subject to Clause 6.1 (Repayment of Advances under a Facility) each Lender shall make its participation in
each Advance available by the Utilisation Date through its Facility Office.
|
(b) |
The amount of each Lender's participation in each Advance will be equal to the proportion borne by its Available Commitment to the Available Facility immediately before making that Advance.
|
(c) |
The Facility Agent shall notify each Lender of the amount of each Advance and the amount of its participation in that Advance under a Facility.
|
5.6 |
Cancellation of Commitments
|
5.7 |
Retentions and payment to third parties
|
5.8 |
Disbursement of Advance to third party
|
5.9 |
Prepositioning of funds
|
(a) |
agrees to pay interest on the amount of the funds so prepositioned at the rate described in Clause 8.1 (Calculation of interest) on the basis of successive interest
periods of one day and so that interest shall be paid together with the first payment of interest on such Advance after the Utilisation Date in respect of it or, if such Utilisation Date does not occur, within three Business Days of
demand by the Facility Agent; and
|
(b) |
shall, without duplication, indemnify each Finance Party against any costs, loss or liability it may incur in connection with such arrangement.
|
6 |
REPAYMENT
|
6.1 |
Repayment of Term Loan Facility and Top Up Facility
|
(a) |
the Term Loan Facility by equal consecutive quarterly instalments (each a "Repayment Instalment"), each (subject
to the proviso below) in an amount equal to the lesser of (a) $25,000,000 and (b) 15% of the total outstanding Term Loan Facility borrowed under this Agreement, the first of which shall be repaid on the date falling nine (9) Months
after the Term Loan Initial Borrowing Date and the last on the relevant Termination Date, provided that in case of a prepayment pursuant to
Clauses 7.5 (Mandatory prepayment on sale or Total Loss of a Ship), 7.7 (Mandatory prepayment on incurrence of Financial
Indebtedness), 7.8 (Mandatory prepayment on issuance of equity), 7.9 (Dividend yield), 7.10 (Mandatory prepayment on payment of dividends by Target) and 7.11 (Mandatory prepayment on prepayment of Target Financial Indebtedness)
50% of the proceeds from such prepayment shall be applied to reduce the relevant Repayment Instalment(s) in order of maturity and the relevant Repayment Instalment(s) shall be adjusted accordingly; and
|
(b) |
6.2 |
Termination Date
|
6.3 |
Reborrowing
|
7 |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(a) |
that Lender may, at its discretion, at any time notify the Facility Agent upon becoming aware of that event;
|
(b) |
upon the Facility Agent notifying the Borrower, each Available Commitment of that Lender will be immediately cancelled; and
|
(c) |
the Borrower shall prepay that Lender's participation in each part of the Loan on the last day of the Interest Period for that part of the Loan occurring after the Facility Agent has notified the Borrower or, if
earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law, including any general license or other exception to Sanctions)
and that Lender's corresponding Commitment shall be immediately cancelled in the amount of the participation prepaid.
|
7.2 |
Change of control
|
(a) |
If a Change of Control Event occurs without the Majority Lenders' prior written consent:
|
(i) |
the Borrower shall promptly notify the Facility Agent upon becoming aware of that event; and
|
(ii) |
if the Majority Lenders so require, the Facility Agent shall, by not less than 30 days' notice to the Borrower, cancel the Facilities and declare the Loan, together with accrued interest, and all other amounts
accrued under the Finance Documents immediately due and payable, whereupon the Facilities will be cancelled and the Loan and all such outstanding interest and other amounts will become immediately due and payable.
|
7.3 |
Voluntary cancellation
|
7.4 |
Voluntary prepayment of Loan
|
(a) |
Subject to paragraph (b) and (c) below, the Borrower may, if it gives the Facility Agent not less than five Business Days' (or such shorter period as the Majority Lenders and the Facility Agent may agree) prior
notice, prepay the whole or any part of an Advance under a Facility (but, if in part, being an amount that reduces the amount of the relevant Advance by a minimum amount of $2,500,000).
|
(b) |
There may be no more than two voluntary prepayments in part of the Loan made in each 12-month period beginning on the Term Loan Initial Borrowing Date unless the relevant prepayment is made at the end of an
Interest Period relating to the Loan or the relevant part of the Loan (as applicable).
|
7.5 |
Mandatory prepayment on sale or Total Loss of a Ship
|
(i) |
in case of a Ship, subject to sub-paragraph (ii), an amount which is equal to the net sale proceeds or insurance proceeds relating to such sale or Total Loss (as the case may be); or
|
(iii) |
in case of any other ship owned by a member of the Group, any surplus amount remaining after the net sale proceeds or insurance proceeds relating to such sale or Total Loss (as the case may be) have been applied
in or towards the repayment of any Permitted Financial Indebtedness relating to such ship.
|
(c) |
Provided that no Default has occurred and is continuing, any remaining proceeds of the sale or Total Loss of a Ship after the prepayments referred to in paragraph (a) and paragraph (b) above have been made
together with all other amounts that are payable on any such prepayment pursuant to the Finance Documents shall be paid to the Collateral Guarantor that owned the relevant Ship.
|
(d) |
In this Clause 7.5 (Mandatory prepayment on sale or Total Loss of a Ship), "Relevant Date"
means:
|
(i) |
in the case of a sale of a Ship, on the date on which the sale is completed by delivery of that Ship to the buyer of that Ship; and
|
(ii) |
in the case of a Total Loss of a Ship, on the earlier of:
|
(A) |
the date falling 90 days after the Total Loss Date; and
|
(B) |
the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.6 |
Mandatory prepayment on sale of Grindrod Shares
|
(a) |
If the Grindrod Shares owned by the Borrower are sold, transferred, leased or otherwise disposed of (without prejudice to paragraph (a) of Clause 21.12 (Disposals)), the
Borrower shall on the Share Sale Date, prepay the Loan relating to the Term Loan Facility by an amount equal to the net sale proceeds.
|
(b) |
In this Clause 7.6 (Mandatory prepayment on sale or Total Loss of Grindrod Shares), "Share Sale Date"
means the date on which the sale, transfer, lease or disposal of the Grindrod Shares is completed by payment of the consideration to the seller of the Grindrod Shares.
|
7.7 |
Mandatory prepayment on incurrence of Financial Indebtedness
|
7.8 |
Mandatory prepayment on issuance of equity
|
7.9 |
Dividend yield
|
7.10 |
Mandatory prepayment on payment of dividends by Target
|
(a) |
Subject to Clause 6.1 (Repayment of Term Loan Facility and Top Up Facility) and sub-paragraph (b) below, if Target declares, makes or pays any dividend (save for the
Special Dividend), charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) to the Borrower on or in respect of the Grindrod Shares owned by the Borrower, the
Borrower shall, within three (3) Business Days of such dividend, charge, fee or other distribution having been declared, made or paid, prepay the Term Loan Facility on a dollar-for-dollar basis.
|
(b) |
No prepayment shall be required pursuant to sub-paragraph (a) above if the Borrower distributes or pays as a dividend to the Corporate Guarantor an amount equal to the dividend, charge, fee or other distribution
(or interest on any unpaid dividend, charge, fee or other distribution) referred to in paragraph (a) above.
|
(c) |
In this Clause 7.10, “Special Dividend” means any special dividend that, if declared by the Target board of directors in connection with a recommended Offer, is paid to all shareholders of the
Target (including the Borrower as holder of the Existing Shares) and which shall be in an amount of at least $5 per share.
|
7.11 |
Mandatory prepayment on prepayment of Target Financial Indebtedness
|
(a) |
scheduled repayments or reductions of Financial Indebtedness;
|
(b) |
prepayments in connection with the refinancing of Financial Indebtedness on similar terms; or
|
(c) |
prepayments in connection with the refinancing of existing leasing transactions with conventional debt and/or new leasing transactions, provided that any refinancing for lower amounts shall be subject to the
prior written approval of the Majority Lenders,
|
7.12 |
Mandatory Prepayment of Top Up Facility
|
7.13 |
Mandatory Prepayment at close of Offer
|
7.14 |
Right of replacement or repayment and cancellation in relation to a single Lender
|
(a) |
If:
|
(ii) |
any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs); or
|
(iii) |
the Facility Agent receives notification from a Lender under Clause 10.2 (Market disruption),
|
(A) |
whilst in the case of sub-paragraphs (i) and (ii) above the circumstance giving rise to the requirement for that increase or indemnification continues; or
|
(B) |
whilst in the case of sub-paragraph (iii) above the situation in relation to the relevant Lender continues,
|
(b) |
On receipt of a notice of cancellation referred to in paragraph (a) above, any Commitment of that Lender shall immediately be 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 in relation to a Lender (or, if earlier, the date specified by the Borrower in
that notice), the Borrower shall repay that Lender's participation in the relevant Advances.
|
7.15 |
Restrictions
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and Cancellation) 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, the amount of that cancellation or prepayment and, if relevant, the part of the Loan to be prepaid or cancelled.
|
(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.
|
(c) |
The Borrower may not reborrow any part of the Facility which is prepaid.
|
(d) |
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated unless otherwise approved by all of the Lenders and the Facility Agent.
|
(f) |
If the Facility Agent receives a notice under this Clause 7 (Prepayment and Cancellation) it shall promptly forward a copy of that notice to either the Borrower or the
affected Lenders, as appropriate.
|
(g) |
If all or part of any Lender's participation in an Advance is repaid or prepaid, an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) in respect of the
relevant Facility will be deemed to be cancelled on the date of repayment or prepayment.
|
7.16 |
Application of prepayments
|
8 |
INTEREST
|
8.1 |
Calculation of interest
|
(a) |
Margin;
|
(b) |
Reference Rate; and
|
(c) |
Credit Adjustment Spread.
|
8.2 |
Payment of interest
|
(a) |
The Borrower shall pay accrued interest on the Loan or any part of the Loan on the last day of each Interest Period.
|
(b) |
If an Interest Period is longer than six Months, the Borrower shall also pay interest then accrued on the Loan or the relevant part of the Loan on the dates falling at six Monthly intervals after the first day
of the Interest Period.
|
8.3 |
Default interest
|
(b) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
8.4 |
Notification of rates of interest
|
(a) |
The Facility Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.
|
(b) |
The Facility Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan, any part of the Loan or any Unpaid Sum.
|
9 |
INTEREST PERIODS
|
9.1 |
Selection of Interest Periods
|
(a) |
The Borrower may select the Interest Period for each Advance under a Facility in the Utilisation Request for that Advance. An Advance under a Facility has one Interest Period only which shall start on its
Utilisation Date.
|
(b) |
If the Borrower fails to select an Interest Period in the relevant Utilisation Request the relevant Interest Period will be three Months.
|
(c) |
The Borrower may select an Interest Period of one or three Months or any other period agreed between the Borrower, the Facility Agent and the Lenders.
|
(d) |
An Interest Period in respect of an Advance under a Facility shall not extend beyond the Termination Date.
|
(e) |
No Interest Period shall be longer than six Months.
|
(f) |
The first Interest Period for a Facility shall start on the first Utilisation Date in respect of that Facility and, subject to paragraph (g) below, each subsequent Interest Period shall start on the last day of
the preceding Interest Period.
|
(g) |
The first Interest Period for the second and any subsequent Advance under a Facility shall start on the Utilisation Date of such Advance and end on the last day of the Interest Period applicable to the relevant
Facility on the date on which such Advance is made.
|
9.2 |
Non-Business Days
|
10 |
CHANGES TO THE CALCULATION OF INTEREST
|
10.1 |
Unavailability of Term SOFR
|
(a) |
Interpolated Term SOFR: If no Term SOFR is available for the Interest Period of the Loan or any part of the Loan, the applicable Reference Rate shall be the Interpolated
Term SOFR for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
(c) |
Cost of funds: If paragraph (b) above applies but no Term SOFR is available for the applicable Fallback Interest Period or the Interest Period is shorter than the
applicable Fallback Interest Period, there shall be no Reference Rate for the Loan or that part of the Loan (as applicable) and Clause 10.3 (Cost of funds) shall apply to the Loan or that part of
the Loan for that Interest Period.
|
10.2 |
Market disruption
|
10.3 |
Cost of funds
|
(a) |
(i) |
the relevant Margin; and
|
(c) |
Subject to Clause 43.4 (Changes to reference rates), any substitute or 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 paragraph (e) below does not apply and any rate notified to the Facility Agent under sub-paragraph (ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
(e) |
If this Clause 10.3 (Cost of funds) applies pursuant to Clause 10.2 (Market disruption) and:
|
(i) |
a Lender's Funding Rate is less than the relevant Market Disruption Rate; or
|
(ii) |
a Lender does not supply a rate to the Facility Agent by the time specified in sub-paragraph (ii) of paragraph (a) above,
|
(f) |
If this Clause 10.3 (Cost of funds) applies but any Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above, the rate of
interest shall be calculated on the basis of the rates notified by the remaining Lenders.
|
10.4 |
Break Costs
|
(a) |
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (if any) attributable to all or any part of the Loan or Unpaid Sum being paid by the
Borrower on a day before the last day of an Interest Period for the Loan, the relevant part of the Loan or that Unpaid Sum.
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in respect of which they become,
or may become, payable.
|
11 |
FEES
|
11.1 |
Commitment fee
|
(a) |
The Borrower shall pay to the Facility Agent (for the account of each Lender) a fee computed at the rate of 30 per cent. per annum of the relevant Margin on that Lender's Available Commitment in respect of each
Facility from time to time for the Commitment Fee Period applicable to that Facility.
|
(b) |
The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the Commitment Fee Period, on the last day of the Commitment Fee Period and, if cancelled, on the
cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
|
(c) |
In this Clause 11.1 (Commitment fee), "Commitment Fee Period" means, in respect of a Facility, the period from and including 23
August 2022 to and including, the earlier of (a) the date of cancellation of any unutilised Commitments or when the relevant Lender's Commitment equals zero and (b) 17 March 2023.
|
12 |
TAX GROSS UP AND INDEMNITIES
|
12.1 |
Definitions
|
(a) |
In this Agreement:
|
(b) |
Unless a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference to "determines" or "determined" means a determination made in the
absolute discretion of the person making the determination.
|
12.2 |
Tax gross-up
|
(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 Facility Agent accordingly.
Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(d) |
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.
|
(e) |
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 Facility 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.
|
12.3 |
Tax indemnity
|
(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,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 12.2 (Tax gross-up); or
|
(B) |
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 Facility Agent of the event which will give, or has given, rise to the claim, following which the
Facility Agent shall notify the Obligors.
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.
|
12.4 |
Tax Credit
|
(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 received; and
|
(b) |
that Finance Party has obtained and utilised that Tax Credit,
|
12.5 |
Stamp taxes
|
12.6 |
VAT
|
(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).
|
(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 of it 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.
|
(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.
|
12.7 |
FATCA Information
|
(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; and
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of 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.
|
(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 sub-paragraphs (i) or (ii) of paragraph (a) 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.
|
12.8 |
FATCA Deduction
|
(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 each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
13 |
INCREASED COSTS
|
13.1 |
Increased costs
|
(a) |
Subject to Clause 13.3 (Exceptions), the Borrower shall, within three Business Days of a demand by the Facility 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,
|
(iii) |
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV.
|
(b) |
In this Agreement:
|
(i) |
"Basel III" means:
|
(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".
|
(ii) |
"CRD IV" means:
|
(A) |
(B) |
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, as amended by Directive (EU) 2019/878; and
|
(C) |
any other law or regulation which implements Basel III.
|
(iii) |
"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,
|
13.2 |
Increased cost claims
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which
the Facility Agent shall promptly notify the Borrower.
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3 |
Exceptions
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b) |
attributable to a FATCA Deduction required to be made by a Party;
|
(c) |
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);
|
(d) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(e) |
attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on
Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) ("Basel II") or any other law or regulation which
implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).
|
14 |
OTHER INDEMNITIES
|
14.1 |
Currency indemnity
|
(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; or
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(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.
|
14.2 |
Other indemnities
|
(a) |
Each Obligor shall, on demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i) |
the occurrence of any Default and/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 32 (Sharing among the Finance Parties);
|
(iii) |
funding, or making arrangements to fund, its participation in an Advance 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 Secured Party alone); or
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
(i) |
the Acquisition or the funding of the Acquisition (including but not limited to those incurred in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the
Acquisition);
|
(ii) |
any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the entry into and the transactions contemplated by the Finance Documents
|
(iii) |
having the benefit of any Security constituted by the Finance Documents;
|
(iv) |
or which relates to the condition or operation of, or any incident occurring in relation to, any Ship
|
(c) |
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any
jurisdiction:
|
(i) |
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
(ii) |
in connection with any Environmental Claim.
|
(e) |
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (Other indemnities) subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
14.3 |
Indemnity to the Facility Agent
|
(a) |
any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of:
|
(i) |
investigating any event which it reasonably believes is a Default or a Sanctions Event; or
|
(ii) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
(iii) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents; and
|
(b) |
any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross
negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 33.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross
negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents.
|
14.4 |
Indemnity to the Security Agent
|
(a) |
Each Obligor shall, on demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability (including, without limitation, for negligence or any other category of liability
whatsoever) incurred by any of them:
|
(i) |
in relation to or as a result of:
|
(A) |
any failure by the Borrower to comply with its obligations under Clause 16 (Costs and Expenses);
|
(B) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
(C) |
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
(D) |
the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
(E) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
(F) |
any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and
|
(G) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents.
|
(ii) |
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance
Documents (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b) |
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to
give effect to the indemnity in this Clause 14.4 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security
for all monies payable to it.
|
15 |
MITIGATION BY THE FINANCE PARTIES
|
15.1 |
Mitigation
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Transaction Obligor under the Finance Documents.
|
15.2 |
Limitation of liability
|
(a) |
Each Obligor shall, on demand, 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:
|
(i) |
a Default has occurred and is continuing;
|
(ii) |
in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it; or
|
(iii) |
a Finance Party determines in its absolute discretion that to do so in case of a Sanctions Event constitutes or is reasonably likely to constitute a breach of Sanctions.
|
16 |
COSTS AND EXPENSES
|
16.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement or in a Security Document; and
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
16.2 |
Amendment costs
|
(a) |
an Obligor requests an amendment, waiver or consent; or
|
(b) |
an amendment is required either pursuant to Clause 33.9 (Change of currency) or as contemplated in Clause 43.4 (Changes to reference
rates); or
|
(c) |
an Obligor requests, and the Security Agent agrees to, the release of all or any part of the Security Assets from the Transaction Security,
|
16.3 |
Enforcement and preservation costs
|
17 |
GUARANTEE AND INDEMNITY
|
17.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by each other Obligor of all such other 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 by the Facility
Agent pay that amount as if it were 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 by the Facility Agent 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 (Guarantee and Indemnity)
if the amount claimed had been recoverable on the basis of a guarantee.
|
17.2 |
Continuing guarantee
|
17.3 |
Reinstatement
|
17.4 |
Waiver of defences
|
(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;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing 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 any Finance Document or any other document or security including, without
limitation, any change in the purpose of, any extension of or any 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.
|
17.5 |
Immediate recourse
|
(a) |
Each Guarantor waives any right it may have of first requiring any Secured 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 (including without limitation to commence any proceedings under any Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 17 (Guarantee
and Indemnity). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
|
(b) |
Each Guarantor acknowledges the right of the Facility Agent pursuant to Clause 26.19 (Acceleration) to enforce or direct the Security Agent to enforce or exercise any or
all of its rights, remedies powers or discretions under any guarantee or indemnity contained in this Agreement.
|
17.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured 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 (Guarantee and Indemnity).
|
17.7 |
Deferral of Guarantors' rights
|
(a) |
to be indemnified by an Obligor;
|
(b) |
to claim any contribution from any third party providing security for, or 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 Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to,
or in connection with, the Finance Documents by any Secured 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 Secured Party.
|
17.8 |
Additional security
|
17.9 |
Applicability of provisions of Guarantee to other Security
|
18 |
REPRESENTATIONS
|
18.1 |
General
|
18.2 |
Status
|
(a) |
The Corporate Guarantor is a company, duly incorporated and validly existing in good standing under the law of its Original Jurisdiction.
|
(b) |
Each of the Borrower, TMI Holdco and each Collateral Guarantor is a corporation, duly incorporated and validly existing in good standing under the law of its Original Jurisdiction.
|
(c) |
The Corporate Guarantor and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
18.3 |
Share capital and ownership
|
(a) |
The legal title to and beneficial interest in the shares in TMI Holdco is held directly by the Corporate Guarantor free of any Security or any other claim, third party rights or competing interests.
|
(b) |
The legal title to and beneficial interest in the shares in the Borrower is held directly by TMI Holdco free of any Security (except for Permitted Security) or any other claim, third party rights or competing
interests.
|
(c) |
The legal title to and beneficial interest in the shares in each Collateral Guarantor is held directly by TMI Holdco free of any Security (except for Permitted Security) or any other claim, third party rights or
competing interests.
|
(d) |
Prior to the Term Loan Initial Borrowing Date, the beneficial interest in the Existing Shares in Target is held directly by the Borrower free of any Security (except for Permitted Security) or any other claim,
third party rights or competing interests.
|
(e) |
None of the shares in the Borrower or any Collateral Guarantor is subject to any option to purchase, pre-emption rights or similar rights.
|
(f) |
Subject to paragraph (g) below, all Grindrod Shares held and acquired by the Borrower on and following the Closing Date:
|
(i) |
are free of any Security (except for Permitted Security), any other claim, third party rights or competing interests; and
|
(ii) |
are or will, upon such shares being registered in the name of the Borrower in the register of members of the Target, be legally and beneficially owned by the Borrower free of any Security (except for Permitted
Security), any other claim, third party rights or competing interests.
|
(g) |
The Grindrod Shares held and acquired by the Borrower on and following the Closing Date are beneficially owned by the Borrower and the legal title of those shares will pass on to the Borrower upon such shares
being registered in the register of shareholders of Target, and such registration will be made within five Business Days after the delisting of the Target has occurred.
|
(h) |
Of the Existing Shares, 4,329,580 Grindrod Shares were acquired (within the meaning of Rule 144(d)(1) promulgated under the Securities Act) by the Borrower on January 28, 2022, and the remainder of the Existing
Shares were acquired in open market transactions on and through the NASDAQ and JSE.
|
(i) |
The Existing Shares acquired in open market transactions are not subject to any restrictions on transfer other than those arising solely from Borrower’s status as an “affiliate” as defined in Rule 144 under the
Securities Act and are not “restricted securities” within the meaning of Rule 144 promulgated under the Securities Act. The Existing Shares do not and will not contain any restrictive legends and do not require any opinions from counsel,
or the removal of any “stop transfer order,” or the delivery of any documentation (other than as set forth in this Agreement) prior to, or in connection with, the sale of the Grindrod Shares, and (iii) are not and will not be subject to
any shareholders’ agreement, investor rights agreement, lock up agreement or any other similar agreement or any voting or other contractual restriction, other than pursuant to this Agreement. The Borrower will use commercially reasonable
efforts to procure that any restrictive legends are removed, if any, from any Existing Shares as soon as practicable following the date which is six months after the acquisition of such shares by the Borrower.
|
(j) |
The Existing Shares are not certificated and are either:
|
(i) |
registered in the name of The Depository Trust Company's nominee, maintained in the form of book entries on the books of The Depository Trust Company and allowed to be settled through The Depository Trust
Company's regular book-entry settlement services; or
|
(ii) |
held in the Deposit Account referred to in paragraph (b) of the definition of “Deposit Account” in the name of the Borrower; and
|
(k) |
The Borrower made a payment of the full purchase price (within the meaning of Rule 144(d)(1)(iii) of the Securities Act) therefor and took full risk of economic loss thereon on the date it acquired each of the
Existing Shares.
|
18.4 |
Binding obligations
|
18.5 |
Validity, effectiveness and ranking of Security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery create, subject to the Legal Reservations and 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 (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c) |
Subject to the Legal Reservations and the Perfection Requirements, the Transaction Security granted by it to the Security Agent or any other Secured 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) |
No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security.
|
18.6 |
Non-conflict with other obligations
|
(a) |
The entry into and performance by it of, and the transactions contemplated by, each Transaction Document to which it is a party do not and will not conflict with:
|
(i) |
any law or regulation applicable to it;
|
(ii) |
its constitutional documents; or
|
(iii) |
any agreement or instrument binding upon it or any member of the Group or any member of the Group's assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.7 |
Power and authority
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i) |
its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those Transaction Documents;
|
(ii) |
in the case of each Collateral Guarantor, its registration of the Ship under its Approved Flag.
|
(b) |
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Transaction Documents to which it is a party.
|
18.8 |
Validity and admissibility in evidence
|
(a) |
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
|
(b) |
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions, have been obtained or effected and are in full force and effect.
|
18.9 |
Governing law and enforcement
|
(a) |
Subject to the Legal Reservations, the choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b) |
Subject to the Legal Reservations, any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognised and
enforced in its Relevant Jurisdictions.
|
18.10 |
Insolvency
|
(a) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 26.8 (Insolvency proceedings); or
|
(b) |
creditors' process described in Clause 26.9 (Creditors' process),
|
18.11 |
No filing or stamp taxes
|
18.12 |
Deduction of Tax
|
18.13 |
No default
|
(a) |
No Event of Default is continuing or is reasonably expected to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
(b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries or
to which its (or any of its Subsidiaries') assets are subject which might have a Material Adverse Effect.
|
18.14 |
No misleading information
|
(a) |
Any factual information provided to a Finance Party by any member of the Group for the purposes of this Agreement and/or in connection with the Acquisition was true and accurate in all material respects as at
the date it was provided or as at the date (if any) at which it is stated.
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in any such information being untrue or misleading in any material respect.
|
18.15 |
Financial Statements
|
(a) |
There has been no material adverse change in its assets, business or financial condition (or the assets, business or consolidated financial condition of the Group, in the case of the Corporate Guarantor) since
its date of incorporation.
|
(b) |
Its most recent financial statements delivered pursuant to Clause 19.2 (Financial statements):
|
(i) |
have been prepared in accordance with Clause 19.4 (Requirements as to financial statements); and
|
(ii) |
give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition as at the end of the relevant financial year and operations during the relevant financial year.
|
(c) |
Since the date of the most recent financial statements delivered pursuant to Clause 19.2 (Financial statements) there has been no material adverse change in its business,
assets or financial condition (or the business or financial condition of the Group taken as a whole).
|
18.16 |
Pari passu ranking
|
18.17 |
No proceedings pending or threatened
|
(a) |
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) of or before any
court, arbitral body or agency which, if adversely determined, are reasonably likely to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against
any Obligor.
|
(b) |
No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which are reasonably likely to have a Material Adverse Effect has (to
the best of its knowledge and belief (having made due and careful enquiry)) been made against any Obligor.
|
18.18 |
No rebates etc.
|
18.19 |
Valuations
|
(b) |
It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer.
|
(c) |
There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such information was provided and the date of that valuation which, in
either case, renders that information untrue or misleading in any material respect.
|
18.20 |
No breach of laws
|
18.21 |
No Charter
|
18.22 |
Compliance with Environmental Laws
|
18.23 |
No Environmental Claim
|
18.24 |
No Environmental Incident
|
18.25 |
ISM and ISPS Code compliance
|
18.26 |
Taxes paid
|
(a) |
It is not materially overdue in the filing of any Tax returns and it is not overdue in the payment of any amount in respect of Tax.
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes.
|
18.27 |
Financial Indebtedness
|
18.28 |
Overseas companies
|
18.29 |
Good title to assets
|
18.30 |
Ownership
|
(a) |
The relevant Collateral Guarantor will be the sole legal and beneficial owner of its Ship, its Earnings and its Insurances.
|
(b) |
With effect on and from the date of its creation or intended creation, each Transaction Obligor will be the sole legal and beneficial owner of any asset that is the subject of any Transaction Security created or
intended to be created by such Transaction Obligor.
|
(c) |
The constitutional documents of each Obligor do not and could not restrict or inhibit any transfer of the shares of the Collateral Guarantors on creation or enforcement of the security conferred by the Security
Documents.
|
18.31 |
Centre of main interests and establishments
|
18.32 |
Place of business
|
18.33 |
No employee or pension arrangements
|
18.34 |
Sanctions
|
18.35 |
US Tax Obligor
|
18.36 |
Anti-Corruption
|
18.37 |
No immunity
|
18.38 |
Private and commercial acts
|
18.39 |
Acquisition Documents, disclosures and other Documents
|
(a) |
The Acquisition Documents contain all the terms of the Acquisition.
|
(b) |
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.
|
18.40 |
Holding Companies
|
18.41 |
Bona fide pledge
|
18.42 |
Investment company
|
18.43 |
Repetition
|
19 |
INFORMATION UNDERTAKINGS
|
19.1 |
General
|
19.2 |
Financial statements
|
(d) |
by no later than 31 January each year, a two year budget and consolidated cash flow projections of the Group in a format reasonably acceptable to the Facility Agent; and
|
(e) |
if at any time the Target is neither a member of the Group nor listed on NASDAQ or the JSE:
|
(i) |
within 160 days after the end of each of its financial years (to the extent they are made available to the Borrower by then) or, otherwise, as soon as possible thereafter but in any event within 180 days after
the end of each of its financial years, the unaudited financial statements of the Target for that financial year;
|
(ii) |
as soon as the same become available, but in any event within 90 days after the end of each half of each of its financial years provided that the Target is required to prepare them, the unaudited semi-annual
financial statements of the Target for that financial half year; and
|
(iii) |
as soon as the same become available, but in any event within 90 days after the end of each quarter of each of its financial years provided that the Target is required to prepare them, the unaudited quarterly
financial statements of the Target.
|
19.3 |
Compliance Certificate
|
(a) |
The Borrower shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a) and (b) or, if applicable, paragraph (c) of Clause 19.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with:
|
(i) |
Clause 20 (Financial Covenants); and
|
(ii) |
the Collateral Maintenance Ratio set out in Clause 24.1 (Minimum required security cover),
|
(b) |
Each Compliance Certificate shall be signed by two directors of the Corporate Guarantor or the Chief Financial Officer of the Group.
|
19.4 |
Requirements as to financial statements
|
(a) |
Each set of financial statements delivered by the Borrower pursuant to Clause 19.2 (Financial statements) shall be certified by a director or an officer, as applicable,
of the relevant company as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition and operations as at the date as at which those financial statements were drawn up.
|
(b) |
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 19.2 (Financial statements) is prepared using GAAP unless, in relation to
any set of financial statements, it notifies the Facility Agent that there has been a change in GAAP and its auditors deliver to the Facility Agent:
|
(i) |
a description of any change necessary for those financial statements to reflect the GAAP; and
|
(ii) |
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants)
has been complied with.
|
19.5 |
DAC6
|
(a) |
(b) |
The Borrower shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests):
|
(i) |
promptly upon the making of such analysis or the obtaining of such advice, any analysis made or advice obtained on whether any transaction contemplated by the Transaction Documents or any transaction carried out
(or to be carried out) in connection with any transaction contemplated by the Transaction Documents contains a hallmark as set out in Annex IV of DAC6; and
|
(ii) |
promptly upon the making of such reporting and to the extent permitted by applicable law and regulation, any reporting made to any governmental or taxation authority by or on behalf of any member of the Group or
by any adviser to such member of the Group in relation to DAC6 or any law or regulation which implements DAC6 and any unique identification number issued by any governmental or taxation authority to which any such report has been made (if
available).
|
19.6 |
Information: miscellaneous
|
(a) |
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach
of the ISM Code or of the ISPS Code) which are current, threatened or pending against any member of the Group, and which, if adversely determined, are reasonably likely to have a Material Adverse Effect;
|
(c) |
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral tribunal body or agency which is made against any member of the Group and which might have a Material Adverse
Effect;
|
(d) |
promptly, its constitutional documents where these have been amended or varied;
|
(e) |
promptly, such further information and/or documents regarding:
|
(i) |
each Ship, goods transported on each Ship, its Earnings and its Insurances and any intended dry docking of a Ship;
|
(ii) |
the Security Assets;
|
(iii) |
compliance of the Obligors with the terms of the Finance Documents;
|
(iv) |
the financial condition, business and operations of any member of the Group,
|
(f) |
promptly upon becoming aware of the relevant claim, the details of any claim which is current, threatened or pending against any Vendor selling more than 5% of the Target Shares or any other person in respect of
the Acquisition Documents if such claim will prevent the Borrower from acquiring the relevant Target Shares;
|
(g) |
promptly, such information and/or documents regarding the Borrower’s shareholding in Target, including (but not limited to) evidence that the Borrower has applied all amounts borrowed by it under the Facilities
only for the purpose stated in the preamble (Background) to this Agreement, as any Finance Party (through the Facility Agent) may reasonably request;
|
(i) |
promptly, such information and/or documents in respect of each Settlement Account, including (but not limited to) an account statement regarding any cash balance held in each such Settlement Account, as any
Finance Party (through the Facility Agent) may reasonably request; and
|
(j) |
promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it or as may
be required by any regulatory authority.
|
19.7 |
Notification of Default
|
(a) |
Each Obligor shall notify the Facility Agent of any Default (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 Facility Agent, each Obligor shall supply to the Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
19.8 |
Notification of Sanctions Event
|
19.9 |
Use of websites
|
(a) |
Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders (the "Website Lenders")
which accept this method of communication by posting this information onto an electronic website designated by the Borrower and the Facility Agent (the "Designated Website") if:
|
(i) |
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(ii) |
both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii) |
the information is in a format previously agreed between the relevant Obligor and the Facility Agent.
|
(b) |
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors or any of them
and the Facility Agent.
|
(c) |
An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
(i) |
the Designated Website cannot be accessed due to technical failure;
|
(ii) |
the password specifications for the Designated Website change;
|
(iii) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v) |
if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
(d) |
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligors shall comply
with any such request within 10 Business Days.
|
19.10 |
"Know your customer" checks
|
(a) |
If:
|
(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;
|
(iii) |
a proposed assignment or 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 assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Party (for itself) in order
for that Servicing Party 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.
|
20 |
FINANCIAL COVENANTS
|
20.1 |
Financial covenants
|
(a) |
Adjusted Equity ratio: an Adjusted Equity of:
|
(i) |
no less than 35% of the sum of the liabilities and Adjusted Equity on and from the Term Loan Initial Borrowing Date until (and including) the First Anniversary Date; and
|
(ii) |
no less than 40% of the sum of the liabilities and Adjusted Equity thereafter throughout the remainder of the Security Period; and
|
(a) |
the total equity presented in the Group's most recent consolidated financial statements and/or management accounts delivered to the Facility Agent pursuant to Clause 19.2 (Financial
statements) by adjusting the vessels' book values to their current market values obtained through Approved Valuers; and
|
(b) |
without double counting and where at the relevant time the Target is not a member of the Group, the Shares Market Value.
|
(a) |
cash in hand or held with banks or financial institutions of the Group in dollars or another currency freely convertible in dollars, which is free of any Security (except for Permitted Security, Security granted
in respect of the $160 Facilities Agreement and/or where such funds are otherwise freely available);
|
(b) |
any cash equivalent of the Group; and
|
(c) |
any marketable securities of the Group which are free of any Security (except for Permitted Security),
|
21 |
GENERAL UNDERTAKINGS
|
21.1 |
General
|
21.2 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Facility Agent of,
|
(i) |
perform its obligations under the Transaction Documents to which it is a party;
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of each Ship, of any Transaction Document to which it is a
party; and
|
(iii) |
own and operate each Ship (in the case of the Collateral Guarantors).
|
21.3 |
Compliance with laws
|
21.4 |
Environmental compliance
|
(a) |
comply with all Environmental Laws;
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals;
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
21.5 |
Environmental Claims
|
(a) |
any Environmental Claim against any member of the Group which is current, pending or threatened; and
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group,
|
21.6 |
Taxation
|
(a) |
Each Obligor shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties 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 Facility Agent under Clause 19.2 (Financial statements); and
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b) |
No Obligor shall change its residence for Tax purposes.
|
21.7 |
Overseas companies
|
21.8 |
No change to centre of main interests
|
21.9 |
Pari passu ranking
|
21.10 |
Title
|
(a) |
Each relevant Collateral Guarantor holds the legal title to, and owns the entire beneficial interest in, its Ship, its Earnings and its Insurances.
|
(b) |
With effect on and from its creation or intended creation, each Obligor shall hold the legal title to, and own the entire beneficial interest in any other assets the subject of any Transaction Security created
or intended to be created by such Obligor.
|
21.11 |
Negative pledge
|
(a) |
No Transaction 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 Collateral Guarantor shall:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
(c) |
Paragraphs (a) and (b) above do not apply to any Permitted Security and paragraph (b) above does not apply to:
|
(i) |
any sale or a disposal of a Ship where the provisions of Clause 7.5 (Mandatory prepayment on sale or Total Loss of a Ship) are complied with; and
|
(ii) |
any release of a Collateral Guarantor from its obligations under the Finance Documents to which it is a party in accordance with this Agreement.
|
(d) |
The Obligors shall procure that:
|
(i) |
except as set out in sub-paragraph (ii) below, the owner of the m.v. “Sun Aquamarine”, Good Yeoman (MI) Limited, shall not create or permit to subsist any Security over the m.v. “Sun Aquamarine” during the
Security Period; and
|
(ii) |
if it is possible for the m.v. “Sun Aquamarine” to leave Ukraine during the Security Period and provided that the m.v. “Sun Aquamarine” is not subject to any Sanctions and Good Yeoman (MI) Limited is not a
Restricted Party, Good Yeoman (MI) Limited shall promptly, following the completion of any required dry-odcking following the departure of the m.v. “Sun Aquamarine” from Ukraine, accede as a Collateral Guarantor to this Agreement in
accordance with Clause 28.5 (Collateral Guarantors) and that Good Yeoman (MI) Limited shall provide Security over the m.v. “Sun Aquamarine” in accordance with Clause 28.3 (Ships).
|
21.12 |
Disposals
|
(b) |
Paragraph (a) above does not apply to:
|
(i) |
any Charter as all Charters are subject to Clause 23.16 (Restrictions on chartering, appointment of managers etc.);
|
(ii) |
any sale or a disposal of a Ship where the provisions of Clause 7.5 (Mandatory prepayment on sale or Total Loss of a Ship) are complied with;
|
(iii) |
any sale, transfer, lease or other disposal of the Grindrod Shares owned by the Borrower where:
|
(A) |
all of the Lenders have given their prior written consent to such sale, transfer, lease or other disposal of the Grindrod Shares, such consent not to be unreasonably withheld; and
|
(B) |
the provisions of Clause 7.6 (Mandatory prepayment on sale of Grindrod Shares) are complied with; and
|
(iv) |
any release of a Collateral Guarantor from its obligations under the Finance Documents to which it is a party in accordance with this Agreement.
|
(c) |
None of the Borrower or any of its Affiliates shall directly or indirectly engage in any short sales (including, without limitation, through hedging or derivatives transactions) or enter into any Swap Contract
with respect to any Grindrod Shares or other Collateral without the prior written consent of the Facility Agent.
|
21.13 |
Merger
|
21.14 |
Change of business
|
(a) |
The Borrower shall procure that no substantial change is made to the general nature of the business of the Borrower or the Group from that carried on at the date of this Agreement.
|
(b) |
No Collateral Guarantor shall engage in any business other than the ownership and operation of its Ship.
|
21.15 |
Financial Indebtedness
|
21.16 |
Expenditure
|
21.17 |
Share capital
|
(a) |
purchase, cancel or redeem any of its shares or share capital;
|
(b) |
increase or reduce its authorised shares or share capital;
|
(c) |
issue any further shares except to its sole shareholder and provided such new shares are made subject to the terms of the Shares Security applicable to the shares in the Borrower, that Collateral Guarantor or
Target (as the case may be) immediately upon the issue of such new shares in a manner satisfactory to the Security Agent and the terms of that Shares Security are complied with;
|
(d) |
appoint any further director or officer of the Borrower, that Collateral Guarantor or Target (unless the provisions of the Shares Security applicable to the Borrower, a Collateral Guarantor or Target are
complied with).
|
21.18 |
Dividends
|
(a) |
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital or
issued shares, as applicable (or any class of its share capital or issued shares, as applicable);
|
(b) |
repay or distribute any dividend or share premium reserve; or
|
(c) |
redeem, repurchase, defease, retire or repay any of its share capital or issued shares, as applicable, or resolve to do so,
|
(i) |
no Event of Default is continuing or where any of the above would not result in the occurrence of an Event of Default;
|
(ii) |
no breach of Clause 20 (Financial Covenants) has occurred; and
|
(iii) |
no breach of Clause 24 (Security Cover) has occurred,
|
(d) |
For the avoidance of doubt, and notwithstanding the restrictions set out above:
|
(i) |
the Collateral Guarantors shall be entitled to make distributions to the Borrower and/or TMI Holdco provided that such distributions are solely and only used by TMI Holdco for the repayment by the Borrower of
the Loan and are so paid by TMI Holdco to the Borrower (or the Borrower’s order); and
|
(ii) |
the Borrower shall be entitled to make distributions to the Corporate Guarantor in accordance with, and pursuant to, Clause 7.10 (Mandatory prepayment on payment of dividends by
Target).
|
21.19 |
Other transactions
|
(a) |
be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is Permitted Financial Indebtedness;
|
(b) |
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which that Obligor assumes any
liability of any other person other than any guarantee or indemnity given under the Finance Documents.
|
(c) |
enter into any material agreement other than:
|
(i) |
the Transaction Documents;
|
(ii) |
any other agreement expressly allowed under any other term of this Agreement; and
|
(d) |
enter into any transaction on terms which are, in any respect, less favourable to that Collateral Guarantor than those which it could obtain in a bargain made at arms' length; or
|
(e) |
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks.
|
21.20 |
Acquisition Documents
|
(a) |
The Borrower shall (and the Corporate Guarantor will procure that the Borrower will) 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 the Vendor and where adequate reserves are set aside for any such payment).
|
(b) |
The Borrower shall (and the Corporate Guarantor will procure that the Borrower will) promptly take all reasonable and practical steps to preserve and enforce its rights and pursue any claims and remedies arising
under any Acquisition Documents.
|
21.21 |
Unlawfulness, invalidity and ranking; Security imperilled
|
(a) |
make it unlawful for an Obligor to perform any of its obligations under the Transaction Documents;
|
(b) |
cause any obligation of an Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable if that cessation individually or together with any other cessations materially or adversely
affects the interests of the Secured Parties under the Finance Documents;
|
(c) |
cause any Transaction Document to cease to be in full force and effect;
|
(d) |
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e) |
imperil or jeopardise the Transaction Security.
|
21.22 |
Existing Shares and Target Shares in relevant Deposit Account
|
(a) |
from the date of this Agreement, all Existing Shares; and
|
(b) |
from the date of acquisition, all Target Shares acquired by it,
|
(i) |
the Borrower has acquired and owns 100% of the Grindrod Shares;
|
(ii) |
the Facility Agent has received evidence acceptable to it that the Grindrod Shares have been registered in the register of members of Target, which registration will be made as soon as practicable after the
Grindrod Shares are de-listed from NASDAQ and/or the JSE (as the case may be); and
|
(iii) |
the Facility Agent has received a duly executed original of the Shares Security in respect of the Grindrod Shares and of each document to be delivered under it, together with any such legal opinions relating to
the execution and enforceability of such Shares Security, corporate authorities and any other documents as the Facility Agent (acting on the instructions of the Lenders) may reasonably request.
|
21.23 |
Listing and de-listing
|
(a) |
The Corporate Guarantor shall ensure that at all times during the Security Period its shares shall remain listed on the London Stock Exchange.
|
(b) |
The Borrower shall procure that all of the Grindrod Shares are de-listed from NASDAQ and/or the JSE (as the case may be) as soon as practicable and within any periods
specified by the U.S. Securities and Exchange Commission after the date upon which the Borrower has acquired 100% of the Grindrod Shares.
|
(c) |
Within five (5) Business Days of the date that all of the Grindrod Shares are de-listed from NASDAQ and/or the JSE (as the case may be), the Borrower shall provide to the Facility Agent evidence in form and
substance acceptable to the Facility Agent that the Grindrod Shares have been de-listed from NASDAQ and/or the JSE (as the case may be).
|
21.24 |
Acquisition of Grindrod Shares
|
21.25 |
Further assurance
|
(a) |
Each Obligor shall, and the Borrower shall procure that each Transaction Obligor will, promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or
arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments,
proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may require in favour of the Security Agent or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance 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
any of the Secured Parties provided by or pursuant to the Finance Documents or by law;
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Transaction Obligor located in any jurisdiction equivalent or similar to the Security intended to be
conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the
Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b) |
Each Obligor shall, and the Borrower shall procure that each Transaction Obligor will, 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 Secured Parties by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed by itself pursuant to this Clause 21.22 (Further assurance), that Obligor shall
deliver to the Security Agent a certificate signed by one of that Obligor's directors or officers, as applicable, which shall:
|
(i) |
set out the text of a resolution of that Obligor's directors specifically authorising the execution of the document specified by the Security Agent; and
|
(ii) |
state that either the resolution was duly passed at a meeting of the directors validly convened and held, throughout which a quorum of directors entitled to vote on the resolution was present, or that the
resolution has been signed by all the directors or officers and is valid under that Obligor's articles of association or other constitutional documents.
|
21.26 |
Anti-corruption and anti-money laundering
|
(a) |
No Obligor shall, and the Borrower shall procure that no other member of the Group will, directly or indirectly use the proceeds of the Facilities for any purpose which would breach applicable anti-corruption or
anti-money laundering laws.
|
(b) |
Each Obligor shall, and the Borrower shall ensure that each other member of the Group, will:
|
(i) |
conduct its businesses in compliance with applicable anti-corruption or anti-money laundering laws; and
|
(ii) |
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
21.27 |
Beneficial ownership reporting obligations
|
22 |
INSURANCE UNDERTAKINGS
|
22.1 |
General
|
22.2 |
Maintenance of obligatory insurances
|
(a) |
fire and usual marine risks (including hull and machinery, increased value and excess risks);
|
(b) |
war risks (including blocking and trapping);
|
(c) |
protection and indemnity risks; and
|
(d) |
any other risks against which the Facility Agent acting on the instructions of the Majority Lenders considers, having regard to practices and other circumstances prevailing at the relevant time, it would be
reasonable for a Collateral Guarantor to insure and which are specified by the Facility Agent by notice to a Collateral Guarantor.
|
22.3 |
Terms of obligatory insurances
|
(a) |
in dollars;
|
(b) |
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least 120 per cent. of the Ship Market Value of that Ship;
|
(c) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international
marine insurance market;
|
(d) |
in the case of protection and indemnity risks, in respect of the full tonnage of its Ship;
|
(e) |
on approved terms; and
|
(f) |
through Approved Brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks
associations.
|
22.4 |
Further protections for the Finance Parties
|
(a) |
subject always to paragraph (b), name that Collateral Guarantor as the sole named insured unless the interest of every other named insured is limited:
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made
specifically against it;
|
(c) |
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(d) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(e) |
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(f) |
provide that the Security Agent may make proof of loss if that Collateral Guarantor fails to do so.
|
22.5 |
Renewal of obligatory insurances
|
(a) |
at least 21 days before the expiry of any obligatory insurance effected by it:
|
(ii) |
obtain the Facility Agents' approval to the matters referred to in sub-paragraph (i) above;
|
(b) |
at least seven days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Facility Agent's approval pursuant to paragraph (a) above; and
|
(c) |
procure that the Approved Brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Facility Agent in
writing of the terms and conditions of the renewal.
|
22.6 |
Copies of policies; letters of undertaking
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b) |
a letter or letters or undertaking in a form required by the Facility Agent and including undertakings by the Approved Brokers that:
|
(i) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 22.4 (Further
protections for the Finance Parties);
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii) |
they will advise the Security Agent promptly of any material change to the terms of the obligatory insurances;
|
(iv) |
they will, if they have not received notice of renewal instructions from the relevant Collateral Guarantor or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory
insurances;
|
(v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
(vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Collateral Guarantor under such obligatory insurances any premiums or other amounts due to them or any
other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not cancel such obligatory
insurances by reason of non-payment of such premiums or other amounts; and
|
(vii) |
they will arrange for a separate policy to be issued in respect of the Ship owned by that Collateral Guarantor forthwith upon being so requested by the Facility Agent.
|
22.7 |
Copies of certificates of entry
|
(a) |
a certified copy of the certificate of entry for that Ship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
|
(c) |
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Ship.
|
22.8 |
Deposit of original policies
|
22.9 |
Payment of premiums
|
22.10 |
Guarantees
|
22.11 |
Compliance with terms of insurances
|
(b) |
Without limiting paragraph (a) above, each Collateral Guarantor shall:
|
(i) |
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in sub-paragraph (iii) of
paragraph (b) of Clause 22.6 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Facility Agent
has not given its prior approval;
|
(ii) |
not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it unless approved by the underwriters of the obligatory insurances;
|
(iii) |
make (and, upon request, promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship
owned by it is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
|
(iv) |
not employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and
complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
22.12 |
Alteration to terms of insurances
|
22.13 |
Settlement of claims
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
22.14 |
Provision of copies of communications
|
(a) |
the Approved Brokers;
|
(b) |
the approved protection and indemnity and/or war risks associations; and
|
(c) |
the approved insurance companies and/or underwriters,
|
(i) |
that Collateral Guarantor's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii) |
any credit arrangements made between that Collateral Guarantor and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory
insurances.
|
22.15 |
Provision of information
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 22.16 (Mortgagee's interest and additional perils insurances) or dealing with or
considering any matters relating to any such insurances,
|
22.16 |
Mortgagee's interest and additional perils insurances
|
(b) |
The Obligors shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any
insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
23 |
GENERAL SHIP UNDERTAKINGS
|
23.1 |
General
|
23.2 |
Ships' names and registration
|
(a) |
keep that Ship registered in its name under the Approved Flag from time to time at its port of registration;
|
(b) |
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled;
|
(c) |
not enter into any dual flagging arrangement in respect of that Ship; and
|
(d) |
not change the name of that Ship,
|
(i) |
that Ship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on that Ship and, if appropriate, a first priority deed of covenant collateral to
that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage on that Ship and, if applicable, related Deed of Covenant and on such other terms and in such other form as the Facility Agent, acting
with the authorisation of the Lenders, shall approve or require; and
|
(ii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of the Lenders, shall approve or require.
|
23.3 |
Repair and classification
|
(a) |
consistent with first class ship ownership and management practice; and
|
(b) |
so as to maintain the Approved Classification free of overdue recommendations and conditions affecting that Ship's class.
|
23.4 |
Modifications
|
23.5 |
Removal and installation of parts
|
(a) |
Subject to paragraph (b) below, no Collateral Guarantor shall remove any material part of any Ship, or any item of equipment installed on any Ship unless:
|
(i) |
the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed;
|
(ii) |
the replacement part or item is free from any Security in favour of any person other than the Security Agent; and
|
(iii) |
the replacement part or item becomes, on installation on that Ship, the property of that Collateral Guarantor and subject to the security constituted by the Mortgage on that Ship and, if applicable, the related
Deed of Covenant.
|
(b) |
A Collateral Guarantor may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by that Collateral Guarantor.
|
23.6 |
Surveys
|
23.7 |
Inspection
|
23.8 |
Prevention of and release from arrest
|
(a) |
Each Collateral Guarantor shall, in respect of the Ship owned by it, promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances;
|
(ii) |
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
|
(b) |
Each Collateral Guarantor shall immediately upon receiving notice of the arrest of the Ship owned by it or of its detention in exercise or purported exercise of any lien or claim, take all steps necessary to
procure its release by providing bail or otherwise as the circumstances may require.
|
23.9 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations:
|
(i) |
relating to its business generally; and
|
(ii) |
relating to the Ship owned by it, its ownership, employment, operation, management and registration,
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals; and
|
23.10 |
ISPS Code
|
(a) |
procure that the Ship owned by it and the company or corporation responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for that Ship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
23.11 |
Sanctions and Ship trading
|
(a) |
that the Ship owned by it shall not be used by or for the benefit of a Restricted Party;
|
(b) |
that such Ship shall not be used in trading in any manner contrary to Sanctions (or which could be contrary to Sanctions if Sanctions were binding on each Transaction Obligor);
|
(c) |
that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances; and
|
(d) |
that each charterparty in respect of that Ship shall contain, for the benefit of that Collateral Guarantor, language which gives effect to the provisions of paragraph (c) of Clause 23.9 (Compliance with laws etc.) as regards Sanctions and of this Clause 23.11 (Sanctions and Ship trading) and which permits refusal of employment or voyage orders if compliance would
result in a breach of Sanctions (or which would result in a breach of Sanctions if Sanctions were binding on each Transaction Obligor.
|
23.12 |
Use of Proceeds
|
23.13 |
Trading in war zones or excluded areas
|
23.14 |
Provision of information
|
(a) |
that Ship, its employment, position and engagements;
|
(b) |
the Earnings and payments and amounts due to its master and crew;
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it in respect of that Ship;
|
(d) |
any towages and salvages; and
|
(e) |
its compliance, the Approved Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code,
|
23.15 |
Notification of certain events
|
(a) |
any casualty to that Ship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of that Ship for hire;
|
(d) |
any requirement or recommendation made in relation to that Ship by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e) |
any arrest or detention of that Ship or any exercise or purported exercise of any lien on that Ship or the Earnings;
|
(f) |
any Environmental Claim made against that Collateral Guarantor or in connection with that Ship, or any Environmental Incident;
|
(g) |
any claim for breach of the ISM Code or the ISPS Code being made against that Collateral Guarantor, an Approved Manager or otherwise in connection with that Ship; or
|
(h) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
23.16 |
Restrictions on chartering, appointment of managers etc.
|
(a) |
let that Ship on demise charter for any period;
|
(b) |
enter into any pool arrangement, time, voyage or consecutive voyage charter in respect of that Ship other than a Permitted Charter;
|
(c) |
amend, supplement or terminate the Framework Agreement;
|
(d) |
appoint a manager of that Ship other than an Approved Commercial Manager and an Approved Technical Manager or agree to any material alteration to the terms of an Approved Manager's appointment;
|
(e) |
de activate or lay up that Ship; or
|
(f) |
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $1,500,000 (or the equivalent in any other currency) unless that person has
first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason.
|
23.17 |
Notice of Mortgage
|
23.18 |
Sharing of Earnings
|
23.19 |
Poseidon Principles
|
23.20 |
Sustainable and socially responsible dismantling of Ships
|
23.21 |
Inventory of Hazardous Materials
|
23.22 |
Notification of compliance
|
24 |
SECURITY COVER
|
24.1 |
Minimum required security cover
|
(a) |
the aggregate of (i) Shares Market Value of the Grindrod Shares and (ii) the Ship Market Value of each Ship then subject to a Mortgage; plus
|
(b) |
the net realisable value of additional Security previously provided under this Clause 24 (Security Cover) ((a) and (b) collectively, the “Collateral”),
|
24.2 |
Provision of additional security; prepayment
|
(b) |
The Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on
the instructions of the Majority Lenders:
|
(i) |
has a net realisable value at least equal to the shortfall; and
|
(ii) |
is documented in such terms as the Facility Agent may reasonably approve or require,
|
24.3 |
Value of additional vessel security
|
24.4 |
Valuations binding
|
24.5 |
Provision of information
|
(b) |
If an Obligor fails to provide the information referred to in paragraph (a) above by the date specified in the request, the valuation may be made on any basis and assumptions which the Approved Valuer or the
Facility Agent considers prudent.
|
24.6 |
Prepayment mechanism
|
24.7 |
Provision of valuations
|
25 |
ACCOUNTS AND APPLICATION OF EARNINGS
|
25.1 |
Accounts
|
(a) |
No Collateral Guarantor may, without the prior consent of the Facility Agent, maintain any bank account other than its Earnings Account.
|
(b) |
The Borrower may not without the prior consent of the Facility Agent maintain any bank account other than the Settlement Accounts, the Cash Confirmation Account and the Non-Settlement Account.
|
25.2 |
Payments into Settlement Accounts, Nostro Account, Non-Settlement Account and Cash Confirmation Account
|
(a) |
The Borrower shall ensure that all amounts utilised under either Facility shall be credited to the USD Settlement Account, the Nostro Account (for conversion by FRB into ZAR and then onwards remittance by FRB
into the ZAR Settlement Account) or, if applicable and subject to paragraph (e) below, the Non-Settlement Account. Without prejudice to the generality of the foregoing, if the Borrower requires a Utilisation under the Term Loan Facility or
the Top Up Facility to settle any acceptances (or expected acceptances) to the Offer in respect of Target Shares listed on the JSE, the Borrower shall ensure that such Advance shall be credited to the ZAR Settlement Account via the Nostro
Account.
|
(e) |
The Borrower may request in the Utilisation Request for amounts utilised under either Facility to be credited to the Non-Settlement Account provided that:
|
(i) |
the Borrower undertakes to use such amounts solely for the purposes of (x) paying fees, costs, expenses and other Taxes incurred on or behalf of any Obligor in connection with the Acquisition, the Finance
Documents, and the Acquisition Documents and/or (y) refinancing any funds paid out by the Borrower out of its own funds to acquire any Target Shares in excess of $100,000,000;
|
(ii) |
in case the Borrower intends to use the funds for the purpose of paying fees, costs, expenses and other Taxes incurred on or behalf of any Obligor in connection with the Acquisition, the Finance Documents,
and the Acquisition Documents, the Borrower has provided to the Facility Agent at least three (3) Business Days prior to the proposed Utilisation Date supporting invoices and/or any other evidence acceptable to the Facility Agent (acting
reasonably) showing that such fees, costs or expenses were incurred and paid by the Borrower or another Obligor; and/or
|
(iii) |
in case the Borrower intends to use the funds for the purpose of refinancing any funds paid out by the Borrower out of its own funds to acquire any Target Shares in excess of $100,000,000, the Borrower has
provided evidence to the Facility Agent acceptable to the Facility Agent (acting reasonably) (x) that it has used the full amount of $100,000,000 to acquire Target Shares and (y) that the Target Shares acquired by the Borrower from its own
funds for which it is seeking reimbursement have been deposited into and are held in the relevant Deposit Account.
|
25.3 |
Security over Settlement Accounts
|
25.4 |
Payment of Earnings
|
25.5 |
Location of Accounts
|
(a) |
comply with any requirement of the Facility Agent as to the location or relocation of any Earnings Account or any Settlement Account (as the case may be); and
|
(b) |
execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) the
Earnings Accounts or the Settlement Accounts (as the case may be).
|
25.6 |
Withdrawals from and blocking of a Settlement Account
|
(a) |
Provided always that:
|
(i) |
no Major Default has occurred; and
|
(ii) |
the Borrower is not, or will not be, in breach of its obligation to use and apply any Balance (as defined in Clause 5.3 (Currency and amount)) solely for the purpose
of acquiring and settling any acceptances in respect of any Target Shares or paying any related Taxes in South Africa,
|
(b) |
Following the occurrence of a Major Default which is continuing, the Security Agent shall be entitled to give instructions to each of FRB and Berenberg Bank in accordance with and pursuant to the relevant
Account Security over each Settlement Account to block the following amounts (which, for the avoidance of doubt, shall include any part of the Cash Deposit which has been transferred into a Settlement Account):
|
(i) |
in respect of the ZAR Settlement Account, all amounts standing to the credit of the ZAR Settlement Account; and
|
(ii) |
in respect of the USD Settlement Account:
|
(A) |
prior to the Borrower having used all of the Cash Deposit to acquire Target Shares, the lower of (i) all amounts utilised and outstanding under the Facilities and (ii) the amount standing to the credit of the
USD Settlement Account at that time; and
|
(B) |
following the Borrower having used all of the Cash Deposit to acquire Target Shares, all amounts utilised and outstanding under the Facilities and not yet used to acquire Target Shares.
|
26 |
EVENTS OF DEFAULT
|
26.1 |
General
|
26.2 |
Non-payment
|
(a) |
its failure to pay is caused by:
|
(i) |
administrative or technical error; or
|
(ii) |
a Disruption Event; and
|
(b) |
payment is made within three Business Days of its due date.
|
26.3 |
Specific obligations
|
26.4 |
Other obligations
|
(a) |
A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 26.2 (Non-payment) and Clause 26.3 (Specific obligations)).
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 10 Business Days of the Facility Agent giving notice to the Borrower or (if
earlier) any Transaction Obligor becoming aware of the failure to comply.
|
26.5 |
Misrepresentation
|
26.6 |
Cross default
|
(a) |
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause 26.6 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (d) above is less than, in case of the Corporate Guarantor or TMI Holdco, $10,000,000 (or its equivalent in any other currency) or, in case of any other Obligor, $5,000,000 (or its equivalent in any other
currency).
|
26.7 |
Insolvency
|
(a) |
An Obligor:
|
(i) |
is unable or admits inability to pay its debts as they fall due;
|
(ii) |
is deemed to, or is declared to, be unable to pay its debts under applicable law;
|
(iii) |
suspends or threatens to suspend 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) |
The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
|
(c) |
A moratorium is declared in respect of any indebtedness of any Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
26.8 |
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, liquidation or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of
any member of the Group other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor;
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of any Obligor;
|
(iii) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other
similar officer in respect of any Obligor or any of its assets;
|
(iv) |
the granting by the Royal Court of Guernsey of a preliminary vesting order in respect of any asset of the Corporate Guarantor;
|
(v) |
any step being taken in relation to a declaration that the Corporate Guarantor or its assets are en désastre;
|
(vi) |
striking-off the Corporate Guarantor from the Register of Companies maintained by the Guernsey Registry; or
|
(vii) |
enforcement of any Security over any assets of any Obligor, or any analogous procedure or step is taken in any jurisdiction.
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition or action involving strike-off which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
|
26.9 |
Creditors' process
|
26.10 |
Ownership of the Obligors
|
(a) |
An Obligor (other than the Corporate Guarantor) is not or ceases to be a 100% directly or indirectly owned Subsidiary of the Corporate Guarantor.
|
(b) |
Following the date on which the Borrower owns more than 50% of the shares in Target, Target is not a directly owned Subsidiary of the Borrower.
|
(c) |
Following the acquisition of 100% of the Grindrod Shares by the Borrower, Target is not or ceases to be a 100% directly owned Subsidiary of the Borrower.
|
(d) |
A Collateral Guarantor is not or ceases to be a 100% directly owned Subsidiary of TMI Holdco.
|
26.11 |
Unlawfulness, invalidity and ranking
|
(a) |
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.
|
(b) |
Any obligation of an Obligor under the Finance Documents is not (subject to the Legal Reservations) or ceases to be legal, valid, binding or enforceable if that cessation individually or together with any
other cessations materially or adversely affects the interests of the Secured Parties under the Finance Documents.
|
(c) |
Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is alleged by a party to it (other than a Finance Party) to be
ineffective.
|
(d) |
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security (except for Permitted Security).
|
26.12 |
Security imperilled
|
26.13 |
Cessation of business
|
26.14 |
Arrest
|
26.15 |
Expropriation
|
(a) |
an arrest or detention of a Ship referred to in Clause 26.14 (Arrest); or
|
(b) |
any Requisition.
|
26.16 |
Repudiation and rescission of agreements
|
26.17 |
Litigation
|
26.18 |
Material adverse change
|
26.19 |
Acceleration
|
(a) |
by notice to the Borrower:
|
(i) |
cancel the Available Commitment of each Lender, whereupon they shall immediately be cancelled;
|
(b) |
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents,
|
26.20 |
Enforcement of security
|
26.21 |
Clean-Up Period
|
(a)
|
any breach of a Clean-Up Representation or a Clean-Up Undertaking; or
|
(b)
|
any Event of Default constituting a Clean-Up Default,
|
(i) |
it would have been (if it were not for this Clause 26.21) 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 obligation to procure or ensure in relation to a member of the Target Group);
|
(ii) |
it is capable of remedy and reasonable steps are being taken to remedy it;
|
(iii) |
the circumstances giving rise to it have not been procured by or approved by any Obligor; and
|
(iv) |
it is not reasonably likely to have a Material Adverse Effect.
|
27 |
CHANGES TO THE LENDERS
|
27.1 |
Assignments and transfers by the Lenders
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
27.2 |
Conditions of assignment or transfer
|
(a) |
Subject to paragraph (b) below, the consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i) |
to another Lender or an Affiliate of a Lender;
|
(ii) |
if the Existing Lender is a fund, to a fund which is a Related Fund; or
|
(iii) |
made at a time when an Event of Default is continuing or a Sanctions Event has occurred,
|
(b) |
During the Certain Funds Period, the consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i) |
to another Lender or an Affiliate of a Lender;
|
(ii) |
if the Existing Lender is a fund, to a fund which is a Related Fund; or
|
(iii) |
made at a time when a Major Default is continuing or a Sanctions Event has occurred,
|
(c) |
The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent five (5) Business Days after the Existing Lender
has requested it unless consent is expressly refused by the Borrower within that time.
|
(d) |
An assignment will only be effective on:
|
(i) |
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will
assume the same obligations to the other Secured Parties as it would have been under if it had been an Original Lender; and
|
(ii) |
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of
which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(e) |
Each Obligor on behalf of itself and each Transaction Obligor agrees that all rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are
assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which the Borrower or any other Transaction Obligor had against the Existing Lender.
|
(f) |
A transfer will only be effective if the procedure set out in Clause 27.5 (Procedure for transfer) is complied with.
|
(g) |
If:
|
(i) |
a Lender assigns or 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 assignment, transfer or change occurs, a Transaction Obligor 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 under that clause as incorporated by reference or in full in any other Finance Document or Clause 13 (Increased Costs),
|
(h) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility 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 or assignment 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.
|
(i) |
Any New Lender or sub-particiapant of a Lender shall, prior to the date on which the Borrower owns or controls 100% of the Grindrod Shares, make the Purchaser Representations to each Finance Party hereunder
as set out in the relevant Transfer Certificate.
|
27.3 |
Assignment or transfer fee
|
27.4 |
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 Transaction Documents, the Transaction Security or any other documents;
|
(ii) |
the financial condition of any Transaction Obligor;
|
(iii) |
the performance and observance by any Transaction Obligor of its obligations under the Transaction Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured 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 Transaction 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 or any other Finance Party in connection with any Transaction Document or the Transaction Security; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout the Security Period.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 27 (Changes to the Lenders); or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its obligations under the Transaction Documents or otherwise.
|
27.5 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when the
Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility 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 this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(c) |
Subject to Clause 27.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the
Transaction 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 Transaction 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 Transaction Obligor and the New Lender have assumed and/or acquired the same in place of that Transaction Obligor and the Existing Lender;
|
(iii) |
the Facility Agent, the Security Agent, the Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the 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 Facility Agent, the Security Agent,
the Arrangers and the Existing Lenders 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".
|
27.6 |
Procedure for assignment
|
(a) |
Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the
Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt
by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
(c) |
Subject to Clause 27.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment
Agreement;
|
(ii) |
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and any
corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause 27.6 (Procedure for assignment) to assign their rights under the Finance Documents (but not,
without the consent of the relevant Transaction Obligor or unless in accordance with Clause 27.5 (Procedure for transfer), to obtain a release by that Transaction Obligor from the obligations owed to
that Transaction Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 27.2 (Conditions of assignment or transfer).
|
27.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower
|
27.8 |
Security over Lenders' rights
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents;
or
|
(ii) |
require any payments to be made by a Transaction 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.
|
27.9 |
Pro rata interest settlement
|
(a) |
If the Facility 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 27.5 (Procedure for transfer) or any assignment pursuant to Clause 27.6 (Procedure for assignment) 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 (or, if the
Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that 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 27.9 (Pro rata interest settlement), have been
payable to it on that date, but after deduction of the Accrued Amounts.
|
(b) |
In this Clause 27.9 (Pro rata interest settlement) references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.
|
28 |
CHANGES TO THE TRANSACTION OBLIGORS AND SHIPS
|
28.1 |
Assignment or transfer by Transaction Obligors
|
28.2 |
Release of security
|
(a) |
If a disposal or release of any asset subject to security created by a Security Document is made in the following circumstances:
|
(i) |
the disposal or release is permitted by the terms of any Finance Document;
|
(ii) |
all the Lenders agree to the disposal or release;
|
(iii) |
the disposal or release is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or
|
(iv) |
the disposal or release is being effected by enforcement of a Security Document,
|
(b) |
If the Security Agent is satisfied that a release is allowed under this Clause 28.2 (Release of security), Clause 28.4 (Release of a
Ship and Collateral Guarantor) or Clause 7.5 (Mandatory prepayment on sale or Total Loss of a Ship) (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 and (if applicable) the release of the relevant Collateral Guarantor from its obligations under the Finance Documents to which it is a party and any
Shares Security in respect of that Collateral Guarantor. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. Any release will not affect the obligations of any other Transaction Obligor
under the Finance Documents.
|
28.3 |
Ships
|
(b) |
the relevant Collateral Guarantor accedes to this Agreement in accordance with Clause 28.5 (Collateral Guarantors);
|
(c) |
that Additional Ship is registered in the ownership of the relevant Collateral Guarantor on an Approved Flag and classed with an Approved Classification Society and is in all other respects acceptable to the
Facility Agent (acting on the instructions of all of the Lenders acting reasonably); and
|
(d) |
the relevant conditions precedent referred to in Clause 4.1 (Initial conditions precedent) and the Ship Conditions Precedent in respect of that Additional Ship have
been satisfied.
|
28.4 |
Release of a Ship and Collateral Guarantor
|
(a) |
The Borrower may at any time request that a Ship then subject to a Mortgage and the relevant Collateral Guarantor owning that Ship is released from the Finance Documents provided that:
|
(i) |
the Borrower has given written notice to the Facility Agent of the relevant Collateral Guarantor and the Ship to be released at least 15 Business Days before that Collateral Guarantor and Ship is to be
released; and
|
(ii) |
the Loan must be an amount which does not exceed 50 per cent. of the aggregate Ship Market Value of the Ships (determined by the most recent valuations of the Ships provided to the Facility Agent pursuant to
this Agreement) subject to a Mortgage immediately after such release plus the net realisable value of additional Security previously provided under Clause 24 (Security Cover).
|
(b) |
Subject to paragraph (a) above, the Security Agent shall release the relevant Collateral Guarantor from its obligations under any of the Finance Documents to which it is a party, the Shares Security in
respect of that Collateral Guarantor and any Security in respect of the relevant Ship in accordance with Clause 28.2 (Release of security).
|
28.5 |
Collateral Guarantors
|
(a) |
Subject to compliance with the provisions of Clause 19.10 ("Know your customer" checks), a wholly and directly owned Subsidiary of TMI Holdco may become a Collateral
Guarantor provided that:
|
(ii) |
it owns a Ship or Ships which is (or will be) subject to Security pursuant to this Agreement;
|
(iii) |
it delivers to the Facility Agent a duly completed and executed Accession Deed; and
|
(iv) |
the Borrower confirms that no Default is continuing or would occur as a result of that Subsidiary becoming a Collateral Guarantor; and
|
(c) |
Delivery of an Accession Deed pursuant to paragraph (a) above constitutes confirmation by the relevant Collateral Guarantor that the Repeating Representations 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.
|
28.6 |
Additional Subordinated Creditors
|
(a) |
The Borrower may request that any person becomes a Subordinated Creditor, with the prior approval of the Facility Agent, by delivering to the Facility Agent:
|
(i) |
a duly executed Subordination Agreement; and
|
(ii) |
such constitutional documents, corporate authorisations and other documents and matters as the Facility Agent may reasonably require, in form and substance satisfactory to the Facility Agent, to verify that
the person's obligations are legally binding, valid and enforceable and to satisfy any applicable legal and regulatory requirements.
|
(b) |
A person referred to in paragraph (a) above will become a Subordinated Creditor on the date the Security Agent enters into the Subordination Agreement.
|
29 |
THE FACILITY AGENT AND THE ARRANGERS
|
29.1 |
Appointment of the Facility Agent
|
(a) |
Each of the Arrangers and the Lenders appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b) |
Each of the Arrangers and the Lenders authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given
to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
29.2 |
Instructions
|
(a) |
The Facility Agent shall:
|
(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 sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party
or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).
|
(b) |
The Facility 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 Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the
Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance
Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties.
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 43 (Amendments and Waivers), the Facility Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Facility Agent) whose consent would have been
required in respect of that amendment or waiver.
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so
having regard to the interests of all the Finance Parties.
|
(g) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties 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 (together with any applicable VAT) which it may incur in complying
with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 29.2 (Instructions), in the absence of instructions, the Facility Agent shall not be obliged to take any action (or
refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties. The Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance
Parties.
|
29.3 |
Duties of the Facility Agent
|
(a) |
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(c) |
Without prejudice to Clause 27.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not apply to any Transfer Certificate or
any Assignment Agreement.
|
(d) |
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance
Parties.
|
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Arrangers or the Security Agent) under
this Agreement, it shall promptly notify the other Finance Parties.
|
(g) |
The Facility 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).
|
29.4 |
Role of the Arrangers
|
29.5 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent or any of the Arrangers as a trustee or fiduciary of any other person.
|
(b) |
Neither the Facility Agent nor any of the Arrangers shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
29.6 |
Application of receipts
|
29.7 |
Business with the Group
|
29.8 |
Rights and discretions
|
(a) |
The Facility Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties 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,
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 26.2 (Non-payment));
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Transaction Obligors.
|
(c) |
The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the
Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.
|
(f) |
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Arrangers are 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.
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not 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.
|
29.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arrangers, a Transaction Obligor or any other person in, or in
connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any
Transaction Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured 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.
|
29.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c) |
whether any other event specified in any Transaction Document has occurred.
|
29.11 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 33.11 (Disruption to Payment Systems etc.) or any other provision of any Finance
Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for:
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever 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,
|
(c) |
The Facility Agent will not 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 Facility Agent if the Facility
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 Facility Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent or any of the Arrangers to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability (including, without limitation, for negligence or any other category of liability
whatsoever) of the Facility Agent arising under or in connection with any Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as
determined by reference to the date of default of the Facility Agent 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 Facility Agent
at any time which increase the amount of that loss. In no event shall the Facility 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 Facility Agent has been advised of the possibility of such loss or damages.
|
29.12 |
Lenders' indemnity to the Facility Agent
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
29.13 |
Resignation of the Facility Agent
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(d) |
If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor
Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility
Agent) agree with the proposed successor Facility Agent amendments to this Clause 29 (The Facility Agent and the Arrangers) and any other term of this Agreement dealing with the rights or obligations
of the Facility Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the
successor Facility Agent's normal fee rates and those amendments will bind the Parties.
|
(f) |
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(g) |
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but
shall remain entitled to the benefit of Clause 14.3 (Indemnity to the Facility Agent) and this Clause 29 (The Facility Agent and the Arrangers) and any other
provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be
payable on) that date. 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) |
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above.
|
(i) |
The consent of the Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
|
(i) |
the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and the Borrower or a Lender reasonably believes that the Facility 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 Facility Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a
FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii) |
the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
29.14 |
Confidentiality
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility 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 a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents,
that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor any of the Arrangers are obliged to disclose to any other person (i) any confidential information or
(ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
29.15 |
Relationship with the other Finance Parties
|
(a) |
Subject to Clause 27.9 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place
of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(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,
|
29.16 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each member of the Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c) |
whether that Finance Party 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 Transaction Document, the Security
Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security
Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated
by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the
Security Assets.
|
29.17 |
Facility Agent's management time
|
29.18 |
Deduction from amounts payable by the Facility Agent
|
29.19 |
Reliance and engagement letters
|
29.20 |
Full freedom to enter into transactions
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to any Obligor or any person who is a party to, or referred to in, a Finance Document,
|
29.21 |
Amounts paid in error
|
(a) |
If the Facility Agent pays an amount to another Party and the Facility Agent notifies that Party that such payment was an Erroneous Payment then the Party to whom that amount was paid by the Facility Agent
shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(b) |
(i) |
the obligations of any Party to the Facility Agent; nor
|
(ii) |
the remedies of the Facility Agent,
|
(c) |
All payments to be made by a Party to the Facility Agent (whether made pursuant to this Clause 29.21 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and
clear of any deduction for) set-off or counterclaim.
|
(d) |
In this Agreement, "Erroneous Payment" means a payment of an amount by the Facility Agent to another Party which the Facility Agent determines (in its sole discretion)
was made in error.
|
30 |
THE SECURITY AGENT
|
30.1 |
Trust
|
(b) |
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the
Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
30.2 |
Parallel Debt (Covenant to pay the Security Agent)
|
(a) |
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.
|
(b) |
The Parallel Debt of an Obligor:
|
(i) |
shall become due and payable at the same time as its Corresponding Debt;
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
(c) |
For purposes of this Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent:
|
(i) |
is the independent and separate creditor of each Parallel Debt;
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of
guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d) |
The Parallel Debt of an Obligor shall be:
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii) |
increased to the extent that its Corresponding Debt has increased,
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent)) to the extent
permitted by applicable law, shall be applied in accordance with Clause 33.5 (Application of receipts; partial payments).
|
(f) |
This Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.
|
30.3 |
Enforcement through Security Agent only
|
30.4 |
Instructions
|
(a) |
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 (or the Facility Agent on their behalf) if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders (or the Facility Agent on their behalf); and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or
group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).
|
(b) |
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or the Facility Agent on their behalf) (or, if the relevant Finance Document
stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right,
power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance
Document, any instructions given to 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.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties.
|
(iv) |
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A) |
Clause 30.28 (Application of receipts);
|
(B) |
Clause 30.29 (Permitted Deductions); and
|
(C) |
Clause 30.30 (Prospective liabilities).
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 43 (Amendments and Waivers), the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent) whose consent would have been
required in respect of that amendment or waiver.
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i) |
it has not received any instructions as to the exercise of that discretion; or
|
(ii) |
the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above,
|
(g) |
The Security Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties 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 (together with any applicable VAT) which it may incur in complying
with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 30.4 (Instructions), in the absence of instructions, the Security Agent may (but shall not be obliged to) take such
action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.
|
(i) |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This
paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
30.5 |
Duties of the Security Agent
|
(a) |
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c) |
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d) |
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance
Parties.
|
(e) |
The 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).
|
30.6 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Transaction Obligor.
|
(b) |
The Security Agent shall not be bound to account to any other Secured Party for any sum or the profit element of any sum received by it for its own account.
|
30.7 |
Business with the Group
|
30.8 |
Rights and discretions
|
(a) |
The Security Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents;
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked;
|
(C) |
if it receives any instructions to act in relation to the Transaction Security, that all applicable conditions under the Finance Documents for so acting have been satisfied; 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,
|
(b) |
The Security Agent shall be entitled to carry out all dealings with the other Finance Parties through the Facility Agent and may give to the Facility Agent any notice or other communication required to be
given by the Security Agent to any Finance Party.
|
(c) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i) |
no Default has occurred;
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Transaction Obligors.
|
(d) |
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(e) |
Without prejudice to the generality of paragraph (c) above or paragraph (f) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the
Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(g) |
The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(h) |
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.
|
(i) |
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not 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, the Security Agent is not 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.
|
30.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arrangers, a Transaction Obligor or any other person in, or in
connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any
Transaction Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Secured 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.
|
30.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c) |
whether any other event specified in any Transaction Document has occurred.
|
30.11 |
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 Security Agent or any Receiver or Delegate), none of the
Security Agent nor any Receiver or Delegate will be liable (including, without limitation, for negligence or any other category of liability whatsoever) for:
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever 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,
|
(c) |
The Security Agent will not 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 Security Agent if 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 Security Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver, any liability (including, without limitation, for negligence or any other
category of liability whatsoever) of the Security Agent or any Receiver or Delegate arising under or in connection with any Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally
judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or Delegate 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 Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate 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 Security Agent, the Receiver or Delegate has been advised of the possibility of such
loss or damages.
|
30.12 |
Lenders' 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 and every Receiver, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by any of them
(otherwise than by reason of the Security Agent's or Receiver's gross negligence or wilful misconduct) in acting as Security Agent or Receiver under the Finance Documents (unless the Security Agent or Receiver has been reimbursed by a
Transaction Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
30.13 |
Resignation of the Security Agent
|
(a) |
The Security Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may (after consultation with the Borrower) appoint a
successor Security Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a
successor Security Agent.
|
(e) |
The Security Agent's resignation notice shall only take effect upon:
|
(i) |
the appointment of a successor; and
|
(ii) |
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.
|
(f) |
Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its
obligations under paragraph (b) of Clause 30.25 (Winding up of trust) and paragraph (d) above) but shall remain entitled to the benefit of Clause 14.4 (Indemnity to
the Security Agent) and this Clause 30 (The Security Agent) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in
acting as Security Agent. Any fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date. 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.
|
(g) |
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above.
|
(h) |
The consent of the Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
30.14 |
Confidentiality
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or
departments.
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents,
that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c) |
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if
the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
30.15 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each member of the Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c) |
whether that Finance Party 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 Transaction Document, the Security
Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security
Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated
by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the
Security Assets.
|
30.16 |
Security Agent's management time
|
(a) |
Any amount payable to the Security Agent under Clause 14.4 (Indemnity to the Security Agent), Clause 16 (Costs and Expenses)
and Clause 30.12 (Lenders' indemnity to the Security Agent) shall, following the occurrence of an Event of Default which is continuing, 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 other Finance Parties, and is in addition to any fee paid or payable to the
Security Agent under Clause 11 (Fees).
|
(b) |
Without prejudice to paragraph (a) above, in the event of:
|
(i) |
the Security Agent being requested by a Transaction Obligor or the Majority Lenders to undertake duties which the Security Agent and the Borrower agree to be of an exceptional nature or outside the scope of
the normal duties of the Security Agent under the Finance Documents; or
|
(ii) |
the Security Agent and the Borrower agreeing that it is otherwise appropriate in the circumstances,
|
30.17 |
Reliance and engagement letters
|
30.18 |
No responsibility to perfect Transaction Security
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Security Assets;
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution
of any Finance Document or of the Transaction Security;
|
(d) |
take, or to require any Transaction Obligor to take, any step to perfect its title to any of the Security Assets or to render the Transaction Security effective or to secure the creation of any ancillary
Security under any law or regulation; or
|
(e) |
require any further assurance in relation to any Finance Document.
|
30.19 |
Insurance by Security Agent
|
(a) |
The Security Agent shall not be obliged:
|
(i) |
to insure any of the Security Assets;
|
(ii) |
to require any other person to maintain any insurance; or
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any
material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
30.20 |
Custodians and nominees
|
30.21 |
Delegation by the Security Agent
|
(a) |
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in
it in its capacity as such.
|
(b) |
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be)
may, in its discretion, think fit in the interests of the Secured Parties.
|
(c) |
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any
such delegate or sub delegate.
|
30.22 |
Additional Security Agents
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction,
|
(b) |
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties,
obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c) |
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment
shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
30.23 |
Acceptance of title
|
30.24 |
Releases
|
30.25 |
Winding up of trust
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
(i) |
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of
the Security Documents; and
|
(ii) |
any Security Agent which has resigned pursuant to Clause 30.13 (Resignation of the Security Agent) shall release, without recourse or warranty, all of its rights under
each Security Document.
|
30.26 |
Powers supplemental to Trustee Acts
|
30.27 |
Disapplication of Trustee Acts
|
30.28 |
Application of receipts
|
(a) |
in discharging any sums owing to the Security Agent (in its capacity as such) (other than pursuant to Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent))
or any Receiver or Delegate;
|
(b) |
in payment or distribution to the Facility Agent, on its behalf and on behalf of the other Secured Parties, for application towards the discharge of all sums due and payable by any Transaction Obligor under
any of the Finance Documents in accordance with Clause 33.5 (Application of receipts; partial payments);
|
(c) |
if none of the Transaction Obligors is under any further actual or contingent liability under any Finance Document, in payment or distribution to any person to whom the Security Agent is obliged to pay or
distribute in priority to any Transaction Obligor; and
|
(d) |
the balance, if any, in payment or distribution to the relevant Transaction Obligor.
|
30.29 |
Permitted Deductions
|
(a) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from
any distribution or payment made by it under this Agreement; and
|
(b) |
pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance
Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
30.30 |
Prospective liabilities
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
30.31 |
Investment of proceeds
|
30.32 |
Currency conversion
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market
rate of exchange.
|
(b) |
The obligations of any Transaction Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
30.33 |
Good discharge
|
(b) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) above in the same currency as that in which the obligations and liabilities owing to the relevant
Finance Party are denominated.
|
30.34 |
Amounts received by Obligors
|
30.35 |
Application and consideration
|
30.36 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance Document
(including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such
Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
31 |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(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.
|
32 |
SHARING AMONG THE FINANCE PARTIES
|
32.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b) |
the Facility 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
Facility Agent and distributed in accordance with Clause 33 (Payment Mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or
distribution; and
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to
such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 33.5 (Application
of receipts; partial payments).
|
32.2 |
Redistribution of payments
|
32.3 |
Recovering Finance Party's rights
|
32.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility 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 Transaction Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Transaction Obligor.
|
32.5 |
Exceptions
|
(a) |
This Clause 32 (Sharing among the Finance Parties) 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 relevant Transaction Obligor.
|
(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.
|
33 |
PAYMENT MECHANICS
|
33.1 |
Payments to the Facility Agent
|
(a) |
On each date on which a Transaction Obligor or a Lender is required to make a payment under a Finance Document, that Transaction Obligor or Lender shall make an amount equal to such payment available to the
Facility 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 Facility 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 Facility Agent) and with such bank as the Facility Agent, in each case, specifies.
|
33.2 |
Distributions by the Facility Agent
|
33.3 |
Distributions to a Transaction Obligor
|
33.4 |
Clawback and pre-funding
|
(a) |
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility 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 Facility Agent pays an amount to another Party and it proves to be the case that the Facility 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 Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the
Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(c) |
If the Facility Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Facility
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 the Borrower:
|
(i) |
the Facility Agent shall notify the Borrower of that Lender's identity and the Borrower shall on demand refund it to the Facility Agent; and
|
(ii) |
the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrower shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which
will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
33.5 |
Application of receipts; partial payments
|
(i) |
first, in or towards payment pro rata of any unpaid fees, costs and expenses of, and any other amounts owing to, the Facility
Agent, the Security Agent, any Receiver or any Delegate under the Finance Documents;
|
(ii) |
secondly, in or towards payment pro rata of any accrued interest and fees due but unpaid to the Lenders under this Agreement;
|
(iii) |
thirdly, in or towards payment pro rata of any principal due but unpaid to the Lenders under this Agreement; and
|
(iv) |
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by a Transaction Obligor.
|
33.6 |
No set-off by Transaction Obligors
|
33.7 |
Business Days
|
(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 an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
33.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from a Transaction Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than dollar shall be paid in that other currency.
|
33.9 |
Change of 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 Facility 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 Facility Agent (acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility 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.
|
33.10 |
Currency Conversion
|
(a) |
For the purpose of, or pending any payment to be made by any Servicing Party under any Finance Document, such Servicing Party may convert any moneys received or recovered by it from one currency to another,
at a market rate of exchange.
|
(b) |
The obligations of any Transaction Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
33.11 |
Disruption to Payment Systems etc.
|
(b) |
the Facility 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 Facility 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;
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
34 |
SET-OFF
|
35 |
BAIL-IN
|
(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.
|
36 |
NOTICES
|
36.1 |
Communications in writing
|
36.2 |
Addresses
|
(a) |
in the case of the Borrower, that specified in Schedule 1 (The Parties);
|
(b) |
in the case of each Lender or any other Obligor, that specified in Schedule 1 (The Parties) or, if it becomes a Party after the date of this Agreement, that notified
in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c) |
in the case of the Facility Agent, that specified in Schedule 1 (The Parties); and
|
(d) |
in the case of the Security Agent, that specified in Schedule 1 (The Parties),
|
36.3 |
Delivery
|
(b) |
Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party and then only if it is expressly marked for the attention of
the department or officer of that Servicing Party specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Party shall specify for this purpose).
|
(c) |
All notices from or to a Transaction Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Transaction 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.
|
36.4 |
Notification of address
|
36.5 |
Electronic communication
|
(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.
|
(d) |
Any electronic communication or document which becomes effective, in accordance with paragraph (c) 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 document being made available in accordance with
this Clause 36.5 (Electronic communication).
|
36.6 |
English language
|
(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 must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other official document.
|
37 |
CALCULATIONS AND CERTIFICATES
|
37.1 |
Accounts
|
37.2 |
Certificates and determinations
|
37.3 |
Day count convention
|
38 |
PARTIAL INVALIDITY
|
39 |
REMEDIES AND WAIVERS
|
(a) |
No failure to exercise, nor any delay in exercising, on the part of any Secured 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 Finance Document. No election to affirm any Finance Document on the part of a Secured 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.
|
(c) |
(i) |
whether by virtue of the droit de discussion or otherwise to require that recourse be had by any Finance Party to the assets of any other Obligor or any other person before any claim is enforced against that
Obligor in respect of the obligations assumed by it under any of the Finance Documents; and
|
(ii) |
whether by virtue of the droit de division or otherwise to require that any liability under any of the Finance Documents, be divided or apportioned with any other Obligor or any other person or reduced in any
manner whatsoever.
|
40 |
ENTIRE AGREEMENT
|
(a) |
This Agreement, in conjunction with the other Finance Documents, constitutes the entire agreement between the Parties and supersedes all previous agreements, understandings and arrangements between them,
whether in writing or oral, in respect of its subject matter.
|
(b) |
Each Obligor acknowledges that it has not entered into this Agreement or any other Finance Document in reliance on, and shall have no remedies in respect of, any representation or warranty that is not
expressly set out in this Agreement or in any other Finance Document.
|
41 |
SETTLEMENT OR DISCHARGE CONDITIONAL
|
42 |
IRREVOCABLE PAYMENT
|
43 |
AMENDMENTS AND WAIVERS
|
43.1 |
Required consents
|
(a) |
Subject to Clause 43.2 (All Lender matters) and Clause 43.3 (Other exceptions) any term of the Finance Documents may be
amended or waived only with the consent of the Majority Lenders and, in the case of an amendment, the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b) |
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 43 (Amendments and Waivers).
|
(c) |
Without prejudice to the generality of Clause 29.8 (Rights and discretions), the Facility Agent may engage, pay for and rely on the services of lawyers in determining
the consent level required for and effecting any amendment, waiver or consent under this Agreement.
|
(d) |
Paragraph (c) of Clause 27.9 (Pro rata interest settlement) shall apply to this Clause 43 (Amendments and Waivers).
|
43.2 |
All Lender matters
|
(a) |
the definition of "Change of Control Event", "Majority Lenders", "Restricted Party", "Sanctions", "Sanctions Authority" and "Sanctions Event" in Clause 1.1 (Definitions);
|
(b) |
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(c) |
a reduction in either Margin or the amount of any payment of principal, interest, fees or commission payable;
|
(d) |
a change in currency of payment of any amount under the Finance Documents;
|
(e) |
an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments rateably under a Facility;
|
(f) |
a change to any Transaction Obligor other than in accordance with Clause 28 (Changes to the Transaction Obligors);
|
(g) |
any provision which expressly requires the consent of all the Lenders;
|
(h) |
this Clause 43 (Amendments and Waivers);
|
(i) |
any change to the preamble (Background), Clause 2 (The Facilities), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 7.1 (Illegality), Clause 7.5 (Mandatory prepayment on sale or Total Loss of a Ship), Clause 8 (Interest), Clause 18.34
(Sanctions), Clause 23.9 (Compliance with laws etc.), Clause 23.11 (Sanctions and Ship trading), Clause 23.12 (Use of Proceeds), Clause 25 (Accounts and application of Earnings), Clause 27 (Changes to the Lenders), Clause 32 (Sharing among the Finance Parties), Clause 48 (Governing Law) or Clause 49 (Enforcement);
|
(j) |
(other than as expressly permitted by the provisions of any Finance Document), the nature or scope of:
|
(i) |
the guarantees and indemnities granted under Clause 17 (Guarantee and Indemnity) or any other guarantee and indemnity forming part of the Finance Documents;
|
(ii) |
the Security Assets; or
|
(iii) |
the manner in which the proceeds of enforcement of the Transaction Security are distributed,
|
(k) |
the release or any material variation of the guarantees and indemnities granted under Clause 17 (Guarantee and Indemnity) or of any Transaction Security or any
guarantee, indemnity or subordination arrangement set out in a Finance Document 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,
|
43.3 |
Other exceptions
|
(a) |
An amendment or waiver which relates to the rights or obligations of a Servicing Party or Arrangers (each in their capacity as such) may not be effected without the consent of that Servicing Party or the
Arrangers, as the case may be.
|
(b) |
The Borrower and the Facility Agent, any of the Arrangers or the Security Agent, as applicable, may amend or waive a term of a Fee Letter to which they are party.
|
43.4 |
Changes to reference rates
|
(a) |
Subject to Clause 43.3 (Other exceptions), if a Published Rate Replacement Event has occurred in relation to any Published Rate, any amendment or waiver which relates
to:
|
(i) |
providing for the use of a Replacement Reference Rate in place of the Published Rate; 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),
|
(b) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within ten (10) Business Days (or such longer time period in relation to any request which the Borrower
and the Facility Agent may agree) of that request being made:
|
(i) |
its Commitment or its participation in the Loan (as the case may be) shall not be included for the purpose of calculating the Total Commitments or the amount of the Loan (as applicable) when ascertaining
whether any relevant percentage of Total Commitments or the aggregate of participations in the Loan (as applicable) 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.
|
(c) |
In this Clause 43.4 (Changes to reference rates):
|
(a) |
SOFR; or
|
(b) |
(a) |
the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders and the Borrower, materially changed;
|
(A) |
the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or
|
(B) |
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 that Published Rate is insolvent,
|
(ii) |
the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator
to continue to provide that Published Rate;
|
(iii) |
the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued; or
|
(iv) |
the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used; or
|
(c) |
in the opinion of the Majority Lenders and the Borrower, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
(a) |
formally designated, nominated or recommended as the replacement for a Published Rate by:
|
(i) |
the administrator of a Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or
|
(ii) |
any Relevant Nominating Body,
|
(b) |
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 or alternative to a Published
Rate; or
|
(c) |
in the opinion of the Majority Lenders and the Borrower, an appropriate successor or alternative to a Published Rate.
|
43.5 |
Obligor Intent
|
44 |
CONFIDENTIAL INFORMATION
|
44.1 |
Confidentiality
|
44.2 |
Disclosure of Confidential Information
|
(b) |
to any person:
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b) above;
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, 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 27.8 (Security over Lenders' rights);
|
(ix) |
who is a Party, a member of the Group or any related entity of a Transaction Obligor;
|
(x) |
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document;
|
(xi) |
who provides or performs outsourced operational functions and services, including (but not limited to) storage and/or destruction of documents services, on behalf of a Finance Party;
|
(xii) |
upon or after an Event of Default; or
|
(xiii) |
with the consent of the Borrower;
|
(A) |
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) 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 sub-paragraphs (iv) and (viii) of paragraph (b) 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 sub-paragraphs (v), (vi), (vii) and (xi) of paragraph (b) 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;
|
(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 Transaction] Obligors if the rating agency 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.
|
(e) |
Notwithstanding anything to the contrary in this Agreement, any other Finance Document, the Borrower acknowledges and agrees that if any Finance Party or any Affiliate of any Finance Party reasonably
determines, based on the advice of counsel, that it is aware of any non-public information that may be “material non-public information” (regardless of the source of any such information and regardless of how any such information was
received) and such awareness could impair the exercise by the Finance Parties (or any of them) of any of their rights and their remedies under the Finance Documents (or any of them) or the general law (collectively, “Relevant MNPI”), such
Finance Party or such Affiliate (or such Finance Party on behalf of such Affiliate) may in connection with, or upon, the exercise of any remedies under this Agreement, any other Finance Document or the general law or any action or
proceeding relating to this Agreement, any other Finance Document or the enforcement of rights hereunder or thereunder (and having notified the Borrower of its intention to do so):
|
(i) |
use any such Relevant MNPI;
|
(ii) |
disclose any such Relevant MNPI to any potential purchaser of any or all of the Grindrod Shares or, if any Finance Party believes it is required in connection with, or upon, any such exercise, action,
proceeding or enforcement, to any other person (including the public generally), it being understood that any sale of Grindrod Shares through a stock exchange will require the dissemination of Relevant MNPI publicly; and
|
(iii) |
disclose any such Relevant MNPI in connection with, or upon, any such exercise, action, proceeding or enforcement.
|
44.3 |
DAC6
|
44.4 |
Disclosure to numbering service providers
|
(i) |
names of Transaction Obligors;
|
(ii) |
country of domicile of Transaction Obligors;
|
(iii) |
place of incorporation of Transaction Obligors;
|
(iv) |
date of this Agreement;
|
(v) |
Clause 48 (Governing Law);
|
(vi) |
the names of the Facility Agent and the Arrangers;
|
(vii) |
date of each amendment and restatement of this Agreement;
|
(viii) |
amounts of, and names of, the Facilities;
|
(ix) |
amount of Total Commitments;
|
(x) |
currency of the Facilities;
|
(xi) |
type of the Facilities;
|
(xii) |
ranking of the Facilities;
|
(xiii) |
Termination Date(s) for the Facilities;
|
(xiv) |
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xiii) above; and
|
(xv) |
such other information agreed between such Finance Party and the Borrower,
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Transaction Obligors by a numbering service provider and the information
associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c) |
Each Obligor represents, on behalf of itself and the other Transaction Obligors, that none of the information set out in sub-paragraphs (i) to (xv) of paragraph (a) above is, nor will at any time be,
unpublished price-sensitive information.
|
(d) |
The Facility Agent shall notify the Borrower and the other Finance Parties of:
|
(i) |
the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facilities and/or one or more Transaction Obligors; and
|
(ii) |
the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Transaction Obligors by such numbering service provider.
|
44.5 |
Entire agreement
|
44.6 |
Inside information
|
44.7 |
Notification of disclosure
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 44.2 (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 44 (Confidential Information).
|
44.8 |
Continuing obligations
|
(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.
|
45 |
CONFIDENTIALITY OF FUNDING RATES
|
45.1 |
Confidentiality and disclosure
|
(a) |
The Facility 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 Facility 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 Facility Agent and the relevant Lender.
|
(c) |
The Facility Agent and each Obligor may disclose any Funding Rate to:
|
(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 Facility Agent
or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
|
(d) |
any person with the consent of the relevant Lender.
|
45.2 |
Related obligations
|
(a) |
The Facility 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 Facility Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose.
|
(b) |
The Facility 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 sub-paragraph (ii) of paragraph (c) of Clause 45.1 (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 45 (Confidentiality of Funding Rates).
|
45.3 |
No Event of Default
|
46 |
COUNTERPARTS
|
47 |
THE SUBORDINATED CREDITOR AND SUBORDINATED LIABILITIES
|
47.1 |
Interpretation
|
(a) |
the acceleration of any Subordinated Liabilities or the making of any declaration that any Subordinated Liabilities are prematurely due and payable;
|
(b) |
the making of any declaration that any Subordinated Liabilities are payable on demand;
|
(c) |
the making of a demand in relation to a Subordinated Liability that is payable on demand;
|
(d) |
the making of any demand under any guarantee or indemnity in respect of any Subordinated Liabilities;
|
(e) |
the exercise of any right of set-off, account combination or payment netting against any Obligor in respect of any Subordinated Liabilities;
|
(f) |
the exercise of any right to require any member of the Group to acquire any Subordinated Liability (including exercising any put or call option against any member of the Group for the redemption or purchase
of any Subordinated Liability);
|
(g) |
the suing for, commencing or joining of any legal or arbitration proceedings against any Obligor to recover any Subordinated Liabilities;
|
(h) |
the taking of any steps to enforce or require the enforcement of any Security in respect of any Subordinated Liabilities (including the crystallisation of any floating charge forming part of that Security);
|
(i) |
the entering into of any composition, compromise, assignment or arrangement with any member of the Group which owes any Subordinated Liabilities, or has given any Security, guarantee, indemnity or other
assurance against loss in respect of any Subordinated Liabilities; or
|
(j) |
the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, administrator or similar officer) in relation to, the winding up, dissolution,
administration or reorganisation of any member of the Group which owes any Subordinated Liabilities, or has given any Security, guarantee, indemnity or other assurance against loss in respect of any of the Subordinated Liabilities, or any
of such member of the Group's assets or any suspension of payments or moratorium of any indebtedness of any such member of the Group, or any analogous procedure or step in any jurisdiction,
|
47.2 |
Subordination
|
47.3 |
Restriction on Payment
|
47.4 |
Permitted Payments
|
(a) |
that Payment constitutes a Payment of principal or interest under the Subordinated Finance Documents;
|
(b) |
no Event of Default is continuing or where such Payment would not result in the occurrence of an Event of Default;
|
(c) |
no breach of Clause 20 (Financial Covenants) has occurred; and
|
(d) |
no breach of Clause 24 (Security Cover) has occurred.
|
47.5 |
Payment obligations continue
|
47.6 |
No disposal of Subordinated Liabilities
|
47.7 |
Amendments and Waivers
|
47.8 |
Validity of Finance Documents not to be contested
|
(a) |
that any Finance Document is invalid, should be set aside or adjusted or lacks the priority which it was intended to have; or
|
(b) |
that any Payment made, or transaction entered into, under or in connection with any Finance Document was invalid or should be set aside or adjusted.
|
47.9 |
Security
|
47.10 |
Restriction on Enforcement
|
48 |
GOVERNING LAW
|
49 |
ENFORCEMENT
|
49.1 |
Jurisdiction
|
(a) |
Unless specifically provided in another Finance Document in relation to that Finance Document, the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with any
Finance Document (including a dispute regarding the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a "Dispute").
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
To the extent allowed by law, this Clause 49.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from
taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
49.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints TMI Management (UK) Limited of 3rd Floor, 142 Buckingham Palace Road, London, England, SW1W 9TR 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 a process agent 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 (on behalf of all the Obligors) must immediately (and in any event
within 10 days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
50 |
LIMITATION ON EXERCISE
|
50.1 |
Exercise Limitation
|
(a) |
Notwithstanding anything to the contrary herein or in any other Finance Document, with respect to each of the Grindrod Shares, only when there is no effective registration statement (with the U.S. Securities
and Exchange Commission) covering the resale by the Lenders of the Grindrod Shares and only prior to the Borrower owning or controling 100% of the Grindrod Shares, each Lender and any Security Agent shall not be entitled to exercise its
rights or remedies under the Finance Documents in a manner that would cause it (together with, without duplication, any Securities Affiliate of it and any other person subject to aggregation of such Grindrod Shares with it under Section 13
or Section 16 of the Exchange Act and the rules and regulations promulgated thereunder) to become at any one time the beneficial owner (within the meaning of Section 13 or Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder) of more than 9.9% of all ordinary shares in Target then issued and outstanding (the "Limit"), it being understood that the beneficial ownership of the Grindrod Shares shall be aggregated amongst all of the Lenders.
Nothing herein shall prevent any Lender or Security Agent from exercising its rights under this Agreement and any Finance Document and acquire Grindrod Shares up to the Limit, selling such Grindrod Shares to unaffiliated purchasers, and
immediately exercising any rights under this Agreement and any Finance Document and acquire additional Grindrod Shares up to the Limit.
|
(b) |
The parties to this Agreement acknowledge and agree that large blocks of equity securities are customarily sold by the seller retaining an investment bank or other financial institution (a "Block Dealer") to
send notification of such sale via e-mail and/or telephone calls, using a marketing team reasonably familiar with the issuer and the market for such equity securities, to 10 or more sophisticated equity investors who maintain accounts with
such Block Dealer (or its affiliates) (but generally not to retail investors) and then soliciting such investors to submit bids to purchase the offered securities from which bids the Block Dealer will build a book of bids for purposes of
determining the market clearing price for such offered securities, which price is typically expected to be determined within a few hours of the commencement of such offering but can be determined as soon as, for example, 30 minutes
thereafter or as long as, for example, three trading days thereafter. Furthermore, the parties to this Agreement acknowledge and agree that (i) the Security Agent may exercise its rights pursuant to the Depost Account Security and this
Clause 50 substantially concurrently or in prompt succession (including at the same time on the same day), (ii) the Security Agent may solicit bids to purchase the Grindrod Shares from any particular investor that maintains accounts with
each of such Lenders (or their respective Securities Affiliates) and (iii) the events or circumstances giving rise to certain Events of Default, and/or the event of a foreclosure on a large block of equity securities pledged by a major
shareholder, may reduce the number of investors interested in participating in the market for such equity securities and/or the price any such investor is willing to bid for such equity securities. As a result, any such sale may result in
prices and terms less favourable to any Lender or the Security Agent than those that could be obtained by selling or otherwise disposing of such Grindrod Shares in multiple transactions, over multiple days, in a broadly distributed offering
and/or in the absence of, or at a time later than the occurrence of, any adverse events or circumstances.
|
50.2 |
Affiliate status
|
(a) |
shall notify the Security Agent thereof; and
|
(b) |
notwithstanding anything to the contrary in this Agreement or in any other Finance Document, will not be entitled to any payment of the proceeds from the sale by any other Finance Party of any Grindrod Shares
or other securities of Target (other than, for the avoidance of doubt, proceeds from a sale of securities of Target directly by such Lender or its agent which securities were subject to the control of such Lender (and/or its agent) (other
than control by virtue of another Lender and/or agent acting as its agent for perfection)).
|
Corporate Guarantor
|
Place of
Incorporation
|
Registration number
(or equivalent, if any)
|
Address for
Communication
|
Taylor Maritime Investments Limited
|
Guernsey
|
69031
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
FAO: Alexander Slee
|
|||
Email: as@tminvestments.com |
TMI Holdco
|
Place of
Incorporation
|
Registration number
(or equivalent, if any)
|
Address for
Communication
|
TMI Holdco Limited
|
Marshall Islands
|
108363
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
FAO: Alexander Slee | |||
Email: as@tminvestments.com
|
Borrower
|
Place of
Incorporation
|
Registration number
(or equivalent, if any)
|
Address for
Communication
|
Good Falkirk (MI) Limited
|
Marshall Islands
|
96379
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
FAO: Alexander Slee
|
|||
Email: as@tminvestments.com
|
Existing Collateral
Guarantor
|
Place of
Incorporation
|
Registered Address
and Registration
number (or
equivalent, if any)
|
Address for Communication
|
|
Good Fiefdom (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 93643
|
Email: as@tminvestments.com
|
|||
Good Queen (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 78004
|
Email: as@tminvestments.com
|
|||
Great Fox (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 93642
|
Email: as@tminvestments.com
|
|||
Great Ewe (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 90377
|
Email: as@tminvestments.com
|
|||
Good Titan (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 73631
|
Email: as@tminvestments.com
|
Aurelius (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 108357
|
Email: as@tminvestments.com
|
|||
Gaius (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 108365
|
Email: as@tminvestments.com
|
|||
Good Earl (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 90382
|
Email: as@tminvestments.com
|
|||
Hosidius (MI) Limited
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
c/o TMI Advisors (UK) Limited, 1st Floor, 59 Markham Street, London, SW3 3NR
|
|
FAO: Alexander Slee
|
||||
Registration number: 108367
|
Email: as@tminvestments.com
|
Name of Original Lender
|
Term Loan
Commitment
|
Top Up
Commitment
|
Address for Communication
|
Nordea Bank Abp, filial i
Norge
|
$97,999,568
|
$27,000,432
|
Essendrops gate 7
0368 Oslo
Norway
For loan administration matters:
Nordea Bank Abp, filial i Norge
P.O. Box 1166 Sentrum
N-0107 Oslo, Norway
Attn: Henrik Trulsen and Didrik Biermann Wahl
E-mail: Henrik.Trulsen@nordea.com and Didrik.b.wahl@nordea.com
Phone: +47 240 13 520 and +47 240 14 647
|
Skandinaviska Enskilda
Banken AB (publ),
Singapore Branch
|
$65,330,432
|
$17,999,568
|
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6223 5644
Contact – Credit Matters:
Name: Chris Fasseland / Johan Lindström / Sze Bin Gan
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6350 1392 / +46 85062 4654 / +65 6350 1376
E-mail:chris.fasseland@seb.se / johan.lindstrom@seb.se / sze-bin.gan@seb.se
Contact – Operations/Administrations:
Name: Ms Pauline Ng / Ms Emily Heng
50 Collyer Quay
#12-03 OUE Bayfront
Singapore 049321
Telephone: +65 6357 0813 / +65 6357 0841
E-mail: singaporeloanadmin@seb.se
|
Name of Facility Agent
|
Address for Communication
|
Nordea Bank Abp, filial i Norge
|
For loan administration matters:
|
Nordea Bank Abp, filial i Norge
|
|
P.O.Box 1166 Sentrum
|
|
N-0107 Oslo, Norway
|
|
Attn: SLS Norway
|
|
E-mail: sls.norway@nordea.com
|
|
Phone: +47 240 13 444
|
|
For agency matters / if syndicated:
|
|
Nordea Bank Abp, filial i Norge
|
|
P.O.Box 1166 Sentrum
|
|
N-0107 Oslo, Norway
|
|
Attn: Loan Agency
|
|
E-mail: agency.soosid@nordea.com
|
|
Name of Security Agent
|
Address for Communication
|
Nordea Bank Abp, filial i Norge
|
For loan administration matters:
|
Nordea Bank Abp, filial i Norge
|
|
P.O.Box 1166 Sentrum
|
|
N-0107 Oslo, Norway
|
|
Attn: SLS Norway
|
|
E-mail: sls.norway@nordea.com
|
|
Phone: +47 240 13 444
|
|
For agency matters / if syndicated:
|
|
Nordea Bank Abp, filial i Norge
|
|
P.O.Box 1166 Sentrum
|
|
N-0107 Oslo, Norway
|
|
Attn: SLS Norway
|
|
E-mail: agency.soosid@nordea.com
|
1 |
Obligors
|
1.1 |
A copy of the constitutional documents of each Obligor.
|
1.2 |
A copy of a resolution of the board of directors of each Obligor:
|
(a) |
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;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation Request) to be signed and/or despatched by it under, or in
connection with, the Finance Documents to which it is a party.
|
1.3 |
An original of the power of attorney of each Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party.
|
1.4 |
A specimen of the signature of each person authorised by the resolution referred to in paragraph 1.2 above.
|
1.5 |
A copy of a resolution signed by TMI Holdco as the holder of the issued shares in the Borrower and each of the Existing Collateral Guarantors, approving the terms of, and the transactions contemplated by, the
Finance Documents to which the Borrower or each such Existing Collateral Guarantor is a party.
|
1.6 |
A certificate of each Obligor (signed by a director, officer or the company secretary, as applicable) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any
borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
|
1.8 |
A certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in this Part A of Schedule 2 (Conditions Precedent)
is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
1.9 |
If available, a certificate of good standing in respect of each Obligor.
|
2 |
Finance Documents
|
2.1 |
If applicable, a duly executed original of the Subordination Agreement and copies of each Subordinated Finance Document.
|
2.2 |
A duly executed original of any Finance Document not otherwise referred to in this in this Part A of Schedule 2 (Conditions Precedent).
|
2.3 |
A duly executed original of any other document required to be delivered by each Finance Document if not otherwise referred to this in this Part A of Schedule 2 (Conditions
Precedent).
|
3 |
Legal opinions
|
3.1 |
An agreed form legal opinion of Watson Farley & Williams LLP, London, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matter of English law, substantially in the form
distributed to the Original Lenders before signing this Agreement.
|
3.2 |
An agreed form legal opinion or legal opinions of Watson Farley & Williams LLP, New York, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matters of Marshall Islands law,
substantially in the form distributed to the Original Lenders before signing this Agreement.
|
3.3 |
An agreed form legal opinion of Mourant Ozannes (Guernsey) LLP, Guernsey, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matters
of Guernsey law, substantially in the form distributed to the Original Lenders before signing this Agreement.
|
4 |
Other documents and evidence
|
4.1 |
Evidence that any process agent referred to in Clause 49.2 (Service of process), if not an Obligor, has accepted its appointment.
|
4.2 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly in writing) in connection
with the entry into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document.
|
4.3 |
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 Term Loan Initial Borrowing Date.
|
4.4 |
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions
contemplated by the Finance Documents.
|
1 |
Obligors
|
1.1 |
Documents of the kind specified in Schedule 2, Part A, paragraph 1 of this Agreement.
|
2 |
Ship, Shares and other Security
|
2.1 |
A duly executed original of:
|
(a) |
the Mortgage together with, if applicable, the Deed of Covenant in respect of the Ship;
|
(b) |
the General Assignment in respect of the Ship; and
|
(c) |
each document to be delivered under or pursuant to the Mortgage, the Deed of Covenants (if applicable) and the General Assignment, save for any acknowledgments which shall be provided within any applicable
time periods specified in the General Assignment.
|
2.2 |
Documentary evidence that the Mortgage in respect the Ship has been duly registered or recorded as a valid first preferred or priority ship mortgage in accordance with the laws of the jurisdiction of its
Approved Flag.
|
2.3 |
Documentary evidence that the Ship:
|
(a) |
is definitively and permanently registered in the name of the Collateral Guarantor under the Approved Flag applicable to the Ship;
|
(b) |
is in the absolute and unencumbered ownership of the Collateral Guarantor save as contemplated by the Finance Documents;
|
(c) |
maintains the Approved Classification with the Approved Classification Society free of all overdue recommendations and conditions of the Approved Classification Society; and
|
(d) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
2.4 |
The Framework Agreement or any other documents establishing that the Ship will be managed commercially by the Approved Commercial Manager and managed technically by the Approved Technical Manager on terms
acceptable to the Facility Agent acting with the authorisation of all of the Lenders, together with:
|
(a) |
a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager of the Ship; and
|
(b) |
copies of the relevant Approved Technical Manager's Document of Compliance and of that Ship’s Safety Management Certificate (together with any other details of the applicable Safety Management System which
the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Ship including without limitation an ISSC.
|
2.5 |
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require.
|
2.6 |
Two valuations in respect of the Ship, addressed to the Corporate Guarantor and the Facility Agent on behalf of the Finance Parties, from Approved Valuers and dated not earlier than 30 days before the Term
Loan Initial Borrowing Date, which evidence that the aggregate amount of the Advance made on the Term Loan Initial Borrowing Date does not exceed 55% of the aggregate of the Shares Market Value and the Ship Market Value of the Ship and any
other Ship then subject (or to be subject) to a Mortgage.
|
2.7 |
If applicable, a copy of the certificate, being the document listing all the potentially hazardous materials on board the Ship.
|
2.8 |
A duly executed original of the Deposit Account Security in respect of the Existing Shares and any of the Target Shares owned by the Borrower on the Term Loan Initial Borrowing Date and of each document
to be delivered under it, save for any acknowledgements which shall be provided within the applicable time period specified in the relevant Deposit Account Security.
|
2.9 |
A duly executed original of:
|
(a) |
the Account Security in relation to each Earnings Account;
|
(b) |
the Shares Security in respect of the Collateral Guarantor and the Borrower; and
|
(c) |
each document to be delivered under such Account Security and Shares Security, save for any acknowledgments which shall be provided within any applicable time periods specified in the relevant Account
Security.
|
3 |
Transaction Documents
|
3.1 |
A certified true copy of each duly executed and dated Acquisition Document and any applicable Acquisition Documents and of each document to be delivered under each of them.
|
3.2 |
A certificate of the Corporate Guarantor (signed by a director) detailing the estimated Acquisition Costs.
|
4 |
Legal opinions
|
4.1 |
An agreed form legal opinion of Watson Farley & Williams LLP, London, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matter of English law, substantially in the form
distributed to the Original Lenders before the Term Loan Initial Borrowing Date.
|
4.2 |
An agreed form legal opinion or legal opinions of Watson Farley & Williams LLP, New York, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matters of Marshall Islands law,
substantially in the form distributed to the Original Lenders before the Term Loan Initial Borrowing Date.
|
4.3 |
An agreed form legal opinion of Watson Farley & Williams LLP, Germany, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matter of German law, substantially in the form
distributed to the Original Lenders before the Term Loan Initial Borrowing Date.
|
4.4 |
An agreed form legal opinion of Watson Farley & Williams LLP, Hong Kong, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matter of Hong Kong law, substantially in the form
distributed to the Original Lenders before the Term Loan Initial Borrowing Date.
|
4.5 |
An agreed form legal opinion of Bowman Gilfillan Inc., South Africa, legal advisers to the Arrangers, the Facility Agent and the Security Agent as to matters of
South African law, substantially in the form distributed to the Original Lenders before the Term Loan Initial Borrowing Date.
|
5 |
Other documents and evidence
|
5.1 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the
entry into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document.
|
5.2 |
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 Closing Date.
|
5.3 |
Evidence that the Borrower has at least $100,000,000 worth of cash on its balance sheet derived from the issuance of common stock in the Corporate Guarantor and/or the Corporate Guarantor’s ordinary course of
business.
|
1.1 |
Documents of the kind specified in Schedule 2, Part A, paragraph 1 of this Agreement.
|
2 |
Other documents and evidence
|
2.1 |
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 Top Up Initial Borrowing Date.
|
2.2 |
A copy of any other Authorisation or other document, opinion or assurance which the Lender considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry
into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document.
|
2.3 |
In the case of the first Advance under the Top Up Facility on the Top Up Initial Borrowing Date, evidence that:
|
(a) |
the Borrower has received, or will receive, a Special Dividend (as defined in Clause 7.10 (Mandatory prepayment on payment of dividends by Target)) in relation to the
Existing Shares or, if Target’s board of directors does not recommend the Offer and the Special Dividend has not been declared and/or is no longer payable, a viable sources and uses plan prepared by the Borrower or the Borrower’s financial
advisers detailing a revised Offer based on cash only acceptable to the Lenders in all respects and approved by each Lender’s credit committee; and
|
(b) |
the m.v. “Mega Maggie” (IMO No. 9379674) has been sold and that the Corporate Guarantor (or any Subsidiary of the Corporate Guarantor) has received the sale proceeds from such sale.
|
From:
|
Good Falkirk (MI) Limited
|
|
|
To:
|
Nordea Bank Abp, Filial i Norge
|
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 an Advance under the [Term Loan][Top Up] Facility on the following terms:
|
Proposed Utilisation Date:
|
[●] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
$[●] or, if less, the Available Facility
|
Interest Period for the [first] Advance:
|
[●]
|
3 |
[You are authorised and requested to deduct from the Advance prior to funds being remitted the following amounts set out against the following items:
|
Deductible Items
|
$
|
[Specify any Fee referred to in a Fee Letter]
|
|
Facility Agent's solicitors' fees inclusive of disbursements and VAT
|
|
Net proceeds of Advance
|
_____________]
|
4 |
We confirm that:
|
4.1 |
each condition specified in Clause 4.1 (Initial conditions precedent) and, unless Clause Clause 4.5 (Utilisations during the Certain
Funds Period) applies, Clause 4.2 (Further conditions precedent) or, to the extent applicable, Clause 4.5 (Utilisations during the Certain Funds Period)
of the Agreement as they relate to the Advance to which this Utilisation Request refers, is satisfied on the date of this Utilisation Request; and
|
4.2 |
the amount of the Advance will solely be used for the purpose stated in the preamble (Background) to the Agreement.
|
5 |
The net proceeds of this Advance should be credited to the following Settlement Account[s][, the Nostro Account][and the Non-Settlement Account] as follows:
|
(a)
|
[Nostro Account:
|
$[●]
|
[Insert account details including details for ZAR Settlement Account]
|
5.2
|
USD Settlement Account:
|
$[●]
|
[Insert account details]
|
5.3
|
Non-Settlement Account:
|
$[●]
|
[Insert account details]]1
|
6 |
[We hereby undertake to use the amount to be credited to the Non-Settlement Account solely for the purposes of (a) paying fees, costs, expenses and other Taxes incurred on or behalf of any Obligor in
connection with the Acquisition, the Finance Documents, and the Acquisition Documents and/or (y) refinancing any funds paid out by us out of our own funds to acquire any Target Shares in excess of $100,000,000.]2
|
7 |
This Utilisation Request is irrevocable.
|
|
|
[●]
|
|
authorised signatory for
|
|
Good Falkirk (MI) Limited
|
To: |
Nordea bank Abp, Filial i Norge as Facility Agent
|
From:
|
[Subsidiary] and Good Falkirk (MI) Limited
|
3 |
The Borrower confirms that no Default is continuing or would occur as a result of [Subsidiary] becoming Collateral Guarantor.
|
4 |
5 |
[Subsidiary] (for the purposes of this paragraph 5, the "Acceding Debtor") intends to incur Secured Liabilities under the following documents:
|
(a) |
The Acceding Debtor and the Security Agent agree that the Security Agent shall hold:
|
(i) |
any Security in respect of the Secured Liabilities created or expressed to be created pursuant to the Relevant Documents;
|
(ii) |
all proceeds of that Security;
|
(iii) |
all obligations expressed to be undertaken by the Acceding Debtor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the Secured Parties (in the Relevant Documents or
otherwise) 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 for the
Secured Parties,
|
6 |
This Accession Deed and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
[Subsidiary]
|
||
EXECUTED AS A DEED
|
||
For and on behalf of
|
||
[insert name of Subsidiary]
|
||
|
||
By: [insert name]
|
||
Title: [Officer][Attorney-in-fact]
|
||
Good Falkirk (MI) Limited
|
||
EXECUTED AS A DEED
|
||
For and on behalf of
|
||
Good Falkirk (MI) Limited
|
||
By: [insert name]
|
||
Title: [Officer][Attorney-in-fact]
|
||
The Security Agent
|
||
EXECUTED AS A DEED
|
||
By: Nordea Bank Abp, Filial i Norge
|
||
|
Authorised signatory
|
|
|
Authorised signatory
|
To:
|
Nordea Bank Abp, Filial i Norge as Facility Agent and all Lenders
|
From:
|
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
|
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 27.5 (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 novation 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 Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 27.5 (Procedure for
transfer) of the Agreement.
|
(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 36.2 (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 27.4 (Limitation of responsibility of Existing
Lenders) of the Agreement.
|
4 |
[Only if prior to the date that the Borrower owns or controls 100% of the Grindrod Shares:] The New Lender warrants and represents that it (A) is a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act, a "qualified purchaser" within the meaning of Section 2(a)(51) of the U.S. Investment Company Act of 1940, and an "accredited investor" as defined in Section 2(a)(15)(ii) of the Securities Act and is entering into
this Certificate as principal and not for the benefit of any third party; (B) is not the Borrower or Target or an "affiliate" (within the meaning of Rule 144) of the Borrower or Target; (C) fully understands any restrictions on transfers,
sales and other dispositions in the Finance Documents or relating to any Collateral consisting of the Existing Shares and other securities; (D) is able to bear the economic risk of its investment in its investment and is currently able to
afford a complete loss of such investment; (E) will only assign or transfer its contribution or sell its participation or participations therein pursuant to documentation including the Purchaser Representations; (F) acknowledges that the
Existing Shares and other securities forming part of the Collateral cannot be sold without registration under the Securities Act or under an available exemption from the registration requirements under the Securities Act, including, if
available, the exemption provided by Rule 144; (G) acknowledges that it is not entering into this Certificate on the basis of any material non-public information with respect to any of the Borrower or Target, their respective subsidiaries
and their securities, and, if applicable, it has implemented reasonable policies and procedures, taking into consideration the nature of its business, to ensure that individuals making investment decisions would not violate the laws
prohibiting trading on the basis of material non-public information (it being understood that it may have material non-public information on the private side of its information wall, sometimes referred to as a "Chinese Wall", at the time of
such assignment or participation); provided that, for the avoidance of doubt, "material non-public information” concerning any of the Borrower or Target, their respective subsidiaries and their securities shall not include any information
made available to both the assignee and the assignor, both the transferee and the transferor or both the sub participant and the seller of a participation interest, as the case may be, and (H) has made an independent decision to enter into
this Certificate based on information available to it, which it has determined adequate for the purpose.
|
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.
|
6 |
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are is governed by English law.
|
7 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
[New Lender]
|
By: [●]
|
By: [●]
|
To: |
Nordea Bank Abp, Filial i Norge as Facility Agent and Good Falkirk (MI) Limited as Borrower, for and on behalf of each Transaction
Obligor
|
From:
|
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2 |
We refer to Clause 27.6 (Procedure for assignment) of the Agreement:
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to
that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule.
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
(d) |
All rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the
Existing Lender's title and of any rights or equities which the Borrower or any other Transaction Obligor had against the Existing Lender.
|
3 |
The proposed Transfer Date is [●].
|
4 |
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5 |
The Facility Office and address and attention details for notices of the New Lender for the purposes of Clause 36.2 (Addresses) of the Agreement are set out in the
Schedule.
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 27.4 (Limitation of responsibility of Existing
Lenders) of the Agreement.
|
7 |
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 27.7 (Copy of Transfer
Certificate or Assignment Agreement to Borrower) of the Agreement, to the Borrower (on behalf of each Transaction Obligor) of the assignment referred to in this Assignment Agreement.
|
8 |
This Assignment Agreement 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 Assignment Agreement.
|
9 |
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
10 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
[Existing Lender]
|
[New Lender]
|
By: [●]
|
By: [●]
|
To:
|
Nordea Bank Abp, Filial i Norge as Facility Agent
|
From:
|
Taylor Maritime Investments Limited
|
1 |
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance
Certificate.
|
2 |
We confirm that the Group maintains on a consolidated basis:
|
2.1 |
Adjusted Equity ratio: an Adjusted Equity of no less than [35][40]3% of the sum of the
liabilities and Adjusted Equity;
|
3 |
We further confirm that the Collateral Maintenance Ratio set out in sub-paragraph (b) of Clause 24.1 (Minimum required security cover) is [●]%, i.e. more than 140%.
|
4 |
We confirm that no Default is continuing.
|
Signed:
|
|
|||
Director
|
Director
|
|||
of
|
of
|
|||
Taylor Maritime Investments Limited
|
Taylor Maritime Investments Limited
|
Delivery of a duly completed Utilisation Request
(Clause 5.1 (Delivery of a Utilisation Request))
|
On or before 9:00am Oslo time one (1) day (other than a Saturday or Sunday) on which banks are open for general business in Oslo, Singapore, Stockholm and New York before the intended
Utilisation Date (Clause 5.1 (Delivery of a Utilisation Request)) or such shorter period as the Facility Agent may approve.
|
Facility Agent notifies the Lenders of the
Advance in accordance with Clause 5.4 (Lenders'
participation)
|
If a Utilisation Request is served before 30 October 2022, on or before Noon Oslo time and, on or after 30 October 2022, on or before 11:00am Oslo time, in each case one (1) day (other
than a Saturday or Sunday) on which banks are open for general business in Oslo, Singapore, Stockholm and New York before the intended Utilisation Date or such shorter period as the Lenders may approve.
|
Reference Rate is fixed
|
Quotation Day
|
Existing Ship, IMO No. and
Year of Build
|
Type
|
Existing Collateral
Guarantor
|
Approved Flag
|
m.v. "Assay"
IMO No: 9370422
2008
|
Handysize
|
Good Fiefdom (MI) Limited
|
Marshall Islands
|
m.v. "Dally"
IMO No: 9473597
2009
|
Handysize
|
Good Queen (MI) Limited
|
Marshall Islands
|
m.v. "Bald Eagle"
IMO No: 9400904
2009
|
Handysize
|
Great Fox (MI) Limited
|
Marshall Islands
|
m.v. "Mighty Maud"
IMO No: 9336775
2007
|
Handysize
|
Great Ewe (MI) Limited
|
Marshall Islands
|
m.v. "Lady Laura"
IMO No: 9338589
2008
|
Handysize
|
Good Titan (MI) Limited
|
Marshall Islands
|
m.v. "Lovely Leah"
IMO No: 9604770
2012
|
Handysize
|
Aurelius (MI) Limited
|
Marshall Islands
|
m.v. "Majestic Marina"
IMO No: 9378826
2009
|
Handysize
|
Gaius (MI) Limited
|
Marshall Islands
|
m.v. "Merry Marie"
(previously known as
"Golden Bonnie")
IMO No: 9400875
2009
|
Handysize
|
Good Earl (MI) Limited
|
Marshall Islands
|
m.v. "Graceful Gertrude"
IMO No: 9370408
2008
|
Handysize
|
Hosidius (MI) Limited
|
Marshall Islands
|
BORROWER
|
||
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
GOOD FALKIRK (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom)
|
||
CORPORATE GUARANTOR
|
||
SIGNED by
|
/s/ Sandra Platts
|
)
|
)
|
||
as director(s)
|
)
|
|
for and on behalf of
|
)
|
|
TAYLOR MARITIME INVESTMENTS LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ Matt Falla
|
)
|
Witness' name:
|
Matt Falla
|
)
|
Witness' address:
|
Sarnia House
|
|
Le Truchot
|
||
St Peter Port
|
||
Guernsey
|
)
|
|
GUARANTOR
|
||
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
TMI HOLDCO LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
COLLATERAL GUARANTORS
|
||
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
GOOD FIEFDOM (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
|
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
GOOD QUEEN (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
|
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
GREAT FOX (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
GREAT EWE (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
|
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
GOOD TITAN (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
|
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
AURELIUS (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
SIGNED by by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
GAIUS (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
|
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
GOOD EARL (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
|
SIGNED by
|
/s/ Freya Reevell
|
)
|
)
|
||
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
HOSIDIUS (MI) LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
ORIGINAL LENDERS
|
||
SIGNED by
|
/s/ Tabishe Arshad
|
)
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
NORDEA BANK ABP, FILIAL I NORGE
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
|
SIGNED by
|
/s/ Tabishe Arshad
|
)
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
SKANDINAVISKA ENSKILDA
|
)
|
|
BANKEN AB (PUBL), SINGAPORE BRANCH
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
|
ARRANGERS
|
||
SIGNED by
|
/s/ Tabishe Arshad
|
)
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
NORDEA BANK ABP, FILIAL I NORGE
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom
|
)
|
SIGNED by
|
/s/ Tabishe Arshad
|
)
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
SKANDINAVISKA ENSKILDA
|
)
|
|
BANKEN AB (PUBL), SINGAPORE BRANCH
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom)
|
||
FACILITY AGENT
|
||
SIGNED by
|
/s/ Tabishe Arshad
|
)
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
NORDEA BANK ABP, FILIAL I NORGE
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom)
|
||
SECURITY AGENT
|
||
SIGNED by
|
/s/ Tabishe Arshad |
)
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
NORDEA BANK ABP, FILIAL I NORGE
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom)
|
COORDINATOR
|
||
SIGNED by
|
/s/ Tabishe Arshad
|
)
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
NORDEA BANK ABP, FILIAL I NORGE
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
/s/ S. Sadhika
|
)
|
Witness' name:
|
S. Sadhika
|
)
|
Witness' address:
|
Watson Farley & Williams LLP
|
|
15 Appold Street
|
||
London EC2A 2HB
|
||
United Kingdom)
|